IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2025 ND 18
Samantha Davis,
Samantha Davis o/b/o HJR & CER, Petitioners
v.
Richard Romanyshyn, Respondent and Appellant
No. 20240167
Appeal from the District Court of Hettinger County, Southwest Judicial District,
the Honorable James D. Gion, Judge.
REMANDED.
Opinion of the Court by Jensen, Chief Justice.
Tatum O’Brien and Madison Marchus, Fargo, ND, for respondent and appellant;
submitted on brief.
Davis v. Romanyshyn
No. 20240167
Jensen, Chief Justice.
[¶1] Richard Romanyshyn appeals an amended order from the district court
granting Samantha Davis a two-year disorderly conduct restraining order
against Romanyshyn. The order includes two minor children not listed as
petitioners as protected parties. Romanyshyn argues the court abused its
discretion in: (1) finding reasonable grounds to issue the disorderly conduct
restraining order; (2) allowing Davis to rely solely on her petition and denying
Romanyshyn the opportunity to cross-examine her, thereby denying him the
right to a full hearing on the matter; (3) issuing insufficient findings to support
the decision to grant the disorderly conduct restraining order; and (4) including
the parties’ two minor children as protected parties. We conclude the court
deprived Romanyshyn of a full evidentiary hearing and we remand the
disorderly conduct restraining order for a full evidentiary hearing consistent
with this opinion. We direct that any disorderly conduct restraining order issued
upon remand not conflict with the parental responsibility order.
I
[¶2] In April 2024, Davis filed a petition for a disorderly conduct restraining
order. The district court granted a temporary disorderly conduct restraining
order along with an order outlining the court’s intended hearing procedure.
Romanyshyn was served, and a hearing was set for late April 2024.
[¶3] The order defining the hearing procedure provided the hearing would be
limited to 15 minutes unless either of the parties wished to exercise their right to
a full evidentiary hearing. The following steps were required to request a full
evidentiary hearing: (1) the requesting party was required to file and serve a
notice of witnesses the party intended to have testify at the evidentiary hearing
and (2) the requesting party was required to file a summary of each witnesses’
anticipated testimony. Both the request for a full evidentiary hearing and the
witness summaries were required to be served and filed three days before the
scheduled hearing. The procedural order further provided that if neither party
1
made a timely request for a full evidentiary hearing, all evidence was required
to be presented by affidavit. With regard to evidence provided by affidavit, the
order provided the following:
Evidence presented by affidavit may not be considered unless the
party offering the affidavit makes the affiant available for cross-examination at the time of the hearing. A party wishing to exercise
his or her right to cross-examine any affiant must notify the party
offering the affidavit testimony at least twenty-four (24) hours
before the start of the hearing or the right to cross-examine shall be
considered to be waived.
[¶4] Davis did not request a full evidentiary hearing but did file a notice of
intent to cross-examine Romanyshyn. Romanyshyn argues he requested a full
evidentiary hearing and filed a notice of intent to cross-examine when he filed
an answer. The district court determined his answer was not a request for a full
evidentiary hearing nor a notice of intent to cross-examine because he failed to
follow the procedure stated in the order for hearing procedure. Romanyshyn
filed an affidavit, but Davis did not. The hearing was limited to arguments
provided by Davis’s counsel and Romanyshyn, along with Davis’s petition and
Romanyshyn’s affidavit.
[¶5] After the hearing, the district court granted Davis a two-year disorderly
conduct restraining order against Romanyshyn. The disorderly conduct
restraining order was subsequently amended to include the parties’ two minor
children as protected parties in conflict with an existing parental responsibility
order.
II
[¶6] Romanyshyn argues the district court’s hearing procedure violated his
right to a full evidentiary hearing mandated under N.D.C.C. § 12.1–31.2–01(1).
We review the court’s manner of conducting a hearing for abuse of discretion.
Brown v. Brown, 2020 ND 135, ¶ 5,
945 N.W.2d 269. A court abuses its discretion
“only when it acts arbitrarily, capriciously, or unreasonably, or when it
misapplies the law.” Id.
2
[¶7] Before a district court may grant a petition for a disorderly conduct
restraining order, the court must conduct a full evidentiary hearing. N.D.C.C. §
12.1–31.2–01(4). In Cusey v. Nagel, this Court addressed the requirements of a
“full hearing”:
We have held that a trial court conducts a “full hearing” on a
disorderly conduct restraining order petition by accepting affidavits
and allowing cross-examination, at least when the parties raise no
objection to the form of the hearing. Cusey did not object to the form
of the hearing. Nevertheless, we believe the better practice is to
allow the petitioner to present evidence through his own or other
persons’ testimony, rather than through the affidavit accompanying
the petition. The primary purpose of an evidentiary hearing is to
allow the parties to present evidence through testimony and allow
the factfinder to hear and view the witnesses, assess their credibility,
and thereby resolve factual disputes. This purpose is undermined
when one of the parties to the proceeding is limited to presenting
evidence in his case in chief only by affidavit. Also the affidavits
often contain hearsay, which must be disregarded. While a
petitioner cannot through testimony raise new allegations without
notice to the respondent, . . . the allegations in the petition should be
established through sworn testimony of the petitioner and other
witnesses at the time of the hearing, and the respondent and other
witnesses should have an opportunity to respond to the petitioner’s
allegations with admissible evidence. The petition and affidavit
itself is hearsay, since it is an out-of-court statement made to prove
the truth of the allegations, and is not admissible in evidence under
N.D.R.Ev. 801(c). No written response of the respondent is provided
for in N.D.C.C. § 12.1–31.2–01(5), and a hearing on the petition
should, at a minimum, require the petitioner to prove the allegations
by admissible evidence at the hearing, and provide an opportunity
for the respondent to appear and contest the issuance of a restraining
order by offering admissible evidence in opposition to the
petitioner’s claims. Although the disorderly conduct restraining
order statute seeks to quickly and effectively combat volatile
situations before any tragic escalation, . . . the concern for
expeditious proceedings should not override the need to fairly
resolve factual disputes.
3
2005 ND 84, ¶ 15,
695 N.W.2d 697 (cleaned up). Due process requirements must
be met due to the restraint and stigma of a restraining order. Gullickson v. Kline,
2004 ND 76, ¶ 8,
678 N.W.2d 138.
[¶8] In Brown, the district court explained that evidence “would be taken by
affidavit only and a party seeking to cross-examine an affiant must notify the
opposing party at least twenty-four hours before the hearing.”
2020 ND 135, ¶ 2.
The court denied an untimely notice of cross-examination filed by the
responding party. Id. at ¶ 3. The petitioner’s affidavit was accepted and the
protection order was subsequently granted by the court. Id. at 4. On appeal, this
Court found there was a denial of a full evidentiary hearing because “the court
relied solely on the hearsay in [the petitioner’s] affidavit and gave [the
respondent] no opportunity to present [their] own relevant evidence or cross-examine the affiant.” Id. at ¶ 12. This Court reversed the protection order and
remanded for a full evidentiary hearing. Id.
[¶9] Romanyshyn argued his answer was intended to be a request for a full
evidentiary hearing and notice of intent to cross-examine. A full hearing was
denied by the district court after the court found Romanyshyn’s answer failed to
follow the hearing procedure order. According to the hearing procedure order,
the lack of request by Davis for a full evidentiary hearing required all evidence
to be presented by affidavit. Davis did not file an affidavit, nor did she present
evidence through testimony as suggested by this Court to be a better practice in
Cusey v. Nagel. See Cusey,
2005 ND 84, ¶ 15 (“[W]e believe the better practice is
to allow the petitioner to present evidence through his own or other persons’
testimony, rather than through the affidavit accompanying the petition.”).
Rather, Davis only presented evidence through her petition along with her
attorney’s oral argument at the hearing. Romanyshyn filed an affidavit, but only
provided oral argument at the hearing. However, Davis’s petition and
Romanyshyn’s affidavit, unless subject to an exception, are inadmissible hearsay
statements under N.D.R.Ev. 801(c). Cusey,
2005 ND 84, ¶ 15. As noted above, “a
hearing on the petition should, at a minimum, require the petitioner to prove the
allegations by admissible evidence at the hearing, and provide an opportunity
for the respondent to appear and contest the issuance of a restraining order by
offering admissible evidence in opposition to the petitioner’s claims.” Id.
4
[¶10] Similar to the respondent in Brown v. Brown, Romanyshyn was not
provided with an opportunity to cross-examine Davis in regard to her petition.
The district court relied solely on Davis’s inadmissible petition and
Romanyshyn’s inadmissible affidavit. This Court has previously recognized that
such procedures amount to a denial of a full evidentiary hearing. See Brown, 2020
ND 135, ¶ 12. We conclude the district court abused its discretion in granting the
disorderly conduct restraining order without conducting a full evidentiary
hearing. We reverse the disorderly conduct restraining order and remand for a
full evidentiary hearing consistent with this opinion.
III
[¶11] Because the potential for conflict between a disorderly conduct restraining
order and the parties’ parental responsibility order is likely to arise on remand,
we will address that issue. Wollan v. Innovis Health, LLC, 2024 ND 169, ¶ 15, 11
N.W.3d 1. The district court’s disorderly conduct restraining order included the
parties’ children as protected parties, which directly conflicts with the parties’
existing parental responsibility order. This Court has previously held that a
disorderly conduct restraining order must not conflict with a parental
responsibility order. See Saville v. Ude,
2009 ND 211, ¶ 21,
776 N.W.2d 31
(“Addressing the visitation matter, we held that in cases where there is the
potential for a restraining order to conflict with a child custody and visitation
order, courts must ensure the orders are consistent and do not conflict.” (cleaned
up)). Additionally, as discussed in Saville, the district court does not have the
authority to modify parental responsibility through a disorderly conduct
restraining order. See id. at ¶ 22 (Comparing N.D.C.C. § 14–07.1–02(4)(c) with
N.D.C.C. § 12.1–31.2–01 and concluding that a court “issuing a restraining order
has no statutory authority to establish custody or visitation rights regarding the
parties’ minor children[.]”).
IV
[¶12] We remand for a full evidentiary hearing consistent with this opinion.
[¶13] Jon J. Jensen, C.J.
Daniel J. Crothers
5
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
6
