Daniel Kronebusch, et al., petitioners, Respondents, vs. John Kronebusch, 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This opinion will be unpublished and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

A04-429

 

Daniel Kronebusch, et al., petitioners,

Respondents,

 

vs.

 

John Kronebusch,

Appellant.

 

Filed December 28, 2004

Affirmed in part and reversed in part Willis, Judge

 

Winona County District Court

File No. F6-04-23

 

 

Jed J. Hammell, Rippe, Hammell & Murphy, P.L.L.P., 110 East Main Street, P.O. Box 149, Caledonia, MN  55921-0149 (for respondents)

 

Jill I. Frieders, Daniel J. Heuel, O'Brien & Wolf, L.L.P., 206 South Broadway, Suite 611, P.O. Box 968, Rochester, MN  55903-0968 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Willis, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant challenges the district court's denial of his motion to dismiss or modify an order for protection.  Because the record supports the order as it relates to Daniel Kronebusch but not as it relates to Debra Kronebusch, Timothy Kronebusch, and Justin Kronebusch, we affirm in part and reverse in part.

FACTS

Appellant John Kronebusch and respondent Daniel Kronebusch are brothers who own and operate a farm in Altura, Minnesota.  Daniel Kronebusch lives on the farm with his wife, respondent Debra Kronebusch, and his two teenage sons, respondents Timothy Kronebusch and Justin Kronebusch.  John Kronebusch also lives on the farm in a house approximately 100 feet from Daniel Kronebusch's house.  Because of John Kronebusch's alleged verbal and physical abuse, Daniel and Debra Kronebusch applied for an order for protection (OFP) for themselves and their children. 

At the hearing on the application for an OFP, the district court focused on two incidents:  first, Daniel Kronebusch testified that in April 2003, John Kronebusch struck him with a metal air hose.  The farm's herdsman also testified that he saw John Kronebusch waving a metal air hose over his head while chasing Daniel Kronebusch.  John Kronebusch denied that the incident occurred. 

            Second, Daniel Kronebusch testified that in January 2004 John Kronebusch tackled him and punched him in the face twice.  John Kronebusch testified that Daniel Kronebusch ambushed him, "coldcocked" him, and fled.

            The OFP provides, inter alia, that John Kronebusch (1) shall not commit acts of domestic abuse against Daniel Kronebusch, Debra Kronebusch, or their children; (2) shall have no contact with Daniel Kronebusch, Debra Kronebusch, or their children except through attorneys or the farm business agent; (3) shall not enter or come within 50 yards of Daniel and Debra Kronebusch's residence; and (4) shall not enter or call Daniel Kronebusch's place of employment.  The OFP grants John Kronebusch access to his residence on the farm but prohibits him from being on any other part of the farm without Daniel Kronebusch's written agreement.  The OFP was made effective for one year.

John Kronebusch moved to dismiss or modify the OFP, and the district court denied the motion.  This appeal follows.

D E C I S I O N

John Kronebusch argues that the evidence does not support the district court's finding that he committed acts of domestic abuse against Daniel Kronebusch in April 2003 and January 2004.  He contends that his testimony should have been believed and the other witnesses' testimony should not have been believed.  On appeal, a district court's findings of fact will not be set aside unless they are clearly erroneous.  Minn. R. Civ. P. 52.01.  The district court found that Daniel Kronebusch's and the herdsman's testimony was credible and that John Kronebusch's testimony was not, and we defer to the district court's determination.  See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). 

I.

John Kronebusch argues that the district court erred by denying his motion to dismiss the OFP, claiming (1) that there are insufficient findings to support the OFP, and (2) that there is no evidence in the record that John Kronebusch had a present intent to cause fear of physical harm on the part of Debra Kronebusch.  Whether to grant relief under the Domestic Abuse Act is within the discretion of the district court and is reviewed for an abuse of that discretion.  Mechtel v. Mechtel, 528 N.W.2d 916, 920 (Minn. App. 1995); see also Minn. Stat. § 518B.01, subd. 6(a)(12) (2002).  This court must reverse a district court's grant of an OFP if the evidence that was produced at the domestic-abuse hearing was insufficient to support an OFP.  Kass v. Kass, 355 N.W.2d 335, 338 (Minn. App. 1984).

A petition for relief under the Domestic Abuse Act shall allege domestic abuse.  Minn. Stat. § 518B.01, subd. 4(b) (2002).  To constitute domestic abuse, an act must be committed by a family or household member against another family or household member, and domestic abuse means, inter alia, (1) physical harm, bodily injury, or assault; or (2) the infliction of fear of imminent physical harm, bodily injury, or assault.  Id., subd. 2(a) (2002).  Family or household members include people who are related by blood.  Id., subd. 2(b)(3) (2002). 

John Kronebusch argues that the district court's findings are insufficient to support the OFP as it relates to Daniel Kronebusch, contending that the findings are vague and lack particularity.  See Nohner v. Anderson, 446 N.W.2d 202, 203 (Minn. App. 1989) (stating that the district court must make specific findings of domestic abuse).  The district court concluded that John Kronebusch committed acts of domestic abuse, as defined by Minn. Stat. § 518B.01, subd. 2(a), against Daniel Kronebusch.  As brothers, they are related by blood, and the district court specifically found that on two occasions John Kronebusch assaulted Daniel Kronebusch.  The findings are sufficient to support the OFP as it relates to Daniel Kronebusch. 

John Kronebusch also claims that there is no evidence to support the OFP as it relates to Daniel Kronebusch's wife and his sons.  The only findings of domestic abuse that the district court made related to the two incidents involving Daniel Kronebusch.  There is no evidence in the record that John Kronebusch caused physical harm to or at the time of the hearing had a present intent to cause fear of physical harm on the part of any of Daniel Kronebusch's family members.  See Kass, 355 N.W.2d at 337 (requiring either a showing of present harm or an intent to cause fear of harm for a finding of domestic abuse); see also Minn. Stat. § 518B.01, subd. 2(a)(2).  There is evidence that at some unspecified time John Kronebusch intended to cause Debra Kronebusch to fear physical harm, but there is no evidence that he had that intent at the time of the hearing.  Therefore, because there are no findings or record evidence to support findings of acts of domestic abuse by John Kronebusch against Daniel Kronebusch's family members, the district court abused its discretion by issuing the OFP as it relates to Debra Kronebusch, Timothy Kronebusch, and Justin Kronebusch.

II.

John Kronebusch argues that the district court exceeded its statutory authority by fashioning the OFP so as to keep him from his place of employment for one year, except for access to his home, contending that the district court's findings do not support such a condition.  A district court has discretion to "exclude the abusing party from the place of employment of the petitioner."  Minn. Stat. § 518B.01, subd. 6(a)(9) (2002).  Further, any relief the district court grants must be for a fixed period not to exceed one year.  Id., subd. 6(b) (2002). 

The district court found that John Kronebusch assaulted Daniel Kronebusch on the farm, which is the place of Daniel Kronebusch's employment.  This finding is sufficient to support the OFP condition that keeps John Kronebusch from Daniel Kronebusch's place of employment for one year.

John Kronebusch contends that because the farm is also his place of employment, the OFP prevents him from pursuing his own employment.  But the district court found that John Kronebusch receives his salary from Kronebusch Farms, Inc. regardless of whether he performs work on the farm.

Finally, John Kronebusch argues that the OFP is being used as "leverage" in a separate civil suit and contends that it should be lifted "in favor of the civil action."  This claim is beyond the scope of our review of the denial of John Kronebusch's motion to dismiss or modify the OFP. 

The district court did not abuse its discretion by fashioning the OFP so as to prevent John Kronebusch from entering the farm, except for access to his home, for one year.

Affirmed in part and reversed in part.

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