may not be cited except as provided by
Minn. Stat. §480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Donna Reitan, petitioner,
Filed January 19, 1999
Hennepin County District Court
File No. DA 238539
Alan J. Albrecht, Albrecht & Associates, LTD, 7066 Brooklyn Boulevard, Brooklyn Center, MN 55429 (for respondent)
Pamela L. Green, 2738 Winnetka Avenue North, New Hope, MN 55427 (for appellant)
Considered and decided by Shumaker, Presiding Judge, Kalitowski, Judge, and Anderson, Judge.
Appellant contends that the district court's finding that he committed domestic abuse was clearly erroneous and challenges an order for protection issued nine months after the incident of domestic abuse was committed. We affirm.
Appellant moved back to the home of the parties in January 1998 promising respondent that he would not attempt suicide again, that he would seek therapy, and that they would work on finalizing their divorce. While living with respondent and their children, appellant left a shotgun in the entryway of the home for a number of days. In March of 1998, appellant discharged the shotgun in the basement of the home, when no when else was present. Appellant explained to respondent that he had loaded the gun to use it on himself but, in the process, he discharged it. After this incident, respondent demanded that appellant move out. Appellant refused and respondent then filed a petition requesting an order for protection. Appellant moved out in March 1998 and attempted suicide prior to the order for protection hearing.
After a hearing, the district court issued an order for protection, enjoining appellant from committing acts of domestic abuse against respondent, excluding appellant from respondent's residence and place of employment, and restricting communication between them except through their attorneys. The court found that the July 4, 1997, incident was domestic abuse. The court found that domestic abuse did not occur in March 1998 when appellant accidentally discharged the shotgun in their home, because respondent was not present at the time of the incident.
The Domestic Abuse Act defines "domestic abuse" to include: physical harm, bodily injury, assault, or the infliction of imminent physical harm, bodily injury, or assault. Minn. Stat. § 518B.01, subd.2 (a)(1), (2) (1998).
Appellant argues that some of the district court's findings of facts are unsupported by the record. Appellant is assuming the record is limited to the testimony at the hearing. It is clear from the hearing transcript that the district court questioned the parties based on respondent's affidavit. The findings of fact are supported by that affidavit, which is a part of the record. Both parties' counsel had an opportunity to cross-examine the witnesses. Therefore, if appellant wanted to dispute respondent's statements in the affidavit, appellant had an opportunity to do so. See Minn. R. Civ. Pro. § 52.01 (findings of fact may be based on documentary evidence and will not be set aside unless clearly erroneous). Reviewing the testimony and respondent's affidavit in a light most favorable to the district court's findings, these findings are adequately supported. See Wilkus-Schmidt-Hight v. Wilkus, 398 N.W.2d 44, 48 (Minn. App. 1986) ("When examining the record, this court must review the evidence in the light most favorable to the trial court findings.").
Appellant admitted that on July 4, 1997, he yelled and screamed at respondent and strong-armed respondent by grabbing her wrists and turning them so that she would drop the garage door opener. Respondent's affidavit asserted that appellant placed her in fear of imminent physical harm and the district court apparently believed that assertion by finding that these actions placed respondent in fear for her safety and, therefore, constituted domestic abuse. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (this court must defer to district court's opportunity to assess credibility of witnesses)(citing Minn. R.Civ. P. 52.01). The district court's finding, that appellant's actions constituted domestic abuse as defined by Minn. Stat. § 518B.01, subd. 2 (a)(2), was not clearly erroneous.
On appeal from an order for protection, this court must affirm unless the district 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"). The record must establish appellant's "`present intention to do harm or inflict fear of harm.'" Bjergum v. Bjergum, 392 N.W.2d 604, 606 (Minn. App. 1986) (quoting Kass v. Kass, 355 N.W.2d 335, 337 (Minn. App. 1984)). If the record fails to establish the present intention, this court has no alternative but to reverse the order for protection. Id. (reversing order for protection after concluding that only evidence of abuse, that occurred nearly two years earlier, was too remote to support order); see also Kass, 355 N.W.2d at 336 (reversing order for protection issued four years after incident of abuse because no evidence of present intention to do harm or inflict fear of harm).
Appellant argues that the court's issuance of the order for protection in May 1998 was based on an incident that occurred on July 4, 1997, and that this incident was too remote to be a basis for the order for protection. This is consistent with Kass and Bjergum, in that past abuse does not alone support a present intent to inflict fear of harm on respondent. Kass and Bjergum, may be distinguished, however, because (1) in those cases, the abuse occurred two and four years prior to the petition for an order for protection, whereas, in this case, the abuse occurred only nine months earlier; and (2) in this case the court recognized additional subsequent events to support the order for protection.
Appellant contends that the order for protection was based on the July incident alone. Although past abusive behavior is not dispositive, it is a factor in determining cause for an order for protection. 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) (citing Hall v. Hall, 408 N.W.2d 626, 629 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987)). The district court, however, made it clear that, based on events subsequent to the July incident, and in light of the fact that the parties were proceeding to dissolve their marriage, the issuance of the order for protection was not untimely and was not based on the July incident alone. While the district court did not find the gun discharge incident to be a proven act of domestic abuse, it recognized that "there were repeated incidents subsequent to" the July 4 domestic abuse incident. In short, those subsequent events established that the July 4 act of domestic abuse was not an isolated event. The court also recognized that there was no wrongful motivation in bringing the order for protection petition, emphasizing the fact that appellant had recently discharged a gun in the house where his children live.
The district court's finding that domestic abuse occurred on July 4, 1997, combined with evidence in the record of appellant's subsequent behavior, was sufficient for the district court to infer that appellant had a present intent to inflict fear of harm in respondent and justifies affirming the order for protection. See id. (viewing evidence in totality, and in light of husband's history of abusive behavior, sufficient evidence exists to infer present intent to inflict fear of imminent physical harm in wife based on husband's conduct even though not directed specifically at wife).
The district court concluded that appellant had a present intention to place respondent in fear of harm and that conclusion was not clearly erroneous. Under the standard of review applicable here, we find the district court did not abuse its discretion in issuing the order for protection.
In light of the absence of any evidence in the record establishing appellant's ability to pay respondent's attorney fees, respondent's motion to require such payment is denied.
SHUMAKER, Judge (dissenting)
I respectfully dissent and would reverse.
The trial court's findings refer to three incidents of alleged domestic abuse. The first occurred on an unspecified date prior to July 4, 1997, when appellant and respondent argued and appellant allegedly said that if respondent ever left him he didn't think he would be able to handle her being with another person.
The second happened on July 4, 1997. During an argument, appellant grabbed and bruised respondent's wrists.
The third took place in early March 1998. Appellant accidentally discharged a shotgun in the basement of the parties' home. Only appellant was home at the time and, after the incident, he removed the gun from the home and locked it in his car.
On March 23, 1998, respondent petitioned for an order for protection based on these three incidents, alleging that she was in fear of imminent further acts of domestic abuse.
The trial court heard the petition on May 18, 1998, concluded that only the incident on July 4, 1997, was "proven by the evidence," and concluded that the other two incidents were "not proven by the evidence." On the basis of those conclusions the court issued an order for protection on May 29, 1998.
A court may issue an order for protection when a petitioner proves an act of domestic abuse. Minn. Stat. § 518B.01, subd. 4 (1998). "Domestic abuse" means physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault. Minn. Stat. § 518B.01, subd. 2(a)(1) (1998). We have held that an order for protection cannot be sustained unless the record establishes a "present intention to do harm or inflict fear of harm." Bjergum v. Bjergum, 392 N.W.2d 604, 606 (Minn. App. 1986) (order reversed when domestic abuse occurred two years earlier); see also Kass v. Kass, 355 N.W.2d 335, 337 (Minn. App. 1984) (order reversed because of lack of showing of present intent to harm or to inflict fear of harm).
The sole proof in this case was that domestic abuse occurred only on July 4, 1997, eleven months prior to the order for protection. In my view, this proof does not support a conclusion that appellant had a "present intention" to harm or inflict fear of harm, as required by caselaw, and does not support a conclusion that respondent was reasonably in fear of "imminent physical harm, bodily injury or assault," as required by statute. Minn. Stat. § 518B.01, subd. 2(a)(1).
I believe that the majority opinion incorrectly expands the proof to include respondent's affidavit of March 23, 1998. The trial court expressly concluded, however, that nothing in the affidavit, other than the July 4, 1997, incident, was proved. The trial court should be reversed.
 The document is labeled "Petition For Order For Protection And Affidavit."