Keaton J. O'Hara, Plaintiff and Appellee
Keanna S.K. Schneider, Defendant and Appellant
from the District Court of Stark County, Southwest Judicial
District, the Honorable William A. Herauf, Judge.
A. Powell (on brief), Ashley H. Hurlbert (appeared), and
Lexie Hoemberg (argued), third-year law student, under the
Rule on Limited Practice of Law by Law Students, Dickinson,
N.D., for plaintiff and appellee.
Kristin A. Redmann, Bismarck, N.D., for defendant and
1] Keanna Schneider originally appealed a district court
order denying her motion to modify the parenting time of
Keaton O'Hara from unsupervised to supervised parenting
time. O'Hara v. Schneider, 2017 ND 53, ¶ 1,
890 N.W.2d 831. In O'Hara, we held the trial
court erred by improperly excluding evidence, making
insufficient findings, and misapplying the law in analyzing
the parties' conduct. We remanded for further proceedings
and retained jurisdiction under N.D.R.App.P. 35(a)(3). On
remand, the district court issued additional findings and an
amended order. We affirm, concluding that the district court
complied with our mandate by holding an evidentiary hearing
and that its additional findings were not clearly erroneous.
2] We set forth the relevant facts in O'Hara,
2017 ND 53, ¶¶ 2-5, 890 N.W.2d 831:
Schneider and O'Hara began dating when they were both
juniors in high school, and their child was born two years
later, in late 2014. By then, the relationship had begun to
deteriorate and ended shortly thereafter. O'Hara
exhibited anger problems, which manifested themselves in
violent acts. During a dispute in a car, O'Hara made
threatening comments about taking out his handgun before he
began driving erratically, causing Schneider to fear for her
life. His violent acts continued over the next year and a
half. He kicked a dog in front of their child. He pled guilty
to disorderly conduct in June 2015 and again in January 2016
for incidents during which he was violent toward Schneider.
O'Hara also displayed controlling behavior during this
period. He frequently interfered in Schneider's life and
expressed hatred for her boyfriend. He used their child on
multiple occasions to control the mother's actions. For
example, he would threaten not to return the child unless
Schneider answered his text messages. As a whole, the record
reflects Schneider being stern but civil toward the father.
In December 2015, O'Hara and Schneider agreed to a
parenting plan in which Schneider would have primary
residential responsibility over the child. The record
reflects that O'Hara's hostile behavior toward
Schneider continued at least through January 2016. In May,
the parents arranged to exchange their child at a
correctional center. A security camera recorded the exchange,
and it shows O'Hara punching Schneider in the face,
knocking her to the ground. Police officers arrested
O'Hara. Schneider testified that as a result of this
incident, the child was traumatized and lost sleep for a
month. Following this incident, the State charged O'Hara
with aggravated assault, a class C felony. He pled guilty to
a reduced charge.
The day after the assault, Schneider sought a domestic
violence restraining order against O'Hara. At the hearing
on the restraining order, the district court commented that
the domestic violence was between the parties, not the
parties and the child, finding significance in a lack of
"direct threat" between O'Hara and the child.
After receiving the restraining order against O'Hara,
Schneider moved the district court to modify O'Hara's
parenting time from unsupervised to supervised. During the
modification hearing, the court refused to allow any
testimony regarding events that had occurred before the
December 2015 order establishing primary residential
responsibility and parenting time. The district court
ultimately denied Schneider's request to restrict
O'Hara's parenting time, reasoning that O'Hara
committed domestic violence against the mother but not the
child. We note that the protection order hearing and the
modification hearing were held before different district
judges, but both apparently labored under the same
misconception that domestic violence between parents can be
discounted if a child is not directly threatened.
3] We concluded the district court's errors required
reversal, and we remanded with instructions for the court to
make additional findings under the relevant law. See
O'Hara, 2017 ND 53, ¶ 29, 890 N.W.2d 831. We
retained jurisdiction. Id.
4] On remand, the district court held an evidentiary hearing
for the purpose of making additional findings, and the
parties presented new evidence. O'Hara presented direct
testimony in the form of several affidavits attesting to his
parenting abilities and his strong emotional bond with the
child. He also presented his own testimony and that of his
anger management counselor, who testified that she had
treated O'Hara regarding his anger and coping issues.
Schneider presented evidence that O'Hara was convicted of
violating the conditions of his domestic violence protection
order in August 2016 for sending her a text message and may
have again violated the order in November and in March 2017.
5] In her supplemental brief, Schneider asserts the district
court failed to comply with our instruction by holding a new
evidentiary hearing. She also argues ...