This opinion will be unpublished and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
Janeen K. Eddie,
Filed July 6, 2004
Catherine Brown Furness, Catherine Brown Furness Law Office, Premier Bank Building, Suite D, 209 East Main Street, Box 603, Owatonna, MN 55060 (for appellant)
Considered and decided by Schumacher, Presiding Judge; Stoneburner, Judge; and Parker, Judge.*
U N P U B L I S H E D O P I N I O N
On appeal from the district court’s of an order for protection to respondent Thomas Eddie, appellant Janeen Eddie grant argues that her actions did not constitute domestic abuse. We agree and reverse.
Appellant and respondent were married for more than 15 years. Their marriage was dissolved in January 2003. The parties have joint legal custody and appellant has physical custody of their sons, ages 16 and 13. At times relevant to this proceeding, respondent was engaged to marry Mary Dehn.
In October 2003, respondent petitioned the district court for an order for protection under Minn. Stat. § 518B.01 (2002). Respondent stated in the affidavit supporting the petition that he sought an order for protection because “[appellant] is my former spouse and since our separation she has been verbally abusive which is damaging my relationship with my boys and others.” The petition described “specific acts of domestic abuse” in an attachment that listed 12 incidents, some of which did not involve respondent and none of which involved physical harm or threats of physical harm.
At the contested hearing, respondent described the incidents involving him. He testified that on Tuesday, September 23, 2003, appellant called him at work, despite his request that she only contact him at work for an emergency, and left the following message on his cellular-telephone voice-mail:
There f---ing [better] be some prescription medicine also. I’m not paying for any over-the-counter medicine that you have to keep at your house, just like I have to keep at my house. There better f---ing be a prescription that you bought for him, and I want it tomorrow.
Respondent testified that he has received other similar messages and that he is concerned that the boys have heard appellant, and that he is concerned about appellant’s anger: “What’s the next thing she is going to do, knock on my door . . . or who knows what was going to happen.” In response to his attorney’s question “[a]re you fearful of the [appellant]?”, respondent answered, “Certainly.” When asked why, respondent testified, “Just her anger, the way she deals with issues . . . never a pleasant conversation and, I don’t know, just frightening how she handles situations.”
Respondent testified that at a football game in August 2003, appellant came “stomping over” and “the look in her eyes was frightening, to say the least . . . she said ‘give me that blanket.’. . . [T]hat was a very scary moment for Mary and I. . . . It was just a kind of a scary moment . . . for everybody.” Respondent testified that he was holding a blanket which appellant grabbed, stating that it was hers; respondent let go of the blanket, and appellant left. Respondent further testified that there was anger and hatred in appellant’s voice and body language and people “step[ped] back.”
Respondent testified that appellant walked up to him and Mary Dehn at a county fair and started yelling, screaming vulgarities; and, at a youth baseball concert fundraiser appellant came up to respondent and Mary Dehn from behind and started “badgering us.” When asked by counsel, “Were you personally fearful for your own safety when she did these things?” respondent answered, “Yes.”
Respondent also testified about an incident in January 2003 at a basketball game in Rochester when appellant confronted him in the gym about money. He went with her into a hallway to talk about it. According to respondent's affidavit, appellant said if he did not give her money for their son’s prescription medication she would “call the judge that night and the law would be after [him].” According to respondent’s testimony, “[appellant] was just very upset and angry, and it was—it was scary . . . [w]e’re face-to-face. . . . I’m trying to back up and stay away, but it’s very confrontational.” When asked by counsel, “[I]n a situation like this . . . are you in fear for your physical safety at that time?”, respondent answered, “Yes.” When asked why, respondent said “[j]ust her—her language, her tone of voice, her body language she is very angry and blows up at a moment’s notice and it’s just frightening.”
Respondent is 6’ 2” tall and weighs 240 pounds. Appellant is 5’ 11” tall and weighs 155 pounds. Appellant has never owned a gun and has never struck respondent, threatened to strike him, or made any threats other than a threat to telephone a judge. She admitted confronting respondent over issues involving the children and using the “f” word out of frustration over the lack of communication regarding the children, but denied intending to cause fear of physical abuse.
The district court found that there had been no physical harm, bodily injury, or assault and stated that the statute does not require intentional infliction of fear of imminent physical harm. The district court identified the issue as whether appellant’s conduct is infliction of fear of imminent bodily harm, concluded that “[w]alking up to somebody, swearing in their face, backing them down, taking property out of their possession is the infliction of imminent physical harm,” and granted the order for protection. This appeal followed.
A reviewing court need not defer to the district court’s application of the law when the material facts are not in dispute. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989). “Domestic abuse” is defined in relevant part under Minn. Stat. § 518B.01, subd. 2(a)(2) (2002), as “the infliction of fear of imminent physical harm, bodily injury, or assault.”
[U]se of the phrase “infliction of fear” in the statute implies that the legislature intended that there be some overt action to indicate that appellant intended to put respondent in fear of imminent physical harm. . . . Thus, we construe the definition of “domestic abuse” under Minnesota’s Domestic Abuse Act to require either a showing of present harm, or an intention on the part of appellant to do present harm.
Kass v. Kass, 355 N.W.2d 335, 337 (Minn. App. 1984) (second emphasis added). The statute does not impose a requirement of an overt physical act to support the issuance of a protection order. Hall v. Hall, 408 N.W.2d 626, 629 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987). “A verbal threat, depending on the words and the circumstances, can also inflict ‘fear of imminent physical harm, bodily injury or assault.’” Id.
In the case before us, it is undisputed that appellant did not make any verbal threats of physical harm, and that her overt acts consisted of walking up to respondent in a public place, swearing in his face causing him to back up, and grabbing a blanket out of his hand. The district court erroneously concluded that the statute does not require an intent to put respondent in fear of imminent bodily harm. And we conclude that the evidence is insufficient to support a conclusion that appellant’s swearing in respondent’s face and grabbing a blanket from his hands, however obnoxious, constitute an intent to put respondent in fear of imminent bodily harm. Despite respondent’s brief affirmative answers to his attorney’s leading questions about whether appellant’s acts caused him fear, the district court did not find that respondent actually feared imminent physical harm from appellant. Respondent found her anger “frightening” and wondered what would she do next and “what . . . if she had a weapon”, but did not testify that he was in fear of imminent bodily harm. Respondent never asked for assistance from those around him and willingly stepped into a marginally more private hallway with appellant when she confronted him in a gym during a basketball game. Appellant may well have committed harassment that would entitle respondent to a restraining order under Minn. Stat. § 609.748 (2002), but under the facts of this case, respondent has failed to establish that appellant committed domestic abuse as it is defined in the statute and case law.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The petition initially sought the order for respondent and his fiancée, Mary Dehn, but her name was removed from the petition, and, according to counsel, she obtained a harassment restraining order against appellant under Minn. Stat. § 609.748 (2002). That order has not been appealed.