This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1211

 

Angela Lynn McIntyre, for herself and on behalf of K.R.M.

A.E.M. and C.J.E., petitioner,
Respondent,

vs.

James August McIntyre,
Appellant.

 

Filed May 16, 2006

Affirmed

Minge, Judge

 

Hennepin County District Court

File No. DA 298657

 

 

Kimberly M. Ferrier, Dunkley and Bennett, P.A., 701 Fourth Avenue South, Suite 700, Minneapolis, MN 55415 (for respondent)

 

Alan J. Albrecht, 7066 Brooklyn Boulevard, Brooklyn Center, MN 55429 (for appellant)

 

            Considered and decided by Randall, Presiding Judge; Shumaker, Judge; and Minge, Judge.

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            In this appeal from an order for protection (OFP), appellant-father argues that (1) the district court should not have entered formal findings regarding appellant’s abuse of respondent-mother because appellant consented to the issuance of the OFP for the benefit of respondent; and (2) if findings were appropriate, some of the district court’s findings were clearly erroneous.  Because we find that the district court did not err or abuse its discretion, we affirm.

FACTS

 

            Appellant James McIntyre and respondent Angela McIntyre were married on July 18, 2000.  They have two children together, K.R.M. and A.E.M., and Angela has one child from a prior relationship, C.J.E., who resides with her.  Angela petitioned the district court for an order for protection (OFP) on May 4, 2005, for the benefit of herself and her three minor children.  A temporary ex parte OFP was issued on May 4, and an evidentiary hearing was scheduled.  The parties’ marriage-dissolution action was pending at the same time the district court considered the OFP.

            Prior to the evidentiary hearing, James consented to the issuance of an OFP as to Angela, but contested the OFP as to the children.[1]  Angela alleged a history of domestic abuse by James.  The district court granted an OFP for the benefit of Angela, found that James abused Angela but not the children, and declined to continue the temporary OFP as it applied to the children.  James appeals the district court’s entry of findings in connection with the OFP.

D E C I S I O N

I.

            The first issue is whether the district court erred in conducting an evidentiary hearing and making findings.  The district court may, in its discretion, grant an order for protection (OFP) restraining the abusing party from committing acts of domestic abuse.  Minn. Stat. § 518B.01, subd. 6(a)(1) (2004); Mechtel v. Mechtel, 528 N.W.2d 916, 920 (Minn. App. 1995).  The Domestic Abuse Act, Minn. Stat. § 518B.01 (2004), is a remedial statute and is therefore liberally construed in favor of the injured party.  Swenson v. Swenson, 490 N.W.2d 668, 670 (Minn. App. 1992).

            The Domestic Abuse Act provides a process whereby victims of domestic abuse may petition for relief.  Burkstrand v. Burkstrand, 632 N.W.2d 206, 209 (Minn. 2001).  If, as in this case, a temporary ex parte order is entered, a hearing is required if requested by one of the parties or if the petitioner requests relief in excess of that which is provided in Minn. Stat. § 518B.01, subd. 7(a).  See Minn. Stat. § 518B.01, subds. 5(b), 7(c).  As a part of that hearing, the alleged abuser has “the right to present and cross-examine witnesses, to produce documents, and to have the case decided on the merits.”  El Nashaar v. El Nashaar, 529 N.W.2d 13, 14 (Minn. App. 1995) (citing In re Enger’s Will, 225 Minn. 229, 237-38, 30 N.W.2d 694, 700 (1948)).  The purpose of a full hearing is to require the district court to determine whether the allegations in the petition are true.  See Mechtel, 528 N.W.2d at 920.

            Typically, when a district court issues an OFP after a full hearing, it is required to make findings on domestic abuse to support the order.  For example, in Metchel, the district court issued a mutual OFP and, instead of listing the acts that constituted abuse, stated that the court made no findings at all but just issued the OFP as against both parties.  528 N.W.2d at 920.  This court reversed and remanded, finding that the district court erred in not making findings.  Id. at 920-21.  Furthermore, in Andrasko v. Andrasko, the district court made no written or oral findings of abuse before issuing the OFP.  443 N.W.2d 228, 230-31 (Minn. App. 1989).  The district court took no testimony on the allegations of abuse and the wife’s petition alleged only past instances of abuse without demonstrating any present harm.  Id. at 229-30.  When the party against whom the OFP was issued appealed for lack of findings, this court reversed.  Id. at 231.  Similarly, this court held that the district court in El Nashaar erred by continuing an ex parte OFP beyond the statutory timeframe without making appropriate findings on abuse.  529 N.W.2d at 14.

            This case presents a slightly different question.  James, the party against whom the OFP was issued and the party bringing this appeal, contends that because he consented to the issuance of the OFP for the benefit of Angela, the district court erred in making formal findings.  James is the party whose due process rights are affected by the issuance of the OFP.[2]  Apprehensive that findings will prejudice him in the dissolution action, James argues that his consent to relief for Angela fully satisfies the statutory and due process requirements that otherwise would necessitate a hearing and findings on that part of the OFP.[3]

            Here, the district court was faced with a request for an OFP for the benefit of both Angela and the children.  Even if James consented to the OFP for Angela’s benefit, he contested the OFP as to the children.  The district court had to conduct an evidentiary hearing to ascertain if the allegations in the OFP petition had a factual basis as they pertained to the children.  Furthermore, the statute requires a full hearing if requested by either of the parties.  Minn. Stat. § 518B.01, subd. 5(b)(2).  A full hearing means an inquiry into the factual basis of the petition.  See Mechtel, 528 N.W.2d at 920.  We conclude that the district court did not abuse its discretion in holding an evidentiary hearing and making formal findings, even if James consented to the OFP for the benefit of Angela.

            We are mindful of the impact that the OFP may have on other proceedings involving the rights of the parties.  Both parties contend the OFP will play a role in their marital-dissolution proceeding.  James complains that Angela requested a hearing and formal findings only to prejudice his custody position in the dissolution.  Angela argues that victims of domestic abuse who are also involved in marital dissolutions have a right to findings on abuse.

            We note that the dissolution court will be aware of the OFP and that this may affect the dissolution regardless of express findings of domestic abuse.  See Vogt v. Vogt, 455 N.W.2d 471, 474 (Minn. 1990) (noting that by issuing the OFP the district court implicitly found probable cause for domestic abuse).  Certainly we do not condone gamesmanship in these matters.  Use of the OFP process to gain an advantage in other proceedings is not appropriate.  District courts must be discerning so that summary or limited hearings that are the basis for the issuance of an OFP are not determinative of other issues, such as child custody.  Custody is determined by inquiring into the best interests of the child, which includes scrutiny of 13 separate factors.  See Minn. Stat. § 518.17, subd. 1 (2004).

            Commonly, this court is faced with reviewing a district court determination criticized for no or inadequate findings.  We should welcome, not reverse, when a district court provides a full hearing and makes findings. 

II.

            The second issue is whether the district court’s finding that James abused Angela in February 2005 is clearly erroneous.  The district court’s factual findings are viewed in a light most favorable to the court’s findings, Chosa ex rel. Chosa v. Tagliente, 693 N.W.2d 487, 489 (Minn. App. 2005), and will not be set aside unless they are clearly erroneous.  Minn. R. Civ. P. 52.01.  A reviewing court does not reconcile conflicting evidence.  Chosa, 693 N.W.2d at 489.  Issues of witness credibility are “exclusively the province of the factfinder.”  Gada v. Dedefo, 684 N.W.2d 512, 514 (Minn. App. 2004).  “Past abusive behavior is a factor in determining cause for protection, though not dispositive.”  Chosa, 693 N.W.2d at 490.  The district court views the evidence in its totality to determine whether it is sufficient to infer a present intent to inflict physical harm as required by the Domestic Abuse Act.  Boniek v. Boniek, 443 N.W.2d 196, 198 (Minn. App. 1989).

            Other than the parties and two of the minor children, there were no witnesses to the alleged acts of domestic abuse in this case.  The principal evidence before the district court was the conflicting statements made by Angela and James.  Angela’s OFP petition specifically refers to an event of abuse on February 13, 2005.  At the hearing, Angela testified that on the day she and James fought, James had been drinking; she took the two younger children into the bedroom to get away from him; he kept coming into the room; and after she called him a name he punched her in the eye, which caused her to bleed and left a scratch mark.  She further testified that K.R.M. and A.E.M. witnessed the assault and were traumatized by James’ actions; that James physically abused K.R.M. on another occasion by pushing K.R.M. out the door of the family’s trailer; and that as a result, K.R.M. slipped on ice and fell crying.  Angela’s testimony also refers to other instances of abuse by James, including twice when he threatened to kill her, and one instance when he interfered with her attempts to call 911.

            James challenged that version of events.  First, he claimed that the incident actually happened on February 6, 2005, not February 13.  He stated that on that day he confronted Angela about corresponding with another man and that she assaulted him.  He denied punching her, although he stated that it was possible that he had contact with her face while pushing her away.  He also admitted that he was drinking that day in violation of his probation.

            Essentially, the district court faced a credibility question.  Because it was not unreasonable for the district court to believe Angela rather than James, we conclude that its finding that Angela suffered domestic abuse in February 2005 was not clearly erroneous.

            Affirmed.



[1] At oral argument, counsel for James represented that when Angela insisted on proceeding with her request for an OFP for the children, James withdrew his consent to an OFP for her.  Because the record does not reflect a withdrawal of consent, the situation is unclear. 

[2] Clearly, Angela has a protected liberty interest in her personal security, and James has no right to commit domestic abuse.  See Baker v. Baker, 494 N.W.2d 282, 287 n.6 (Minn. 1992).

[3] James urges that we consider unpublished authorities from this court.  But, unpublished authority is not precedental.  Minn. Stat. § 480A.08, subd. 3(c) (2004); Vlahos v. R & I Constr., Inc., 676 N.W.2d 672, 676 n.3 (Minn. 2004).