This opinion will be unpublished and

may not be cited except as provided by

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




In the Matter of:

Cynthia K. Martin, petitioner,



Patrick L. Martin,


Filed August 19, 1997


Schumacher, Judge

Dakota County District Court

File No. FX9613409

Linda L. Pollmann, 1021 Sibley Memorial Highway, St. Paul, MN 55118 (for respondent)

Mark A. Gray, 1422 West Lake Street, Suite 320, Minneapolis, MN 55408-2656 (for appellant)

Considered and decided by Short, Presiding Judge, Schumacher, Judge, and Holtan, Judge.[*]



Patrick L. Martin (husband) appeals from an order for protection prohibiting him from (1) committing acts of domestic abuse against his ex-wife, respondent Cynthia K. Martin (wife), or his children; (2) having contact with wife, except reasonable contact regarding visitation with the children; and (3) entering wife's residence, present or future residence, even if invited to do so. Because there is sufficient evidence in the record to support the trial court's findings and to support the order for protection, we affirm.[1]


The parties were divorced in August 1994. Although husband was awarded the parties' homestead, the parties agreed that wife and their two children could continue to live there.

In her petition for an order for protection and her supporting affidavit, wife described two separate incidents. The first occurred when husband came to the residence to pick up their son. After getting into a conversation about the house, they both became angry. Wife repeatedly asked husband to leave, but he continued to force his way into the house. Wife pushed or shoved husband, and he shoved her back. Wife telephoned her brother, who called the police. Husband left, but returned after the police arrived to talk to them. He eventually agreed to leave when told to do so by the police. The second incident occurred two days later, when husband came "over to get 'something' out of the garage." Wife said, "No, you didn't call," but husband forced the garage door open, got what he wanted, and left.

A hearing was held at which wife testified that during the first incident, husband was angry and pushed her aside in an attempt to get into the house. She testified that she was afraid and explained that "[i]t's the show of force and anger * * * that is scaring me." Wife's brother, whom she had telephoned during the first incident, testified that he heard his sister ask husband to leave, husband state loudly that he was not leaving without his son, and husband threaten his sister by stating, "I'm going to get you, bitch." Husband also testified and admitted that when wife told him to leave, he refused and pushed her arms away several times. He further admitted that wife had previously told him that she did not want him in the house. He denied threatening wife.

At the end of the hearing, the trial court found that husband "has engaged in conduct that constitutes domestic abuse by making uninvited visits to [wife's] residence and failing to leave when requested to do so." The written order for protection incorporated these oral findings.


On appeal from an order for protection, this court must affirm unless the trial court abused its discretion. See Mechtel v. Mechtel, 528 N.W.2d 916, 920 (Minn. App. 1995) (citing Minn. Stat. § 518B.01, subd. 6(a) (court "may provide relief")). A trial court is required to make specific findings on domestic abuse. See Nohner v. Anderson, 446 N.W.2d 202, 203 (Minn. App. 1989). Domestic abuse is defined as "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)(1) & (2) (Supp. 1995). This court has interpreted this statutory language "to require either a showing of present harm, or an intention on the part of [husband] to do present harm." Kass v. Kass, 355 N.W.2d 335, 337 (Minn. App. 1984). Although an overt act is required to show intent to harm, that act does not have to be a physical act to support issuance of an order for protection. See Hall v. Hall, 408 N.W.2d 626, 629 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987).

Husband argues that the trial court's findings in this case are insufficient. In particular, he insists that neither an "uninvited visit" nor "failing to leave when requested" can be considered the "infliction of fear of imminent physical harm, bodily injury, or assault." He further insists that the trial court made no finding that husband had caused wife "present harm" or had "inflicted fear" of present harm on wife.

Given our narrow abuse of discretion standard of review, we will reverse only when a trial court has failed to make any written or oral findings and when no evidence in the record warrants issuance of an order for protection. See Andrasko v. Andrasko, 443 N.W.2d 228, 230-31 (Minn. App. 1989) (order for protection reversed when based on instances of past abuse and no evidence presented of present harm); Bjergum v. Bjergum, 392 N.W.2d 604, 606 (Minn. App. 1986) (same); Kass, 355 N.W.2d at 337 (evidence of past domestic abuse insufficient to support order for protection merely because wife saw husband on public street for first time in four years). While the trial court's findings here could have been more detailed, when those findings are considered along with all the evidence in the record, which includes specific instances of husband verbally threatening wife, repeatedly attempting to enter her residence after she asked him to leave, and engaging in a shoving match with her, sufficient evidence exists to infer present intent on husband's part to inflict fear of imminent physical harm, bodily injury, or assault on wife. See Boniek v. Boniek, 443 N.W.2d 196, 198 (Minn. App. 1989) (sufficient evidence existed for issuance of order for protection when former husband delivered parties' marriage certificate to former wife's doorstep in mutilated condition along with threatening note, former husband exerted physical aggression toward insurance salesperson found in former wife's house, and former husband drove around former wife's house on occasion); Hall, 408 N.W.2d at 628-29 (order for protection supported by record indicating verbal threats sufficiently specific and violent to support wife's claim of fear of physical harm, especially when considered in context of past physical abuse).


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

[ ]1 Because wife has not filed a brief or otherwise appeared, this appeal is proceeding pursuant to Minn. R. Civ. App. P. 142.03 (if respondent fails to file brief, case determined on merits) and Minn. R. Civ. App. P. 128.02, subd. 2 (respondent may not participate in oral arguments).