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Keller v. Keller

Supreme Court of North Dakota

May 16, 2017

Nichole R. Keller, Petitioner
v.
Karen D. Keller, Respondent and Appellant

         Appeal from the District Court of McHenry County, Northeast Judicial District, the Honorable John C. McClintock, Jr., Judge.

          Nichole R. Keller, petitioner; no appearance.

          Michael S. McIntee, Towner ND 58788, for respondent and appellant.

          OPINION

          Crothers, Justice.

         [¶ 1] Karen Keller appeals after a district court entered a disorderly conduct restraining order against her. Karen Keller argues the district court abused its discretion in issuing the order because she did not make a threat of harm against Nichole Keller and her actions were constitutionally protected. Nichole Keller did not file a brief. We reverse the disorderly conduct restraining order against Karen Keller.

         I

         [¶ 2] Karen Keller is married to Chad Keller. Chad Keller previously was married to Nichole Keller and they had three children together. According to Nichole Keller, she emailed Chad Keller on August 14, 2016, stating she would like to pick up the two youngest children. Chad Keller responded that the children did not want to go with her. Nichole Keller sent another email later in the day saying she would come at 5:00 p.m. to see the children. On August 14, 2016 Nichole Keller, accompanied by Rachel Parker, went to Chad Keller's home to see her youngest daughter. Nichole Keller arrived at Chad Keller's rural property around 5:00 p.m., but stayed at the end of the property line.

         [¶ 3] According to Nichole Keller, when she arrived Karen Keller came outside with her hands behind her back. Nichole Keller and Karen Keller were about 200 feet away from each other. Rachel Parker asked Karen Keller to get Nichole Keller's daughter. When Karen Keller turned to get the child they noticed Karen Keller was holding a handgun behind her back. Nichole Keller and Rachel Parker asked Karen Keller why she was carrying the handgun and Karen Keller responded she did not know the person Nichole Keller was with and did not trust her. Nichole Keller testified that Karen Keller did not point the gun at her or make any threatening or violent statements. According to Nichole Keller, she is fearful for her life and the safety of her kids because of the August 14, 2016 incident. Nichole Keller and Rachel Parker left the residence and called the police. A deputy arrived and interviewed the parties.

         [¶ 4] Nichole Keller filed a petition for a disorderly conduct restraining order against Karen Keller regarding the August 14, 2016 events. The district court issued a temporary disorderly conduct restraining order and set a hearing. After hearing the testimony the district court ruled from the bench, finding reasonable grounds to support a disorderly conduct restraining order and issued a disorderly conduct restraining order against Karen Keller effective for one year. Karen Keller appeals.

         II

         [¶ 5] Karen Keller argues the district court erred in granting the disorderly conduct restraining order. This Court's standard when reviewing a district court's decision on a disorderly conduct restraining order is well settled:

"This Court will not reverse a district court's decision to grant a restraining order or to conduct a hearing absent an abuse of discretion. The district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, when it misinterprets or misapplies the law, or when its decision is not the product of a rational mental process leading to a reasoned determination."

Combs v. Lund, 2015 ND 10, ¶ 4, 858 N.W.2d 311 (quoting Hanisch v. Kroshus, 2013 ND 37, ¶ 9, 827 N.W.2d 528).

         [¶ 6] Karen Keller argues the district court abused its discretion in finding reasonable grounds supporting the restraining order and by not concluding her actions were constitutionally protected. Karen Keller contends the mere holding of a weapon while on rural property and in a non-threatening manner ...


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