Opinion
No. A04-834.
Filed January 11, 2005.
Appeal from the District Court, Itasca County, File No. F8-04-392.
Charles Hawkins, (for respondent).
M. Sue Wilson, Amy Yanik Meisel, Zachary Kretchmer, (for appellant).
Considered and decided by Shumaker, Presiding Judge; Halbrooks, Judge; and Huspeni, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
On appeal in this domestic-abuse proceeding, appellant Eric Beach argues (a) the district court should not have admitted a psychological evaluation performed for the parties' simultaneously pending marital dissolution; (b) the record does not support the grant of an order for protection (OFP); (c) the duration of the OFP should have been limited to one year; and (d) the district court should not have adopted respondent Susan Beach's proposed findings and conclusions. Because the district court made findings supported by the record and did not otherwise abuse its discretion in granting relief, we affirm.
FACTS
A temporary order in the proceeding respondent Susan Beach brought to dissolve her marriage to appellant Eric Beach awarded respondent temporary sole physical custody of the parties' minor children. Because the parties' relationship included numerous events respondent considered abusive, she petitioned for an OFP under the Domestic Abuse Act (the Act). At the hearing on respondent's OFP petition, a psychological evaluation prepared pursuant to court order for the dissolution was admitted. Later, the district court granted respondent and the children a two-year OFP. Appellant seeks review in this court and respondent has not filed a brief; thus, this appeal proceeds under Minn. R. Civ. App. P. 142.03.
DECISION I.
Appellant challenges admission in the domestic abuse proceeding of the psychological evaluation prepared pursuant to court order in the parties' dissolution proceeding. Admission of evidence is discretionary with the district court. Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983). Appellant urges that the district court abused its discretion in admitting the psychological evaluation into evidence because the evaluation was hearsay; the person who conducted the evaluation was not called as a witness and was, therefore, unavailable for cross-examination by appellant. Even if we were to assume that the evaluation was admitted in error, we note that the order granting the OFP does not rely upon, or even mention, the evaluation. Our review of the record convinces us that appellant has not shown that the evaluation impacted the district court's decision, and admission of the evaluation does not require reversal. See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (stating that, to prevail on appeal, party must show error and that error caused prejudice); Minn. R. Civ. P. 61 (requiring harmless error to be ignored).
II.
Appellant argues that the record lacks evidence showing that he committed domestic abuse against respondent and the children. "Domestic abuse" includes inflicting "fear of imminent physical harm, bodily injury, or assault" on a "family or household member." Minn. Stat. § 518B.01, subd. 2(a) (2002). It is undisputed that respondent, appellant, and the children are "family or household members" under Minn. Stat. § 518B.01, subd. 2(b) (2002). Lack of a present intent to inflict fear requires reversal of an OFP granted under the infliction-of-fear prong of the Act. Bjergum v. Bjergum, 392 N.W.2d 604, 606 (Minn.App. 1986). On appeal,
[w]e review the district court's findings of fact for clear error. In doing so, we view the evidence in the light most favorable to the decision. We neither reconcile conflicting evidence nor decide issues of witness credibility, which are exclusively the province of the factfinder. We will not reverse merely because we view the evidence differently." That the record might support findings other than those made by the [district] court does not show that the . . . findings are defective." Rather, 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."
Gada v. Dedefo, 684 N.W.2d 512, 514 (Minn.App. 2004) (citations omitted).
Appellant argues that the events on which the district court based its grant of the OFP do not show a present intent to inflict fear and were stale by the time of the hearing. Appellant lists the events in question and states that they did not occur or were not intended to inflict fear of harm. Appellant's argument assumes that each incident must be examined individually and that the district court cannot infer intent. Both assumptions are incorrect. See Boniek v. Boniek, 443 N.W.2d 196, 198 (Minn. App. 1989) (inferring intent necessary for grant of OFP by, among other things, viewing "totality" of record).
The district court found (a) appellant told respondent that if she had an affair he would kill her; (b) appellant believes respondent is having an affair with her business partner; (c) appellant called respondent's daughter from a prior relationship to tell her that he was going to "take care" of respondent's partner, daughter relayed this information to respondent, and both respondent and daughter feared for respondent and her partner; (d) respondent's fear "is" reasonable because appellant is a seventh-degree black belt, previously beat respondent's son from a prior relationship to the point where the son had to be taken to a hospital to determine whether bones were broken; (e) appellant did not honor respondent's request that all future contact between the parties be through counsel; (f) after receiving several "hang-up" calls late one night, respondent woke at 1:45 a.m. to find appellant in her bedroom; (g) on another occasion, appellant entered respondent's home when he knew she was not there and removed a gun; (h) appellant called the police late at night to have respondent's partner removed from respondent's home, but when the police arrived at 2:43 a.m., the partner was not there; (i) after respondent told appellant she did not want to have contact with him except through counsel, appellant left respondent a message stating he would love her "until death do us part[,]" which respondent took as a death threat; (j) after a private investigator appellant hired to do surveillance on respondent's house told appellant that the dog of respondent's partner hindered surveillance, appellant picked up the dog and it has not been seen since; (k) appellant put his ice-fishing house on the lake in front of respondent's house; and (l) appellant is a police officer who is "almost always in possession of firearms." Under Gada, these findings are supported by the record.
While appellant testified that these events did not occur or offered what he claimed were good-faith explanations for the events, the district court did not believe appellant's testimony. On this record, and particularly when these incidents are taken in the aggregate, appellant has not shown that the district court clearly erred in inferring that he intended to inflict a fear of harm on respondent. See Tonka Tours, Inc. v. Chadima, 372 N.W.2d 723, 728 (Minn. 1985) (stating whether party acts in good faith is essentially a credibility determination); see also Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating appellate courts defer to district court credibility determinations). Nor did the district court abuse its discretion in rejecting appellant's argument that the complaints in respondent's petition were stale. Cf. Hall v. Hall, 408 N.W.2d 626, 629 (Minn.App. 1987) (affirming grant of OFP where most recent allegation of physical abuse was several years old at time of hearing, but there were indicia that allegations were not stale), review denied (Minn. Aug. 19, 1987). Therefore, we affirm the grant of the OFP to protect respondent.
The children's therapist testified that the children did not want to spend time with appellant and would not invite friends over to appellant's residence when they were with him, but that the children would not explain why. When asked whether the children were afraid of appellant becoming violent, the therapist responded that "[t]here was innuendo, but not statements of that." Regardless of the reason the children refused to discuss their relationship with appellant, on this record appellant has not shown that the district court clearly erred in inferring that appellant's conduct causes the children to fear him. And courts generally assume that people intend the natural and probable consequences of their actions. Cont'l W. Ins. Co. v. Toal, 309 Minn. 169, 176, 244 N.W.2d 121, 125 (1976).
Additionally, the definition of domestic abuse is sufficiently broad that domestic abuse can be found to exist when one family member intends to cause, in the mind of a second family member, fear of harm to a third family member. See Minn. Stat. § 518B.01, subd. 2(a)(2) (stating domestic abuse includes infliction of fear of imminent harm, but not stating that person in whose favor the OFP is granted must be fearful). For this reason, an absence of intent by appellant to cause the children to fear him is not necessarily fatal to an OFP for the children if appellant intended to cause respondent to fear for the children's safety. Here, because much of appellant's conduct is self-evidently directed at intimidating respondent and controlling the children, we cannot say that any inference by the district court that appellant intended to cause respondent to fear for the children is unsupported. Therefore, we affirm the OFP for the children.
III.
"[R]elief granted by [an OFP] shall be for a fixed period not to exceed one year, except when the court determines a longer fixed period is appropriate." Minn. Stat. § 518B.01, subd. 6(b) (2002). Here, the OFP is effective for two years. Appellant concedes that Minn. Stat. § 518B.01, subd. 6(b), does not explicitly require findings explaining why an OFP will be effective for more than one year, but argues that findings justifying a duration exceeding one year are required under Minn. R. Civ. P. 52.01.
While the Act explicitly requires findings on certain questions, it does not explicitly require duration-related findings. Minn. Stat. § 518B.01, subds. 4(a), 5(e), 6(a)(4), 14(f) (2002); see Minn. Stat. § 518B.01, subd. 14(h) (2002) (allowing OFP to be extended, presumptively for one year, upon finding that OFP was violated, but not requiring additional findings to impose two-year extension). Because a requirement of duration-related findings is conspicuously absent from the Act, we decline to impose that requirement. See Green Giant Co. v. Comm'r of Revenue, 534 N.W.2d 710, 712 (Minn. 1995) (stating "[w]e will not supply that which the legislature purposefully omits or inadvertently overlooks"). Moreover, review of this record shows that a remand for duration-related findings is not likely to lead to a different result. Cf. Grein v. Grein, 364 N.W.2d 383, 387 (Minn. 1985) (affirming decision to modify custody despite lack of adequate findings where remand was unlikely to result in a different outcome).
IV.
A district court's adoption of proposed findings without modification is disfavored, and raises the question of whether the district court independently evaluated the parties' testimony and evidence. Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn.App. 1992), review denied (Minn. Feb. 12, 1993). Even the verbatim adoption of proposed findings, however, is not necessarily reversible error. Id. Here, appellant argues that the district court "adopted nearly verbatim [respondent's] petition[,]" failed to admit the existence of appellant's testimony challenging aspects of respondent's assertions, and failed to admit that, in her deposition, respondent agreed that the children were safe in appellant's care. But appellant's argument that the findings are "nearly" what is in respondent's petition implicitly recognizes that the district court did not simply adopt the content of respondent's petition. And comparison of respondent's petition and the OFP shows that the district court did not adopt verbatim the assertions in respondent's petition. To the extent that appellant's testimony was not explicitly acknowledged, the district court apparently found it not relevant or not credible. We defer to district court credibility determinations. Sefkow, 427 N.W.2d at 210. Also, appellant has not specifically identified any testimony he submitted that should have been deemed relevant and we cannot assume district court error. Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949); Luthen v. Luthen, 596 N.W.2d 278, 283 (Minn.App. 1999). Finally, to the extent that appellant notes that respondent, in a deposition for the dissolution, stated that the children were not endangered in appellant's care, respondent also testified that her deposition testimony was false because she was afraid of what appellant's reaction would be if she spoke truthfully. Thus, regarding the content of respondent's deposition, the district court had to make a credibility determination to which we defer. Sefkow, 427 N.W.2d at 210.