This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






In the Matter of:


Dennis J. Muckala, et al., petitioners,





Gary A. Muckala,




Filed July 3, 2000


Peterson, Judge


 Otter Tail County District Court

File No. F1991587


Zenas Baer, Zenas Baer & Associates, P.O. Box 249, 331 Sixth Street, Hawley, MN  56549 (for respondents)


Amy J. Ihlan, Briol & Associates, 3905 IDS Center, 80 South Eighth Street, Minneapolis, MN  55402 (for appellant)



Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Huspeni, Judge.*  

U N P U B L I S H E D   O P I N I O N



            Appellant Gary A. Muckala appeals from an order for protection prohibiting him from having contact with his brother, respondent Dennis J. Muckala, or other members of  respondent Muckala Farms, Inc., except his mother.  We reverse.


            Dennis Muckala and Gary Muckala are brothers.  They are shareholders in a family farm corporation, Muckala Farms.  A third brother, Dr. Kenneth Muckala, is the president of the corporation.

            On September 16, 1999, Dennis Muckala and Muckala Farms petitioned the district court for an emergency exparte order for protection against Gary Muckala.  The petition alleged that Gary Muckala had (1) assaulted and made death threats against Dennis Muckala in October 1998; (2) assaulted and made death threats against Kenneth Muckala in September 1999; and (3) made several threats to burn down the family farm.  The district court issued a temporary ex parte order for protection, which restricted Gary Muckala from committing any further acts of domestic abuse against Dennis Muckala, from having any contact with Dennis Muckala, and from entering Dennis Muckala’s workplace or other farms rented or owned by Muckala Farms.

            At the hearing on the petition, Gary Muckala denied that he had committed domestic assault against Dennis Muckala and contended that Dennis Muckala had assaulted him in October 1998.  To support this claim, Gary Muckala introduced an October 1998 police report, which stated that Gary Muckala had reported that Dennis Muckala “hit him in the left temple area with his fist a couple of times and then hit him on the top of the head several times with his fist.”

            The district court entered a one-year domestic abuse order for protection against Gary Muckala, restraining him from committing any further acts of domestic abuse against Dennis Muckala, from entering Dennis Muckala’s residence or place of employment, and from having any contact with Dennis Muckala or other members of Muckala Farms, except Gary Muckala’s mother.


            This court must reverse a domestic abuse order for protection if it is not supported by sufficient evidence.  Bjergum v. Bjergum, 392 N.W.2d 604, 606 (Minn. App. 1986).  A district court’s finding of fact “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the [district court] to judge the credibility of the witnesses.”  Minn. R. Civ. P. 52.01. 

            In cases of domestic abuse, a family member may petition the district court for an order for protection.  Minn. Stat. § 518B.01, subd. 4(a) (1998). 

            A petition for relief shall allege the existence of domestic abuse, and shall be accompanied by an affidavit made under oath stating the specific facts and circumstances from which relief is sought.


Id., subd. 4(b).

     “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;

     (2) the infliction of fear of imminent physical harm, bodily injury, or assault[.]


Id., subd. 2(a) (1998).  “Family or household members” includes “persons related by blood.”  Id., subd. 2(b)(3).

            The court may grant an ex parte temporary order for protection, pending a full hearing, if a person alleges an immediate and present danger of domestic abuse.  Id., subd. 7 (1998).  After notice and a hearing, the court may “restrain the abusing party from committing acts of domestic abuse.”  Id., subd. 6(1) (1998).

            Gary Muckala argues that there is insufficient evidence to support the district court’s finding that acts of domestic abuse have occurred.  We agree.

            The specific acts of domestic abuse that the district court found occurred were “[Gary Muckala] physically attacked Petitioner on 09-14-99 and made a death threat to Petitioner.”  But the petitioner was Dennis Muckala, and in the petition, he alleged that on September 14, 1999, Gary Muckala physically assaulted and made a death threat against Kenneth Muckala.  There was no allegation that the petitioner, Dennis Muckala, was physically attacked on September 14, 1999.  And there was no evidence that supported the allegation that Kenneth Muckala was physically assaulted on September 14, 1999.  Dennis Muckala did not claim that he witnessed the alleged assault, and Kenneth Muckala did not testify.

            Dennis Muckala also alleged in his affidavit that he was physically attacked and threatened by Gary Muckala in October 1998.  During the hearing, the district court said to Dennis Muckala, “You set forth in your petition that * * * there have been threats, you have been physically attacked and verbally harassed, is that correct?”  Dennis Muckala replied, “Yes, it is.”  But Dennis Muckala did not testify about an October 1998 incident during the hearing.  The only evidence in the record concerning an October 1998 confrontation between Gary and Dennis Muckala is a police report, which states that Gary Muckala reported that he had been physically assaulted by Dennis Muckala during an argument about the family farm. 

            The district court also found that “Petitioner is in fear of [Gary Muckala].”  But the evidence did not show that Gary Muckala had harmed Dennis Muckala or intended to harm him.

            “[U]se of the phrase ‘infliction of fear’ in the [domestic abuse] statute implies that the legislature intended that there be some overt action to indicate that appellant intended [emphasis in original] to put respondent in fear of imminent [emphasis supplied] physical harm.  * * *  Thus, we construe the definition of ‘domestic abuse’ under Minnesota’s Domestic Abuse Act to require either a showing of present harm, or an intention on the part of appellant to do present harm.”


Bjergum, 392 N.W.2d at 605 (alterations & omission in original) (quoting Kass v. Kass, 355 N.W.2d 335, 337 (Minn. App. 1984)).

            Because the evidence presented at the domestic abuse hearing was insufficient to warrant the issuance of an order for protection under Minn. Stat. § 518B.01, we reverse.  Because we reverse on grounds of insufficient evidence, there is no need to address Gary Muckala’s arguments that Muckala Farms lacked standing to seek an order for protection and that he did not receive a full and fair hearing.


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.