IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2023 ND 228

Heidi Holm, Petitioner and Appellee

 v.

Joshua Holm, Respondent and Appellant

No. 20230128

Appeal from the District Court of Stark County, Southwest Judicial District, 

the Honorable James D. Gion, Judge.

REVERSED.

Opinion of the Court by Crothers, Justice, in which Chief Justice Jensen and 

Justices McEvers, Tufte, and Bahr joined. Chief Justice Jensen filed an opinion 

concurring, in which Justice Bahr joined.

Jared W. Gietzen, Dickinson, ND, for petitioner and appellee; submitted on 

brief.

Thomas F. Murtha IV, Dickinson, ND, for respondent and appellant.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

DECEMBER 1, 2023 

STATE OF NORTH DAKOTA
1

Holm v. Holm

No. 20230128

Crothers, Justice.

[¶1] Joshua Holm appeals from a disorderly conduct restraining order 

prohibiting him from having contact with Heidi Holm for a period of six 

months. We reverse, concluding the district court abused its discretion when it 

issued the restraining order without finding Joshua Holm intended to 

adversely affect Heidi Holm’s safety, security, or privacy. 

I

[¶2] Heidi Holm’s petition for the restraining order alleged the parties’ 

marriage had deteriorated; they agreed to separate; he attempted to force her 

into sex; other people warned her that he was “not in his right mind;” he took 

substantial amounts of money from her safe and their joint checking accounts; 

he has weapons; and she is fearful of him. The district court issued a temporary 

restraining order, set the case for a 15-minute hearing, and entered an order 

setting a procedure for the hearing. The court required the parties to file 

requests to obtain a full evidentiary hearing. Absent a request, the court

required the parties to present evidence by affidavit with the affiant available 

for cross-examination, and it required the opposing party give notice of intent 

to cross-examine. Neither party requested a full evidentiary hearing. Heidi 

Holm gave notice she intended to cross-examine Joshua Holm.

[¶3] Heidi Holm called Joshua Holm as a witness at the hearing. He 

acknowledged she owned the marital home and admitted he knew she did not 

want him there and did not want to speak with him. He testified they agreed 

he would bring a sheriff to accompany him whenever he came to the home, but

he acknowledged going to the home unaccompanied once because the sheriff 

was unavailable and he needed tools and fuel for work. Heidi Holm did not 

testify or provide additional evidence.

[¶4] The district court found Joshua Holm’s “appearance on the property 

without the presence of the sheriff, after that was an agreement, is specific 

conduct that qualifies as disorderly conduct.” The court entered a six-month 
2

restraining order stating “Joshua went to the property without law 

enforcement and attempted to engage in conversation with Heidi after she 

requested he leave.” Joshua Holm appeals. 

II

[¶5] Joshua Holm argues Heidi Holm failed to meet her burden of proving 

disorderly conduct occurred. He claims she provided no evidence to establish 

he intended to adversely affect her safety, security, or privacy by being present 

at the home, and the district court’s findings are inadequate to show

reasonable grounds exist for the order. 

[¶6] To obtain a disorderly conduct restraining order, a petitioner must show 

there are “reasonable grounds to believe that the respondent has engaged in 

disorderly conduct.” N.D.C.C. § 12.1-31.2-01(5)(d). Disorderly conduct is 

defined as “intrusive or unwanted acts, words, or gestures that are intended to 

adversely affect the safety, security, or privacy of another person.” N.D.C.C. § 

12.1-31.2-01(1). A petitioner must allege “specific facts or threats.” Cusey v. 

Nagel, 2005 ND 84, ¶ 7, 695 N.W.2d 697. Vague generalities are insufficient 

because of the stigma and consequences a disorderly conduct restraining order 

creates. Id. at ¶ 11. If the petitioner has established facts “sufficient to warrant 

a person of reasonable caution to believe” disorderly conduct occurred, 

reasonable grounds exist for the court to issue a restraining order. Id. at ¶ 6 

(quoting Svedberg v. Stamness, 525 N.W.2d 678, 682 (N.D. 1994)). “Reasonable 

grounds” in the context of a disorderly conduct restraining order is 

“synonymous with probable cause.” Baker v. Mayer, 2004 ND 105, ¶ 13, 680 

N.W.2d 261 (quoting Tibur v. Lund, 1999 ND 176, ¶ 7, 599 N.W.2d 301).

[¶7] We review a district court’s decision to grant a disorderly conduct 

restraining order for an abuse of discretion. Combs v. Lund, 2015 ND 10, ¶ 4, 

858 N.W.2d 311. “The district court abuses its discretion when it acts in an 

arbitrary, unreasonable, or unconscionable manner, when it misinterprets or 

misapplies the law, or when its decision is not the product of a rational mental 

process leading to a reasoned determination.” Id. (quoting Hanisch v. Kroshus, 

2013 ND 37, ¶ 9, 827 N.W.2d 528). Rule 52(a), N.D.R.Civ.P., applies to 

disorderly conduct restraining order proceedings. Combs, at ¶ 17. The court 
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must state its findings with “sufficient specificity” to afford a clear 

understanding of the court’s decision. Id. General or conclusory findings are 

insufficient. Id. 

[¶8] A petitioner bears the burden of demonstrating how a respondent’s 

conduct affected the petitioner’s safety, security, or privacy, and the district 

court must make specific findings concerning the respondent’s intent. Rekow 

v. Durheim, 2022 ND 177, ¶¶ 7-9, 980 N.W.2d 917. Rekow testified Durheim 

came to his property, swore at him, called him names, was threatening, and 

refused to leave. Id. at ¶ 2. The district court found Durheim’s refusal to leave 

the property constituted disorderly conduct. Id. at ¶ 3. We reversed concluding 

the district court’s findings were conclusory and “did not explain how 

Durheim’s conduct toward Rekow (not leaving the yard immediately when 

asked and mutual yelling) affected his safety, security, or privacy, or that her 

conduct was intended to do so.” Id. at ¶ 9. 

[¶9] Here, as in Rekow, the district court did not make findings concerning 

Joshua Holm’s intent or explain how his actions adversely affected Heidi Holm. 

The court found disorderly conduct occurred based on Joshua Holm’s testimony 

that he walked into the marital home’s garage as Heidi Holm was closing the 

overhead door. Her counsel asked:

“Q. Why would you return to the property, Josh, if Heidi has asked 

you not to return there?

A. Because I needed to get some tools for work and some fuel for 

work.

Q. Okay. Was that communicated previously through a text 

message or otherwise?

A. We communicated quite a bit, and we were in agreeance of I 

would come out and get different things, and each time I would 

come out, a sheriff would accompany me so that she couldn’t accuse 

me of anything.

Q. Okay. But that time you are referencing when you showed up, 

the sheriff wasn’t actually there accompanying you; true?
4

A. True. Because he was unavailable, and I text messaged him and 

told him that I was going out there.”

The district court noted intent is difficult to determine in the context of a failing 

marriage because of the emotions involved. The court explained the discord 

between the parties could be dealt with in their divorce action, including 

through contempt proceedings, but “potentially there is an issue that is going 

to pop up before that is clarified in the divorce court.” The court concluded: “I 

am going to find that Mr. Holm’s appearance on the property without the 

presence of the sheriff, after that was an agreement, is specific conduct that 

qualifies as disorderly conduct.” 

[¶10] The district court did not comply with N.D.C.C. § 12.1-31.2-01 when it 

issued the disorderly conduct restraining order without evidence or a finding 

that Joshua Holm intended to adversely affect Heidi Holm’s safety, security or 

privacy. As the petitioner, Heidi Holm bore the burden of proving Joshua Holm 

acted with adverse intent. She asserts she met her burden based on her 

petition, which alleged he attempted to force her into sex and stole her 

property. The court made no findings concerning these allegations. The 

petition itself is inadmissible hearsay. See Sollin v. Klein, 2021 ND 75, ¶ 13, 

958 N.W.2d 144; Cusey, 2005 ND 84, ¶ 15. Joshua Holm’s admission that he 

was present at the marital home against Heidi Holm’s wishes does not, on its 

own, establish reasonable grounds for a restraining order. Therefore, the 

district court abused its discretion when it issued the restraining order without 

a finding of adverse intent. 

III

[¶11] Joshua Holm argues the district court’s hearing procedure violated his 

right to due process by shifting the burden to him and depriving him of a full 

hearing. We need not address his constitutional due process argument because 

we have decided, based on the evidence presented, the district court 

erroneously issued the disorderly conduct restraining order. See State v. Hunt, 

2019 ND 127, ¶ 9, 927 N.W.2d 412 (stating it “is a cardinal rule of decision 

making to avoid constitutional confrontations where there are appropriate 
5

alternative grounds to resolve the case before us”) (quoting Interest of Goodwin, 

366 N.W.2d 809, 814 (N.D. 1985)).

IV

[¶12] The disorderly conduct restraining order is reversed. 

[¶13] Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Douglas A. Bahr

Jensen, Chief Justice, concurring.

[¶14] The majority is well written and correctly concludes the district court 

abused its discretion when it issued the restraining order without finding 

Joshua Holm intended to adversely affect Heidi Holm’s safety, security, or 

privacy. I join in the majority opinion reversing the district court. However, I 

write separately to note that my agreement with the majority should not be 

interpreted as approval of the procedure employed in the underlying 

proceedings, an issue I understand is unnecessary for the resolution of this 

case.

I

[¶15] After determining the issuance of a preliminary restraining order was 

appropriate, the district court issued a scheduling order which deviated 

significantly from the statutory procedure for restraining orders. The 

procedure for a hearing to determine whether or not a disorderly conduct 

restraining order should extend beyond the preliminary period is governed by 

N.D.C.C. § 12.1-31.2-01 and, in subsection 5, includes the following:

5. The court may grant a disorderly conduct restraining order 

ordering the respondent to cease or avoid the disorderly 

conduct or to have no contact with the applicant if:

a. A person files a petition under subsection 3;
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b. The sheriff serves the respondent with a copy of the 

temporary restraining order issued under subsection 4 and 

with notice of the time and place of the hearing;

c. The court sets a hearing for not later than fourteen days 

after issuance of the temporary restraining order or at a 

later date if good cause is shown; and

d. The court finds after the hearing that there are reasonable 

grounds to believe that the respondent has engaged in 

disorderly conduct. If a person claims to have been engaged 

in a constitutionally protected activity, the court shall 

determine the validity of the claim as a matter of law and, if 

found valid, shall exclude evidence of the activity.

The statutory procedure specifically calls for the district court to set a hearing 

no later than 14 days after the issuance of a temporary order and notice of the 

time and place for the hearing is required to be provided to the respondent.

[¶16] The procedure set by the district court in this case did not follow the 

procedure proscribed in the statute or any procedural rule promulgated by this 

Court for application to disorderly conduct restraining order proceedings. 

Instead, the procedure adopted in this proceeding appears to closely mirror the 

procedure set by N.D.R.Ct. 8.2(d) and applicable to interim orders issued in 

domestic relations cases. There are significant differences between domestic 

relations interim order proceedings and the disorderly conduct restraining 

order process. Disorderly conduct restraining order hearings are the final 

hearing. In contrast, interim order proceedings contemplate a temporary 

proceeding with an interim order intended to be replaced after a subsequent 

full proceeding. The disorderly conduct restraining order hearings are full 

hearings intended to fully adjudicate the request for the order. In contrast, the 

process provided in Rule 8.2(d) was, at least in part, intended to avoid “mini 

trials” with submission of evidence similar to what will eventually occur at the 

end of the domestic relations case. Finally, the disorderly conduct restraining 

order process is a proceeding initiated by a petitioner seeking to impose 

restrictions on the respondent, a process which places the burden of proof 
7

squarely on the petitioner. In contrast, interim order proceedings, while they 

can include restrictive provisions, are a proceeding in which the parties, for the 

most part, stand on equal footing. While not necessary for resolution in this 

case, the use of the interim order process in disorderly conduct restraining 

order proceedings raises due process concerns.

[¶17] Jon J. Jensen, C.J.

Douglas A. Bahr