This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







David A. Gerads, petitioner,


Edith Barbara Gerads,


Filed January 28, 2003


Wright, Judge


Stearns County District Court

File No. F4021052



Maury D. Beaulier, The Beaulier Law Office, 5001 West 80th Street, Suite 1010, Bloomington, MN  55437 (for appellant)


Russell R. Cherne, Pennington & Lies, P.A., 1111 First Street North, St. Cloud, MN  56302-1756 (for respondent)


            Considered and decided by Stoneburner, Presiding Judge, Anderson, Judge, and Wright, Judge.

U N P U B L I S H E D  O P I N I O N




Appellant-mother challenges the issuance of an order for protection, arguing that (1) the findings of fact and conclusions of law were insufficient and (2) the record does not support a finding that she intended to cause her children fear of imminent harm.  Because the findings are insufficient and the record, in its current state, does not lend itself to meaningful review, we remand to the district court for particularized findings.



Appellant Edith Gerads (mother) and Respondent David Gerads (father) have two children.  When mother and father separated in July 2001, they arranged a parenting schedule in which their children would spend alternate weeks with each parent.  Dissolution proceedings had begun, but a custody evaluation had not occurred at the time of the hearing before the district court. 

            On March 7, 2002, father petitioned for an ex parte order for protection on behalf of the children, alleging that mother has a history of committing domestic abuse against them.  In the petition, father cited two incidents occurring in February and March 2002.  Father also noted that, in June 2001, he contacted law enforcement and sought medical assistance because of domestic abuse.  The district court granted an ex parte order for protection and set the matter for a hearing on March 21, 2002.

Father and mother were the only witnesses at the hearing.  They both described the first incident, which occurred when mother was driving the children to Detroit Lakes.  Father testified that when he called mother on her cell phone, he heard one of the children yelling and crying in the background.  Mother told father that she “could end it all.”  Mother testified that the roads were slippery and that she was in a hurry.  While the children were screaming, crying, and begging mother to get off the phone and watch the road, mother told father she was going to crash the truck.  Mother explained that her comments were not intended to scare the children.  Rather, she meant she needed to end the conversation with father.

            During the second incident, mother told the children that Heaven is their real home and she cannot wait until they get there.  Mother testified that she was discussing the sermon they heard while attending Mass.  Father testified that mother’s statement scared the children.  When they told him about their mother’s comment, the children also told father they no longer wished to spend alternate weeks with their mother. 

Father also testified that there have been hitting and yelling incidents while the children were at mother’s home.  The children have called him after mother’s hitting and yelling episodes because they don’t feel safe.

            Using a printed form, the district court granted the children a one-year order for protection.  The district court granted father sole physical and legal custody of the children, limiting mother’s contact with the children to supervised visitation.  Mother was also ordered to have no contact with father.  As its findings of fact regarding the acts of domestic violence, the district court wrote “SEE PETITION.”  The district court concluded that

the statements made by [mother the] weekend of March 1st [were] intended to inflict fear of harm toward the children and did in fact inflict the fear of harm in them.


This appeal followed.




Under the Domestic Abuse Act, the 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) (2002).  An order for protection is justified when a family member “manifests a present intention to inflict fear of imminent physical harm, bodily injury or assault.”  Boniek v. Boniek, 443 N.W.2d 196, 198 (Minn. App. 1989).  An order for protection issued absent a record establishing the present intention to do harm or inflict fear of imminent harm must be reversed.  Bjergum v. Bjergum, 392 N.W.2d 604, 606 (Minn. App. 1986).  

This court does not reconcile conflicting evidence, but gives great deference to the district court’s factual findings.  Porch v. Gen. Motors Acceptance Corp., 642 N.W.2d 473, 477 (Minn. App. 2002).  A district court’s findings of fact will not be set aside unless they are clearly erroneous.  Minn. R. Civ. P. 52.01.  We give great deference to the district court’s determination of witness credibility because

it has the advantage of hearing the testimony, assessing relative credibility of witnesses and acquiring a thorough understanding of the circumstances unique to the matter before it. 

Hasnudeen v. Onan Corp., 552 N.W.2d 555, 557 (Minn. 1996) (citation omitted); see also Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating appellate courts defer to district court credibility determinations).

Mother argues that the district court’s findings of fact are insufficient to support an order for protection, because the district court refers to the petition without stating the allegations that satisfy the elements of domestic abuse or finding that she caused fear of imminent harm in her children.

To enable meaningful appellate review, the basis for the district court’s decision must be set forth with particularity.  Wallin v. Wallin, 290 Minn. 261, 267, 187 N.W.2d 627, 631 (1971).  An order for protection requires specific findings on domestic abuse, and “particularized findings of fact sufficient to support determinations of custody and other issues.”  Andrasko v. Andrasko, 443 N.W.2d 228, 230-31 (Minn. App. 1989).  In Andrasko, we determined the findings were insufficient when the district court left blank the space for findings on the pre-printed order for protection form.  Id. at 231. 

Beneath the line on the order for protection form that reads, “Based on the evidence presented at the hearing in this matter, the Court makes the following FINDINGS OF FACT and CONCLUSIONS OF LAW,” the district court’s notation reads, “SEE PETITION.”  In the blank for additional comments, the district court wrote,

the statements made by [mother the] weekend of March 1st [were] intended to inflict fear of harm toward the children and did in fact inflict the fear of harm in them. 


This constitutes the entire basis for the district court’s decision and precludes meaningful appellate review.  Our opinion does not foreclose referring to the petition for factual findings when the facts are uncontested and adequately developed.  In this case, however, the petition alone does not permit meaningful review because it lacks details regarding the alleged past abuse and it alleges current abuse without any particularity.

Without more detailed findings, we cannot review the district court’s decision to determine whether its exercise of discretion was sound.  The testimony addressed the allegations in the petition, but the evidence was contraverted.  The findings do not weigh the conflicting evidence or give any insight into the district court’s credibility determination.  See Porch, 642 N.W.2d at 477 (stating that appellate courts do not reconcile conflicting evidence).  While prior abuse was alleged in the petition, the findings of fact in their current state provide no indication of the nature of such abuse, or whether it was the basis, in part, for the district court’s conclusion that mother’s statements in March intentionally inflicted fear of imminent bodily harm.  We, therefore, remand to the district court with instructions to make particularized findings based on the existing record. 

            Mother next argues that the evidence was insufficient to support the order for protection because the district court did not conclude that she intentionally caused her children fear of imminent harm.  The Minnesota Domestic Abuse Act defines domestic abuse, in pertinent part, as “(1) physical harm, bodily injury, or assault; [or] (2) the infliction of fear of imminent physical harm, bodily injury, or assault[.]”  Minn. Stat. § 518B.01 subd. 2(a) (2002) (emphasis added).  This court has held that an overt action is required to establish the “infliction of fear of imminent harm.”  Kass v. Kass, 355 N.W.2d 335, 337 (Minn. App. 1984).  Specific threats and threatening behavior, however, are sufficient to inflict fear of imminent harm when viewed in light of past abuse.  Boniek, 443 N.W.2d at 198; Hall v. Hall, 408 N.W.2d 626, 629 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987).  

For the reasons stated above, we decline to make a determination on the sufficiency of the evidence.  As an error-correcting court, we review the substantive evidence to determine if it supports the trial court’s factual findings.  Cf. Sefkow, 427 N.W.2d at 210 (holding court of appeals exceeded scope of review where it failed to defer to trial court's factual findings and, instead, reviewed factual record de novo).  In its current state, we cannot review the record for evidentiary sufficiency. 

Mother also argues on appeal that the district court erred in admitting statements the children made to their father because they were inadmissible hearsay.  But she did not object at the hearing.  Mother, therefore, has waived her right to have this issue reviewed on appeal.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that appellate courts do not address questions not presented to the district court).