This opinion will be unpublished and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

C8-00-400

 

In the Matter of:

Jacklyn Suzanne Sundquist, petitioner,

Respondent,

 

vs.

 

Jeffrey Scott Sundquist,

Appellant.

 

 

 

Filed September 12, 2000

Remanded

Lansing, Judge

 

 

St. Louis County District Court

File No. F499600946

 

 

Jaclyn S. Sundquist, 3682 Mallard Drive, Cloquet, MN 55720 (pro se respondent)

 

Rebecca E. Shaw, 107 West First Street, Duluth, MN 55807 (for appellant)

 

 

            Considered and decided by Schumacher, Presiding Judge, Lansing, Judge, and Klaphake,  Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            Jeffrey Sundquist appeals a domestic-abuse protection order, claiming that the evidence is insufficient to warrant the order and the district court abused its discretion in failing to make factual findings.  Because the record contains no factual findings, we remand.

FACTS

Jacklyn Sundquist petitioned for an order for protection from domestic abuse, claiming that Jeffrey Sundquist had physically abused her and had threatened to take their son to Mexico if she filed for divorce.  The district court issued an ex parte temporary order for protection and scheduled a hearing.  Both Jacklyn Sundquist and Jeffrey Sundquist testified at the hearing.  Their testimony conflicted, particularly on the central issue of whether Jeffrey Sundquist’s conduct demonstrated a present intention to inflict harm or fear of imminent harm.  Both testified that they intended to start dissolution proceedings and had completed the preliminary paperwork.

After the hearing, the district court issued an order for protection for one year. The court granted temporary custody of the parties’ minor child to Jacklyn Sundquist and denied Jeffrey Sundquist visitation rights until the family court ruled on visitation. But the court did not issue factual findings, conclusions of law, or a memorandum in support of its order.  Nor did it make oral findings on the record or fill out the box in the pre-printed order-for-protection form indicating the existence of domestic abuse. This appeal followed.

DECISION

            The Domestic Abuse Act provides for the issuance of protection orders in cases of domestic abuse. Minn. Stat. § 518B.01 (1998).  Domestic abuse includes the infliction of physical harm or fear of imminent physical harm by one family or household member against another. Minn. Stat. § 518B.01, subd. 2(a).  To establish domestic abuse, a petitioner must thus prove present harm or a present intention to inflict harm or fear of imminent harm.  Bjergum v. Bjergum, 392 N.W.2d 604, 606 (Minn. App. 1986) (reversing order for protection when record contained no evidence of present harm or present intention to inflict fear of imminent harm); see Baker v. Baker, 494 N.W.2d 282, 287 (Minn. 1992) (stating requirements of Domestic Abuse Act satisfied when petition and supporting affidavit assert fear of further acts of violence).

            Jeffrey Sundquist contends that the order cannot be sustained because the record contains no evidence of present physical harm.  But the record contains undisputed evidence that Jeffrey Sundquist threatened to kill Jacklyn Sundquist or to take their son to Mexico if she filed for divorce.  Threats may be sufficient to establish a present intention to inflict harm or fear of imminent harm, particularly when evidence of past abuse exists. See Boniek v. Boniek, 443 N.W.2d 196 (Minn. App. 1989) (holding present threatening behavior, viewed in light of past history of abusive behavior, was sufficient to establish present intent to inflict fear of imminent physical harm); Hall v. Hall, 408 N.W.2d 626 (Minn. App. 1987) (holding oral threats were sufficiently specific and violent to support claim of fear of imminent physical harm, particularly in light of past physical abuse), review denied (Minn. Aug. 19, 1987).

But whether Jeffrey Sundquist’s threats establish a present intention to harm or cause fear of imminent harm is a determination the district court must initially make. See Mechtel v. Mechtel, 528 N.W.2d 916, 921 (Minn. App. 1995); Nohner v. Anderson, 446 N.W.2d 202, 203 (Minn. App. 1989) (stating order for protection must be supported by specific findings of domestic abuse); Andrasko v. Andrasko, 443 N.W.2d 228, 230 (Minn. App. 1989) (same).  Because of the substantial discretion accorded the district court in granting or denying domestic-abuse protection orders, it is important that the district court state the basis for its discretion with particularity. Andrasko, 443 N.W.2d at 230 (citing Wallin v. Wallin, 290 Minn. 261, 267, 187 N.W.2d 627, 631 (1971)).

On undisputed facts, an appellate court may review the district court’s application of law.  Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989).  But because an appellate court cannot assess witnesses’ credibility, draw inferences from conflicting testimony, or resolve disputed facts, we must remand so that the district court may make factual findings.

            Remanded.