This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-00-844

 

In the Matter of:  John A. Dretsch o/b/o minor son,

Alec J. Mesenbourg, petitioner,

Respondent,

 

vs.

 

Michelle Bergdahl,

Appellant,

 

Doug Kauffman,

Respondent Below.

 

 

Filed October 10, 2000

Reversed

Huspeni, Judge*

 

Dakota County District Court

File No. F5006941

 

Daniel B. Johnson, Daniel B. Johnson & Associates, P.A., 226 East Myrtle Street, Stillwater, MN 55082-5033 (for respondent)

 

Ellen Dresselhuis, Dresselhuis Law Office, P.A., 2738 Winnetka Avenue North, New Hope, MN 55427-2850 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge, Schumacher, Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

Appealing from an order for protection and from removal of custody of her son, appellant contends that the district court erred by concluding that she committed an act of domestic abuse.  Because this record does not support the issuance of an order for protection, we reverse.

FACTS

On March 9, 2000, appellant Michelle Bergdahl fell asleep at the wheel of a vehicle; the vehicle went into a ditch.  Bergdahl’s daughter was accompanying her; A.M., the parties’ son, was not in the vehicle at the time of the accident. 

After the accident, respondent John A. Dretsch sought an order for protection under the Domestic Abuse Act, Minn. Stat. § 518B.01 (1998), on behalf of A.M.  The evidence adduced at the hearing shows that Bergdahl suffers from a bipolar personality disorder and is taking three medications; two of the medications are for the personality disorder while the third assists with sleep.  While the medications are neither habit forming, nor addicting, their side effects include sedation, fatigue, and sleepiness. 

On March 31, 2000, the district court issued an order for protection, placed custody of A.M. with Dretsch, and appointed a guardian ad litem for A.M.  The order provided that there would be “no visitation unless recommended by the GAL.”  The district court’s determination that domestic abuse had occurred was based on the sole finding that

[Bergdahl] was involved in a car accident where she fell asleep at the wheel with one of her children in the car.  [Bergdahl] is currently taking medications for bipolar disorder and sleeping.

 

This appeal followed.

D E C I S I O N

            A district court’s findings of fact are not set aside unless clearly erroneous, and due regard is given to that court’s opportunity to judge the credibility of the witnesses.  Minn. R. Civ. P. 52.01.  When determining whether findings of fact are clearly erroneous, we review the record “in the light most favorable to the trial court findings.”  See Wilkus-Schmidt-Hight v. Wilkus, 398 N.W.2d 44, 48 (Minn. App. 1986).  Absent sufficient evidence, we will reverse a protective order issued under the Domestic Abuse Act, Minn. Stat. § 518B.01 (1998).  Bjergum v. Bjergum, 392 N.W.2d 604, 606 (Minn. App. 1986).

“Domestic abuse” includes, in pertinent part, “physical harm, bodily injury, or assault,” or “the infliction of fear of imminent physical harm, bodily injury, or assault.”  Minn. Stat. § 518B.01, subd. 2(a)(1), (2).   Bergdahl argues that there was insufficient evidence to support the district court’s determination that domestic abuse occurred.  We agree.

Because there is nothing in the record indicating that A.M. has suffered any physical injuries, the disposition of this case rests on whether there was an infliction of fear of imminent physical harm, bodily injury, or assault.  To find infliction of fear of imminent harm, there must be an overt act manifesting intent to inflict fear.  Kass v. Kass, 355 N.W.2d 335, 337 (Minn. App. 1984) (holding that evidence that petitioner thought she noticed her ex-husband following her while she was traveling in a car was insufficient to support issuance of a protective order).  The party petitioning for a protective order under the act must make specific allegations.  Minn. Stat. § 518B.01, subd. 4(b).

An act that does not otherwise seem abusive may be found to be abusive when viewed in the context of past abuse or threats, such as verbal threats or indirect physical aggression.  See Boniek v. Boniek, 443 N.W.2d 196, 198 (Minn. App. 1989) (physical aggression to a salesman in the petitioner’s presence manifested an intent to cause the petitioner to fear imminent physical harm because of the context of past abuse); Hall v. Hall, 408 N.W.2d 626, 628-29 (Minn. App. 1987) (verbal threats in the context of previous instances of death threats, beatings, and intimidation with a gun indicated an intent to cause fear), review denied (Minn. Aug. 19, 1987).  Here, however, there is no evidence that in the past Bergdahl engaged in any conduct that inflicted harm or fear of imminent harm on A.M.

Further, there is nothing in the record before us to support a determination that Bergdahl had a present intention to inflict fear of imminent physical harm in A.M.  The record indicates that the order for protection was issued solely because Bergdahl, with her daughter present, fell asleep at the wheel while she was experiencing the effects of prescription medication.

Although the record reflects that the medication prescribed to Bergdahl had a sedative effect, there is nothing in the record to indicate that she dishonored any warning that driving while taking the medications would be dangerous.  In short, there is nothing in the record to indicate that Bergdahl’s falling asleep at the wheel was anything other than an isolated incident.  To conclude that the incident constituted an act of domestic abuse against A.M. would stretch credulity beyond the breaking point.

Dretsch attempts to salvage the district court’s order by arguing that the evidence is sufficient when viewed in light of Bergdahl’s relationship with Doug Kauffman, a person with violent tendencies.  In issuing the order for protection, the district court made no findings with regard to Bergdahl’s relationship with Kauffman.  This court cannot serve as the fact-finder.  Kucera v. Kucera, 275 Minn. 252, 254, 146 N.W.2d 181, 183 (1966).  Therefore, it would be inappropriate for this court to search the record in an attempt to find that Bergdahl’s relationship with Kauffman supported an issuance of an order for protection. 

Even if we were to consider what evidence was presented regarding Kauffman, however, it would be insufficient to support a determination of domestic abuse by Bergdahl.  Dretsch began his testimony with recognition that he was not alleging that A.M. is in immediate danger of domestic abuse at Bergdahl’s home.

Not really domestic abuse.  It’s just that the people that, I mean, is (sic) around him, as in her boyfriend,  I don’t think he should be there.

 

Dretsch described Kauffman as “being not the greatest.”  Such evidence falls short of supporting an order for protection against Bergdahl.

There is insufficient evidence in this record to establish that Bergdahl committed an act of domestic abuse under Minn. Stat. § 518B.01.  Accordingly, the district court’s order for protection is reversed.

In view of our reversal of the district court’s order for protection, we need not address the question of whether this order for protection violates Minn. Stat. § 518.18 (1998) by effecting an improper modification of a custody order.

Reversed.

 



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