In the Matter of: Angela C. Daniels, individually and o/b/o Skyanne Welch, petitioner, Respondent, vs. Kenneth Wayne Welch, III, Appellant.

In the Matter of: Angela C. Daniels, individually and o/b/o Skyanne Welch, petitioner, Respondent, vs. Kenneth Wayne Welch, III, Appellant. A06-1335, Court of Appeals Unpublished, June 12, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1335

 

In the Matter of:

 

Angela C. Daniels,

individually and o/b/o Skyanne Welch, petitioner,

Respondent,

 

vs.

 

Kenneth Wayne Welch, III,

Appellant.

 

Filed June 12, 2007

Affirmed

Kalitowski, Judge

 

Washington County District Court

File No. F0-06-2344

 

Angela C. Daniels, c/o of Martha Albertson, Tubman Family Alliance, P.O. Box 854, Lake Elmo, MN 55402 (pro se respondent)

 

Laurie A. Mack, Lymari J. Santana, Mack & Santana Law Offices, P.C., 1700 U.S. Bank Plaza South, 220 South Sixth Street, Minneapolis, MN 55402 (for appellant)

 

Lee Woolery, 1920 Pine Street West, Stillwater, MN 55082 (guardian ad litem)

 

            Considered and decided by Shumaker, Presiding Judge; Kalitowski, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant argues that the district court (1) erred as a matter of law and abused its discretion by admitting evidence and issuing findings of domestic abuse based on allegations not set forth in respondent's ex parte petition for an order for protection; (2) by issuing an order for protection unsupported by sufficient evidence; and (3) by admitting evidence of oral abuse that did not constitute terroristic threats.  We affirm.

D E C I S I O N

I.

            Appellant argues that the district court abused its discretion and erred as a matter of law by admitting evidence and issuing findings of domestic abuse based on allegations not set forth in respondent's ex parte petition for an order for protection (OFP).  We disagree.

            "Procedural and evidentiary rulings are within the district court's discretion and are reviewed under an abuse-of-discretion standard."  Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001), review denied (Minn. Oct. 24, 2001).  "A district court's findings of facts will not be set aside unless they are clearly erroneous."  Chosa ex rel. Chosa v. Tagliente, 693 N.W.2d 487, 489 (Minn. App. 2005); see also Minn. R. Civ. P. 52.01.

            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) (2006).  A petition for OFP "shall allege the existence of domestic abuse, and shall be accompanied by an affidavit made under oath stating the specific facts and circumstances from which relief is sought."  Minn. Stat. § 518B.01, subd. 4(b) (2006).

            Appellant argues that the district court should not have allowed the testimony of a witness that appellant was orally abusive to respondent on three occasions and kicked respondent in December of 2005.  Appellant contends this was an abuse of discretion because respondent did not allege these incidents in her petition.  But the record indicates that the district court based its OFP on two incidents of domestic abuse:  an April 16, 2005 incident not challenged on this appeal, and the December 2005 kicking incident.

            We will reverse a district court's OFP only if the error is prejudicial.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 46 (Minn. 1997).  When the record contains sufficient permissible evidence to support the district court's conclusion without regard to impermissible evidence, the admission of the impermissible evidence is harmless error.  See Carlson Real Estate Co. v. Soltan, 549 N.W.2d 376, 380-81 (Minn. App. 1996) (holding that consideration by a district court of evidence not admitted into the record was harmless when the record contained sufficient permissible evidence to support the court's conclusion.).

            To grant a petition for an OFP, the court need only find one previous instance of domestic abuse.  See Gada v. Dedefo, 684 N.W.2d 512, 514-15 (Minn. App. 2004).  Thus, assuming, but not deciding, that the district court erred by admitting evidence of the December 2005 kicking incident, the error was not prejudicial because the record contains ample evidence that domestic abuse occurred on April 16, 2005, and the Act does not require multiple acts of domestic abuse.  We conclude the district court did not commit reversible error by admitting evidence of the December 2005 kicking incident.

II.

            Appellant argues that the district court erred by granting an OFP unsupported by sufficient evidence because respondent is not credible and failed to testify to the fact that she was in fear of imminent physical harm.  We disagree.

            "A district court's findings of facts will not be set aside unless they are clearly erroneous."  Tagliente, 693 N.W.2d at 489; see also Minn. R. Civ. P. 52.01.  On review, we view the evidence in the light most favorable to the district court's findings and give special deference to findings that are made upon conflicting evidence.  Minn. R. Civ. P. 52.01; see Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating that appellate courts defer to district court credibility determinations).  A district court's factual findings will be reversed only if, after reviewing the entire record, we are "left with the definite and firm conviction that a mistake has been made."  Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987).

            Under the Act, an OFP may issue upon a finding of domestic abuse.  Minn. Stat. § 518B.01, subd. 6(a)(1).  Domestic abuse is defined as "(1) physical harm, bodily injury, or assault; (2) the infliction of fear of imminent physical harm, bodily injury, or assault; or (3) terroristic threats."  Minn. Stat. § 518B.01, subd. 2(a) (2006).  The intent to inflict fear may be inferred from conduct.  Boniek v. Boniek, 443 N.W.2d 196, 198 (Minn. App. 1989).

            Here, respondent testified at the hearing that while she was holding her child, appellant shoved her with both hands while yelling obscenities at her.  And appellant admitted to using profane language toward respondent.  Because we defer to the district court's credibility determinations and respondent's testimony establishes facts from which appellant's intent to inflict fear of imminent physical harm may be inferred, we conclude that the district court had sufficient evidence to grant the OFP.

III.

            Appellant argues that the district court erred by improperly admitting evidence of his oral abuse of respondent because the language he used did not constitute a terroristic threat.  We disagree.  Appellant's argument is unsupported by authority and without merit because the district court's OFP was not granted based on the terroristic-threat definition of domestic abuse, but rather that appellant intended to put respondent in fear of imminent physical harm.                 

            Moreover, appellant's use of abusive and profane language while pushing respondent is highly relevant because it provided the district court with the necessary facts to infer that appellant intended to put respondent in fear of imminent physical harm.  We thus conclude that the district court's admission of evidence regarding appellant's oral abuse of respondent was not error.

            Affirmed.