from the District Court of Cass County, East Central Judicial
District, the Honorable Susan Lynne Bailey, Judge.
Jennifer Michelle Williams, petitioner; no appearance.
Victoria C. Jones (argued) and Leslie Johnson Aldrich
(appeared), Fargo, N.D., for respondent and appellant.
1] Aron Williams appeals from a two-year disorderly conduct
restraining order prohibiting him from having contact with
Jennifer Williams. We reverse and remand for the district
court to address Aron Williams' claim that he was engaged
in constitutionally protected activity.
2] Aron and Jennifer Williams were married in April 2015,
have two minor children together, and resided in Jamestown.
They separated in April 2016 and are in the process of
obtaining a divorce in Stutsman County. After the separation,
Jennifer Williams moved to West Fargo. In June 2016, Jennifer
Williams filed for a temporary domestic violence protection
order against Aron Williams in Cass County, but the parties
stipulated to dismissal of the order and the district court
in the divorce action ordered that exchanges for Aron
Williams' parenting time with one of the children occur
at Rainbow Bridge in Moorhead, Minnesota. In December 2016,
Jennifer Williams moved to modify the provisions of an
interim order on child support, attorney fees, spousal
support, and parenting time in the Stutsman County divorce
proceedings. On January 13, 2017, the district court granted
the motion and ordered exchanges of the children to occur at
the West Fargo Police Department.
3] On January 30, 2017, Jennifer Williams filed a petition
for a disorderly conduct restraining order against Aron
Williams in Cass County, alleging he committed several acts
intended to adversely affect her safety, security, and
privacy. Although Jennifer Williams testified about several
acts of alleged disorderly conduct, the district court
indicated the only incidents it would consider were those
that occurred after the January 13, 2017, amended interim
order was entered in the divorce action. Jennifer Williams
testified that during an exchange on January 19, 2017, Aron
Williams told her "to go suck on your own vagina for a
while" after she asked him if one of the children was
buckled into a car seat. She also alleged that during an
exchange on January 29, 2017, he blocked her vehicle in with
his vehicle and "yell[ed]" to the child that
"I know you don't love your mother... do you want to
come home with daddy?" Aron Williams' attorney
argued that Aron's words constituted constitutionally
protected free speech, and the parties argued the
constitutional issue before the court.
4] The district court ruled from the bench:
What I've observed from the witnesses and have heard from
the witnesses is a history of domestic violence,
victimization of the Plaintiff and intimidation of the
Plaintiff by the Defendant. Words, acts, and gestures that
are intended to adversely affect the safety, security or
privacy of another person constitute disorderly conduct. I
find that there are reasonable grounds to believe that the
Respondent has engaged in disorderly conduct. Specifically
blocking her, yelling at her--and I'm focusing on the
January incidents of exchanges. They are volatile, it's
not a peaceful exchange, it's upsetting to the child,
it's upsetting to the Plaintiff. There is not calm and
it's just a risky situation and I'm going to error in
safety for both the Plaintiff and for the children that are
involved in these exchanges.... I base my decision on conduct
that occurred in Cass County and occurred since the entry of
the Stutsman County prior order.
written disorderly conduct restraining order does not provide
any further analysis, but merely prohibits Aron Williams from
having contact with Jennifer Williams for a two-year period.
5] Aron Williams raises two procedural issues that he claims
prohibited the Cass County district court from exercising
jurisdiction over the petition for the disorderly conduct
6] First, Aron Williams argues the Cass County proceeding was
barred by res judicata based on the temporary domestic
violence order which was issued in June 2016 and the January
13, 2017, amended interim order issued in the Stutsman County
divorce proceedings. However, "[t]he doctrine of res
judicata only prohibits relitigation of a claim or issue
resolved by a final decision." Saakian v. N.D.
Workers Comp. Bureau, 1998 ND 227, ¶ 17, 587 N.W.2d
166. The June 2016 order was dismissed without prejudice by
stipulation of the parties, so no final order exists.
Regarding the January 13, 2017, amended interim ...