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O'Hara v. Schneider

Supreme Court of North Dakota

June 29, 2017

Keaton J. O'Hara, Plaintiff and Appellee
Keanna S.K. Schneider, Defendant and Appellant

         Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable William A. Herauf, Judge.

          Markus 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 appellant.


          Tufte, Justice.

         [¶ 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 ...

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