This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-96-1396

In the Matter of:

Susan E. Schlosser, individually and as

parent and natural guardian of B.S., S.S.,

and J.F., petitioner,

Respondent,

vs.

Michael A. Feist,

Appellant.

Filed December 24, 1996

Affirmed

Foley, Judge

[*]

Blue Earth County District Court

File No. F6-96-882

Richard R. Hillesheim, Southern Minnesota Regional Legal Services, 1302 South Riverfront Drive, P.O. Box 3304, Mankato, MN 56002 (for Respondent)

Perry A. Berg, Patton, Hoversten & Berg, P.A., 215 East Elm Avenue, P.O. Box 249, Waseca, MN 56093 (for Appellant)

Considered and decided by Short, Presiding Judge, Davies, Judge, and Foley, Judge.

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

FOLEY, Judge

Appellant Michael Feist argues the evidence in the record is insufficient to support the district court's order for protection. We affirm.

FACTS

The parties lived together from May 1994 until March 1996. Respondent Susan Schlosser has three children, all in her custody. Appellant brought an action to determine paternity of J.F. It is undisputed that appellant is not the biological father of Schlosser's other two children, B.S. and S.S.

On May 29, 1996, respondent filed an affidavit and petition for an order for protection against appellant on behalf of herself and her three children. The district court issued an ex parte order for protection on the same day. In her affidavit and petition, respondent alleged that during the time the parties lived together appellant pushed and shoved her in front of the children and told the children they would be without their mother. Respondent further alleged four separate incidents in which appellant threatened her after their separation. She alleged the threats he made involved her property still in his possession and the custody of J.F. Respondent further alleged appellant harassed her over the telephone, calling her a horrible person and saying he would not give her child support.

On June 5, 1996, a hearing was held on the matter before another district court judge. At the hearing, appellant stated he had never physically abused respondent. He admitted kicking a chair with rollers in which S.S. was sitting, but stated it rolled only about a foot. Testimony by respondent at the hearing indicated the physical contact alleged by respondent occurred while the parties were living together and had not occurred since that time.

Respondent conceded at the hearing that appellant had not verbally threatened to physically harm her, but testified he had threatened to physically harm her by his "body language" during in-person confrontations. She described this as "[r]aising the arms, yelling, all the things that precluded [sic] my being abused in the past when I lived with him." Respondent also stated appellant gets red in the face, very loud, and "right in your face to make his point known." At the hearing, appellant admitted he had yelled at respondent, but stated he did so only after she began yelling at him and calling him names.

Following the hearing, the court issued a domestic abuse order for protection against appellant which was filed June 6, 1996. Pursuant to this order, appellant was ordered (1) to refrain from committing acts of domestic abuse against respondent or the children, (2) not to have any contact with respondent or the children, subject to any visitation provisions stemming from a pending paternity action, and (3) not to enter respondent's residence. Additionally, the parties were both ordered not to dispose of any property belonging to the other or owned jointly by the parties. This appeal followed.

D E C I S I O N

Under the Domestic Abuse Act (the Act), the district court has discretion to provide relief. Mechtel v. Mechtel, 528 N.W.2d 916, 920 (Minn. App. 1995); see Minn. Stat. § 518B.01, subd. 6(a) (1994) (providing that the court "may provide relief"). Therefore, this court reviews the grant of relief under an abuse of discretion standard. Further:

Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

Minn. R. Civ. P. 52.01.

The definition of domestic abuse under the Act includes in relevant part: "physical harm, bodily injury, or assault [or] the infliction of fear of imminent physical harm, bodily injury, or assault." Minn. Stat. § 518B.01, subd. 2(a) (1996). This court has interpreted this language "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). An overt act is required to show the intent to cause the "fear of imminent physical harm." Id. However, the overt act does not have to be a physical act to justify an order for protection. 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. (quoting Minn. Stat. § 518B.01, subd. 2(a) (1986)). Additionally, "[p]ast abusive behavior, although not dispositive, is a factor in determining cause for protection." Boniek v. Boniek, 443 N.W.2d 196, 198 (Minn. App. 1989) (citations omitted).

This court has recognized that petitioners must establish a "present intention to do harm or inflict fear of harm." See, e.g., Bjergum v. Bjergum, 392 N.W.2d 604, 606 (Minn. App. 1986) (reversing protection order where record did not establish "present intention to do harm or inflict fear of harm"); Kass, 355 N.W.2d at 337. In Bjergum, the district court issued an order for protection in March 1986 based upon petitioner's affidavit and petition and testimony detailing abuse occurring in March, April, and July 1984; alleged child abuse around Christmas 1985; and allegations that appellant continued to make suicide threats through the week prior to the order for protection hearing. 392 N.W.2d at 604-05. This court stated that "[w]here the record fails to establish appellant's 'present intention to do harm or inflict fear of harm,' we have no alternative but to reverse the protection order." Id. at 606 (quoting Kass, 355 N.W.2d at 337). In Kass, petitioner filed a domestic abuse affidavit and petition in 1984 after allegedly seeing her ex-husband in a vehicle following her. 355 N.W.2d at 336. According to the court's findings, her husband had abused her prior to the parties' separation in 1980. Id. at 337. In reversing the grant of an order for protection, this court found that without proof appellant intended "to cause respondent to fear imminent physical harm," there was insufficient evidence "to sustain the issuance of an order for protection." Id. at 338.

Here, there is no present "physical harm, bodily injury, or assault." Therefore, the question is whether respondent fears "imminent physical harm, bodily injury, or assault," and whether appellant intended to cause respondent to fear physical harm. Since the parties' separation in March 1996, there have been no physical altercations between the parties. However, this case is distinguishable from both Kass and Bjergum because here respondent alleges appellant's present behavior towards her causes her to fear physical harm. Although respondent alleges appellant has verbally threatened her, at the order for protection hearing respondent admitted appellant has not verbally threatened to physically harm her. She indicated at the hearing, however, that his "body language" caused her to fear him. She stated that his actions were similar to those portrayed by appellant before he physically harmed her during the time they lived together.

In arguing that he has never physically hurt respondent, appellant has mounted several arguments to support his contention that respondent did not request an order for protection because she fears him. First, at the hearing appellant stated he believes respondent is trying to set him up similar to the manner in which she set up her ex-husband. Appellant stated respondent brought orders for protection against her ex-husband four or five times without proof. Appellant testified respondent described to him how she set up her ex-husband and had him put in jail by beating herself up with a spoon and pans. Appellant also testified respondent told him how before meeting him she had "cleaned her house out, sold everything, and then ran to Minnesota." Appellant explained that in April of last year respondent "loaded up a whole bunch of things and ran to Missouri for three weeks until she ran out of money and then she sold--took a bunch of my stuff at a garage sale and sold it."

Appellant's second argument, as described in his reply brief, is that respondent's actions indicate she does not fear him. He argues the verbal altercations listed in respondent's petition occurred while they were in public places and, furthermore, the district court should have considered appellant's testimony that respondent was also arguing and yelling. Additionally, he contends, respondent herself insisted she should supervise appellant's visits with the minor child J.F.

Lastly, appellant argues that respondent was motivated by her interest in disputed personal property and her desire "to taint the paternity/custody proceedings against the Appellant." At the time of the order for protection hearing there was a pending paternity action initiated by appellant, who wishes to obtain custody of J.F. As appellant indicated, obtaining an order for protection against him can only be advantageous to respondent retaining custody of the child.

Despite all of these arguments by appellant, the district court had the opportunity to hear both parties' arguments and allegations and had the discretion to believe respondent feared appellant due to his body language and his past behavior. As the trier of fact, the district court also had the discretion to conclude appellant's alleged actions reflected an intent to cause respondent to fear bodily harm. Therefore, we hold the district court did not abuse its discretion by granting an order for protection in this case.

Affirmed.

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