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Date: 10-24-2024
Case Style:
Sarah Irene Tracy v. Jason Lee Tracy
Case Number: 20260092
Judge: Anthony S. Benson
Court: District Court, Renville County, North Dakota
Plaintiff's Attorney:
Defendant's Attorney:
Description:
Mohall, North Dakota family law lawyers represented woman and man is a protective order proceeding.
[¶1] Jason Lee Tracy appeals from a domestic violence protection order. On appeal, he argues the district court's finding of domestic violence was clearly erroneous because Sarah Tracy failed to show Jason Tracy caused or threatened actual or imminent domestic violence. We affirm the domestic violence protection order.
I
[¶2] In November 2023, Jason Tracy and Sarah Tracy were involved in divorce proceedings. After receiving an unfavorable interim order, Jason Tracy sent multiple text messages and photographs to Sarah Tracy, including photographs of and with a firearm. Sarah Tracy filed a petition for domestic violence restraining order based upon those messages. Following a hearing, the district court entered a two-year domestic violence restraining order prohibiting Jason Tracy from contacting Sarah Tracy. Jason Tracy appeals.
II
[¶3] "A district court's finding of domestic violence is a finding of fact that will not be overturned unless it is clearly erroneous." Legacie-Lowe v. Lowe, 2023 ND 140, ¶ 4, 994 N.W.2d 177 (citations omitted). "A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence supports it, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made." Id.
[¶4] A district court may enter a protection order upon a showing of actual or imminent domestic violence. N.D.C.C. § 14-07.1-02(4). "The party seeking the protective order must prove actual or imminent domestic violence by a preponderance of the evidence." Legacie-Lowe, 2023 ND 140, ¶ 4 (citations omitted). "Domestic violence" is statutorily defined as "physical harm, bodily injury, sexual activity compelled by physical force, assault, or the infliction of fear of imminent physical harm, bodily injury, sexual activity compelled by
3
physical force, or assault, not committed in self-defense, on the complaining family or household members." N.D.C.C. § 14-07.1-01(2).
[¶5] If the type of domestic violence justifying a protection order is based upon fear, then the harm feared by the petitioner must be "actual or imminent." N.D.C.C. § 14-07.1-02(4). "This Court has defined 'imminent' as meaning near at hand; mediate rather than immediate; close rather than touching; impending; on the point of happening; threatening; menacing; perilous." Legacie-Lowe, 2023 ND 140, ¶ 6 (cleaned up). "This Court has defined 'actual' as real; substantial; existing presently in fact; having a valid objective existence as opposed to that which is merely theoretical or possible." Id. (cleaned up).
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Tracy v. Tracy, 2024 ND 195, 20240092 (N.D. Oct 24, 2024)
Outcome: Affirmed
Plaintiff's Experts:
Defendant's Experts:
Comments: