Bradley S. Almen, 3319 Tyler Street NE, Minneapolis, MN 55418-1352 (for appellant)

Considered and decided by Toussaint, Chief Judge, Harten, Judge, and Mulally, Judge.[*]

TOUSSAINT, Chief Judge

Appellant Brian Brockamp challenges a subsequent order for protection issued on May 4, 1998, for a two-year period. An initial order for protection was issued in May 1995 and expired in May 1997. On appeal, Brockamp challenges (1) the sufficiency of the district court's findings supporting its determination that acts of domestic abuse occurred; (2) the court's finding that the petitioner was reasonably in fear of physical harm; and (3) the two-year period of relief. Because (1) subsequent orders for protection do not require a finding of domestic abuse; (2) Brockamp's verbal threat, in the context of past physical abuse, gave rise to a reasonable fear of physical harm; and (3) Brockamp failed to object to the two-year extension of the relief period, we affirm.

The law is expected to provide immediate, temporary relief, yet time for courts to decide a case fairly and thoughtfully is often in short supply.

Vogt v. Vogt, 455 N.W.2d 471, 475 (Minn. 1990).

Thus, in determining the level of findings necessary to award child custody under the Act, the supreme court pointed out that the amount of time between an ex parte order and a final hearing (usually only seven days) does not allow the parties to prepare testimony and other evidence necessary for the court to make extremely detailed findings of fact, as would be needed, for example, in a "best interests" of the child analysis. Baker, 494 N.W.2d at 290.

Although the time constraints present in actions seeking temporary relief under the Act do not permit courts to make extremely detailed and lengthy findings of fact, mere reliance on a party's allegations in his or her petition will generally not suffice for the independent determination of facts that the district court is required to make. See Dean v. Pelton, 437 N.W.2d 762, 764 (Minn. App. 1989) (findings prefaced with "petitioner claims" and "respondent asserts" are not true findings, but merely a recitation of the parties' claims). While the Act is silent on what findings are necessary, we find guidance from family law decisions which require district courts to make findings to demonstrate reasons for their decisions in discretionary matters. See, e.g., Rosenfeld v. Rosenfeld, 311 Minn. 76, 82, 249 N.W.2d 168, 171 (1976) (findings assure parties that important decisions were fairly and carefully considered).

In its order, the district court checked the box on the pre-printed form indicating that acts of domestic abuse had occurred. After the phrase "including the following," the court wrote "see petition." The district court adopted Hill's allegations in her petition to substantiate that acts of domestic abuse had occurred. Brockamp claims that because the court failed to make independent factual findings regarding the occurrence of domestic abuse, the order for protection must be reversed. We disagree.

The Act does not require a finding that domestic abuse occurred for subsequent orders for protection because such a finding is made as part of the initial order. Here however, the district court found that additional acts of domestic abuse occurred since the initial order. This finding is supported by Hill's testimony that (1) Brockamp told the couple's 13-year-old son that he was going to "ream [Hill] a new a--hole"; (2) Brockamp had continually called several places in her small town looking for her; (3) she was afraid of Brockamp; and (4) their children were "shook up" because Brockamp had threatened her and hurt her in their presence. See Minn. Stat. § 518B.01, subd. 2(a) (1996) (defining domestic abuse). In addition, because Hill and Brockamp both testified at the hearing, the court had ample opportunity to judge their credibility. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (appellate courts defer to district court credibility determinations).

A district court may issue an initial order for protection upon a showing of domestic abuse. Minn. Stat. § 518B.01, subd. 4(b) (Supp. 1997). If an initial order is no longer in effect, the court may grant a subsequent order for protection upon a showing that "the petitioner is reasonably in fear of physical harm from the respondent." Minn. Stat. § 518B.01, subd. 6a (2) (1996) (emphasis added). Brockamp contends that to establish a reasonable fear of physical harm, a petitioner must show that the alleged offender intended to inflict fear. Accordingly, Brockamp argues that because he did not intend to inflict fear, Hill's fear of physical harm from him is not reasonable. This court has required a petitioner seeking an initial order for protection to show some overt act indicating the accused intended to put the petitioner in fear of imminent physical harm. Kass v. Kass, 355 N.W.2d 335, 337 (Minn. App. 1984). We did so, however, because we concluded that a finding of an overt act was implicit in the statute's requirement of an "infliction of fear" by the respondent. Id. We decline to impose such a requirement for petitions for subsequent protection orders because it is not explicit, nor can we conclude that it is implicit, in the statute.

The evidence here is sufficient to establish that Hill was reasonably in fear of physical harm from Brockamp. Verbal threats can be sufficient to inflict fear of physical harm and must be taken more seriously when considered in the context of past physical abuse. Hall v. Hall, 408 N.W.2d 626, 629 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987). Brockamp was previously convicted of fifth-degree domestic assault against Hill. In light of this past abuse, we cannot agree with Brockamp's contention that the statement "I am going to `ream [Hill] a new a--hole'" is a colloquial expression used to convey that the speaker intends to chastise the one to whom the remark is made. On this record, the statement is sufficiently specific and violent to constitute a threat and to support Hill's claim of fear of physical harm. Therefore, we conclude that the district court's finding that Hill was reasonably in fear of physical harm was not clearly erroneous.

Affirmed.

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