This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-00-1357

 

In the Matter of:

 

Charlotte P. Holm, petitioner,

Appellant,

 

vs.

 

Michael A. Holm,

Respondent.

 

Filed April 17, 2001

Affirmed

Kalitowski, Judge

Dissenting, Lansing, Judge

 

Otter Tail County District Court

File No. F600846

 

Kristi L. Angus, Legal Services of Northwest Minnesota, 1114 Broadway, Alexandria, MN 56308 (for appellant)

 

Michael A. Holm, 202 South Walnut Street, Clitherall, MN 56542 (pro se respondent)

 

            Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Kalitowski, Judge.


U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Charlotte P. Holm challenges the district court’s denial of her petition for an order for protection against her husband, respondent Michael A. Holm.  We affirm.

D E C I S I O N

            Appellant contends this court’s review of the district court’s decision is de novo because she is not contesting the district court’s findings of fact.  But caselaw indicates the district court exercises its discretion in issuing a protective order.   Witchell v. Witchell, 606 N.W.2d 730, 731-32 (Minn. App. 2000).  Moreover, the district court’s decision was based on its ability to hear witnesses and judge credibility. Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000) (holding that this court defers to the district court’s credibility determinations).  And a district court’s findings of fact will not be set aside unless clearly erroneous.  Minn. R. Civ. P. 52.01.  “When examining the record, this court must review the evidence in the light most favorable to the [district] court findings.”  Wilkus-Schmidt-Hight v. Wilkus, 398 N.W.2d 44, 48 (Minn. App. 1986) (citation omitted).  We conclude that we review the district court’s decision under an abuse of discretion standard.    

            The Domestic Abuse Act provides that a district court may issue an order for protection in cases of domestic abuse.  Minn. Stat. § 518B.01, subd. 6(a) (2000).    Domestic abuse includes the infliction of physical harm or fear of imminent physical harm by one family or household member against another. Minn. Stat. § 518B.01, subd. 2(a) (2000).  To establish domestic abuse, a petitioner must prove a present intention by the respondent to do harm or inflict fear of harm.  Baker v. Baker, 494 N.W.2d 282, 287 (Minn. 1992); Bjergum v. Bjergum, 392 N.W.2d 604, 606 (Minn. App. 1986) (reversing order for protection when record contained no evidence of present harm or present intention to inflict fear of imminent harm).  To find infliction of physical harm or 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).  An act that does not otherwise seem abusive, such as verbal threats or indirect physical aggression, may be found to be abusive when viewed in the context of past abuse or threats.  Boniek v. Boniek, 443 N.W.2d 196, 198 (Minn. App. 1989); Hall v. Hall, 408 N.W.2d 626, 628-29 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987).

            It is undisputed that respondent had not physically harmed appellant since returning from inpatient chemical dependency treatment approximately six months prior to the hearing in this matter.  Thus, as framed by the district court, the only issue was whether respondent intended to inflict fear of imminent physical harm, bodily injury or assault.  See Kass, 355 N.W.2d at 337.  The district court found that although respondent had been physically and mentally abusive to appellant in the past, since his return from alcohol-abuse treatment, there have been no threats and no physical abuse.  This finding is supported by the evidence in the record.

            Appellant contends the district court failed to give appropriate consideration to evidence she presented that (1) the reason there has been no abuse is that she often left the house and invoked a safety plan of spending the night outside the home; and (2) she has reason to fear respondent because he has resumed drinking.  But respondent denied that he had made any recent threats of physical harm and testified that he drank only once since returning from treatment.  Moreover, the only evidence in the record regarding a physical confrontation since respondent’s return from treatment involved appellant punching respondent twice as she left to stay with a friend.

            The district court’s decision in this case required reconciling conflicting testimony about respondent’s behavior since he returned from treatment.  The district court as the trier of fact in a domestic abuse proceeding, sits in the best position to decide the credibility of witnesses.  See Minn. R. Civ. P. 52.01 (“Findings 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.”); State v. Aviles-Alvarez, 561 N.W.2d 523, 527 (Minn. App. 1997) (reviewing court gives deference to district court’s “primary observations and trustworthiness assessments”), review denied (Minn. June 11, 1997).

            After hearing all the testimony and questioning both parties the district court found that

since March 5, 2000 [respondent] has not done acts which would be reasonable to think would be an infliction of fear of imminent harm, bodily injury or assault.

Having thoroughly reviewed the transcript of this proceeding, we cannot conclude the district court abused its discretion in finding that the issuance of an order for protection was not warranted.

            Affirmed.


LANSING, Judge (dissenting)

            I respectfully dissent.  The Domestic Abuse Act, Minn. Stat. § 518B.01 (2000), is a substantive statute “carefully drafted to provide limited types of relief to persons at risk of further abuse” from family or household members.  Baker v. Baker, 494 N.W.2d 282, 285 (Minn. 1992).  To support the issuance of a protective order, the petitioner is required to show physical harm, injury, or assault or the “infliction of fear of imminent physical harm, bodily injury, or assault.”  Minn. Stat. § 518B.01, subd. 2(a)(2) (defining domestic abuse).  Thus, conduct that does not result in actual physical injury may constitute domestic abuse if the conduct inflicts fear of imminent assault or physical harm.  Hall v. Hall, 408 N.W.2d 626, 629 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987).

            The district court found that Michael Holm had previously been physically and mentally abusive to Charlotte Holm.  Charlotte Holm described a choking incident that had taken place two years earlier.  Both Charlotte and Michael Holm described incidents that extended from the time of the choking until Michael Holm entered inpatient alcohol treatment, approximately five months before the hearing.  These incidents included Michael Holm’s shattering a window, breaking a door handle, and leaving table-leg marks on the ceiling when he jammed the table against the ceiling and then slammed it on the floor.

The district court concluded that Charlotte Holm had not shown recent physical harm, bodily injury, or assault that warranted a domestic-abuse order.  The court further concluded that Michael Holm had not committed any acts for the previous four months that would reasonably inflict fear of imminent harm, bodily injury, or assault.  Charlotte Holm’s testimony that within those months Michael Holm resumed drinking, and several times returned home after consuming alcohol belligerent and agitated and ordered her to go into the house is, however, undisputed.  Charlotte Holm refused to enter the house because of her fear of abuse and avoided the risk of physical harm by going to a shelter.  Her testimony, corroborated by Michael Holm, indicates that in the four months preceding the hearing, she left the house 14 times following arguments that caused her to fear for her safety.

            Although Charlotte Holm did not demonstrate that she had suffered recent physical harm or bodily injury, she demonstrated that Michael Holm has resumed drinking, that he has become verbally aggressive and agitated, and that she fears for her safety.  In light of the two-year history of this relationship, Charlotte Holm’s essentially undisputed testimony is sufficient to establish that Michael Holm, by resuming his consumption of alcohol and repeatedly becoming verbally aggressive and agitated, has recently inflicted a fear of imminent physical harm, bodily injury, or assault.  See Minn. Stat. § 518B.01, subd. (a)(2).  Charlotte Holm’s right to relief should not be denied because she chose to avoid the actual infliction of the abuse by leaving the household.  See Minn. Stat. § 518B.01, subd. 10 (2000) (providing that person’s right to relief under the domestic-abuse statute is not affected by leaving the residence or household to avoid abuse).