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Kass v. Kass

Minnesota Court of Appeals
Oct 2, 1984
355 N.W.2d 335 (Minn. Ct. App. 1984)

Summary

holding that former wife's concern for her safety based upon bad experiences with her former husband, which occurred four years prior, were insufficient to support claim of domestic abuse without evidence of his present intention to do harm or inflict fear of harm

Summary of this case from Thompson ex rel. Minor Child v. Schrimsher

Opinion

No. C8-84-711.

October 2, 1984.

Appeal from the District Court, Wright County, Kim R. Johnson, J.

Cecil Naatz, Marshall, for appellant.

Daniel J. Ward, St. Cloud Area Legal Services, St. Cloud, for respondent.

Considered and decided by HUSPENI, P.J., and NIERENGARTEN and RANDALL, JJ., with oral argument waived.


OPINION


Douglas Kass appeals the trial court's issuance of an order for protection pursuant to the Domestic Abuse Act, Minn.Stat. § 518B.01 (Supp. 1983). Appellant contends that the evidence presented at the hearing was insufficient to sustain the issuance of an order for protection.

Appellant also appeals the trial court's denial of his motion to assess costs pursuant to Minn.Stat. § 549.21 (1982). Appellant contends that respondent's claim was frivolous and made in bad faith. We affirm in part and reverse in part.

FACTS

On March 5, 1984, respondent and her mother were traveling in a car in Buffalo. In the car behind them they saw a person whom they thought was Douglas Kass. Sandra and Douglas had separated in March of 1980 and were divorced in August 1981. Because of fear for her personal safety, Sandra left Marshall, Minnesota, in the summer of 1980, a full year before the divorce was final. Respondent currently resides in Buffalo, Minnesota, and appellant lives in rural Tracy, Minnesota, approximately 124 miles away. Upon seeing appellant for the first time in approximately three years, respondent, fearing for her safety and that of her children, filed an affidavit and petition of domestic abuse pursuant to Minn.Stat. § 518B.01. Appellant was served with an order for domestic abuse hearing, ex parte order for protection, and an order to show cause why an order for protection should not be granted to respondent.

The required hearing on the matter was held on March 23, 1984. Sandra testified that during the marriage she was the victim of several incidents of violence and abuse from her husband, claiming the most recent to have occurred in 1980. According to her testimony, she moved from Marshall to Buffalo in 1980 upon the advice of a sheriff who told her that her husband had made threats against her and recommended that she find a safe place to stay. Appellant testified that the incidents of physical abuse alleged by respondent to have occurred in 1980 and before were false. Douglas Kass presented witnesses to refute respondent's claim of previous domestic abuse. Further, Douglas testified that he wasn't even in Buffalo, Minnesota, on March 5, 1984, and presented sworn affidavits of witnesses who saw him in Marshall, Minnesota, that evening.

The trial court found that there was an incident of abuse in 1980, and granted the order for protection. Appellant was barred from committing any acts of domestic abuse and was further excluded from entering respondent's homestead or residence. The court also denied appellant's motion to award costs pursuant to Minn.Stat. § 549.21. An appeal was taken from the domestic abuse protection order.

ISSUES

1. Was there sufficient evidence presented at the domestic abuse hearing to warrant the issuance of an order for protection pursuant to Minn.Stat. § 518B.01?

2. Did the trial court err in denying appellant's motion for costs pursuant to Minn.Stat. § 549.21?

ANALYSIS

1. Minnesota's Domestic Abuse Act defines "domestic abuse" as "physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, between family or household members." Minn.Stat. § 518B.01, subd. 2(a)(i). There is no evidence of physical harm arising out of the incident on March 5, 1984, nor does respondent allege that she sustained any physical harm or injury. Thus, the disposition of this case rests on whether there was an "infliction of fear of imminent physical harm, bodily injury or assault."

The use of the phrase "infliction of fear" in the statute implies that the legislature intended that there be some overt action to indicate that appellant intended to put respondent in fear of imminent physical harm. Minnesota law requires that when construing statutes, words and phrases are construed according to their common and approved usage. Minn.Stat. § 645.08 (1982). Thus, we construe the definition of "domestic abuse" under Minnesota's Domestic Abuse Act to require either a showing of present harm, or an intention on the part of appellant to do present harm.

Although we sympathize with respondent's concern for her safety founded upon bad experiences of the past, those experiences are, by respondent's own admission, four years old. Even if we view the facts in the light most favorable to respondent, and accept that there was domestic abuse in the past and that appellant was in Buffalo on March 5, 1984, the record is devoid of any showing of appellant's present intention to do harm or inflict fear of harm. Thus, we find no record to justify the issuance of a restraining order merely based upon respondent seeing appellant on a public street for the first time in four years.

2. Minn.Stat. § 549.21 allows a court to charge a party with costs if that party "acted in bad faith; asserted a claim or defense knowing it to be frivolous; asserted an unfounded position solely to delay the ordinary course of proceedings or to harass; or committed a fraud upon the court."

Appellant contends that his motion for costs should be granted because he was not in Buffalo, Minnesota, on March 5, 1984, and he presented several affidavits as evidence to support his claim. However, it is not enough for appellant to show that respondent was mistaken in her charge: the statute also requires a showing of bad faith. Even if we accept as fact appellant's claim that he was not in Buffalo, the testimony of respondent and her mother indicates that they believed they saw appellant in the car behind them. Absent clear evidence indicating respondent's bad faith or intention to assert a frivolous claim, this court will not reverse the trial court's decision to deny appellant's motion for costs.

DECISION

Absent a showing of appellant's intention to cause respondent to fear imminent physical harm, the evidence produced at the domestic abuse hearing was insufficient to sustain the issuance of an order for protection. The evidence, however, does not support appellant's motion for costs as there is no showing of respondent's bad faith.

Affirmed in part and reversed in part.


Summaries of

Kass v. Kass

Minnesota Court of Appeals
Oct 2, 1984
355 N.W.2d 335 (Minn. Ct. App. 1984)

holding that former wife's concern for her safety based upon bad experiences with her former husband, which occurred four years prior, were insufficient to support claim of domestic abuse without evidence of his present intention to do harm or inflict fear of harm

Summary of this case from Thompson ex rel. Minor Child v. Schrimsher

holding that domestic abuse act requires either present harm or intention to do present harm

Summary of this case from In re Matter of Barona

holding that evidence that petitioner thought she noticed her ex-husband following her while she was traveling in a car was insufficient to support issuance of a protective order

Summary of this case from In re Dretsch v. Bergdahl

holding petitioner under Minn.Stat. § 518B.01, subd. 2 must make a "showing" of domestic abuse

Summary of this case from Matter of Zemple

finding evidence of abuse from four years ago not sufficient

Summary of this case from In Matter of Fonss v. DeMartini

determining OFP was not justified when petition was filed four years after domestic abuse incidents

Summary of this case from Arnold v. Arnold

denying the petitioner's request for an order for protection because abuse occurred four years before request and there was no showing of a present intent to harm

Summary of this case from Gilberts ex rel. C.A.G. v. Gilberts

reversing OFP that was based on domestic abuse that occurred about four years prior to petition, although petitioner "fear[ed] for her safety and that of her children" after recently seeing respondent traveling in a car behind her own, where petitioner failed to make "any showing of [respondent]'s present intention to do harm or inflict fear of harm"

Summary of this case from Vail v. Vail

reversing OFP because there was a four-year gap between the incident of abuse and the petition, concluding that "the record is devoid of any showing of [the abusing party]'s present intention to do harm or inflict fear of harm"

Summary of this case from Sullivan v. Sullivan

reversing order for protection issued four years after incident of abuse because no evidence of present intention to do harm or inflict fear of harm

Summary of this case from In re Reitan v. Reitan

In Kass the court interpreted "domestic abuse" to "require either a showing of present harm, or an intention on the part of appellant to do present harm."

Summary of this case from Thompson v. Schrimsher

In Kass, the appellant challenged the issuance of an order for protection (OFP) in favor of the respondent, his ex-wife, who had requested the OFP after she saw a person that she believed to be appellant travelling in the car behind her. 355 N.W.2d at 336-37.

Summary of this case from Meyer v. Harley

construing the statute to "require either a showing of present harm or an intention on the part of [the defendant] to do present harm"

Summary of this case from Hall ex rel. J. B. A. v. Arend

stating that the record did not contain a "showing of present intention to do harm or inflict fear of harm"

Summary of this case from Hall ex rel. J. B. A. v. Arend

defining domestic abuse for OFP purposes as requiring "either a showing of present harm, or an intention on the part of appellant to do present harm"

Summary of this case from Boecker ex rel. Los v. Lorenz

In Kass, the petitioner and respondent had not had any contact for three years when the petitioner thought she saw the respondent driving a car behind her on the road.

Summary of this case from Kopylov v. Kopylov

involving four-year-old allegations

Summary of this case from Gibson ex rel. A.G. v. Gibson

In Kass, a woman sought an OFP against her former husband based on a single recent non-physical incident and multiple incidents of physical harm that had occurred four or more years earlier.

Summary of this case from Reynolds ex rel. Pavlovski v. Pavlov

In Kass, this court considered domestic abuse in the form of inflicting fear and stated that domestic abuse under the Domestic Abuse Act requires a showing of present harm or an intention to do present harm. 355 N.W.2d at 337.

Summary of this case from In Matter of Wirth

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.

Summary of this case from IN MATTER OF SROH v. EAM

requiring either a showing of present harm or an intent to cause fear of harm for a finding of domestic abuse

Summary of this case from Kronebusch v. Kronebusch

In Kass, this court held that "there must be some overt action to indicate that appellant intended to put respondent in fear of imminent physical harm."

Summary of this case from Kalamaha v. Kalamaha

following former spouse while driving insufficient to support issuance of harassment restraining order

Summary of this case from Hatfield v. Anderson

interpreting statutory term "domestic abuse" as requiring "either a showing of present harm, or an intention on the part of appellant to do present harm"

Summary of this case from MIU v. MIU

In Kass, petitioner filed a domestic abuse affidavit and petition in 1984 after allegedly seeing her ex-husband in a vehicle following her. 355 N.W.2d at 336.

Summary of this case from In re Schlosser v. Feist
Case details for

Kass v. Kass

Case Details

Full title:Douglas KASS, Appellant, v. Sandra KASS, Respondent

Court:Minnesota Court of Appeals

Date published: Oct 2, 1984

Citations

355 N.W.2d 335 (Minn. Ct. App. 1984)

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