In the Matter of: Julie Pelkey, et al., petitioners, Appellants, vs. Joseph W. Malecha, Respondent.
This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALSC6-02-2067
In the Matter of:
Julie Pelkey, et al., petitioners,
Joseph W. Malecha,
Filed July 22, 2003Affirmed Willis, Judge
Dakota County District Court
File No. F09814850
Beverly Balos, University of Minnesota Law School Civil Practice Clinic, Nathan Hobbs (certified student attorney), 190 Mondale Hall, 229 - 19th Avenue South, Minneapolis, MN 55455 (for appellants)
Joseph W. Malecha, 12761 Greenwood Drive, Burnsville, MN 55337 (pro se respondent)
Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Julie Pelkey and respondent Joseph Malecha are the parents of Z.P., a son. Pelkey and Malecha did not marry each other. In 1998, Pelkey petitioned under the Domestic Abuse Act for an order for protection on her and her son's behalf, alleging that (1) one night, as she and Z.P. were leaving Malecha's apartment, Malecha punched her car's window, cracked it, took Z.P. out of the car, and returned with the child to the apartment; (2) when Pelkey followed Malecha into the apartment and attempted to call 911, Malecha took the phone from her and hung it up; (3) Malecha "pushed" Z.P. at Pelkey and told her to leave; and (4) subsequently Malecha threatened Pelkey and harassed her on the phone. The district court granted Pelkey's petition and issued an order for protection effective for one year.
In August 1999, Pelkey petitioned to have the order for protection extended for one year. In her petition, Pelkey alleged that Malecha had called her, had mentioned that the order for protection was about to expire, and had said that he was going to "start to bother [her] again." She also alleged that she had called the police several times during the year because Malecha had violated the order for protection. The district court extended the order for another year.
In August 2000, Pelkey petitioned to have the order extended again. She alleged that Malecha had "made threaten[ing] calls in the past" and that she was still fearful of him. The court extended the order for another year. In August 2001, Pelkey petitioned again to have the order extended, alleging that in 1999 Malecha had made threats to her, that he was "on probation," and that the order had been "keeping me [and] my son safe." She also alleged that Malecha "is still talking and saying thing[s] about me." The court extended the order for another year.
In August 2002, Pelkey petitioned for yet another extension. Pelkey alleged that Malecha had "violated the order in the past but with the extension of the order it has kept me [and] my son safe from him." But in an attached affidavit, Pelkey stated that her most recent contact with Malecha had been two years earlier and that she had been unable to determine his current address. Pelkey requested that notice of the extension hearing be made by publication; the court signed the order.
In September 2002, the court held a hearing on Pelkey's petition. Pelkey testified that the previous orders had made her feel safe and that Malecha had not violated the order during the previous year. The court denied Pelkey's petition, reasoning that an extension of the order was not warranted because Malecha had not "done anything or threatened to do something that would reasonably place [Pelkey] in fear of physical harm." Pelkey appeals on her and her son's behalf.
D E C I S I O N
Pelkey first argues that the district court's findings of fact are clearly erroneous because they "are nothing more than an account of the procedural history of the case" and do not constitute "particularized findings" for the case. All orders in family court proceedings must "contain particularized findings of fact sufficient to support determinations of * * * issues decided by the court." Andrasko v. Andrasko, 443 N.W.2d 228, 230 (Minn. App. 1989). A district court's "[f]indings of fact, whether based on oral or documentary evidence," will not be set aside unless they are clearly erroneous. Minn. R. Civ. P. 52.01. Findings of fact are clearly erroneous only if the evidence does not reasonably support them. Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 102 (Minn. 1999). The record shows that the district court made extensive findings of fact, including (1) a description of the allegations underlying Pelkey's original petition, (2) descriptions of the rationale supporting Pelkey's subsequent petitions for extensions of the existing order, (3) a complete procedural history of the case, and (4) Pelkey's current asserted basis for requesting an extension. Because the district court made particularized findings sufficient to support its determination in this case, and because the record supports its findings, the court's findings are not clearly erroneous.
Pelkey next argues that the district court "ignored" her testimony that she had a reasonable fear of Malecha by finding that she failed to show that she was reasonably in fear of physical harm by Malecha. Although Pelkey testified that she was afraid of Malecha and that the order made her feel "safe," the record unequivocally shows that Malecha had not done anything in at least the previous year that would reasonably place Pelkey in fear of him. Indeed, at the time of the hearing, Pelkey did not know if Malecha still lived in Minnesota and testified that she had not seen him for at least two years.
Pelkey also argues that because the court incorrectly assumed that a "present harm or intention to do present harm is a required part of her evidentiary burden" that the court's findings "are premised on the incorrect legal standard for extension of an order for protection and therefore are clearly erroneous." But Pelkey applied for the extension of the order for protection on the ground that she was reasonably in fear of physical harm from Malecha, which is a basis for extending an order for protection under Minn. Stat. § 518B.01, subd. 6a(2) (2002). The district court found that there was no reasonable basis for Pelkey to fear physical harm. Because the evidence reasonably supports the court's finding, it is not clearly erroneous. See Fletcher, 589 N.W.2d at 102 (citing Minn. R. Civ. P. 52.01).
Pelkey argues that the district court erred by interpreting Minn. Stat. § 518B.01, subd. 6a, to require that an order for protection can be extended only if the individual against whom the order is issued contacted the protected person or persons during the effective period of the preceding order. The district court here denied Pelkey's petition for an extension of the order for protection because she failed to show that Malecha had for more than a year "done anything or threatened to do something that would reasonably place [Pelkey] in fear of physical harm."
The proper standard for our review of a denial of a petition for an order for protection is a determination of whether the district court abused its discretion. Mechtel v. Mechtel, 528 N.W.2d 916, 920 (Minn. App. 1995). But the interpretation of a statute raises a question of law, which this court reviews de novo. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990).
Pelkey applied for an extension of the order for protection under the Domestic Abuse Act, which provides that a district court may issue an order for protection in cases of domestic abuse between family or household members, which includes persons who have a child in common regardless of whether they have been married or have lived together. Minn. Stat. § 518B.01, subds. 2(b)(5), 4 (2002). Although a showing of (1) physical harm, (2) infliction of fear of physical harm, or (3) terroristic threats by the family or household member against the petitioner are required for the initial issuance of an order for protection, a petition for an extension of an order for protection is subject to different standards. See id., subds. 2(a), 4, 6a. Following notice to all parties and a hearing, the district court "may extend the relief granted in an existing order for protection" upon a showing that (1) a family or household member has violated a prior or existing order for protection, (2) the petitioner is reasonably in fear of physical harm from the family or household member, or (3) the family or household member has engaged in harassment or stalking. Id., subd. 6a.
A district court's decision to grant or deny a petition to extend an order for protection is discretionary, as shown by the legislature's use of the words "may extend" in the statute. See id.; id. § 645.44, subd. 15 (2002) (defining "may" to be permissive). We conclude that it was not an abuse of the district court's discretion to deny the petition here, when Malecha has not contacted Pelkey for more than a year and Pelkey does not know if Malecha even lives in the state. Furthermore, Pelkey has alleged no facts in support of her claim that she is reasonably in fear of Malecha and she does not claim that Malecha has harassed or stalked her.