This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-796

 

 

In re Tammy Jean Welch, petitioner,

Respondent,

 

vs.

 

Anthony Vern Fuller,

Appellant.

 

 

Filed April 27, 2004

Affirmed

Huspeni, Judge*

 

 

Dakota County District Court

File No. F8-03-2946

 

 

Tammy Jean Welch, 14158 Plymouth Avenue South, Burnsville, MN 55337 (pro se respondent)

 

William A. Blonigan, Richard S. Eskola, 3989 Central Avenue Northeast, Suite 600, Columbia Heights, MN 55421 (for appellant)

 

 

            Considered and decided by Halbrooks, Presiding Judge, Willis, Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

            In this domestic abuse proceeding, appellant argues that the district court erred in failing to dismiss respondent’s petition for failure to state a claim and in making findings unsupported by the record.  Because we conclude that the district court properly denied the motion to dismiss, and also conclude that the record supports the finding that domestic abuse occurred within the framework of Minn. Stat. § 518B.01 (2002), we affirm. 

FACTS

 

            Appellant Anthony Vern Fuller and respondent Tammy Jean Welch lived together from January 1998 until May 2003.  Welch had previously petitioned for an ex parte order for protection in October 2000; that petition was dismissed.  On June 5, 2003, Welch again petitioned for an order for protection, alleging acts of domestic abuse occurring “[a]bout a month ago.”  Her request for an ex parte order was denied, and an evidentiary hearing was held on June 17.

At the hearing, Welch testified as to an incident occurring in May 2003 when Fuller threw objects at her and hit her on the back of the head.  She testified that she had previously sustained black eyes and cracked ribs and that she decided to move out after the May incident, but waited until Fuller was out of town to move because he refused to let her take her belongings and she was afraid to leave when he was there.  Welch acknowledged that she had sex with Fuller after the May incident, did not report the incident to the police, and did not seek medical attention for her injuries.  Welch’s mother testified that she had seen “bumps” on her daughter after the May incident and that she had previously heard Fuller screaming in the background when Welch had called her.  

Fuller denied throwing items during the May incident and testified that any of his actions were taken “[s]o she wouldn’t trash the room with my computer and $3,000 investment.”  He testified that he did not harm Welch, and that after the incident life went on normally, the parties had sexual relations, and went on a camping trip together.  He was surprised when Welch left and believed that Welch’s mother had talked her into seeking the order for protection so that she could gain custody of the parties’ child. 

The district court issued an order for protection, specifically finding that “[Fuller] physically assaulted [Welch] in late May 2003.”  This appeal followed.[1]

D E C I S I O N

 

I.

 

Fuller contends that the district court erred in failing to grant his motion, brought pursuant to Minn. R. Civ. P. 12.02, to dismiss respondent’s petition for failure to state a claim upon which relief could be granted.  An appellate court reviews this motion de novo, and asks whether the challenged complaint sets forth a legally sufficient claim for relief.  Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550, 553 (Minn. 2003).  Only the facts alleged in the complaint are considered; those facts are accepted as true, and all reasonable inferences are construed in favor of the nonmoving party.  Id. 

The Domestic Abuse Act provides for the issuance of orders for protection in cases of domestic abuse.  Minn. Stat. § 518B.01 (2002).  Domestic abuse includes the infliction of harm, bodily injury, or assault, or the infliction of fear of imminent physical harm, injury, or assault, against a family or household member.  Minn. Stat. § 518B.01, subd. 2.  In her petition signed June 5, 2003, Welch alleged that “[a]bout a month ago” Fuller threw a stereo speaker at her head, hit her in the head with his hand, and threw her off a counter, banging her head against the floor and wall.  She also alleged that he had threatened “to kick the crap out of [her].”

Fuller contends that an order for protection must contain allegations or evidence of present intent to do harm, and that Welch has not alleged such evidence of intent.  We disagree.  This court has interpreted the statutory language of the Domestic Abuse Act “to require either a showing of present harm, or an intention . . . to do present harm.”  Kass v. Kass, 355 N.W.2d 335, 337 (Minn. App. 1984) (emphasis added).  Welch alleged present physical harm in her petition.  She also claimed that Fuller “threatens to beat me if he [doesn’t] like the way I’m talking.”  These allegations satisfy the requirement for stating a legally sufficient claim under the Domestic Abuse Act.  Therefore, taking the facts in the light most favorable to the petition, the district court did not err in denying the motion to dismiss for failure to state a claim upon which relief could be granted.  

II.

 

Although the district court is required to make specific findings on domestic abuse, Nohner v. Anderson, 446 N.W.2d 202, 203 (Minn. App. 1989), the decision to grant an order for protection lies within the district court’s discretion.  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.  After reviewing all of the evidence, an appellate court will only reverse a district court’s findings of fact if the court “is left with the definite and firm conviction that a mistake has been made.”  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted). 

Fuller argues initially that because the last incident of alleged abuse occurred approximately one month before the filing of the petition, Welch has failed to demonstrate any belief or fear of immediate harm.  We disagree, and conclude that Fuller’s reliance on Andrasko v. Andrasko, 443 N.W.2d 228 (Minn. App. 1989), Bjergum v. Bjergum, 392 N.W.2d 604 (Minn. App. 1986), and Kass v. Kass, 355 N.W.2d 335 (Minn. App. 1984), to support his argument is misplaced.  In the cases upon which Fuller relies, there was either no testimony regarding specific acts of abuse (Andrasko), or the alleged acts of abuse were remote in time (two years in Bjergum and four years in Kass).  Here there was ample testimony regarding the abuse, and the alleged acts occurred, at the earliest, within one month of the filing of the petition.

Fuller also contends that the district court’s finding concerning the actual date of the May 2003 assault is unsupported by the evidence because Welch testified inconsistently; on direct examination she indicated that the assault occurred in late May, and on cross-examination indicated that it occurred in early May.[2]  The trial court found that the incident occurred “in late May 2003.”  We note initially that it is for the district court to assess the credibility of witnesses.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).  Despite Welch’s inconsistent testimony as to the specific date of the abuse, based on the evidence in the record as a whole, the district court could reasonably have found that the incident did, in fact, occur in late May.  

Even if we were to conclude the record in its entirety supports a finding only that the abuse occurred in early May, such misidentification of a specific date is error of a clerical nature under the circumstances of this case, and is harmless.  See Minn. R. Civ. P. 61 (stating harmless error is to be ignored).  The record contains ample evidence upon which a finding of domestic abuse could be made.  That is the critical finding; whether the event occurred in early May or late May is not critical here.[3] 

Finally, Fuller, in reliance upon his argument that the record supports only a finding of abuse occurring in early May, argues that Welch’s claim of present fear must fail.  That failure, argues Fuller, results from the uncontested fact that the parties continued to live together in a relationship that included sex, until the time of their physical separation in late May.  Even if we accept Fuller’s premise that the abuse could only have occurred in early May, we see no failure in Welch’s proof of present fear.  She testified that she was afraid of Fuller, and waited until he was away from the home for a few days in late May to remove herself, the parties’ child, and their belongings from the family home.  This testimony was impliedly found by the district court to be more credible than Fuller’s.  Welch’s testimony and that of her mother provide sufficient evidence of abusive behavior to sustain a domestic-abuse protection order.   

The district court did not abuse its discretion in issuing the order for protection.

            Affirmed.

 



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

[1]  Respondent did not file a brief; this matter proceeded pursuant to Minn. R .Civ. App. P. 142.

[2] Fuller also claims that Welch misrepresented in her petition that a prior ex parte domestic abuse order had been granted in October 2000, when in fact Welch’s petition at that time had been dismissed.  Because no respondent’s brief has been submitted on appeal, there has been no response to this allegation.  However, our review of the record indicates that any misrepresentation in the petition would not have resulted in prejudice to Fuller.  There is no indication that the district court relied in any way upon this challenged representation.

[3]  Fuller also argues that the district court’s denial of an ex parte order on Welch’s June 2003 petition is significant and should be considered in determining whether she has carried her burden of proving that domestic abuse occurred.  The decision to deny the ex parte order and conduct an evidentiary hearing before any order issued was clearly within the discretion of the district court.  Fuller’s argument on this point is without merit.