In the Matter of: Afra Bragg and obo minor children, petitioner, Appellant, vs. Johnny Hudson, Respondent.

In the Matter of: Afra Bragg and obo minor children, petitioner, Appellant, vs. Johnny Hudson, Respondent. A06-2431, Court of Appeals Unpublished Decision, December 31, 2007.

This opinion will be unpublished and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

A06-2431

 

In the Matter of:
Afra Bragg and obo minor children, petitioner,
Appellant,

vs.

Johnny Hudson,
Respondent.

 

Filed December 31, 2007

Reversed and remanded

Worke, Judge

 

Ramsey County District Court

File No. F206301169

 

Gregory M. Weyandt, Meghan Ryan, Dorsey & Whitney, LLP, 50 South Sixth Street, Suite 1500, Minneapolis, MN 55402 (for appellant)

 

Johnny Hudson, 119 Front Avenue, St. Paul, MN 55117 (pro se respondent)

 

            Considered and decided by Shumaker, Presiding Judge; Klaphake, Judge; and Worke, Judge. 

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

On appeal from the denial of an order for protection in a domestic-abuse dispute, appellant argues that the district court (1) failed to recognize that it could make a negative inference from respondent's assertion of his Fifth Amendment privilege against self-incrimination; (2) improperly considered extra-record evidence; and (3) lacked impartiality, which deprived appellant of due process of law.  We reverse and remand.    

D E C I S I O N

            The denial of a petition for an order for protection (OFP) is reviewed under an abuse of discretion standard.  See Sweep v. Sweep, 358 N.W.2d 451, 453 (Minn. App. 1984).  A district court abuses its discretion when its findings are unsupported by the record or if it misapplies the law.  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  An OFP is granted in cases of domestic abuse.  Minn. Stat.  § 518B.01, subd. 4 (2006).  The relevant portion of the statute defines domestic abuse as "(1) physical harm, bodily injury, or assault; (2) the infliction of fear of imminent physical harm, bodily injury, or assault; or (3) . . . criminal sexual conduct[.]"  Id., subd. 2(a) (2006).  "An [OFP] is justified under the Domestic Abuse Act when a [spouse or] former spouse manifests a present intention to inflict fear of imminent physical harm, bodily injury or assault."  Boniek v. Boniek, 443 N.W.2d 196, 198 (Minn. App. 1989).

Adverse Inference

Appellant Afra Bragg and respondent Johnny Hudson have three children together.  The parties did not have a defined visitation schedule, agreeing simply to work together in a positive and flexible manner regarding the time spent with the children.  In October 2006, in connection with domestic-abuse charges, the district court filed a no-contact order prohibiting respondent from having any contact with appellant.  Several days later, appellant petitioned for an OFP against respondent on behalf of herself and the minor children.  In her petition, appellant alleged that respondent was physically abusiveciting incidents of physical abuse and intimidation, that respondent had unpredictable fits of rage, and that he suffered from drug and alcohol dependence.  The district court filed an emergency ex-parte order and issued an order for continuing protection against respondent.  In response to appellant's petition, respondent filed a petition for an OFP against appellant on behalf of himself and the children.   

At the trial on the petitions, appellant and her father testified regarding the incidents of physical abuse.  Photographs of appellant's injuries, which were taken by officers who responded to appellant's 911 call, were also entered into evidence.  Appellant testified that despite the criminal no-contact order and the OFP, respondent continued to harass her.  During respondent's testimony, appellant's counsel asked about the alleged contact with appellant following the issuance of the no-contact order and OFP.  The district court interrupted to make sure respondent understood his Fifth Amendment rights.  Following the district court's comments, respondent refused to answer any further questions on the matter.  Later, when appellant's counsel attempted to question respondent regarding a note he had written to appellant, the district court again interrupted and prohibited the line of questioning.  Finally, during closing arguments, appellant's counsel was prohibited from arguing that an inference could be taken from respondent invoking the Fifth Amendment.  At the close of the hearing, the district court found that appellant, appellant's father, and respondent were not credible witnesses, and that neither party had met their burden of proof, which was a fair preponderance of the evidence.  The district court also went on to state that it "wanted to find one of these orders so that I could do something about the kids, but I can't in all good conscience do that," and denied both OFP petitions. 

"It is clearly established that parties in civil proceedings may invoke the Fifth Amendment in order to protect themselves from possible criminal prosecution."  In re Welfare of J.W., 391 N.W.2d 791, 797 (Minn. 1986).  Respondent invoked his Fifth Amendment right in response to questions posed regarding possible contact he had with appellant following the entry of a criminal no-contact order and the continuing OFP.  While it was appropriate for the district court to allow respondent to invoke this right, the district court erred in prohibiting appellant's counsel from arguing that an adverse inference could be taken from respondent invoking his Fifth Amendment right. 

When a party asserts the Fifth Amendment in a civil action it does not prohibit the district court from making an adverse inference when that party refuses to testify.  Parker v. Hennepin County Dist. Court, 285 N.W.2d 81, 83 (Minn. 1979).  Here, the district court could infer from his assertion of the Fifth Amendment privilege that respondent had contact with appellant but chose not to testify about it for fear of criminal prosecution.  Making such an inference does not punish respondent for his assertion of the privilege, but rather for his failure to answer as he typically would have under normal circumstances. 

            On remand, the district court should reconsider whether the evidence submitted at trial, and the adverse inference that can be made from respondent invoking his Fifth Amendment right regarding contact following the criminal no-contact order and OFP, indicate the need to issue an OFP.  Issuing an OFP remains within the district court's broad discretion.  We express no opinion regarding whether an OFP would be appropriate.

Evidentiary Issue

            Appellant also argues that the district court must have taken evidence not in the record into consideration in modifying the parties' visitation agreement.  Visitation "shall" be modified whenever doing so would be in the children's best interests.  Minn. Stat. § 518.175, subd. 5 (2006); see Minn. Stat. § 645.44, subd. 16 (2006) ("‘Shall' is mandatory."); see also Manthei v. Manthei, 268 N.W.2d 45, 45 (Minn. 1978) (stating district court has "extensive" discretion in addressing visitation matters).  When visitation is modified, the district court is required to make particular findings explaining how modification is in the children's best interest.  Moravick v. Moravick, 461 N.W.2d 408, 409 (Minn. App. 1990).When visitation is not modified, or when modified only insubstantially, findings are not required.  See Funari v. Funari, 388 N.W.2d 751, 753 (Minn. App. 1986) ("Mere clarifications or insubstantial modifications of a visitation schedule are within a [district] court's discretion and need not be supported by findings that such modification is in the children's best interests.").

            At the end of the first day of trial, the district court modified the parties' visitation schedule.  Neither party had filed a motion to modify visitation, and this portion of the record was not transcribed on appeal so there is no way to determine whether one was made on the record.  Further, the November 6, 2006 order setting forth the visitation modification does not include findings regarding the modification.  The order only states that "the respondent shall have parenting time with the minor children weekly with exchanges at a Children's Safety Center at 5:00 pm Friday to 3:00 pm Sunday or as such times on a weekly basis are available at a Children's Safety Center."  

            In light of the circumstances of this case, however, we cannot conclude that the district court abused its discretion in modifying the visitation schedule.  The record supports the conclusion that the modification was in the best interests of the children based on the parties' open access schedule, the criminal no-contact order, and the continuing OFP.  The modification was in the best interests of the children. 

Due Process

            Finally, appellant argues that her due-process rights were violated because the district court was biased against her.   "To maintain public trust and confidence in the judiciary, judges should avoid the appearance of impropriety and should act to assure that parties have no reason to think their case is not being fairly judged."  Pederson v. State, 649 N.W.2d 161, 164-65 (Minn. 2002).  "An impartial trial requires that conclusions reached by the trier of fact be based upon the facts in evidence, and prohibits the trier of fact from reaching conclusions based on evidence sought or obtained beyond that adduced in court."  State v. Dorsey, 701 N.W.2d 238, 249-50 (Minn. 2005) (citation omitted).  A judge must be "fair to both sides," and should "refrain from remarks which might injure either of the parties to the litigation."  Hansen v. St. Paul City Ry. Co., 231 Minn. 354, 360, 43 N.W.2d 260, 264 (1950). 

            Appellant argues that the district court considered evidence outside the record by modifying the visitation schedule, advised respondent of his Fifth Amendment right despite the fact that respondent was represented by counsel, and prohibited appellant's counsel from questioning respondent regarding his contact with appellant after the no-contact order and OFP were filed.  The record shows the referee was motivated by her desire to seek the truth. The district court accepted the referee's findings and there is nothing in the record to suggest that the district court was biased against appellant.

            Reversed and remanded.