IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2023 ND 140

Lori Rae Legacie-Lowe, Petitioner and Appellee

v.

Jerome William Lowe, Jr., Respondent and Appellant

No. 20220314

Appeal from the District Court of Ramsey County, Northeast Judicial District, 

the Honorable Donovan J. Foughty, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice, in which Justices McEvers, 

Tufte, and Bahr joined. Justice Crothers filed an opinion dissenting.

Ulysses S. Jones, Devils Lake, ND, for petitioner and appellee.

Challis D. Williams, Grand Forks, ND, for respondent and appellant.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

AUGUST 2, 2023 

STATE OF NORTH DAKOTA
1

Legacie-Lowe v. Lowe

No. 20220314

Jensen, Chief Justice.

[¶1] Jerome Lowe, Jr. appealed from a domestic violence protection order 

restraining him from contact with Lori Legacie-Lowe for 12 months. This Court 

retained jurisdiction under N.D.R.App.P. 35(a)(3)(B) and remanded with 

instructions for the district court to make sufficient findings to enable this 

Court to review the order. Legacie-Lowe v. Lowe, 2023 ND 88, ¶ 1, 990 N.W.2d 

592. Upon reviewing the district court’s findings on remand, we affirm the

domestic violence protection order.

I

[¶2] In September 2022, Lori Legacie-Lowe filed a petition for a domestic 

violence protection order. Lori Legacie-Lowe alleged Jerome Lowe verbally 

abused her, threw a chainsaw at her, displayed extreme anger, and threw 

things while verbally abusing her. Lori Legacie-Lowe testified she is extremely 

fearful of Jerome Lowe and because of her fear she now carries a handgun with 

her, has installed security cameras, and she cannot sleep at night. The district 

court granted the domestic violence protection order, prohibiting Jerome Lowe 

from having contact with Lori Legacie-Lowe for 12 months.

[¶3] Jerome Lowe appealed, arguing the district court erred in granting the 

domestic violence protection order because Lori Legacie-Lowe did not make a 

showing of actual or imminent domestic violence. We concluded the court’s 

findings were insufficient, retained jurisdiction under N.D.R.App.P. 

35(a)(3)(B) and remanded with instructions for the court to make sufficient 

findings. The court made additional findings and concluded the domestic 

violence protection order should remain in place.

II

[¶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).
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A district court’s finding of domestic violence is a finding of 

fact that will not be overturned unless it is clearly erroneous. Frisk 

v. Frisk, 2005 ND 154, ¶ 6, 703 N.W.2d 341. 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.

Lovcik v. Ellingson, 1997 ND 201, ¶ 10, 569 N.W.2d 697. “The

question whether the trial court has misinterpreted the domestic

violence statute is a question of law that is fully reviewable on

appeal.” Lawrence v. Delkamp, 2000 ND 214, ¶ 7, 620 N.W.2d 151

(citing Ryan v. Flemming, 533 N.W.2d 920, 923 (N.D. 1995)).

A domestic violence protection order is a civil action

primarily for injunctive relief. Lovcik, 1997 ND 201, ¶ 11, 569 

N.W.2d 697. The party seeking the protective order must prove 

actual or imminent domestic violence by a preponderance of the 

evidence. Id. Past abusive behavior is a relevant factor to consider 

in determining whether domestic violence is actual or imminent. 

Id. at ¶ 16. The context and history of the relationship between the 

parties is also a relevant factor to consider. Peters–Riemers v. 

Riemers, 2001 ND 62, ¶ 8, 624 N.W.2d 83 (citing Cesare v. Cesare, 

154 N.J. 394, 713 A.2d 390, 395 (1998)).

Ficklin v. Ficklin, 2006 ND 40, ¶¶ 11-12, 710 N.W.2d 387.

[¶5] Domestic violence is statutorily defined under N.D.C.C. § 14-07.1-01(2) 

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 physical force, or 

assault, not committed in self-defense, on the complaining family 

or household members.

There must be a showing of actual or imminent domestic violence before a 

district court may enter a protection order. Ficklin, 2006 ND 40, ¶ 13; N.D.C.C. 

§ 14-07.1-02(4). If the type of domestic violence justifying a protection order is

based upon fear, the harm feared by the petitioner must be “actual or 

imminent.” N.D.C.C. § 14-07.1-02(4).
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[¶6] This Court has defined “imminent” as meaning “[n]ear at hand; mediate 

rather than immediate; close rather than touching; impending; on the point of 

happening; threatening; menacing; perilous.” Steckler v. Steckler, 492 N.W.2d 

76, 80 (N.D. 1992) (quoting State v. Kurle, 390 N.W.2d 48, 49 (N.D. 1986)). This 

Court has defined “actual” as “[r]eal; substantial; existing presently in fact; 

having a valid objective existence as opposed to that which is merely 

theoretical or possible.” Steckler, at 81 (quoting Black’s Law Dictionary 34 (6th 

ed. (1990))).

[¶7] The district court found several instances rationally caused Lori LegacieLowe to fear imminent physical harm. The court found:

[Jerome Lowe] threw the chainsaw, it bounced and missed [Lori 

Legacie-Lowe] by three feet. [Lori Legacie-Lowe] indicated that 

she did not know if [Jerome Lowe] intentionally threw the 

chainsaw at her. [Jerome Lowe] was angry with her at the time 

the chainsaw was thrown and she was shaken by the incident. . . . 

[Jerome Lowe] has told [Lori Legacie-Lowe] and others that he has 

an evil twin that can come out and things can go bad when he gets 

angry and mad and he can fight. . . . In the context of this record it 

is understandable that [Lori Legacie-Lowe] would be fearful of 

[Jerome Lowe].

The court also found Jerome Lowe has stated “I have a hole, but I don’t have a

dead body yet,” Jerome Lowe exerts physical force when he is angry, Jerome 

Lowe threw cattle panels over a fence when Lori Legacie-Lowe was unable to 

give an injection to their cow, and Jerome Lowe is verbally abusive to Lori 

Legacie-Lowe.

[¶8] Jerome Lowe argues all of these incidents amount to threats that did not 

inflict fear of imminent physical harm. Much of the case law regarding 

domestic violence protection orders and a finding of domestic violence by 

threats which inflict fear of imminent harm analyzes verbal threats. In Lenton 

v. Lenton, this Court affirmed a domestic violence protection order when

considering the past physical violence and the context of the relationship, the 

verbal threat of “get what’s coming” to her was enough to support a finding of 

domestic violence. 2010 ND 125, ¶ 11, 784 N.W.2d 131. In Lovcik v. Ellingson, 
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this Court affirmed a domestic violence protection order entered against the 

father for threatening and hostile phone calls made to the mother considering 

the prior violent acts and circumstances of the relationship. 1997 ND 201, 

¶¶ 12-13, 569 N.W.2d 697. In Ficklin, this Court reversed a domestic violence

protection order because the statement he would burn the house down was not 

imminent domestic violence but a perceived possibility of a threat. 2006 ND 

40, ¶ 21.

[¶9] Here, the district court’s findings include incidents of verbal threats and 

threatening actions. For instance, the court found the throwing of the chainsaw 

at or near Lori Legacie-Lowe caused Lori Legacie-Lowe fear of imminent 

physical harm. Unlike in Ficklin, where the threat was a perceived possible 

act that he would burn the house down, 2006 ND 40, ¶ 21, here the physical 

act of throwing a chainsaw was an actual event which caused Lori LegacieLowe immediate fear that she would be hit with the chainsaw. The court found 

the physical act of throwing the chainsaw, along with the context of the 

relationship including numerous verbal threats, constituted domestic violence. 

Because the physical act of Jerome Lowe throwing a chainsaw at or near Lori 

Legacie-Lowe would reasonably cause a person to fear imminent physical harm 

it was not clearly erroneous for the court to make a finding of domestic violence.

III

[¶10] The district court’s finding of domestic violence is not clearly erroneous. 

The domestic violence protection order is affirmed.

[¶11] Jon J. Jensen, C.J.

Lisa Fair McEvers

Jerod E. Tufte

Douglas A. Bahr

Crothers, Justice, dissenting.

[¶12] The district court made findings of fact before this appeal and additional 

findings after our remand. Legacie-Lowe v. Lowe, 2023 ND 88, ¶ 1, 990 N.W.2d 

592; majority opinion, ¶ 1. Accepting all of the district court’s findings as not 
5

clearly erroneous, I respectfully disagree with the majority that the conduct 

meets the legal threshold for domestic violence. Therefore, I would hold as a 

matter of law that Legacie-Lowe’s burden of proof has not been met.

[¶13] In Lenton v. Lenton, 2010 ND 125, ¶ 12, 784 N.W.2d 131, we explained 

the requirement of fear of imminent harm:

We emphasize that when a finding of domestic violence is 

based solely on fear, the fear must be of imminent physical harm. 

Section 14-07.1-02(4), N.D.C.C., provides that a district court may 

enter a protection order “upon a showing of actual or imminent 

domestic violence.” “Domestic violence” is defined as including 

“physical harm” or “the infliction of fear of imminent physical 

harm.” N.D.C.C. § 14-07.1-01(2). The statutory definition plainly 

requires that for infliction of fear to rise to the level of domestic 

violence, the fear must be of “imminent physical harm.” N.D.C.C. 

§ 14-07.1-01(2). We are concerned that some of our prior opinions

may be misinterpreted as stating that when a finding of domestic

violence is based on fear alone, infliction of fear of “actual harm”

meets the standard. See, e.g., Wolt v. Wolt, 2010 ND 33, ¶ 19, 778

N.W.2d 802 (“Under N.D.C.C. § 14-07.1-02(4), when the ‘domestic

violence’ justifying a protection order is premised on ‘fear,’ the

harm feared by the petitioner must be ‘actual or imminent.’”);

Ficklin v. Ficklin, 2006 ND 40, ¶ 13, 710 N.W.2d 387 (“When the

type of domestic violence justifying a domestic violence protection

order is based upon fear, the harm feared by the petitioner must

be ‘actual or imminent.’”). We emphasize that a finding of domestic

violence may be based on actual harm, or the infliction of fear of

imminent harm, or both, but may not be based solely on the

infliction of fear of actual harm that may occur at some indefinite

time in the future. “Actual” physical harm is not necessarily

“imminent” physical harm, but could be physical harm occurring

at some indefinite time in the future. Section 14-07.1-01(2),

N.D.C.C., plainly requires that for infliction of fear to rise to the

level of domestic violence, the fear must be of “imminent physical

harm.” N.D.C.C. § 14-07.1-01(2).

[¶14] In this case, before remand the totality of the district court’s written 

findings were, “[r]espondent is verbally abusive to petition (sic) on several 

occasions since July 2022.” Legacie-Lowe v. Lowe, 2023 ND 88, ¶ 7. The court’s 
6

oral findings were, “I’m satisfied, by greater weight of the evidence, that there 

is—that there is a need for a protection order. Although there has been no 

evidence to suggest that there’s been physical harm against the petitioner by 

the respondent, there has been the infliction of fear of imminent physical harm; 

I’m satisfied that the evidence supports that proposition.” Id. 

[¶15] The district court’s findings on remand were longer, but I submit still 

lacked a sufficient basis to issue the domestic violence protection order 

(DVPO). The new findings were as follows:

II.

That Jerry is verbally abusive and critical of Lori. He is short 

tempered with Lori when working on projects around the 

farmstead and when helping out neighbors.

III.

Jerry has told Lori and others that he has an evil twin that 

can come out and things can go bad when he gets angry and mad 

and he can fight. It is unclear to the Court as to whether he was 

joking at the time or times when he has made these statements. In 

the context of this record it is understandable that Lori would be 

fearful of Jerry.

IV.

Around Labor Day weekend 2022 Lori and Jerry were 

helping neighbors/family cut down some trees. Jerry was verbally 

abusive to Lori using profane language because she did not operate 

the equipment to Jerry’s satisfaction. When a chainsaw got 

jammed in a tree and it was unstuck Jerry threw the chainsaw, it 

bounced and missed Lori by three feet. Lori indicated that she did 

not know if Jerry intentionally threw the chainsaw at her. Jerry 

was angry with her at the time the chainsaw was thrown and she 

was shaken by the incident.

V.

In a conversation with a hearing witness Jerry told the 

witness “I have a hole, but I don’t have a dead body yet.” The 

context of this conversation related to a missing person from 

Petersburgh, North Dakota and a hole was being dug to bury a 

euthanized horse. The parties that heard the statement were 

uncomfortable with what they heard. Lori did not hear Jerry make 

the statement. When the statement was told to her she interpreted 
7

the statement to mean it was going to be her body or the individual 

who slapped her rear end.

VI.

In another incident Jerry and Lori were trying to give a cow 

two injections and when Lori was unable to get the second 

injection, Jerry became angry and he threw three six foot cattle 

panels overhead and over a six foot cattle panel. The panels were 

not directed at Lori. This is another example of when Jerry gets 

angry, he exerts physical force to express his anger.

[¶16] The district court’s current finding of fact II is a conclusion that Lowe 

has a temper and is verbally abusive. While both a temper and verbal abuse 

are generally undesirable traits, neither meets the legal requirement of 

proving domestic violence through fear of imminent physical harm. 

[¶17] The district court’s finding III was that Lowe has an “evil twin” who “gets 

angry and mad and he can fight.” Again, while anger and fighting are generally 

undesirable traits, this finding contributes little to nothing supporting a 

determination that Lowe placed Legacie-Lowe in fear of imminent physical 

harm.

[¶18] The district court’s finding IV was that Lowe was verbally abusive 

towards Legacie-Lowe, he was “using profane language,” and he threw a 

chainsaw that “missed Lori by three feet.” Legacie-Lowe testified “she did not 

know if Jerry intentionally threw the chainsaw at her.” These findings also 

establish Lowe has a temper, throws things, and treats Legacie-Lowe poorly. 

However, the findings fail to establish Lowe’s conduct placed Legacie-Lowe in 

fear of imminent physical harm, as required by law.

[¶19] The district court’s finding V related that Lowe was overheard saying “I 

have a hole, but I do not have a dead body yet.” The court’s finding also reports 

Legacie-Lowe’s testimony that “she interpreted the statement to mean it was 

going to be her body or the individual who slapped her rear end.” The court 

made no finding about the truth of Lowe’s purported statement. Nor did the 

court find Legacie-Lowe’s interpretation showed the perceived threat was 

imminent, as required by law. Lowe’s talk about having a hole was a vague 
8

statement alluding to possible future conduct, but it was not proof of domestic 

violence through fear of imminent physical harm.

[¶20] The district court’s finding VI was that Lowe became angry and threw 

three cattle panels over another cattle panel. After finding “[t]he panels were 

not directed at Lori,” the court noted “[t]his is another example of when Jerry 

gets angry, he exerts physical force to express his anger.” The court’s final 

assessment makes clear that Lowe has a problem with his anger and, when he 

is angry, he has been shown to exert physical force on inanimate objects—

cattle panels and chainsaws. But that is all the evidence showed. The evidence 

did not show, and the court did not find facts supporting, a conclusion that 

Legacie-Lowe was placed in fear of imminent physical harm. Rather, the 

evidence here was similar to that in Lenton where this Court concluded the 

evidence did not support issuance of a DVPO. 

[¶21] Due to the lack of evidence establishing Lowe’s conduct meets the legal 

threshold for proving domestic violence by fear of imminent physical harm, I 

would reverse the district court’s order.

[¶22] Daniel J. Crothers