In re: J.O., individually and on behalf of C.O. and K.O., petitioner, Respondent, vs. P.O., Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-00-1213

 

In re:  J.O., individually and on

behalf of C.O. and K.O., petitioner,

Respondent,

 

vs.

 

P.O.,

Appellant.

 

Filed February 27, 2001

Affirmed Willis, Judge

 

Crow Wing County District Court

File No. F7001148

 

Edward R. Shaw, 517 North 9th Street, Brainerd, MN  56401 (for respondent)

 

Virginia J. Knudson, Borden, Steinbauer & Krueger, P.A., 302 South Sixth Street, P.O. Box 411, Brainerd, MN  56401 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge, Willis, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant P.O. challenges the district court's issuance of an order for protection (OFP), alleging that (1) the district court abused its discretion in denying his request to continue the hearing so his attorney could be present, (2) the findings of domestic abuse are inadequate, (3) there is insufficient evidence to support the order, and (4) the district court failed to make findings that justify making the order effective for two years.  Because the district court did not abuse its discretion in denying P.O.'s request for a continuance and made adequate findings, and because there is sufficient evidence to support the OFP and neither the Domestic Abuse Act or caselaw requires findings that justify the duration of an OFP, we affirm.

FACTS

On May 11, 2000, respondent J.O. filed an ex parte petition for an OFP against her husband, appellant P.O.  The petition alleged that P.O. abused J.O. and one of their children, C.O., who was born in January 1998.  The petition requested a hearing.  In an affidavit accompanying her petition, J.O. stated that (1) she has seen P.O. kick C.O. in the stomach, and on one occasion when he kicked C.O., C.O. fell and hit his head on a coffee table; (2) "a number of times," P.O. has caused C.O. to cry by hitting him on the head with a television remote control; (3) about two years earlier, P.O. broke the lock on the bathroom door after J.O. walked away from a conversation with him and locked herself into the bathroom; (4) about a year and a half earlier, J.O. walked away from P.O., who had been yelling and screaming at her, went into the bathroom, and attempted to bar P.O.'s entrance by sitting with her back to the door and her feet braced against a cabinet, but gave up when he began to break the bathroom door; (5) in April 2000, after she attempted to walk away from an argument with P.O., who was drunk, he grabbed her by her arm, pulled her in front of him, yelled at her after she said he was hurting her, backed her into a corner, and asked her "what are you going to do now?"; (6) P.O. yelled an obscenity at C.O. in April 2000 after C.O. spilled milk; and (7) she and her children "are in danger and fear for [their] emotional wellbeing and physical safety."  On the day the petition was filed, the district court issued an ex parte OFP and set a hearing for May 17, 2000.  The order was served on P.O. the same day it was filed.

At the hearing, P.O. requested a continuance "for a week or two" because his attorney was unable to appear that day.  P.O. offered no explanation for his attorney's absence, and the court denied the request.  During the hearing, J.O., who was also not represented by counsel, reaffirmed the allegations in her affidavit, adding that "I have been scared to leave my home with my children and scared to stay there."  P.O. denied that he had ever been abusive to J.O. or C.O.

After P.O.'s testimony and that of his witnesses, the district court orally advised the parties that it would grant the petition and subsequently issued a written order on a pre-printed form on which the court checked the box next to the pre-printed words "Acts of domestic abuse have occurred, including the following:" and wrote in the space provided:  "physical and verbal abuse of [J.O.] and [C.O.]."  The court awarded J.O. sole physical and legal custody of the parties' two children, granted P.O. supervised visitation rights, and ordered P.O. to refrain from (1) committing further domestic abuse, (2) consuming alcohol for 24 hours before visitation, (3) contacting J.O., or (4) going to J.O.'s workplace.  The OFP was made effective for two years.  This appeal followed.

D E C I S I O N

1.         Request for continuance

P.O. argues that the district court "deprived him of a fair hearing" by denying his request for a continuance "for a week or two" until his attorney could be present. This court will not reverse a district court's decision to grant or deny a continuance absent an abuse of discretion.  Andrasko v. Andrasko, 443 N.W.2d 228, 230 (Minn. App. 1989). 

When a petitioner for an OFP requests a "full hearing," the district court must set the hearing for "not later than seven days from the issuance of the ex parte order * * * ."  Minn. Stat. § 518B.01, subd. 7(c) (2000).  At the hearing, a party "may request a continuance of up to five days if served [with the ex parte order] fewer than five days prior to the hearing * * * ."  Id., subd. 5(a) (2000).  Here, J.O. requested a hearing, and P.O. was served with the ex parte order for a temporary OFP and notice of the hearing more than five days before the hearing.  The district court, therefore, lacked authority to grant the requested continuance.   See El Nashaar v. El Nashaar, 529 N.W.2d 13, 14 (Minn. App. 1995) (holding that district court has no authority to continue ex parte OFP in effect beyond period provided for by statute).

We also note that P.O. did not explain to the district court why his attorney was unable to be present at the OFP hearing, when he learned that his attorney would not be there, or why other competent counsel could not be obtained to represent him.  We conclude that the district court did not abuse its discretion in denying P.O.'s request for a continuance of the hearing.

2.         Adequacy of findings

            P.O. contends that the district court failed to make adequate findings of domestic abuse to support an OFP.  Minnesota law provides that a district court must make findings of fact when issuing an OFP.  Andrasko, 443 N.W.2d at 230.  In Rigwald v. Rigwald, this court upheld an OFP where the district court made a written finding "merely that ‘there has been an act(s) of domestic abuse'" and where, in an oral finding, the district court specifically found that "appellant's actions were acts of domestic abuse against respondent and her daughter."  Rigwald v. Rigwald, 423 N.W.2d 701, 703 (Minn. App. 1988).  Here, the district court's order states that "[a]cts of domestic abuse have occurred, including the following: physical and verbal abuse of [J.O.] and [C.O.]."  We conclude that the district court's findings are adequate to support the OFP.

3.         Sufficiency of evidence

P.O. contends that there was insufficient evidence of domestic abuse to support the OFP.  The Domestic Abuse Act provides:

"Domestic abuse" means the following, if committed against a family or household member by a family or household member:

(1)       physical harm, bodily injury, or assault;

(2)       the infliction of fear of imminent physical harm, bodily injury, or assault; or

(3)       terroristic threats * * * or criminal sexual conduct * * * .

 

Minn. Stat. § 518B.01, subd. 2(a) (2000). In order to establish "domestic abuse," as defined by the statute, a party must show "present harm or an intention on the part of the [alleged abuser] to do present harm."  Andrasko, 443 N.W.2d at 230 (citation omitted).  "Past abusive behavior, although not dispositive, is a factor in determining cause for protection."  Boniek v. Boniek, 443 N.W.2d 196, 198 (Minn. App. 1989) (citation omitted).

The April 2000 events described in J.O.'s affidavit and testimony constitute domestic abuse within the meaning of section 518, subdivision 2(a).  The district court could infer that when P.O. shouted an obscenity at C.O. for spilling milk and when he forcibly cornered J.O., he had a present intent to inflict fear of imminent bodily harm.  The district court believed J.O.'s testimony rather than P.O.'s and found that P.O. had committed "verbal and physical abuse of [J.O.] and [C.O.]."  We defer to the district court's determinations of witness credibility.  Minn. R. Civ. P. 52.01; Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).  The evidence of domestic abuse was sufficient to support the OFP.

4.         Duration of OFP

            P.O. claims that the district court abused its discretion by making the OFP effective for two years.  The Domestic Abuse Act provides:

Any relief granted by the order for protection shall be for a fixed period not to exceed one year, except when the court determines a longer fixed period is appropriate.

 

Minn. Stat. § 518B.01, subd. 6(b) (2000).  P.O. argues that the plain meaning of the statutory language "except when the court determines a longer fixed period is appropriate" requires the district court to make findings that justify an OFP for a period longer than one year.  Neither the statute nor caselaw requires the district court to make specific findings in support of such a determination.  We conclude that the district court did not abuse its discretion in making the OFP effective for two years.

            Affirmed.

               

 

            * Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.