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All in the Family: Appeals court reverses 2 OFP orders in a week

The month of May wasn’t a good one for petitioners in domestic abuse proceedings. Just one week apart, and for very different reasons, the Minnesota Court of Appeals twice reversed the issuance of an OFP.

Hessel v. Mohr

Father and Mother were the parents of two daughters. One was born in 2001, while the other was born in 2005. The parties divorced in 2013 and shared physical and legal custody of the girls.

In August of 2016, the older child reported to Mother that Father sexually abused her five years earlier. Mother reported the incident to law enforcement and social services, who began an investigation.

Mother filed for an Order for Protection on behalf of herself and both girls. She alleged that the younger daughter was now the same age as the older daughter when older daughter was sexually abused by Father.

At the hearing, a protective services investigator testified that no determination had been made concerning the veracity of daughter’s claims. Moreover, he confirmed that no criminal charges had been filed against Father.

Despite the fact that both parents testified, older daughter (then 14) did not testify.

After the hearing, the District Court judge indicated that despite Father acting verbally offensive on occasion, “I’m not seeing the physical abuse present except for an allegation of sexual abuse … the investigation is still ongoing.”

Father argued that there was insubstantial evidence of domestic abuse. In granting the OFP, the judge opined that “[t]here is an allegation of sexual abuse. If that allegation is disproved, debunked [or] rejected, [Father] can come back into court and seek to have the OFP rescinded.” Upon the foregoing, the District Court granted the OFP in favor of Mother and both daughters.

Naturally, the Court of Appeals took issue with that decision, noting that in an OFP proceeding the petitioner has the burden of proving that domestic abuse occurred; the party against whom the OFP is sought does not have the burden of proving that it has not occurred.

Judge Francis Connelly went on to say that the “only evidence” before the District Court was that: (1) older daughter alleged that sexual abuse occurred in 2011; and (2) the allegation was being investigated. That evidence, he opined, did not make it more likely than not that domestic abuse had occurred. The record was void of daughter’s testimony as to nature, time, place, duration or frequency of the alleged abuse.

This situation reminds us a bit of the 2001 Stolt v. Stolt decision of the Minnesota Court of Appeals.

In Stolt, a father challenged a district court’s denial of his motion to modify custody. He contended that the child’s present environment endangered his child’s physical and emotional health. The custody evaluator appointed in the case agreed, as did two treating psychologists, because of the “possibility” of future sexual abuse by another adult in mother’s home.

Both the District Court, and the Court of Appeals, dismissed the father’s argument and “focused on whether the present environment endangered the children as required by Minn. Stat. § 518.18(d).” In doing so, the Court disregarded the conclusions drawn by the psychologists, stating that “both admitted they could not predict what may happen if such an event were to occur in the future. The dispositive inquiry in a custody modification, however, is whether the ‘present environment endangers the children.’”

It seems clear that if there is no record evidence of “who, what, where, when, why and how,” claims based upon allegations of abuse, or endangerment, are not likely to succeed.

Ketchmark v. Fruen

In Ketchmark, Mother asserted, on behalf of herself and the parties’ child, that an OFP was necessary. Difficulties arose out of parenting time exchange. Mother and Father agreed that she would pick up the child at his residence.

When Mother entered his residence, Father asked her to leave. When she refused, Mother claimed that Father pushed her out the door and hit her several times.

The District Court issued an emergency ex parte OFP. At the evidentiary hearing, Mother, proceeding pro se, cross-examined Husband about certain text messages he had written to her. Father denied writing the text messages, and the District Court sought proof that those messages came from his phone. Mother said that she had a printed screenshot of the messages.

Father objected on foundation grounds, but the District Court received the messages into evidence. Curiously, the court did not retain that exhibit. Instead, it was returned to Mother. Mother was then ordered to provide a copy of that exhibit to Father’s counsel following a motion to correct the record. She chose not to do so.

The court indicated that the text messages suggest that “he will make it his mission to destroy her life.” Consequently, the court found Mother more credible than Father, and issued the OFP on the basis that it was “reasonable” for her to fear for her safety.

In reversing, the Court of Appeals pointed out that Mother did not actually testify that Father threatened her in any way. Instead, she merely relied upon the content of the non-retained text exhibit. Judge Tracy Smith noted that “…because Exhibit 2 is not in the record and nothing else in the record supports the finding that [Father] actually threatened [Mother] we conclude that the district court’s finding of threats is unsupported by the record.”

The Court of Appeals reversed and remanded, keeping the emergency ex parte OFP in effect. Specific permission was granted for the District Court to “reopen the record at its discretion.”

Ketchmark presents an interesting question, in terms of whether the District Court will, on remand, allow Exhibit 2 to become part of the record. Seems likely, given it was received during the first hearing. How will the District Court react, however, to Mother’s unwillingness to provide it as she was previously ordered to do?

Would the same result occur if Mother was represented by counsel? Would the Court of Appeals sympathize with a lawyer who inadvertently held on to a critical exhibit and failed to follow through in correcting the record? Doubtful.

Mother may have caught a break, despite rules to the contrary, as a pro se litigant.

Jason and Cynthia Brown, husband and wife, are the founding shareholders in the Brown Law Offices, P.A., a northwest Twin Cities divorce and family law firm

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