This opinion will be unpublished and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:

Fiona M. Eustathiades, petitioner,





Ben T. Bowman,



Filed September 5, 2000

Reversed and remanded

Willis, Judge


Ramsey County District Court

File No. F5993114


James J. Street, Southern Minnesota Regional Legal Services, Inc., 300 Minnesota Building, 46 East Fourth Street, Saint Paul, MN  55101 (for respondent)


Stephen R. Arnott, Arnott Law Firm, P.A., Ramsey Professional Building, 311 Ramsey Street, Saint Paul, MN  55102 (for appellant)


            Considered and decided by Willis, Presiding Judge, Randall, Judge, and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant Ben T. Bowman challenges the district court’s denial of his request for a continuance in a domestic-abuse proceeding under Minn. Stat. § 518B.01 (1998).   We reverse and remand. 


Appellant Ben T. Bowman and respondent Fiona M. Eustathiades dissolved their marriage on February 5, 1999.  Pursuant to the judgment, the parties were granted joint legal custody and respondent was granted sole physical custody of their children, N.B., now age 9; K.L.B., now age 7; and K.A.B., now age 5.   Subsequently, the dissolution judgment was amended, granting respondent sole legal custody of the children and granting appellant visitation. 

            On December 3, 1999, respondent petitioned for an emergency ex parte order for protection against appellant, alleging that he injured K.A.B. on or about November 28, 1999, during a visit with the children.  Respondent also alleged previous incidents of abuse by appellant involving the other children.  The district court granted respondent’s ex parte order for protection, and a hearing was held on December 10, 1999.  Because respondent denied the allegations at the hearing, the district court concluded that a full hearing was necessary and continued the matter until January 5, 2000.  Ramsey County Community Human Services Department (child protection) also began an investigation into respondent’s allegations to determine whether child maltreatment occurred.

On the afternoon before the hearing, respondent’s counsel moved the district court for a continuance because child protection had not completed its report.  Respondent’s informal motion was served by facsimile and it is unclear what, if any, response the court made.  On January 5, 2000, before the hearing, both parties and the court received a letter from child protection stating that a final determination had not been made, but it was expected that there would not be a finding of maltreatment because the preponderance of the evidence did not support such a finding.

            At the hearing, respondent withdrew her request for a continuance.  Appellant requested a continuance, however, to enable him to introduce into evidence child protection’s forthcoming report.  The district court denied appellant’s request, stating,  “[I]t’s not germane to the issues that the court needs to decide in this case.” 

The district court limited the issue for the hearing to whether appellant abused K.A.B. on or about November 28, 1999.  Appellant and his current wife both testified, denying abuse of any of the children.  None of the children testified.  Respondent testified that appellant had hit and yelled at the children in the past.  Respondent also introduced the testimony of two chiropractors, Dr. Lucia Lein and Dr. Loren Stockton.  Dr. Lein testified that respondent brings the children in for treatments after visits with their father to “help calm and settle them down.”  Dr. Lein also testified that during an examination on November 29, 1999, K.A.B. told her that appellant lifted him by his shirt and struck him several times on his lower back and buttocks.  Both chiropractors testified that K.A.B.’s neck injury, diagnosed as a cervical strain, was consistent with K.A.B.’s version of the events.  But both chiropractors also testified that the injury sustained by K.A.B. could have been caused by something other than abuse. 

Dr. Lein testified, and the district court concluded, that in addition to treating appellant’s children, she has a personal relationship with them and respondent. The district court accepted Dr. Lein’s testimony and concluded that domestic abuse had occurred.  Following the hearing on January 5, 2000, the district court issued a domestic-abuse order for protection, limiting appellant to supervised visitation.  This appeal follows.   

D E C I S I O N 

            Appellant argues that the district court abused its discretion by denying his request for a continuance.  This court will not reverse a district court’s decision to grant or deny a continuance absent a clear abuse of discretion.   Southwest Fidelity State Bank v. Apollo Corporate Travel Inc., 360 N.W.2d 668, 670 (Minn. App. 1985).  In determining whether the district court abused its discretion, this court must determine whether the decision not to continue the hearing would prejudice the outcome of the proceeding.  Lanzo v. F & D Motor Works, 396 N.W.2d 631, 635 (Minn. App. 1986).  Appellant claims that the district court’s denial of his request for a continuance prejudiced him by denying him an opportunity for a “full hearing” as required by Minn. Stat. § 518B.01, subd. 7(c) (1998), and materially affected the outcome of the hearing.   We agree.

“The right to a ‘full hearing’ on * * * domestic abuse allegations includes the right to present and cross-examine witnesses, to produce documents, and to have the case decided on the merits.”  El Nashaar v. El Nashaar, 529 N.W.2d 13, 14 (Minn. App. 1995) (citation omitted).  Appellant argues that a child-protection report, completed after a full investigation, determining that the preponderance of the evidence does not support a finding of maltreatment, is “crucial” to the merits of a domestic- abuse case involving the same allegation of abuse. 

            In concluding that the child-protection report was “not germane” or relevant to the domestic-abuse proceeding, the district court distinguished the finding that it was to make under Minn. Stat. § 518B.01, subd. 2(a) (1998) (defining domestic abuse for purpose of determining whether order for protection should be issued), from the finding that child protection was to make under Minn. Stat. § 626.556, subd. 2(d) (Supp. 1999) (defining physical abuse for purpose of investigation of reported maltreatment of minor).  But the definitions of abuse under the statutes are substantially similar.  Under Minn. Stat.  § 518B.01, subd. 2(a):

“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.


Under Minn. Stat. § 626.556, subd. 2(d), “physical abuse” is defined as “any physical injury, mental injury, or threatened injury, inflicted by a person responsible for the child’s care on a child other than by accidental means.”  And relevant evidence is

evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.


Minn. R. Evid. 401.  We conclude that the district court could not have known whether the child-protection report on the same allegation of physical abuse was relevant to the domestic-abuse proceeding without having seen the report.  We also conclude that it was error to deny appellant’s request for a continuance on the ground that the report was not “germane.”

We are mindful that the district court may use its discretion in admitting and attaching weight to relevant evidence, but the decision not to continue the hearing even to review the report is troubling.  The district court concluded that domestic abuse occurred based on circumstantial evidence, including the testimony of Dr. Lein, a friend of respondent.  Had the district court continued the hearing to review the report, it could have had substantially more information on which to base its decision, including, but not limited to, the results of a face-to-face observation of the child; information regarding the credibility of the child’s statement; interviews with the alleged offender, the child’s caretakers, and other persons who might have knowledge of the alleged maltreatment; “information on the existence of domestic abuse and violence in the home of the child”; and any prior reports of maltreatment.  See Minn. Stat. § 626.556, subd. 10(h), (i) (1998) (listing information relevant to child-protection investigation that must be requested).  Moreover, because the county had sufficient information on which to issue a preliminary finding, it appears that its report was imminent, and the continuance would not have been for an extended period of time. Based on the additional evidence that the district court could have had but chose not to consider, and the fact that appellant has a statutory right to a full hearing, we conclude that the district court’s denial of appellant’s motion for a continuance was a clear abuse of discretion.  See State v. Scharfencamp, 416 N.W.2d 825, 827 (Minn. App. 1987) (stating that district court’s denial of request for continuance was an abuse of discretion “even without a showing that the [absent witness’s] testimony would have been favorable to [the defendant]” where defendant’s request for continuance was based on statutory right).  The absence of the report may well have prejudiced appellant by materially affecting the outcome of the hearing.  See Lanzo, 396 N.W.2d at 635. 

We conclude that appellant has a statutory right to a full hearing, which includes the right to produce documents.  We further conclude that the district court abused its discretion in determining that the report was not relevant without having seen the report and in basing its denial for a continuance on that determination.  The child-protection report  may have been relevant, and its absence may well have prejudiced appellant by materially affecting the outcome of the hearing.  Therefore, we reverse and remand for a new hearing.

In light of our disposition of the evidentiary issue, we need not address appellant’s arguments that the evidence is insufficient to support the verdict and that the district court made erroneous evidentiary rulings.

Reversed and remanded.


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