This opinion will be unpublished and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
Billie Jean Bell, petitioner,
John William Marvin II,
Filed November 5, 2002
Roseau County District Court
File No. FX-01-876
Blair W. Nelson, Blair W. Nelson, Ltd., 1421 Bemidji Avenue, Bemidji, MN 56601 (for respondent)
Alan B. Fish, Alan B. Fish, P.A., 109 Second Street Northeast, Roseau, MN 56751 (for appellant)
Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Willis, Judge.
Appellant challenges the district court’s issuance of an order for protection against him, arguing that the record does not show that he had a present intention to inflict harm or fear of harm on respondent. We affirm.
The relationship between appellant and respondent began at least as long ago as 1997. They became romantically involved and then engaged. In March 1997, the parties’ relationship turned sour. Respondent testified at the protection hearing that, after a confrontation outside a local business, appellant followed her home, grabbed her by the hair, forced her to perform oral sex on him, and sodomized her. She also testified that he broke her finger by attempting to forcibly remove her engagement ring. When the police (summoned by a third party) arrived, respondent told them "everything was okay."
In spite of this incident, the parties married in August 1997, and had a child together seven months later. In August 1998, they had another violent disagreement. Appellant grabbed respondent by the throat and beat her head against a wall several times. When respondent tried to call for help, appellant unplugged the phone. Appellant was arrested and charged with fifth-degree assault and interference with a 911 call, but was not convicted. Shortly after this incident, the parties divorced.
In late October 2000, appellant and respondent reconciled and respondent moved back into appellant’s home. They did not remarry. The next fall, they were arguing again, and in November 2001, one argument led to respondent being taken to the hospital. Respondent testified that in the same time period, during an argument, appellant kicked her in the vaginal area as she walked away from him.
Finally, at the end of December 2001, appellant asked respondent to leave the home. She packed her belongings, took the child, and left. Respondent applied for a temporary order for protection. The order was issued on December 31, 2001. A hearing was set for January 8, 2002. Both parties appeared and gave testimony, as well as a friend and several family members who also testified. After the hearing, the district judge found there was sufficient evidence to warrant an order for protection against appellant, which enjoins him from having any contact with respondent or from attempting to commit further abuse against her. The order is effective for one year from the date of its issuance, until January 2003. This appeal followed.
The decision to grant an order for protection under the domestic abuse act is a matter of discretion for the district court. Mechtel v. Mechtel, 528 N.W.2d 916, 920 (Minn. App. 1995). A district court’s findings of fact will not be set aside unless clearly erroneous. Minn. R. Civ. P. 52.01.
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. Id., subd. 2(a) (1), (2) (2000).
Under Minnesota caselaw, an order for protection is only proper where there is a showing of present harm or intent to do present harm. Boniek v. Boniek, 443 N.W.2d 196, 198 (Minn. App. 1989). If the record does not make such a showing, this court will reverse the protection order. Bjergum v. Bjergum, 392 N.W.2d 604, 606 (Minn. App. 1986). Appellant argues that incidents of past abuse are not enough to show that he has a present intention to harm respondent or that he poses a continuing threat to her safety. We disagree.
Here, the district court found that appellant had committed acts of domestic violence against respondent, “including grabbing her by the neck and kicking her,” and that this abuse justified the issuance of the protective order. This decision was reached after a lengthy hearing and eight witnesses. Respondent testified that appellant had severely abused her on a number of occasions during their relationship. She testified that appellant raped and sodomized her; that he grabbed her by the throat and beat her head against the wall; and that, a few months before the hearing, he kicked her in the vaginal area. Respondent also testified that she did not report various incidents of abuse to the police because she was afraid of appellant, even when he was not overtly threatening her. Appellant admitted to the 1998 assault, for which he was arrested but never convicted, but denied having recently abused respondent or having any present intent to abuse her again.
We acknowledge appellant’s argument that the major abusive incidents are separated in time. But the type of abuse alleged in this case is violent and severe and we will consider it apart from less-serious behavior. This is not a case of verbal threats and rude behavior. This case involves allegations of rape, sodomy, violence, and hospital treatment. Given the nature of this abuse, it was not error for the district court to find that respondent posed a continuing threat of harm to appellant. We conclude the district court did not abuse its discretion in issuing an order for protection against appellant.