This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-96-838

Carol Malnati Ekblad, individually

and on behalf of the minor N. M., petitioner,

Respondent,

vs.

John Ekblad,

Appellant.

Filed November 5, 1996

Affirmed

Huspeni, Judge

Dakota County District Court

File No. F09612608

Stephen C. Aldrich, Martha A. Ballou, 701 Fourth Ave. S., Suite 1700, Minneapolis, MN 55415 (for Appellant)

M. Sue Wilson, Christine N. Howard, M. Sue Wilson Law Offices, P.A., 1140 Metropolitan Centre, 333 S. Seventh St., Minneapolis, MN 55402 (for Respondent)

Considered and decided by Huspeni, Presiding Judge, Parker, Judge, and Forsberg, Judge.[*]

U N P U B L I S H E D O P I N I O N

HUSPENI, Judge

Appellant John Ekblad challenges the trial court's findings supporting its order for protection and its grant of temporary custody of the parties' minor son to respondent; appellant also claims the court denied him equal protection when it determined that he had committed abuse against respondent but that she had not committed abuse against him. Because we find no error in any of the trial court's determinations, we affirm.

FACTS

Appellant and respondent, Carol Malnati Ekblad, were married in August 1991. Respondent had custody of a daughter, N.M., from an earlier relationship, born in 1982. The parties' son, R.E., was born in 1994. The relationship of the parties was emotionally intense, including frequent arguing and, at times, violent behavior by both.

In February 1996, each party filed a petition for an ex parte order for protection (OFP) against the other. A month later appellant commenced dissolution proceedings. The trial court consolidated the two domestic abuse files and conducted an evidentiary hearing that also served as the temporary relief hearing for the dissolution case. Each party testified about incidents of abuse at the hands of the other. A number of incidents involving appellant and N.M. were also the subject of testimony.

In its OFP, the trial court found that appellant committed acts of domestic abuse against respondent and N.M., that N.M. committed acts of domestic abuse against appellant, and that respondent did not commit acts of domestic abuse against appellant. The court noted that its findings included credibility determinations. In its order for temporary relief, the court granted physical custody of R.E. to respondent, subject to reasonable visitation by appellant.

D E C I S I O N

As a threshold issue, respondent moved to strike appellant's reply brief and to award attorney fees incurred in bringing the motion. Minn. R. App. P. 128.02, subd. 3 requires that the reply brief "be confined to new matter raised in the brief of the respondent." Id. Appellant's reply brief does address arguments raised by respondent in her brief. While there are portions of the brief that are repetitive and not necessarily "confined to new matter raised" in respondent's brief, there is substantial compliance with Minn. R. App. P. 128.02, subd. 3. Thus, respondent's motion to strike and request for fees are denied.

1. Minn. Stat. § 518B.01, subd. 6 (a) (1994) provides that after a hearing on a party's petition for an OFP, the court may provide relief by, inter alia, restraining the abusing party from committing acts of abuse, excluding the abusing party from the shared dwelling or the petitioner's residence, or the surrounding area, and awarding temporary custody. A trial court's order for protection is reviewed for an abuse of discretion. See Sweep v. Sweep, 358 N.W.2d 451, 453 (Minn. App. 1984) (affirming the trial court's ruling in an OFP because there was no abuse of discretion). A trial court abuses its discretion when it makes a decision against logic and the facts on record. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). On review, due regard must be given to "the opportunity of the trial court to judge the credibility of the witnesses." Minn. R. Civ. P. 52.01.

Contrary to appellant's urging, we find no abuse of discretion in the trial court's OFP: it is against neither logic nor the facts on the record, particularly in light of the trial court's opportunity to judge the credibility of the witnesses. The trial court found credible respondent's testimony that she feared appellant was attempting to flee, perhaps permanently, with R.E. on February 23, 1996, when respondent accompanied the sheriff as he attempted to serve an OFP on appellant: appellant first attempted to get R.E. into a car, then handed R.E. to his brother, who in turn transferred R.E. to appellant's sister, who drove away with R.E.

There was conflict in the testimony of appellant and N.M. on several incidents; the trial court's findings demonstrate a weighing of credibility. The trial court believed N.M.'s testimony on an incident when N.M. allegedly threatened appellant with a knife, but believed appellant's testimony that in another incident N.M. had kicked appellant hard enough to cause his finger to bleed. The trial court also found credible respondent's testimony that appellant had caused her to fear bodily injury when appellant raised his hand right over her face as she lay in bed and angrily unzipped his pants as though he would force her to have sex.

We find no abuse of discretion in the trial court's decision to grant the OFP.

Appellant argues that the trial court improperly applied the law by considering the abuse factor to the exclusion of all others when granting temporary custody of R.E. to respondent.[1] When granting temporary custody, the trial court must be guided by the factors set forth in Minn. Stat. § 518.17 (1994) (the "best interests" analysis). Minn. Stat. § 518.131, subd. 7 (1994). The trial court found that R.E.'s best interests would be served by granting temporary custody to respondent. The court did not mention abuse when making this conclusion. Unlike Minn. Stat. § 518.17, subd. 1(a) (1994), Minn. Stat. § 518.131, subd. 7 (which governs temporary custody and visitation orders) understandably[2] does not require the court to make detailed findings as to each factor. There is evidence to support the conclusion that granting respondent temporary custody is in R.E.'s best interests, and there is no indication in the record that the trial court considered the abuse factor to the exclusion of all others.

Appellant also argues that the court erred by failing to consider the danger created by the volatile relationship between respondent and N.M. While appellant testified that respondent and N.M. fight frequently and that when N.M. gets angry she takes it out on R.E., respondent and N.M. testified that they have a normal relationship, that N.M. has not abused R.E., and that N.M. poses no threat to him. Again, the trial court was required to assess credibility. Inasmuch as a protective order was not sought by appellant on behalf of R.E., the trial court did not err by failing to state that it considered respondent's relationship with N.M. when making the temporary custody award. The trial court did consider the best interests of R.E. when granting custody to respondent. That consideration is sufficient.

Appellant also argues that the trial court erred in placing a travel restriction upon him when he has visitation. We disagree. Appellant conceded that he intended on keeping R.E.'s whereabouts concealed from respondent on the weekend of February 23, 1996, that he had R.E.'s passport at that time, and that he told his brother to lie to the police when they were trying to serve him with respondent's OFP. Respondent testified that she feared appellant was going to take R.E. that weekend and not return him. This evidence supports the trial court's conclusion that a travel restriction is appropriate on appellant's visitation despite no corresponding restriction on respondent's visitation.

2. Appellant next argues that the trial court violated Minn. Stat. § 518.131, subd. 9 (1994), by making a temporary custody award that will prejudice his rights and those of R.E. with respect to the permanent custody determination. Appellant claims that placing R.E. with respondent will upset the stability of R.E.'s living arrangement and reduce the amount of time R.E. will be able to spend with him, and generally claims, again, that a proper analysis of the best interest factors should result in an award of temporary custody to him. We find no violation of rights.

The statute itself mandates that a temporary order "[s]hall not prejudice the rights of the parties or the child which are to be adjudicated at subsequent hearings in the proceeding * * *." Minn. Stat. § 518.131, subd. 9. The fact that time will pass while the parties live under the terms of the temporary order is a factor present in nearly every action involving a temporary order--an order ordinarily not appealable. This condition is acknowledged in section 518.131, subd. 9, in language which guards against prejudicing the rights of a noncustodial parent.

3. Appellant next argues that the trial court denied him equal protection of the laws by making findings that he abused respondent but did not suffer abuse at her hands. He claims that "[o]ne need only reverse the gender of the parties to see what a travesty upon equal protection the trial court's decision really is."

The guarantee of equal protection requires equality of application of the laws and that all similarly situated persons be treated similarly. Lidberg v. Steffen, 514 N.W.2d 779, 784 (Minn. 1994); State v. Northwestern Preparatory School, 228 Minn. 363, 365, 37 N.W.2d 370, 371 (1949). To substantiate a claim, the proponent must show clear and intentional discrimination. Draganosky v. Minnesota Bd. of Psychology, 367 N.W.2d 521, 526 n.4 (Minn. 1985) (citing Snowden v. Hughes, 321 U.S. 1, 8, 64 S. Ct. 397, 401 (1944)). Discrimination is not presumed. Id.

Appellant has failed to present clear evidence of the trial court's intent to discriminate. He has not shown that the trial court's findings were based solely on his gender. The court gave reasoned explanations for its findings and conclusions, none of which indicates that the parties' genders played a role in its decision. There is nothing in this record to indicate that the trial court's determinations would have been different if appellant had been attempting to serve an OFP on respondent and respondent had been attempting to flee with R.E. Without clear evidence of intent to discriminate, appellant's equal protection claim must fail.

Affirmed.

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

[ ]1Temporary custody orders are generally not appealable. Hennepin County v. Griffin, 429 N.W.2d 283, 284 (Minn. App. 1988). We review this temporary custody determination solely because of a special term order of this court dated May 8, 1996, wherein the panel ruled that the findings and conclusions of the temporary custody order were incorporated into the appealable OFP and thus subject to review in this OFP appeal. The May 8, 1996, special term order also denied appellant's petition for discretionary review of the trial court's denial of need-based attorney fees. Thus, we do not address that issue here.

[ ]2The resources of a busy family court would doubtless quickly become overburdened if findings of the specificity required in dissolution decrees were also required in orders resulting from initial hearings.