This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Diane F. Henry, petitioner,
Darrel D. Henry,
Swift County District Court
File No. F1-05-59
Timothy Jon Simonson, Anderson Larson Hanson & Saunders, P.L.L.P., 331 3rd Street S.W., Post Office Box 130, Willmar, MN 56201 (for respondent)
Jennifer Kurud Fischer, Jones & Fischer, P.A., 516 Litchfield Avenue Southwest, Post Office Box 1051, Willmar, MN 56201; and
Daniel Gislason, Gislason & Hunter, LLP, 2700 South Broadway, P.O. Box 458, New Ulm, MN 56073 (for appellant)
Considered and decided by Peterson, Presiding Judge, Dietzen, Judge, and Huspeni, Judge.
U N P U B L I S H E D O P I N I O N
In challenging the district court’s order for protection of respondent, appellant argues that (a) the findings are insufficient because there was no determination that appellant harmed or intended to inflict fear of harm upon respondent and (b) the record lacks evidence to support the issuance of the order for protection. Because the findings of the district court are sufficient to permit meaningful review, and because there is sufficient evidence to support the order for protection, we affirm.
On February 16, 2005, the district court issued an ex parte order for protection (OFP) based upon an application filed that day by respondent. A hearing, attended by both parties, occurred on February 22, 2005.
The incident giving rise to the OFP occurred on February 11, 2005, in the bedroom of the parties’ family home, where they resided together with two minor children. Appellant Darrel Henry testified that the parties had a verbal argument following which respondent Diane Henry repeatedly indicated that she did not want to speak further with appellant. In hopes of speaking to respondent regarding the argument, appellant followed her into the bedroom. Both parties testified that appellant would not allow respondent to leave the bedroom during the argument. Respondent repeatedly demanded that she be able to leave the bedroom. Appellant, however, would not move away from the door. Instead, he stood blocking the door with the purpose of preventing respondent from leaving. Respondent testified that appellant pushed her into the wall as she attempted to leave the bedroom, while appellant testified that he pushed respondent’s hand away when she reached for the door. Respondent was not injured and testified that she did not receive any bruises or injuries from the encounter. Respondent did, however, testify that she felt “embarrassed and angry” as a result of the incident. Further, although respondent testified that appellant did not threaten her on the evening of the encounter, she testified that “[she] was scared when [she] left” the following morning.
The encounter between the parties ended when one of their minor children heard the argument from outside the bedroom and walked in. At that time, appellant moved away from the door and respondent left the bedroom. Respondent testified that the minor child was afraid of appellant, and requested that respondent sleep in her bedroom in the basement of the family home that evening.
Evidence of past domestic abuse was also presented at the hearing. Respondent testified that during the marriage, appellant had pushed and hit her. She attributed this behavior to what she alleged was appellant’s use of steroids, and noted that the aggressiveness subsided when that alleged use ceased. Respondent also testified that appellant had raped her and forced her into sexual activities, although she recognized that upon persuasion she would eventually consent to the sexual activities. Further evidence stressed the substantial size and strength disparity between the parties, as well as the fact that appellant is a former wrestler.
Following the hearing, the district court concluded that domestic abuse had occurred and that appellant created an “atmosphere of intimidation and harassment” by physically blockading the door, preventing respondent from leaving, and pushing respondent’s hand away. In addition, the district court found that the minor child was concerned for respondent’s safety, enough to interrupt and interfere with the parties’ marital relationship. An OFP was issued for a period of one year, and this appeal followed.
D E C I S I O N
The decision to grant an OFP under
the Domestic Abuse Act, Minn. Stat. §§ 518B.01-.02 (2004), is within the
district court’s discretion. Chosa v. Tagliente, 693 N.W.2d 487, 489
A district court’s findings of facts
will be set aside only if clearly erroneous.
In addition to the findings regarding appellant’s creation of an atmosphere of intimidation and harassment by his actions toward respondent in the bedroom, the district court also noted that the parties’ minor child was concerned for respondent’s safety, enough to interrupt and interfere with the marital encounter.
Appellant argues that the evidence fails to show that he harmed or threatened to harm respondent during the altercation in the bedroom. He argues, instead, that his only intent was to engage respondent in private conversation about a prior argument of the parties and about their marital problems. Appellant also alleges that the district court failed to make particularized findings that appellant harmed, intended to do present harm, or intended to inflict fear of harm upon respondent. We see no merit in appellant’s arguments.
District courts are allowed to issue an OFP in order to prevent acts of domestic abuse. Chosa, 693 N.W.2d at 489. “‘Domestic abuse’ means the following, if committed against a family or household member by a family or household member: (1) physical harm, bodily injury, or assault; (2) the infliction of fear of imminent physical harm, bodily injury, or assault . . . .” Minn. Stat. § 518B.01, subd. 2(a)(1), (2).
In the present case, the district court found that a domestic incident occurred which constituted domestic assault. The district court determined that appellant created an “atmosphere of intimidation and harassment” by physically blocking respondent from leaving the bedroom. The district court further found that as respondent attempted to leave the room by grabbing for the doorknob, which appellant had ahold of, appellant physically intimidated respondent by pushing her hand away. In addition to these facts, the district court found that the size disparity between the two added to the effect of appellant’s intimidation.
Appellant further argues that his intent was not to inflict fear of harm, but to converse with his wife. The record supports a contrary conclusion. Importantly, an intent on the part of appellant to instill fear in respondent can be inferred based upon the totality of the facts of the situation. See Boniek v. Boniek, 443 N.W.2d 196, 198 (Minn. App. 1989) (viewing evidence in totality and finding that appellant exhibited behavior allowing inference that he intended to instill fear of physical abuse in wife).
In its order for protection, the district court determined that appellant’s acts caused respondent fear. While appellant argues that respondent did not testify that she was in fear during the bedroom incident, she did testify that she was in fear of appellant the next morning. The facts support the determination that appellant instilled fear in respondent.
if this court were to find that the facts fail to show that appellant instilled
fear in respondent, fear was instilled in his daughter during the bedroom
incident. Under Minn. Stat. § 518B.01,
subd. 2, the definition of domestic abuse is broad enough to enable a court to
find that when one family member intends to cause, in the mind of a second
family member, fear of harm to a third family member, sufficient evidence that
domestic abuse has occurred exists. That
is exactly what happened here. Respondent
testified that the parties’ daughter was fearful and shaking as a result of the
incident. It is reasonable to infer
that a person ordinarily intends the natural and probable cause of acts knowingly
done. State v. Cooper, 561 N.W.2d 175, 179 (
We hold that the district court’s findings of fact are not clearly erroneous. There are sufficient finding of facts to support its decision to issue the OFP.
* Retired Judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.