This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Ellen N. Miller, petitioner,


Richard Rathbun,

Filed January 4, 2000
Willis, Judge

Ramsey County District Court
File No. F799148

Ellen N. Miller, 1110 West Pratt, Apt. 1S, Chicago, IL 60626 (pro se respondent)

Richard Rathbun, 240 Charles Avenue, 2nd Floor, Saint Paul, MN 55103 (pro se appellant)

Considered and decided by Short, Presiding Judge, Willis, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N


Richard Rathbun appeals pro se from an order for protection (OFP). Appellant argues that there was insufficient evidence to support the district court's finding that he committed domestic abuse or, in the alternative, that the court should have granted him a new trial based on respondent's recanted testimony. We affirm.


Appellant and Ellen N. Miller lived together and had been in a relationship for about three years when, Miller alleged, on December 20, 1998, appellant hit her face on the frame of a waterbed, causing bleeding, bruising, and numbness. On January 21, 1999, the district court issued an ex parte OFP against appellant. Appellant requested a hearing, which was held on February 5, 1999. After a hearing, the district court issued an OFP with a finding that domestic abuse had occurred. Appellant was ordered not to: (1) commit acts of domestic abuse against Miller; (2) have any contact with Miller; (3) enter Miller's residence; and (4) come within a specified distance of Miller's residence. In addition, the district court ordered appellant to receive domestic-abuse counseling and to pay Miller $1,100 in restitution for medical expenses.

About two months later, in April 1999, appellant moved the district court for a "new trial." Appellant argued that (1) the court had been prejudiced in its review of the evidence; (2) there was newly discovered evidence in the form of medical bills and records of Miller's past treatment for anxiety and panic attacks; (3) Miller had since recanted her testimony; and (4) appellant had a tape recording of Miller's recantation. The court denied appellant's motion.

On June 1, Miller, then living in Chicago, provided an affidavit recanting her prior testimony. On June 24, the district court set a hearing on Miller's request to dismiss the OFP. On July 7, the district court denied Miller's motion to dismiss but issued an amended OFP, which retained only the finding of domestic abuse, as well as the restitution and counseling provisions of the original order.


1. Scope of Review

The district court issued the original OFP on February 5, 1999, and the amended OFP on July 7, 1999, one day after appellant submitted his brief to this court. Therefore, this appeal must be construed to be taken from the original OFP, rather than from the amended order.

Appellant argues that the February 5 OFP should be dismissed in view of Miller's June 1, 1999, affidavit in which she recanted her hearing testimony. But matters outside the record may not be considered by an appellate court and must be stricken. Mitterhauser v. Mitterhauser, 399 N.W.2d 664, 667 (Minn. App. 1987). The record on appeal consists of the "papers filed in the trial court, the exhibits, and the transcript." Minn. R. Civ. App. P. 110.01. In this case, the affidavit is dated after the district court's February 5 order and therefore is not part of the record on appeal. See In re Fariview-University Medical Center, 590 N.W.2d 150, 155 (Minn. App. 1999) (concluding that document appended to reply brief and dated after the order appealed from could not be part of record on appeal).

2. Mootness

In June 1999, Miller moved the court to dismiss the OFP. The district court did not dismiss the OFP but modified it on July 7, 1999, eliminating everything but the finding of domestic abuse and the counseling and restitution provisions. This appeal is not taken from the amended order, but we may review that order for the limited purpose of determining whether this appeal from the original OFP is moot, in whole or in part. See In re Inspection of Minn. Auto Specialties, Inc., 346 N.W.2d 657, 658 (Minn. 1984) (court considers events that occur while appeal is pending that may render case moot). Because appellant does not challenge the counseling or restitution provisions of the original order, we limit our review to the district court's finding of domestic abuse.

3. Sufficiency of the Evidence

Appellant argues that there was insufficient evidence to support the district court's finding that domestic abuse occurred. Under Minn. Stat. § 518B.01, subd. 2(a) (1998):

"Domestic abuse" means the following, if committed against a family or household member by a family or household member:
(1) physical harm, bodily injury, or assault; [or]
(2) the infliction of fear of imminent physical harm, bodily injury or assault.

"Family or household members" include "persons who are presently residing together or who have resided together in the past." Minn. Stat. § 518B.01, subd. 2(b).

At the February 5 hearing, Miller testified that (1) she and the appellant had "been together" for about three years; (2) physical and verbal abuse started within the first couple of months of their relationship; (3) on December 20, 1998, appellant pushed her on to a waterbed and fell on top of her; and (4) Miller's face hit the bed frame causing severe bruising and nerve damage. Miller also testified that she went to the emergency room that evening, but she did not submit an emergency-room report at the hearing. Instead, Miller submitted notes her psychiatrist made three days after the incident regarding Miller's injuries and state of mind. Miller testified that she had no insurance and that her medical expenses totaled approximately $1,100.

Appellant admitted that he told Miller that "[a]nybody else would have taken a baseball bat to [her]." He testified that he had not attacked Miller but instead had tried to restrain her as she attacked him. Appellant also admitted that Miller sought medical treatment on December 20, 1998, and that he followed her to the hospital. Based on this testimony, the district court found that appellant assaulted Miller on December 20.

The district court's findings of fact shall not be set aside unless clearly erroneous, and "due regard shall be given to the opportunity of the trial court judge to judge the credibility of the witnesses." Minn. R. Civ. P. 52.01. The district court is free to make credibility determinations, and the evidence supports its finding of domestic abuse.

4. Denial of New Trial

Appellant also alleges that the district court erred in denying his motion for a new trial. In April 1999, appellant moved for a new trial, alleging newly discovered evidence and prejudice by the district court. The district court dismissed the motion. The issue is not properly before us because an order denying a new-trial motion in a domestic-abuse proceeding is not appealable. Steeves v. Campbell, 508 N.W.2d 817, 818 (Minn. App. 1993).