This opinion will be unpublished and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

C1-01-1074

 

In re the Matter of:
Phyllis Emma Wolf,
on behalf of J.R.F., petitioner
Respondent,

vs.

Todd Simon Fairbanks,
Appellant.

 

 

Filed November 27, 2001

Reversed

Stoneburner, Judge

 

Hennepin County District Court

File No. DA266551

 

 

Phyllis Wolf, 3723 Lee Avenue North, Robbinsdale, MN 55422 (respondent pro se)

 

Ann M. Lentner, Steffens & Rasmussen, 300 Southdale Place, 3400 West 66th Street, Edina, MN 55435 (for appellant)

 

 

            Considered and decided by Shumaker, Presiding Judge, Halbrooks, Judge, and Stoneburner, Judge.

 

 

U N P U B L I S H E D  O P I N I O N

STONEBURNER, Judge

 

Respondent Phyllis Wolf sought an order for protection against appellant Todd Fairbanks on behalf of the parties’ child, J.R.F.  An ex parte order for protection was issued, and, after a hearing, the district court granted an order for protection to Wolf and the child.  We reverse because the record does not contain evidence indicating that Fairbanks inflicted physical harm or manifested a present intention to inflict fear of imminent physical harm on either Wolf or J.R.F. 

 

FACTS

 

J.R.F., born November 8, 1994, is the son of Wolf and Fairbanks.  Wolf has sole physical custody subject to reasonable visitation by Fairbanks.  Wolf alleges that J.R.F. told her that Fairbanks threw him on the couch two times on the morning of April 20, 2001.  Wolf testified that J.R.F. relayed the same story to Dr. Sipe, a child psychologist.  The court determined that J.R.F. was too young to testify.  Fairbanks denied the incident described by J.R.F. but admitted that he gave the child two swats on the bottom for misbehavior.  The district court issued an order for protection finding that Wolf was more credible than Fairbanks and that Fairbanks’s own testimony corroborated the elements of the petition.  Fairbanks appeals. 

D E C I S I O N

 

The decision to grant an order for protection under the Domestic Abuse Act is within the district court’s discretion.  Mechtel v. Mechtel, 528 N.W.2d 916, 920 (Minn. App. 1995).  A district court may issue an order for protection to “restrain the abusing party from committing acts of domestic abuse.”  Minn. Stat. § 518B.01, subd. 6(1) (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). 

An order for protection requires a showing of present harm or an intention to do present harm.  See Boniek v. Boniek, 443 N.W.2d 196, 198 (Minn. App. 1989) (“An order for protection is justified under the Domestic Abuse Act when a former spouse manifests a present intention to inflict fear of imminent physical harm, bodily injury or assault.”)  If the record “fails to establish appellant’s ‘present intention to do harm or inflict fear of harm,’ we have no alternative but to reverse the protection order.”  Bjergum v. Bjergum, 392 N.W.2d 604, 606 (Minn. App. 1986).

1.            Protection of the child

The record does not support the district court’s decision to grant the order for protection.  The district court issued the order for protection noting that Fairbanks’s own testimony corroborates the fact that he hit his son on April 20, 2001.  The judge said,

Mr. Fairbanks, what you have done through your own testimony is corroborate the fact that you * * * hit your son on the date and time in question.  That would constitute domestic abuse as defined by the statute.

Fairbanks denied throwing his son on the couch on April 20, 2001.  Fairbanks admitted that he gave his son two “taps on the behind” because he was misbehaving on that day. 

Occasional spankings, however, do not constitute domestic abuse.  See Uhl v. Uhl, 413 N.W.2d 213, 215, 217 (Minn. App. 1987) (holding that trial court properly awarded custody of children to mother even though she admitted to spanking her daughter with a wooden spoon approximately once a week); Johnson v. Smith, 374 N.W.2d 317, 320-21 (Minn. App. 1985) (concluding that the record contained “no competent evidence of unlawful child abuse” where child, who had been spanked with a wooden spoon on at least one occasion, was not hurt physically or emotionally), review denied (Minn. Nov. 18, 1985).  The record contains no evidence that Fairbanks physically injured J.R.F. 

            In addition, the record does not contain any evidence indicating that Fairbanks manifested a present intention to inflict fear of imminent physical harm or bodily injury on J.R.F.  The hearsay statement of a cousin that he found the child “in a crouched position” on the couch and the hearsay statement of Wolf’s parents that J.R.F. did not want to go to school with Fairbanks after the alleged incident are consistent with Fairbanks’s version of the incident and are legally insufficient to support a conclusion that Fairbanks inflicted or threatened to inflict the type of harm that constitutes abuse.

            The district court abused its discretion in issuing the order for protection because the evidence the court relied on—Fairbanks’s own admission that he spanked his son—does not constitute domestic abuse.  Because the record fails to establish that Fairbanks harmed or presently intended to harm his son, we reverse the protection order as to J.R.F.

 

2.            Protection of Wolf

 

The record does not contain evidence indicating that Fairbanks manifested a present intention to inflict fear of imminent physical harm or bodily injury on Wolf.  The district court’s order prevents Fairbanks from having contact with Wolf in person, by telephone, by letter, or by third party, unless he wants to arrange a visit with the child via e-mail.  The district court found that there were aggressive incidents towards Wolf in the past.  Wolf testified that she and Fairbanks have had a tumultuous, sometimes violent, relationship. 

Abusive incidents from the past, however, do not justify a district court’s decision to grant an order for protection if there is no “showing of appellant’s present intention to do harm or inflict fear of harm.”  Kass v. Kass, 355 N.W.2d 335, 337 (Minn. App. 1984).  Although Wolf testified that Fairbanks had exhibited “aggression in the past” toward her, she did not state that she has received any recent threats from Fairbanks.  Wolf did not indicate that she currently fears for her own safety nor did she describe any threatening behavior by Fairbanks.  Therefore, the district court abused its discretion by granting an order for protection to protect Wolf, and we reverse. 

 

3.         Right to a full hearing

 

The Domestic Abuse Act requires a “full hearing” before the court may issue an order for protection.  Nohner v. Anderson, 446 N.W.2d 202, 203 (Minn. App. 1989). “[T]he mere appearance of counsel, without acceptance of any evidence, is insufficient to satisfy that requirement.”  Id.  Furthermore,

[t]he right to a “full hearing” on the 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). 

 

Although Fairbanks requested an evidentiary hearing, Wolf was the only person who testified on behalf of the petition.  In addition to the alleged statements of J.R.F., she presented hearsay statements of her cousin, her parents, and Dr. Sipe, denying Fairbanks the opportunity to cross-examine these witnesses.  At the hearing, Fairbanks asked Wolf for a copy of Dr. Sipe’s written report.  Wolf did not provide the court with a report from the doctor because she “didn’t ask for one.”

The district court denied Fairbanks’s request to introduce an e-mail to him from Wolf, sent after the court issued the ex parte order for protection, that was offered to show that Wolf was not afraid of Fairbanks.  Fairbanks also tried to introduce a report from another psychologist who had met with J.R.F.  Although the report discussed the child’s behavior and demeanor, the court refused to accept this report because it found that it was not relevant to the allegations of child abuse.

Although the district court’s evidentiary rulings may have been within the sound discretion of the court, those rulings, combined with the fact that all of the evidence offered in support of the petition was hearsay, lead us to conclude that Fairbanks did not receive a full hearing.  Although we are reversing on other grounds we note that, on appeal, this court will reverse an order for protection if the district court denied the appellant a full hearing.  See Mechtel, 528 N.W.2d at 921 (reversing district court’s decision to grant an order for protection in part because the court failed to conduct a full hearing).

Reversed.