This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).
STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0378
In the Matter of: Tracy Elizabeth Thompson
and o/b/o Minor Child, petitioner,
Respondent,
vs.
John Patrick Schrimsher,
Appellant.
Filed January 9, 2017
Reversed
Hooten, Judge
Ramsey County District Court
File No. 62-DA-FA-15-1155
Bradford Colbert, St. Paul, Minnesota (for respondent)
Cathryn C. Schmidt, Amy E. Edwall, Collins, Buckley, Sauntry & Haugh, P.L.L.P.,
St. Paul, Minnesota (for appellant)
Considered and decided by Johnson, Presiding Judge; Hooten, Judge; and Smith,
T., Judge.
UNPUBLISHED OPINION
HOOTEN, Judge
In this appeal from an order for protection (OFP), appellant-father argues that the
district court abused its discretion in issuing the OFP in favor of respondent-mother and
their minor child. Because there is no evidentiary support in the record of continuing
physical abuse or a present intent to inflict imminent physical abuse by appellant against
respondent mother, and no evidentiary support of domestic abuse by appellant against their
minor child, we reverse.
FACTS
Appellant John Schrimsher and respondent Tracy Thompson met in Minnesota in
2009 and are the parents of a minor child, who was born on in 2012. According to
respondent, appellant was verbally and physically abusive throughout their relationship.
In April 2012, while respondent was living with appellant in Georgia, they became
involved in a physical altercation in which he dragged her to their bedroom, attempted to
handcuff her, and then finally forced her to sit silently on the back porch with him for two
hours. After this incident, respondent took their minor child and moved back to Minnesota.
In July 2012, respondent filed for an OFP against appellant in Hennepin County,
but it was dismissed with prejudice because she did not attend the hearing. Appellant, who
continued to reside in Georgia, filed a petition in Georgia to establish parentage and to get
custody rights to the minor child. The parties went through a long and contentious battle
for custody of the minor child in Georgia, which culminated in the court awarding the
parties’ joint legal custody and primary physical custody of the minor child to respondent.
Appellant, who eventually moved to California, was allowed to visit with the minor child
twice each week via Skype.
On September 28, 2015, respondent filed the petition for the OFP at issue here.
Appellant denied that he had ever physically abused respondent or threatened to physically
abuse her, and alleged that she had mental health issues. Respondent did not claim that
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appellant physically abused her or threatened physical abuse after she moved back to
Minnesota in 2012. However, respondent testified that she and her family were terrified
of appellant and that she believed that he was still trying to exert control over her, noting
that recently he prompted the police to perform an unnecessary welfare check on her.
Respondent’s father also testified that appellant was very controlling and claimed that
respondent was being threatened on the internet by a woman whom he believed was
associated with appellant. There was no description in the record as to the nature of these
internet threats from this unidentified woman.
At the conclusion of the evidentiary hearing, the district court granted a two-year
OFP in favor of respondent and the minor child. The district court found that respondent
had an unhealthy fear of appellant and that, over the years, appellant has controlled or
attempted to control and disrupt respondent’s life. With respect to the minor child, the
district court found that any violence towards the child happened early on in the child’s
life, mostly by being subjected to the violence against his mother. Father appeals.
DECISION
I. Standard of review
Appellant argues that the district court abused its discretion in issuing an order for
protection in favor of respondent and their minor child. “The decision to grant an OFP
under the Minnesota Domestic Abuse Act . . . is within the district court’s discretion.”
Pechovnik v. Pechovnik, 765 N.W.2d 94, 98 (Minn. App. 2009) (quotation omitted). We
will reverse the issuance of an OFP only if the district court abused its discretion. Braend
ex rel. Minor Children v. Braend, 721 N.W.2d 924, 926–27 (Minn. App. 2006). A district
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court abuses its discretion when it issues an OFP that lacks evidentiary support. Gada v.
Dedefo, 684 N.W.2d 512, 514 (Minn. App. 2004); see also Chosa ex rel. Chosa v.
Tagliente, 693 N.W.2d 487, 490 (Minn. App. 2005) (concluding that district court erred
when there was no evidence to support its conclusion that domestic abuse occurred). An
OFP lacks evidentiary support when the findings are clearly erroneous, are contrary to the
weight of the evidence, or not supported by the evidence as a whole. Gada, 684 N.W.2d
at 514. We review the record in the light most favorable to the district court’s findings.
Pechovnik, 765 N.W.2d at 99. On appeal from the issuance of an OFP, “[w]e neither
reconcile conflicting evidence nor decide issues of witness credibility, which are
exclusively the province of the factfinder.” Gada, 684 N.W.2d at 514.
II. The district court abused its discretion in issuing an OFP in favor of respondent
and the minor child.
Appellant argues that respondent’s domestic abuse allegations are too remote to
warrant the issuance of an OFP. A district court may issue an OFP if domestic abuse has
been inflicted upon a family or household member by a family or household member.
Minn. Stat. § 518B.01, subds. 2, 4, 6 (2014). 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). Absent a
stipulation allowing the district court to grant an OFP without a finding that domestic abuse
occurred, a district court must make a finding of domestic abuse before issuing an OFP.
See Mechtel v. Mechtel, 528 N.W.2d 916, 921 (Minn. App. 1995) (concluding that findings
were insufficient when district court “made no written or oral findings, and filled in the
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blank space for findings with a statement that it was not making a determination of guilt or
any violation”). The statutory definition of domestic abuse “require[s] either a showing of
present harm, or an intention on the part of [the abusing party] to do present harm.” Kass
v. Kass, 355 N.W.2d 335, 337 (Minn. App. 1984). It is an abuse of discretion to issue an
OFP on behalf of a minor household member unless that child is a victim of abuse within
the meaning of the Domestic Abuse Act. Schmidt ex rel. P.M.S. v. Coons, 818 N.W.2d
523, 528–29 (Minn. 2012).
Respondent has not alleged that appellant is presently committing physical abuse
against her. But, because respondent has only alleged past physical abuse, the most recent
incident occurring in April 2012, we must look to the second prong of the domestic abuse
definition to determine whether the evidence supports a conclusion that appellant possesses
a present intention to inflict fear of imminent physical harm.
It is well-settled that a finding of past domestic abuse alone is insufficient to support
the issuance of an OFP without a showing of a present intent to cause or inflict fear of
imminent physical harm. Bjergum v. Bjergum, 392 N.W.2d 604, 606 (Minn. App. 1986).
Furthermore, we have repeatedly held that, in the absence of ongoing physical abuse, the
petitioner must show that the abusing party has a present intent to inflict harm or to inflict
fear of imminent harm. See id.; Boniek v. Boniek, 443 N.W.2d 196, 198 (Minn. App. 1989).
Here, the district court’s finding of domestic abuse was mostly, if not entirely, based
on past domestic abuse that occurred more than three years earlier. In crediting
respondent’s testimony that there was a past history of domestic abuse, the district court
concluded that appellant’s continued course of controlling behavior had disrupted
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respondent’s personal life, entitling her to an OFP. However, appellant has not lived in
Minnesota since at least 2011 and was living in California at the time of the evidentiary
hearing. Even though past domestic abuse should be a factor that the district court
considers in the issuance of an OFP, taking all of respondent’s testimony as true, we
conclude that there is insufficient evidence for a finding that appellant has a present intent
to do harm or inflict fear of harm upon respondent.
Respondent argues that appellant’s controlling behavior, in the context of his past
abusive behavior, is sufficient to find a present intention to inflict bodily harm upon
respondent. In support of her argument, respondent cites Pechovnik and Boniek. In
Pechovnik, this court upheld the district court’s issuance of an OFP on behalf of a wife
against her husband. 765 N.W.2d at 100. We concluded that the wife, whose husband
woke [her] up in the middle of the night by “slapp[ing] her on her feet,” pinned her in
corners, screamed persistent questions at her, and called her names, was placed “in fear of
immediate bodily harm,” particularly in light of “an old history of threatening behavior.”
Id. at 99. Further, in Boniek, this court found that the husband’s leaving of a mutilated
marriage certificate on his wife’s doorstep, coupled with a threat to his wife, his stalking
behavior, and a physical altercation with an insurance salesman when the husband arrived
at his wife’s home unannounced, was sufficient evidence of the husband’s “present intent
to inflict fear of imminent physical harm.” 443 N.W.2d at 197–98.
Here, as in Pechovnik and Boniek, the district court found credible the testimony
that there existed a past history of domestic abuse and that the existence of that history was
a factor to be considered in determining whether to issue an OFP. Pechovnik, 765 N.W.2d
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at 100; Boniek, 443 N.W.2d at 198. However, what is lacking in this case is any factual
support that appellant, who has not lived in Minnesota since 2011, has acted or conducted
himself in a manner intending to presently place appellant in fear of imminent physical
harm. See Kass, 355 N.W.2d at 337 (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).
Respondent testified that appellant requested the police complete an unnecessary
welfare check on her and the minor child, was often “bizarre” on Skype when he exercised
his parenting time with the minor child, and would call the minor child’s school to attempt
to find out what time the minor child was getting dropped off and picked up from school.
But, none of appellant’s acts constitute domestic abuse or evince a present intent to commit
harm against respondent or the minor child. Moreover, there is no evidence in the record
that the minor child has ever been a victim of domestic abuse. While respondent claims
that in 2012, a few days after the minor child was born, appellant kicked the bassinet during
one of their altercations. This incident, which occurred more than three years earlier, is
insufficient to support a finding of appellant’s domestic abuse against the minor child.
Because there is no evidence in the record to support a finding that appellant has
recently physically abused respondent, that he possesses a present intent to inflict harm
upon respondent or the minor child, or that he ever physically abused the minor child, there
is an insufficient basis to find that domestic abuse has occurred. Therefore, the district
court abused its discretion when it issued an OFP to respondent and the minor child.
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Because we conclude that the issuance of the OFP was improper, we need not address
appellant’s other arguments as they are based on the existence of the OFP.
Reversed.
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In the Matter of: Tracy Elizabeth Thompson and o/b/o Minor Child v. John Patrick Schrimsher
Combined Opinion