Angie Dubbs Kalamaha, petitioner, Respondent, vs. Kory Surgay Kalamaha, Appellant.

 This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-2030

 

 

Angie Dubbs Kalamaha, petitioner,

Respondent,

 

vs.

 

Kory Surgay Kalamaha,

Appellant.

 

 

Filed September 28, 2004

Affirmed

Toussaint, Chief Judge

 

Hennepin County District Court

File No. DA 286138

 

Andrew M. Silverstein, Andrew M. Silverstein Law Office, Anchor Bank Building, 1055 East Wayzata Boulevard, Suite 300, Wayzata, MN 55391 (for respondent)

 

Douglas G. Sauter, Rider Bennett, 333 South Seventh Street, Suite 2000, Minneapolis, MN 55402 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Halbrooks, Judge; and Anderson, Judge.

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

 

            In this appeal from a domestic abuse order for protection, appellant Kory Surgay Kalamaha argues there was insufficient evidence to show either that respondent Angie Dubbs Kalamaha suffered physical harm or that appellant intended to put respondent in fear of imminent physical harm.  Because the record supports the district court's decision to issue an order for protection, we affirm.

F A C T S

            Respondent filed for divorce and told appellant that she planned to move out of their home.  However, while respondent made the necessary arrangements to move, she remained domiciled at the couple's home.  Two incidents led her to seek an order for protection (OFP). 

            One night, appellant repeatedly asked in a loud voice why she was filing for divorce.  Respondent made it clear that she did not want to speak to him at that time, went to bed, and turned off the lights.  Appellant turned the lights back on and repeatedly said, "[W]e're going to talk about this tonight."  Appellant grabbed respondent's arm and said, "Why are you wearing your ring on that finger?  I told you not to wear your ring on that finger."  After appellant let go of respondent's arm, she stood up and said, "You are scaring me."

            Respondent attempted to call 911, but appellant grabbed the phone out of her hand and said, "You are not going to call anyone."  Respondent then ran into the garage and got into her car.  Appellant closed the garage door and yelled at respondent to get out of the car.  Respondent testified that after she blew the car horn, appellant slammed his fist into her car window.  Appellant said he only hit respondent's car after she started backing the car towards him.

            The second incident occurred when respondent returned to the home a few days later and retrieved some personal items.  At that time, appellant came home and started yelling at her, "You cannot be in this house.  You have no right to be in this house."  Appellant admitted that respondent said she was scared by his actions.  Respondent alleged that when she attempted to leave the house after this encounter that appellant prevented her from closing her car door.  Appellant searched through the items inside her car and told her, "You can't take stuff from this house."  Appellant then pounded on her trunk demanding to know what was inside.  Furthermore, appellant's truck was parked in a manner which partially blocked respondent from leaving in her car.  After respondent returned to her apartment, appellant called and said, "You cannot come over here to this house anymore."  He went on to say, "This is going to stop.  All this is going to stop. . . . [T]his is going to end tonight."

            Respondent then sought an OFP.  The district court found that appellant's testimony was not credible and determined that respondent demonstrated that appellant physically harmed her and inflicted fear of imminent physical harm upon her.  This appeal follows.

D E C I S I O N

            The decision to grant an order for protection (OFP) under the Domestic Abuse Act, Minn. Stat. ch. 518B (2002), is within the district court's discretion.  Mechtel v. Mechtel, 528 N.W.2d 916, 920 (Minn. App. 1995).  District courts are authorized to issue an OFP to "restrain the abusing party from committing acts of domestic abuse."  Minn. Stat. § 518B.01, subd. 6(a)(1) (2002).  Domestic abuse includes the infliction of physical harm or fear of imminent physical harm by one family or household member against another.  Id., subd. 2(a) (2002). 

            This court does not reconcile conflicting evidence; rather, we give great deference to the district court's factual findings.  Porch v. Gen. Motors Acceptance Corp., 642 N.W.2d 473, 477 (Minn. App. 2002), review denied (Minn. June 26, 2002).  A district court's findings of fact will not be set aside unless they are clearly erroneous.  Minn. R. Civ. P. 52.01.  When reviewing the record, this court looks at the evidence "in the light most favorable to the court's findings."  Lossing v. Lossing, 403 N.W.2d 688, 690 (Minn. App. 1987).  During such review, this court gives great deference to the district court's determination of witness credibility because the district court "has the advantage of hearing the testimony, assessing relative credibility of witnesses and acquiring a thorough understanding of the circumstances unique to the matter before it."  Hasnudeen v. Onan Corp., 552 N.W.2d 555, 557 (Minn. 1996).

            The district court found that appellant had inflicted physical harm.  Appellant argues that grabbing respondent's arm was not an act of domestic abuse because no physical harm resulted.  Under Minnesota law, the party petitioning for an OFP must make specific allegations of domestic abuse.  Minn. Stat. § 518B.01, subd. 4(b) (2002).  But, that is not what occurred in this case; respondent only alleged that appellant grabbed her arm and held it.  Respondent never alleged any resulting physical injuries and no specific injuries were presented on the record.  Appellant even let go of respondent's arm as soon as she stood up.  Because there was no indication or allegation of physical injury, the evidence was insufficient to support the district court's finding of domestic abuse.

            The district court also found that appellant inflicted fear of imminent physical harm.  Appellant argues respondent failed to prove that he had a present intent to inflict fear of harm.  An OFP is only proper where there is a showing of present harm or intent to do present harm.  Minn. Stat. § 518B.01, subd. 2 (a); Kass v. Kass, 355 N.W.2d 335, 337 (Minn. App. 1984).  An OFP issued absent a record establishing the present intention to do harm or inflict fear of imminent harm must be reversed.  Bjergum v. Bjergum, 392 N.W.2d 604, 606 (Minn. App. 1986).  In Kass, this court held that "there must be some overt action to indicate that appellant intended to put respondent in fear of imminent physical harm."  Kass, 355 N.W.2d at 337. 

            Although appellant maintains he never intended to cause respondent fear of physical harm, present intent can be inferred from his actions.  See Boniek v. Boniek, 443 N.W.2d 196, 198 (Minn. App. 1989) (affirming issuance of OFP where facts existed to infer present intent by former spouse to inflict fear of imminent physical harm).  The record reflects actions from which appellant's intent to cause respondent harm may be inferred.  Deferring to the district court's factual and credibility determinations, viewed in the light most favorable to the court's findings, facts show overt actions by appellant that are sufficient to infer a present intent to inflict fear of physical harm.  Furthermore, these facts are sufficient to show that a reasonable person in respondent's position would be in fear of imminent physical harm. 

            Affirmed.