may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of:
Candy Pogorelec, petitioner,
Filed May 18, 1999
Crow Wing County District Court
File No. F7-98-2217
Candy Pogorelec, Merrifield, MN 56465 (pro se respondent)
Virginia J. Knudson, Borden, Steinbauer & Krueger, P.A., P.O. Box 411, Brainerd, MN 56401 (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Peterson, Judge, and Foley, Judge.
This appeal arises from a protective order under the Domestic Abuse Act (the Act), Minn. Stat. § 518B.01 (1998). Appellant argues that there is insufficient evidence to support the trial court's finding of domestic abuse. We agree and reverse.
On October 2, 1998, respondent Candy Pogorelec filed a petition for a protective order stemming from a heated exchange with appellant Gene Tank on August 23, 1998, outside the Westside Café. According to respondent, appellant grabbed her arm and yelled about getting back together. Appellant then screamed that respondent should be committed to a mental institution. The trial court found that a protective order under the Act was warranted by appellant's actions. This appeal followed.
On review, this court must reverse a protective order issued under the act if it is not supported by sufficient evidence. Bjergum v. Bjergum, 392 N.W.2d 604, 606 (Minn. App. 1986). A district court's findings of fact will not be set aside unless clearly erroneous and due regard is given to the district court's opportunity to judge the credibility of witnesses. Minn. R. Civ. P. 52.01.
The trial court found that appellant committed domestic abuse by grabbing respondent's arm and threatening to have her committed to a mental institution. Under the act, "domestic abuse" includes: 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), (2) (1998). To find infliction of fear of imminent harm, there must be an overt act manifesting an intent to inflict fear. Kass v. Kass, 355 N.W.2d 335, 337 (Minn. App. 1984).
There was no evidence of physical injury. By grabbing respondent's arm, appellant certainly engaged in physical contact. But contact is not injury and respondent never alleged that physical injury resulted from this contact. The party petitioning for a protective order under the act must make specific allegations. Minn. Stat. § 518B.01, subd. 4(b) (1988).
Respondent alleged that she feared physical harm, but there was not an overt act sufficient to support a finding that appellant intended to cause fear of imminent physical harm. Appellant threatened to commit respondent to a mental institution, but that does not involve physical harm. Appellant grabbed her arm, but respondent testified that she was able to shrug him off and move away from him. There is no evidence that appellant was further physically aggressive to indicate that appellant intended to cause respondent to fear physical harm.
In the context of past abuse or threats, an act that may not seem abusive, such as verbal threats or indirect physical aggression, may indicate an intent to cause fear of imminent physical harm. For instance, in Hall v. Hall, verbal threats in the context of previous instances of death threats, beatings, and intimidation with a gun indicated an intent to cause fear. Hall v. Hall, 408 N.W.2d 626, 628-29 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987). Similarly, physical aggression to a salesman in the petitioner's presence manifested an intent to cause the petitioner to fear imminent physical harm because of the context of past abuse. Boniek v. Boniek, 443 N.W.2d 196, 198 (Minn. App. 1989).
But, here, respondent's testimony regarding past confrontations with appellant did not indicate a history of physical violence or threats of physical violence. In this context, it is not reasonable for the court to infer that appellant intended to cause respondent to fear imminent physical harm by grabbing her arm and yelling to her companion about having her committed.
We do not condone appellant's behavior in the least. But there is insufficient evidence to support the finding of domestic abuse under the statutory definition and the order for protection must be reversed. We note that such behavior is more in the nature of harassment and may be actionable under harassment laws. See Minn. Stat. § 609.748 (1998) (providing for restraining order against harassment).
[*] Retired judge of the Minnesota Court of Appeals, serving by apointment pursuant to Minn. Const. art. VI, § 10.