Opinion
No. CX-01-2028.
Filed May 14, 2002.
Appeal from the District Court, Hennepin County, File No. DA260628.
Gary A. Debele, Walling Berg, P.A., (for respondent)
Carol Grant, Marc Kurzman, Kurzman, Grant Ojala, (for appellant)
Considered and decided by Anderson, Presiding Judge, Harten, Judge, and Stoneburner, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant M.S.K. challenges the issuance of a domestic abuse order for protection arguing that (1) the evidence was insufficient to support a finding of domestic abuse; (2) he was denied due process; and (3) evidentiary rulings denied him a fair hearing. Because we conclude that the record presented is insufficient to support the finding that appellant committed an act of domestic abuse against respondent on August 20, 2000, and because appellant was denied the opportunity to fully present evidence on the claim that he abused S.L.K., we reverse.
FACTS
Appellant and respondent were married in November 1983 and have three minor children: D.J.K., age 5, S.L.K., age 8, and A.S.K., age 10. A dissolution action is currently in progress.
On August 25, 2000, prior to initiating dissolution proceedings, respondent visited her neurologist, who had been treating her since 1998 for back and pelvic pain. Respondent told her neurologist that she was experiencing neck pain caused by an injury she received during sexual intercourse with her husband on August 20, 2000. The following day, using an assumed name, respondent visited the emergency room at Fairview Southdale Hospital. She reported neck pain, stated that her neck had been twisted during intercourse, and said that she believes she has been subject to emotional abuse and physical abuse during intercourse. On September 1, 2000, respondent told her counselor, licensed social worker Susan Searle, that she had strained her neck during sexual intercourse.
On September 14, 2000, respondent petitioned for an order for protection for herself and on behalf of the minor children. Respondent attached the records of her emergency room visit and medical records from her neurologist to the petition to support her allegation that appellant injured her on August 20, 2000 and on other occasions. Respondent also described an allegedly abusive incident between appellant and S.L.K. that took place on September 7, 2000. An ex-parte order for protection was issued on September 14, 2000, excluding appellant from the family home and requiring supervision of appellant's contacts with the children.
The petition states that this incident occurred on September 7, 2000, but respondent's testimony and the court's order indicate that the incident occurred on September 2, 2000 despite respondent's counsel's statement on the record that September 7, 2000 was the correct date.
Respondent hired licensed psychologist Terri Romanoff-Newman, Ph.D, to interview the children. Four days after the ex-parte order was issued, Dr. Romanoff-Newman interviewed all of the children together for 30 minutes in the presence of respondent. On October 6, 2000, she again interviewed the children together for 30 minutes but without respondent present. And, because respondent's attorney requested a psychological assessment of respondent, Dr. Romanoff-Newman interviewed respondent and administered an MMPI-2 evaluation. But respondent did not accurately report her prior treatment history to Dr. Romanoff-Newman.
According to appellant, he first learned of Dr. Romanoff-Newman's involvement in the case when he received a copy of her report three days before the hearing on respondent's petition. The hearing took place on November 3, 2000 and December 8, 2000. Counsel for the parties agreed to call all non-party witnesses on the first day, but respondent's direct examination was placed on the record first. Respondent called Dr. Romanoff-Newman; Emily Jean Liddiard, preschool teacher of D.J.K.; and Dr. Chiasson, respondent's neurologist. Appellant called Lawrence Belk, long-time friend of the parties; Ann Maslansky Takahashi, long-time friend of the parties; Dr. Jay Harris, appellant's cousin who is a psychiatrist; Rebecca Elsenpeter and Joyce Gragert, visitation supervisors; and Bradley and Karen Bream, long-time friends of the parties. The referee did not allow Dr. Harris to testify about how the high dosages of medication respondent was taking could affect respondent's perceptions, ruling that, because Dr. Harris was appellant's cousin and had not examined respondent, he was unqualified to give an expert opinion about respondent.
The record reflects that the dissolution action had been filed and that the parties had a hearing on motions for temporary orders on December 7, 2000, so the domestic abuse hearing focused on the application of Minn. Stat. § 518B.01 rather than temporary maintenance and support.
Near the end of the November 3rd hearing, appellant's attorney requested the opportunity to have an adverse psychological evaluation of respondent because respondent had put her medical condition in issue and Dr. Romanoff-Newman had testified about her diagnosis of abuse and post-traumatic stress disorder (PTSD). He also asked for the opportunity to have the children interviewed by a psychologist of appellant's choice because appellant argued that Dr. Romanoff-Newman was not a neutral psychologist and he argued that he had no notice that respondent was having the children interviewed and no input into the selection of the evaluator. The referee stated that he was rejecting the diagnosis by Dr. Romanoff-Newman of PTSD and denied both motions.
Appellant obtained new counsel prior to the second day of the hearing. New counsel for appellant moved to strike the testimony and report of Dr. Romanoff-Newman and filed a "proffer of evidence/testimony" requesting that appellant be allowed to call Dr. Robert Barron and Dr. James Boscardin and to recall Dr. Jay Harris. In addition, appellant wanted to recall Joyce Gragert. The referee denied appellant's motion to strike the testimony of Dr. Romanoff-Newman and denied appellant's request to call additional witnesses on the ground that the requests were untimely. Appellant denied respondent's allegations and testified to entirely different versions of the events described by respondent.
Joyce Gragert's affidavit stated that respondent's testimony mischaracterized the interaction between the children and appellant and that, in fact, the children appeared to be afraid of respondent when she came to pick them up from visitation noting that it was "as if they thought they would be in trouble with [respondent] if they stayed near [appellant]."
An order for protection was issued by the referee and approved by the district court on December 29, 2000. The order contains 42 enumerated "findings." Many of these "findings" are merely descriptions of the testimony. See Dean v. Pelton, 437 N.W.2d 762, 764 (Minn.App. 1989) (stating district court's recitation of parties' claims "is not making true findings" because findings must be affirmatively stated as findings of the court). But the referee specifically found that several of the acts testified to by respondent, even if true, did not constitute domestic abuse within the meaning of Minn. Stat. § 518B.01 (2000).
The referee found that, on August 20, 2000, appellant committed domestic abuse by causing respondent to experience a serious soft tissue injury sustained as a result of "unwanted sexual activity forced upon her." The referee found no merit in appellant's contention that respondent's prescribed medications have impaired her cognitive functions to the extent that she is not able to recall particular events.
The referee also found that the September 2000 incident involving S.L.K. occurred as respondent described it and that appellant's actions were acts of domestic abuse within the meaning of Minn. Stat. § 518B.01. The referee found aspects of the testimony of Dr. Romanoff-Newman credible, despite rejecting her diagnosis of PTSD.
In addition, the referee found that "[a]ll three children are afraid of [appellant], although it is clear that they love and miss him." But the referee stated that there was no reason why appellant could not have unsupervised day visits with the children. The district court stated:
The findings made herein are not to prejudice the final issues of custody and visitation, as the primary issue before the Court in this Order for Protection matter was whether or not domestic abuse has occurred, and what temporary relief is appropriate.
The order restrained and enjoined appellant from committing any acts of domestic abuse against respondent, excluded appellant from the parties' residence, and prohibited any contact with respondent. Temporary physical and legal custody of the children was awarded to respondent subject to twice-weekly supervised visits with appellant, but the order provided that custody and visitation could be modified in the dissolution process. No restraining order was issued with regard to appellant's conduct with the children.
Appellant filed a notice of review of the order for protection. The district court conducted a de novo review of the record and, on March 21, 2001, adopted the findings, conclusions, and order dated December 29, 2000, and incorporated them as the findings, conclusions, and order of the reviewing district court judge. Appellant moved to vacate the order for protection asserting that respondent had committed a fraud upon the court and that there was newly discovered evidence. On September 25, 2001, after a hearing, the district court denied appellant's motion. Appellant filed this appeal from the December 29, 2000, March 21, 2001 and September 25, 2001 orders.
DECISION Standard of review
The decision to grant an order for protection under the Domestic Abuse Act 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 order for protection to "restrain the abusing party from committing acts of domestic abuse." Minn. Stat. § 518B.01, subd. 6(1) (2000). Domestic abuse includes the infliction of physical harm or fear of imminent physical harm by one family or household member against another. Minn. Stat. § 518B.01, subd. 2(a) (2000).
A district court's findings of fact will not be set aside unless clearly erroneous. Minn.R.Civ.P. 52.01. After reviewing all of the evidence, an appellate court will only reverse a district court's findings of fact if the court is "left with the definite and firm conviction that a mistake has been made." In re Guardianship of Dawson, 502 N.W.2d 65, 68 (Minn.App. 1993) (quotation omitted), review denied (Minn. Aug. 16, 1993). When reviewing the record, this court should look 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) (citation omitted). Furthermore, on appeal, this court usually does not disturb the district court's credibility determinations. See Minn.R.Civ.P. 52.01 ("[D]ue regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.")
I. Sufficiency of evidence of domestic abuse against respondent
The district court concluded that respondent was the victim of domestic abuse when she suffered a neck injury because of "unwanted sexual activity forced upon her." The referee's findings state that
[a]lthough [respondent's] description of this incident has varied somewhat, her testimony has not varied that [appellant] forced her to have unwanted sexual intercourse that resulted in injury to her * * * .
Appellant contends that the evidence does not support this finding. He argues that there is no evidence in the record of unwanted sex and no evidence of his intent to injure his wife. We agree. Although respondent testified that she felt obligated to have sexual relations with appellant even when she did not want to, respondent did not testify, and has never stated, that appellant forced her to have unwanted sexual intercourse on August 20, 2000, or at any other time, and she did not testify or tell anyone that appellant intentionally injured her on August 20, 2000. See Bjergum v. Bjergum, 392 N.W.2d 604, 606 (Minn.App. 1986) (noting that if the record "fails to establish appellant's `present intention to do harm or inflict fear of harm,' we have no alternative but to reverse the protection order"). Respondent testified that, on August 20, 2000, she complained about the position that caused her neck pain and that appellant changed positions in response to her complaint. She did not testify that she told appellant she did not want to have intercourse or wanted to stop having intercourse. There is no evidence in this voluminous record to support the referee's finding that respondent told appellant, or reported to anyone else, that she did not want to have sexual intercourse on August 20, 2000, or that appellant intended to harm respondent during sexual intercourse on August 20, 2000. The facts, therefore, do not support a finding that this incident constituted domestic abuse. Because this is the only event described by respondent that the referee found to have been within the statutory definition of domestic abuse inflicted by appellant on respondent, we reverse the finding of domestic abuse, the order for protection issued on September 29, 2000, and the subsequent orders affirming the order for protection.
Appellant's version of the encounter on August 20th is entirely different from respondent's version. He testified that respondent initiated sex, described the positions of the parties, and denied that respondent made any complaints whatsoever.
The order for protection expired in December 2001, but the finding of domestic abuse and the existence of the order could affect issues in the dissolution of marriage action; therefore the issue is not moot. Reversal of the domestic abuse order for protection does not preclude a finding of abuse or the issuance of protective orders in the dissolution action if such findings and orders are warranted by the evidence in that action.
Because we reverse the finding of abuse and order for protection, we do not reach appellant's numerous objections to evidentiary rulings concerning respondent's allegations of abuse by appellant against respondent.
II. Sufficiency of evidence of domestic abuse against S.L.K.
With regard to the incident involving S.L.K., although respondent's testimony, if credible, supports the finding that appellant's actions met the statutory definition of domestic abuse, we conclude that the referee abused his discretion by crediting respondent's testimony without allowing appellant to present evidence that further impeached respondent's credibility, and without allowing appellant to have the children evaluated individually and out of the presence of respondent. S.L.K has never described this incident, and appellant testified that he did not hit or slap S.L.K.
An order for protection requires a showing of "a present intention to inflict fear of imminent physical harm." Boniek v. Boniek, 443 N.W.2d 196, 198 (Minn.App. 1989) (citations omitted). Dr. Romanoff-Newman testified that all of the children were "very fearful of their father." But the referee did not make a finding that appellant intended to harm or posed any threat to S.L.K or the other children. Although the referee found Dr. Romanoff-Newman's testimony to be credible, the referee also found that the children enjoyed their visits with appellant and found no reason why appellant could not have unsupervised daytime visits with the children.
The referee specifically stated that the findings of domestic abuse against respondent and S.L.K. "are not to prejudice the final issues of custody and visitation." According to appellant's brief, he now has unsupervised access to the children. But appellant argues that the court's finding that he has committed domestic abuse will be prejudicial to him on issues of custody and visitation in his dissolution proceeding. We agree. See Minn. Stat. § 518.17, subd. 1(12) (2000) (stating that when a court engages in a best-interests-of-the-child analysis, it should consider the effect of domestic abuse on the child).
Under the unusual facts of this case, we conclude that the referee abused his discretion by making a finding of domestic abuse by appellant against S.L.K. without allowing appellant to fully present his defense, and further abused his discretion by making such a finding while also finding, contrary to Minn. Stat. § 518.17, subd. 1(12), that this fact should have no prejudicial effect. We reverse the finding that appellant committed domestic abuse against S.L.K on September 2, 2000. Nothing in this opinion, however, precludes the district court, in the context of the dissolution proceeding, from concluding that abuse has occurred and from considering that fact in connection with custody and visitation decisions if the evidence in that proceeding supports such a finding. We express no opinion on whether such abuse occurred.
A finding of abuse in the context of the dissolution proceeding does not necessarily involve the same considerations required for issuance of a domestic abuse order for protection.
III. Due process and evidentiary issues
Because we have reversed the findings of domestic abuse and the order for protection, we decline to further address due process and evidentiary issues raised by appellant. We note, however, that a full hearing is required after a court issues an ex parte order for protection. Nohner v. Anderson, 446 N.W.2d 202, 203 (Minn.App. 1989). We have stated:
The right to a "full hearing" on the domestic abuse allegations includes the right to present and cross-examine witnesses, to produce documents, and to have the case decided on the merits.
El Nashaar v. El Nashaar, 529 N.W.2d 13, 14 (Minn.App. 1995). A finding that domestic abuse has occurred has implications that survive the breakup of an unhappy marriage. It is important that each party to a domestic abuse action be afforded a full and fair opportunity to have his/her case heard by the district court.