In the Matter of: Sokheng Sroh, petitioner, Respondent, vs. Houth Andrew Eam, Appellant.

In the Matter of: Sokheng Sroh, petitioner, Respondent, vs. Houth Andrew Eam, Appellant. A05-2, Court of Appeals Unpublished, September 6, 2005.

This opinion will be unpublished and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

A05-2

 

In the Matter of:

 

Sokheng Sroh, petitioner,

Respondent,

 

vs.

 

Houth Andrew Eam,

Appellant.

 

Filed September 6, 2005

Affirmed Parker, Judge*

 

Ramsey County District Court

File No. F704300997

 

Lawson A. Waturuocha, Lawson Wats & Associates, P.A., 1575 West University Avenue, St. Paul, Minnesota 55104 (for respondent)

 

R. Daniel Rasmus, Michael W. Plambeck, Christensen & Laue, P.A., 5101 Vernon Avenue South, Suite 400, Minneapolis, Minnesota 55436 (for appellant)

 

 

            Considered and decided by Worke, Presiding Judge; Halbrooks, Judge; and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

Appellant-husband Houth Eam challenges the district court's issuance of an order for protection (OFP) in favor of respondent-wife Sokheng Sroh, arguing that the evidence is insufficient to support the OFP.  We affirm.

D E C I S I O N

A district court's decision to issue an order for protection under the Minnesota Domestic Abuse Act will be reversed on appeal when it lacks sufficient evidentiary support.  Gada v. Dedefo, 684 N.W.2d 512, 514 (Minn. App. 2004).  We review the district court's findings of fact for clear error and view the evidence in the light most favorable to the decision.  Id. (citing Minn. R. Civ. P. 52.01).  To warrant reversal, the district court's findings must be clearly erroneous or "manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole."  Id. (quotation omitted).

            In relevant part, "domestic abuse" is defined as "physical harm, bodily injury, or assault" committed against a "family or household member."  Minn. Stat. § 518B.01, subd. 2(a) (2002).  It is undisputed that appellant and respondent are "family or household members."  See Minn. Stat. § 518B.01, subd. 2(b) (2002) (defining "family or household members"). 

            Appellant argues that under Andrasko v. Andrasko, 443 N.W.2d 228 (Minn. App. 1989), Bjergum v. Bjergum, 392 N.W.2d 604 (Minn. App. 1986), and Kass v. Kass, 355 N.W.2d 335 (Minn. App. 1984), the record lacks evidence supporting a finding of domestic abuse because respondent did not show "present harm," given that she did not petition for an OFP until August 12, 2004, two months after the last allegation of harm.  Additionally, appellant argues that the record supports the conclusion that respondent did not fear present harm because appellant petitioned for marital dissolution and did not attempt to contact respondent after June 10, 2004.

Here, the district court found that "during the first week of June on or about Friday, June 4, 2005, the [appellant] attempted to strangle the [respondent]" and concluded that domestic abuse had occurred.  The district court's finding is not clearly erroneous.  Respondent testified that appellant put his hands on her throat, lifted her feet off the ground, choked her with his hands for two or three minutes, and put her down with force.  Respondent testified that after the incident, her neck was bruised in the shape of appellant's fingers. 

Furthermore, respondent's friend, Som Lot Thoun, corroborated this testimony, testifying that the day after the incident, respondent told her, "My husband hurt me and choked me."  The witness also testified that she saw the bruise on respondent's neck.  The district court stated that it found respondent's testimony credible because of the amount of detail given and found Som Lot Thoun's testimony credible because there was testimony from a disinterested third party.  We defer to the district court's determination that respondent was credible and appellant was not.  See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating that appellate courts defer to district court credibility determinations).

            Additionally, the caselaw does not support appellant's contention that the attempted strangulation was too remote to infer "present harm."  "Kass and Bjergum hold that evidence of domestic abuse which occurred years earlier does not, in itself, justify issuance of a protective order and that a petitioner is required to show present harm or present infliction of fear of harm."  Hall v. Hall, 408 N.W.2d 626, 629 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987).  In Kass, this court reversed an OFP because the most recent incident of abuse was more than four years old and the record lacked evidence that the abuser had a present intent to inflict fear of imminent physical harm.  355 N.W.2d at 337-38.  Likewise, in Bjergum, the district court reversed an OFP because the most recent incidents of abuse were about two years old and the record lacked evidence that the abuser had a present intent to inflict fear of imminent physical harm.  392 N.W.2d at 604, 606.  In Andrasko, this court reversed the issuance of an OFP because there was no testimony at the hearing concerning the allegations of abuse in the OFP petition.  443 N.W.2d at 229-30.

            In this case, the attempted strangulation was only two months old when appellant petitioned for the OFP.  Therefore, this case is distinguishable from Kass, Andrasko, and Bjergum.  Moreover, the evidence supports the conclusion that respondent feared present harm from appellant despite the fact that appellant sought to dissolve the marriage after the incident of domestic abuse.  The serious nature of the domestic abuse herean attempted strangulationsupports the inference that respondent feared present harm from appellant when she petitioned for the OFP.  Additionally, respondent testified that she felt scared when she saw appellant's car parked in front of Som Lot Thoun's house on June 10, where she moved after the attempted strangulation. 

The evidence is sufficient to warrant the district court's issuance of an OFP. 

Affirmed.

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