This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-99-1610

 

 

In the Matter of:
Karen Leigh Flom,

petitioner,
Respondent,

vs.

James Elias Peltier,
Appellant.

 

 

Filed March 28, 2000

Affirmed and remanded; motion denied
Foley, Judge^*

 

Ramsey County District Court

File No. F5991542

 

 

Douglas W. Thompson, Lisa Lodin Peralta, Suite W-1260, 332 Minnesota Street, St. Paul, MN  55101 (for appellant).

 

Peter J. Timmons, Suite 321, 2850 Metro Drive, Bloomington, MN 55425 (for respondent)

 

Considered and decided by Randall, 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 James Peltier seeks review of a domestic abuse order for protection, arguing the record does not show that he committed domestic abuse and that the district court lacked authority to require him to participate in counseling.  We affirm the issuance of the order for protection, but because of peculiarities in the record and comments by counsel for respondent Karen Flom at oral argument in this court, we remand for clarification of the counseling requirement.  We deny Peltier's motion to strike part of respondent’s brief. 

FACTS

            After a hearing produced conflicting evidence on whether Peltier physically abused Flom, the district court found Peltier committed domestic abuse and issued an order for protection.  The order is effective for one year and, among other things, requires Peltier to attend counseling.  Peltier challenges the sufficiency of the evidence to support the finding that he abused Flom and the propriety of the counseling requirement. 

D E C I S I O N

            1.         While it is undisputed that Flom was injured, Peltier argues the evidence is insufficient to show he caused those injuries.  When a party challenges a district court’s findings of fact, the evidence “tending directly or by reasonable inference to sustain the * * * findings * * * shall be summarized” by the party challenging the findings.  Minn. R. Civ. App. P. 128.02(c) (emphasis added); cf. Minn. Stat. § 645.44, subd. 16 (1998) (stating, in context of statutory interpretation, “‘[s]hall’ is mandatory”).  That the record might support findings other than those made by the district court does not show that the district court’s findings are defective.  See Elliott v. Mitchell, 311 Minn. 533, 535 249 N.W.2d 172, 174 (1976) (affirming district court’s findings despite admitting “the evidence might [have] support[ed] another conclusion”); see also Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (stating “[i]t is not the province of [an appellate court] to reconcile conflicting evidence”). 

            On appeal, a district court’s findings are not set aside unless clearly erroneous. Minn. R. Civ. P. 52.01.  A finding is “clearly erroneous” if the reviewing court is “‘left with the definite and firm conviction that a mistake has been made.’”  Fletcher, 589 N.W.2d at 101 (quoting Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987)).  When determining whether findings are clearly erroneous, an appellate court views the record in the light most favorable to the district court’s findings.  Lossing v. Lossing, 403 N.W.2d 688, 690 (Minn. App. 1987).  Also, appellate courts defer to district court credibility determinations.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).  Thus, for a party to successfully challenge findings on appeal, the party must first cite the evidence that directly and/or indirectly supports the district court’s findings.  Then, the party must show that, viewing that evidence in the light most favorable to the findings (and accounting for the appellate court’s deference to district court credibility determinations and its inability to resolve conflicts in the evidence), the record still produces the definite and firm conviction that a mistake was made.  Only if these conditions are met (i.e., only if the findings are “clearly erroneous”) does it become relevant that the record might support findings other than those made by the district court.

            Viewing the record under this standard, we cannot say that Peltier has shown the finding that he abused Flom to be "clearly erroneous."  Specifically, Peltier alleges that telephone records contradict Flom's assertion about when he arrived at her apartment. But, because Flom was not injured at her apartment, the records do not directly address whether Peltier abused Flom.  Peltier also challenges Flom's credibility, noting that Flom's claim that his alleged abuse of her caused her to injure her head in a parking lot pothole is inconsistent with photos showing that the parking lot lacks potholes.  But we must defer to the district court's implicit determination that this inconsistency in the evidence did not render her testimony not credible.  See Roy Matson Truck Lines, Inc. v. Michelin Tire Corp., 277 N.W.2d 361, 362 (Minn. 1979) (stating trial court is "sole" judge of witness credibility and may accept all or part of witness's testimony).  That Flom misstated or misremembered how she suffered a head injury does not necessarily mean that Peltier did not inflict it. 

            Peltier alleges that his providing funds to Flom gave Flom a motive to fabricate allegations of abuse in order to keep Peltier from terminating the parties' relationship. Whether this argument was unambiguously put to the district court is unclear.  If it was not, it is not properly before this court.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating appellate courts do not address issues or theories not presented to the district court).  Assuming that the argument is properly before this court, we note that it is essentially an argument that the district court should not have found Flom credible when she said the relationship ended because Peltier abused her.  As noted above, however, it is not our function to assess credibility.  A similar analysis addresses Peltier's allegation that Flom's testimony was impeached because it was inconsistent with her affidavit.

            2.         In his reply brief, Peltier alleges that the district court's statements at the time of closing arguments show that it was confused about the content of the record and that the district court's order does not indicate it corrected that confusion before issuing its order. Because the argument was not explicitly made until Peltier's reply brief, he waived it.  See Balder v. Haley, 399 N.W.2d 77, 80 (Minn. 1987) (issues not briefed are waived); McIntire v. State, 458 N.W.2d 714, 717 n.2 (Minn. App. 1990) (arguments not made in appellant's brief may not be revived in a reply brief), review denied (Minn. Sept. 28, 1990).  Moreover, for Peltier to prevail on this theory, we would have to assume that, despite knowing that it was confused, the district court refused to review the record and remove its confusion before issuing its order.  This we cannot do.  See Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949) (stating appellate courts cannot assume district court error). 

            3.         Noting that the parties are no longer in a relationship, Peltier challenges the requirement that he participate in counseling.  Flom does not defend the counseling requirement in her brief and, at oral argument, stated that, to the extent she was able, she waived any counseling requirement.  The question of whether to require counseling is a matter for the district court to determine within the exercise of its discretion.  See Minn. Stat. § 518B.01, subd. 6(a) (1998) (stating court "may" order relief including counseling of abusing party); Mechtel v. Mechtel, 528 N.W.2d 916, 920 (Minn. App. 1995) (stating relief granted under the Domestic Abuse Act is discretionary with district court). 

            On this record (1) there is currently no relationship between the parties; (2) Flom did not request that Peltier be required to undergo counseling; (3) the order for protection does not address the terms and extent of the counseling requirement; (4) Flom waived any defense of the counseling requirement; and (5) most of the duration of the order for protection has already expired.  Because counseling in domestic abuse cases is viewed very seriously, we remand for the district court to make findings explaining the propriety of counseling and, if it decides on remand to impose any counseling requirement, to clarify that requirement.  We express no opinion on how to decide the remanded issue.  Whether to reopen the record on remand shall be discretionary with the district court. 

            4.         In his reply brief, Peltier alleges that certain references in Flom's brief must be stricken because they are outside the record.  After reviewing the record and considering our decision on the merits of the appeal, we conclude that striking the references will not impact the result of the appeal and deny the motion. 

            Affirmed and remanded; motion denied.