Kathy Nyberg Olson, for herself and on behalf of S.J.O., petitioner, Respondent, vs. Steven Eugene Olson, Appellant.

Kathy Nyberg Olson, for herself and on behalf of S.J.O., petitioner, Respondent, vs. Steven Eugene Olson, Appellant. A05-1417, Court of Appeals Unpublished, May 16, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1417

 

 

Kathy Nyberg Olson,

for herself and on behalf of

S.J.O., petitioner,

Respondent,

 

vs.

 

Steven Eugene Olson,

Appellant.

 

 

Filed May 16, 2006

Affirmed; motion denied
Harten, Judge*

 

Hennepin County District Court

File No. DA 299225

 

 

Eric C. Nelson, 700 Old Republic Title Building, 400 Second Avenue South, Minneapolis, MN 55401 (for respondent)

 

Kimberly M. Ferrier, Dunkley and Bennett, P. A., 701 Fourth Avenue South, Suite 700,
Minneapolis, MN 55415 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge, Dietzen, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

HARTEN, Judge

            Appellant challenges the district court's order for protection (OFP), which prohibited appellant from having contact with respondent or from entering their home, placed temporary custody of the parties' child with respondent, and denied appellant parenting time.  Appellant claims the district court's order lacks factual support in the record, is not supported by adequate findings, and violates public policy.  Because we conclude that the order is supported by the record and the district court's findings and does not violate public policy, we affirm.  We also deny respondent's motion to strike portions of appellant's brief and to award him attorney fees on appeal.   

FACTS

            Appellant Steven Olson and respondent Kathy Nyberg Olson were married on 30 October 1998.  The parties' daughter, S.J.O., was born on 16 December 1998.  Until the initiation of dissolution proceedings in May 2005, the family lived together in St. Louis Park. 

            According to respondent's 10 May 2005 OFP petition, the parties' relationship deteriorated in the months preceding their separation, and appellant exhibited an escalating course of aggressive conduct towards her and S.J.O.  Based on these allegations, the district court issued an ex parte temporary OFP. 

            After an evidentiary hearing at which both parties testified, the district court issued an OFP, finding that appellant had committed domestic abuse against respondent and prohibiting him from entering the family's home or having contact with respondent.  In the same order, the court granted sole physical and legal custody of S.J.O. to respondent and denied appellant parenting time.  The district court specifically noted that the custody and parenting time order could be modified at any time by a judicial officer assigned to the dissolution proceedings.

            The district court's finding of domestic abuse was based on the following statements that appellant made to respondent:

May 7, 2005:       "I wish you were dead.  Maybe I can help make that happen sooner."

                                                           

"recently":             "I am going to push you down the stairs."

 

"recently":             "You are not going to wake up in the morning."

 

Oct. 26, 2004:       "You are going to die soon."

 

Sept. 9, 2004:        "Come here, I am going to murder you."

 

While acknowledging that respondent's allegations of domestic abuse helped her strategically in the dissolution proceedings, the district court still found her testimony credible.  The court stated that it closely observed respondent's courtroom demeanor and that she exhibited hallmarks of a truthful witness, such as "lack of wile" and "frankness in admitting or acknowledging facts not in her favor."  

            In regard to S.J.O., the district court found that appellant "in recent times often makes degrading and demeaning statements to [S.J.O.] . . . [f]or instance, calling her a lesbian."  The court also found that:

[o]n or about May 3, 2005 while all three family members were in the family television room [appellant] became irritated at [S.J.O.] for not obeying directions to change TV channels.  [Appellant] threw a tantrum, kicked [S.J.O.'s] dollhouse and rampaged around the room.  This upset [S.J.O.] and [respondent] took [S.J.O.] to another room to calm her down.  [Appellant] did not touch [S.J.O.].

 

The district court further noted that appellant had called S.J.O. an obscenity, a "lesbo," "stupid," and "mean," and told her, "I want you to go away and I don't care if you ever come back," and "I am going to take you away from your mommy."  While the court did not find that this conduct constituted domestic abuse, its custody and parenting time determinations were based on concerns for S.J.O.'s safety and were supported by its findings of domestic abuse of respondent.

D E C I S I O N

            The district court has discretion to issue an order for protection.  Chosa v. Tagliente, 693 N.W.2d 487, 489 (Minn. App. 2005).  "A district court's findings of facts will not be set aside unless they are clearly erroneous."  Id.; Minn. R. Civ. P. 52.01.  On review, an appellate court views the evidence in the light most favorable to the district court's findings and gives special deference to findings that are made upon conflicting evidence.  Minn. R. Civ. P. 52.01.  A district court's factual findings will be reversed only if after reviewing the entire record, the appellate court "is left with the definite and firm conviction that a mistake has been made."  Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987).  On questions of sufficiency of evidence, an OFP issued for domestic abuse "will be reversed on appeal when it lacks sufficient evidentiary support."  Gada v. Dedefo, 684 N.W.2d 512, 514 (Minn. App. 2004).

            Minnesota's Domestic Abuse Act (the Act) provides that a district court may issue an OFP against a family or household member to "restrain the abusing party from committing acts of domestic abuse."  Minn. Stat. § 518B.01, Subd. 6(a)(1) (2004).  The Act defines "domestic abuse" as any of the following:

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

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

(3)       terroristic threats, within the meaning of section 609.713, subdivision 1; criminal sexual conduct . . .; or interference with an emergency call . . . [.]

 

Minn. Stat. § 518B.01, subd. 2(a) (2004). 

1.         Appellant's Conduct Towards Respondent. 

            The district court found that appellant's threats caused respondent imminent fear of great bodily harm within the meaning of the Act and constituted terroristic threats as defined by Minn. Stat. § 609.713, subd. 1 (2004) (defining terroristic threats, in part, to include "[w]hoever threatens . . . to commit any crime of violence with purpose to terrorize another").  In claiming that the Act requires a showing of present harm or intention of the abuser to commit present harm and that past abusive behavior is necessary to show present intent to harm, appellant relies on pre-1993 statutory language that did not include terroristic threats as a basis for finding domestic abuse.  See 1993 Minn. Laws Ch. 326, Art. 2, § 4.  Here, appellant's statements clearly met the statutory definition of terroristic threats, which under current law may alone support a finding of domestic abuse.  Thus, appellant's statements threatening respondent's life, made with the purpose to terrorize her, were sufficient to support issuance of the OFP.  See, e.g., State v. Johnson, 616 N.W.2d 720, 726 (Minn. 2000) (intent usually proved by circumstantial evidence).   

            Appellant also argues that no physical abuse occurred and contends that the dearth of such evidence undermines the district court's finding that he abused respondent.  But the Act does not require physical abuse.  It enumerates several other types of non-physical conduct that constitutes abuse, including the threat of imminent harm, terroristic threats, and interfering with an emergency call.  See Minn. Stat. § 518B.01, subd. 2(a).  Appellant's serious and escalating threats to respondent support the district court's finding that he committed domestic abuse by causing appellant fear of bodily harm and by making terroristic threats.

            Finally, appellant asserts that some of his past conduct was too remote in time to support a finding of domestic abuse.  The conduct that supported the district court's findings occurred within eight months of the filing of the OFP petition.  Respondent alleged that the conduct became more intense and frequent as the parties' marriage neared its dissolution.  Under these circumstances, we conclude the acts were not too remote to support the domestic abuse determination.  See Hall v. Hall,408 N.W.2d, 626, 629 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987) (past abusive behavior a factor in determining current cause for protection).

2.         Appellant's Conduct Toward S.J.O.

            Appellant contends that the district court abused its discretion in denying him parenting time with S.J.O. in the absence of findings that he committed domestic abuse against the child and that unsupervised parenting time posed a safety risk to the child.  The court issued its temporary order for custody and parenting time based on two factors:  appellant's domestic abuse of respondent (sometimes in S.J.O.'s presence) and appellant's other harmful conduct towards S.J.O., including serious threats, name-calling, and ruining S.J.O.'s dollhouse.

            The district court may establish temporary custody and parenting time in granting relief against a party who has committed domestic abuse and may, regarding the parties' children,

[a]ward temporary custody or establish temporary parenting time with regard to minor children of the parties on a basis which gives primary consideration to the safety of the victim and the children . . . If the court finds that the safety of the victim or the children will be jeopardized by unsupervised or unrestricted parenting time, the court shall condition or restrict parenting time as to time, place, duration, or supervision, or deny parenting time entirely, as needed to guard the safety of the victim and the children.  The court's decision on custody and parenting time shall in no way delay the issuance of an order for protection[.]

 

Minn. Stat. § 518B.01, subd. 6(a)(4); see El Nashaar v. El Nashaar, 529 N.W.2d 13, 14 (Minn. App. 1995) (denial of parenting time in domestic abuse case requires finding of jeopardy to safety of parties' children). 

            The district court's findings make it clear that the child's safety was its paramount consideration in setting custody and parenting time.  In denying parenting time, the court specifically noted appellant's conduct towards respondent and S.J.O. and stated that "no civilized human being should have to live with or visit a person who has recently said and done these things."  The record supports the seriousness of appellant's conduct toward a very young child; he threatened to evict her from the family and to deny her access to her mother, and kicked her dollhouse.  This conduct supports the court's decision to deny appellant custody and parenting time. 

            Appellant contends that the district court should have made best interests findings in issuing the temporary custody and parenting time order.  The Act, however, does not require such findings and requires a primary consideration of safety factors.  See Minn. Stat. § 518B.01, subd. 6(a)(4).  Given the statutory mandate that custody and parenting time determinations be made in a timely fashion so as to prevent delay of the domestic abuse proceedings, the court's findings, and the evidentiary support for those findings, are sufficient in this case. 

3.         Public Policy Considerations.

            Finally, appellant claims that public policy should prohibit use of the Act to allow one party to gain priority over another in dissolution proceedings.  Appellant claims that allowing quick issuance of an OFP in cases such as this one leads to "failure of our system of justice" because many claims are filed falsely.  While such maneuvering is possible, there is no evidence that a false claim was filed in the instant case.  Further, the Act protects against such abuses by (a) defining prohibited conduct; (b) requiring hearings, evidence, and weighing of evidence before issuance of an OFP; (c) requiring that an OFP be fashioned to provide necessary relief; and (d) recognizing the impact of a finding of domestic abuse on other civil and criminal proceedings. Appellant's claim does not merit any action by this court.

4.         Respondent's Motion.

            By separate motions, respondent asks that we strike portions of appellant's brief and grant him attorney fees.  We deny these motions.

            Affirmed; motions denied.    

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