Darcie Gilliard and on behalf of minor children v. Jacob Alton Leatherman

• Court: Court of Appeals of Minnesota
• Decided: October 3, 2016
• Docket: A16-132
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA IN COURT OF APPEALS A16-0132

Darcie Gilliard and on behalf of minor children, petitioner, Respondent,

vs.

Jacob Alton Leatherman, et al., Appellants.

Filed October 3, 2016 Affirmed Randall, Judge *

Steele County District Court File Nos. 74-CV-15-1495, 74-CV-15-1496

Darcie Gilliard, Owatonna, Minnesota (pro se respondent)

Theresa M. Gerlach, Lindsay N. Wells, Gerlach Law Firm, Hastings, Minnesota (for appellants Jacob Alton Leatherman and Sherrie L. Mackay)

Considered and decided by Larkin, Presiding Judge; Rodenberg, Judge; and

Randall, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION

RANDALL, Judge

Appellants challenge the district court’s issuance of two harassment restraining

orders (HROs) against them, arguing that (1) the district court did not have subject-matter

jurisdiction to issue the HROs on behalf of one of the minor children, and (2) there was

insufficient evidence to support the issuance of the HROs. We affirm.

FACTS

Respondent Darcie Gilliard is the mother of two minor children, B.C.S., born in

2001, and I.M.L., born in 2007 (“the children”). Appellant Jacob Leatherman is I.M.L.’s

father, and appellant Sherrie Mackay is I.M.L.’s paternal grandmother. All parties resided

in Washington until July 2015, when Gilliard moved to Minnesota with the children.

Gilliard and Leatherman were never married, and Gilliard is the custodial parent of

I.M.L. There is no evidence in the record that Leatherman was ever awarded custody of

I.M.L. or parenting time by a court. 1 However, Gilliard testified that she has “allowed

[Leatherman] to have visitation with [I.M.L.]” under the supervision of Mackay. Mackay

had temporary custody of I.M.L. in 2013. Gilliard testified that the only reason Mackay

had temporary custody “is because when [Gilliard] lost [her] father, [she] lost [her] place.

So [she] took that time to regain who [she] was, get it together, get a job, get a place, and

then [she] got [I.M.L.] back.”

1 The record does show that Leatherman failed to appear at the hearing regarding the parentage of I.M.L.

2 On July 22, 2015, Gilliard filed two HRO petitions on behalf of her and the children

in Minnesota district court; one against Leatherman, and the other against Mackay. In the

petition against Leatherman, Gilliard alleged that Leatherman made several verbal threats

to her and the children, stole her debit cards and clothing, and took I.M.L. while she had

custody. In the petition against Mackay, Gilliard alleged that Mackay made several verbal

threats to her and the children, “burned out near” her while she was walking, “got into [her]

face while drunk and [belligerent],” and made false accusations about B.C.S.

inappropriately touching I.M.L.

On October 21, an evidentiary hearing was held. At the hearing, Gilliard testified

that: (1) Leatherman and Mackay threatened to shoot her; (2) in July 2015, Leatherman

threatened to “punch [her] in the face and throw [her] out of the car in front of I.M.L.”;

(3) Leatherman threatened, several times, that she will only get I.M.L. from “his cold dead

hands”; (4) Leatherman threatened that he would “kill [her] before [she] got [I.M.L.]”;

(5) in 2008 Leatherman threatened to kill her and B.C.S., burn down their house, and take

I.M.L. from them; (6) in 2015, Leatherman refused to give Gilliard and I.M.L. their

personal items back and told Gilliard he had “thrown them in a [d]umpster where [she]

belong[s]”; (7) Leatherman and Mackay made comments on her Facebook page that she is

bad mother and that she allows B.C.S. to inappropriately touch I.M.L.; (8) Leatherman and

Mackay have filed numerous petitions for restraining orders against her and all of them

have been dismissed; (9) Leatherman and Mackay have made false accusations to child

protective services (CPS) about her and CPS determined that all of the reports were

unfounded; (10) Leatherman threatened to call CPS “until he gets [I.M.L.]”;

3 (11) Leatherman and Mackay sent her text messages that she “will never see [I.M.L.] again

if they have anything to do with it”; (12) Mackay “burned out right beside [her]”; and

(13) Leatherman took I.M.L. while she had custody. Leatherman and Mackay also testified

at the hearing. They denied all of Gilliard’s allegations.

At the hearing, Leatherman and Mackay moved to dismiss the petitions in regards

to I.M.L. for lack of subject-matter jurisdiction. Leatherman and Mackay argued that under

the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Minnesota courts

do not have subject-matter jurisdiction to issue an HRO on behalf of I.M.L. because

Leatherman had initiated a child custody suit in Washington and Washington is the home

state of I.M.L. They argued that if an HRO is issued on behalf of I.M.L. then that prevents

Leatherman from seeing I.M.L. for the period of time for which the HRO is issued and

“that is in essence a custody determination.”

In November, the district court denied Leatherman and Mackay’s motion to dismiss

for lack of jurisdiction and granted the HROs. The district court made the following

findings as to Leatherman:

There are reasonable grounds to believe that [Leatherman] has engaged in harassment of [Gilliard, B.C.S., and I.M.L.] by committing the following acts:

[Leatherman] physically . . . assaulted [Gilliard] as follows: threatened to shoot [Gilliard], also threatened to punch her and push her out of [a] moving vehicle in the presence of [I.M.L.] .... [Leatherman] made uninvited visits to [Gilliard] as follows: at her job and caused a scene resulting in [a] police response ....

4 [Leatherman] frightened [Gilliard] with threatening behavior as follows: failed to return [I.M.L.] to [Gilliard] in spite of [a] Court Order, resulting in law enforcement having to retrieve the child .... [Leatherman] stole property from [Gilliard] as follows: wrongfully refused to return [Gilliard]’s property and [I.M.L.]’s property .... other: False claims posted on Facebook that [Gilliard] was allowing [B.C.S.] to sexually abuse [I.M.L.]

The harassment has or is intended to have a substantial adverse effect on [Gilliard’s] safety, security, or privacy.

The district court made the following findings as to Mackay:

There are reasonable grounds to believe that [Mackay] has engaged in harassment of [Gilliard, B.C.S., and I.M.L.] by committing the following acts:

[Mackay] physically assaulted [Gilliard] as follows: by threatening to shoot her .... [Mackay] made threats to [Gilliard] as follows: to not return [I.M.L.], “you will never see your daughter again[”] to run [Gilliard] over with [Mackay’s] car . . . . [and] [Mackay] frightened [Gilliard] with threatening behavior as follows: failed to return [I.M.L.] in spite of [a] Court [O]rder, threats to continue to make reports to Child Protective Services, posting on Facebook that [Gilliard] was allowing [B.C.S.] to sexually abuse [I.M.L.] .... [Mackay] stole property from [Gilliard] as follows: has refused to return property of [Gilliard] and told her [that her] property had been put in [a] dumpster where [Gilliard] belonged .... The harassment has or is intended to have a substantial adverse effect on [Gilliard’s] safety, security, or privacy.

5 In both of the HROs the district court ordered Leatherman and Mackay to not harass

Gilliard or the children and to have no direct or indirect contact with them. The district

court further prohibited Leatherman and Mackay from being within 500 feet of Gilliard

and the children’s home. In the HRO against Leatherman, the district court ordered that

“[Leatherman] may apply for an amendment of this order to permit contact with [I.M.L.]

after he has submitted proof of completion of a domestic violence assessment and

completion of recommended programming.” Leatherman and Mackay appeal.

DECISION

I.

Leatherman and Mackay argue that the district court did not have subject-matter

jurisdiction to issue the HROs on behalf of I.M.L. Specifically, they argue that the

UCCJEA governs HRO proceedings when a minor child is at issue and therefore

Washington courts have jurisdiction because Washington made an initial child custody

determination regarding I.M.L. in 2013, Leatherman initiated a child custody suit regarding

I.M.L. in Washington, and I.M.L.’s home state at the time the HRO petitions were filed

was Washington. We disagree.

Both Minnesota and Washington have adopted versions of the UCCJEA. Minn.

Stat. §§ 518D.101-.317 (2014); Wash. Rev. Code §§ 26.27.011-.941 (2014). The

“[a]pplication of the . . . UCCJEA[ ] involves questions of subject matter jurisdiction.”

Schroeder v. Schroeder, 658 N.W.2d 909, 911 (Minn. App. 2003). A district court’s

6 determination of subject matter jurisdiction is a question of law, which we review de novo.

Id.

The UCCJEA states that a court making a custody determination consistent with the

relevant provisions of the UCCJEA “has exclusive, continuing jurisdiction over the

determination until [certain other conditions are satisfied.]” Minn. Stat. § 518D.202(a);

Wash. Rev. Code § 26.27.211. With an exception not applicable here, a Minnesota district

court

may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under section 518D.201, paragraph (a), clause (1) or (2), and:

(1) the court of the other state determines it no longer has exclusive, continuing jurisdiction under section 518D.202 or that a court of this State would be a more convenient forum under section 518D.207[.]

Minn. Stat. § 518D.203. A “[c]hild custody determination” is defined as “a judgment,

decree, or other order of a court providing for the legal custody, physical custody, or

visitation with respect to a child. The term includes a permanent, temporary, initial, and

modification order.” Minn. Stat. § 518D.102(d).

We conclude that the UCCJEA did not preclude the district court from granting the

HROs on behalf of I.M.L. Even if, as Leatherman and Mackay argue, Washington courts

generally retain exclusive, continuing jurisdiction over children subject to custody

determinations made in that state, the record presented to this court lacks any indication

that, when the HROs were issued, a Washington court had actually awarded either

Leatherman or Mackay custody of, or parenting time with, I.M.L. Thus, there was no

7 Washington custody determination to modify, and the UCCJEA could not preclude the

Minnesota district court from granting the HROs because the UCCJEA does not apply. See

Minn. Stat. § 518D.203.

II.

Leatherman and Mackay argue that the evidence is insufficient to support the

issuance of the HROs. We disagree.

This court reviews the district court’s issuance of an HRO for an abuse of discretion.

Peterson v. Johnson, 755 N.W.2d 758, 761 (Minn. App. 2008). “A district court’s findings

of fact will not be set aside unless clearly erroneous, and due regard is given to the district

court’s opportunity to judge the credibility of witnesses.” Kush v. Mathison, 683 N.W.2d

841, 843-44 (Minn. App. 2004) (citing Minn. R. Civ. P. 52.01), review denied (Minn.

Sept. 29, 2004). We will reverse the issuance of an HRO if it is not supported by sufficient

evidence. Id. at 844.

A district court may grant an HRO if the court finds that there are reasonable

grounds to believe that a person has engaged in harassment. Minn. Stat. § 609.748, subd.

5(a)(3) (2014). The statutory definition of harassment includes (1) “a single incident of

physical . . . assault” or (2) “repeated incidents of intrusive or unwanted acts, words, or

gestures that have a substantial adverse effect or are intended to have a substantial adverse

effect on the safety, security, or privacy of another.” Minn. Stat. § 609.748, subd. 1(a)(1)

(2014). To obtain an HRO, the petitioner must prove: (1) “objectively unreasonable

conduct or intent on the part of the harasser”; and (2) “an objectively reasonable belief on

the part of the person subject to harassing conduct” of a substantial adverse effect on the

8 person’s safety, security, or privacy. Dunham v. Roer, 708 N.W.2d 552, 567 (Minn. App.

2006), review denied (Minn. Mar. 28, 2006); see Minn. Stat. § 609.748, subd. 1(a)(1).

Single incident of physical assault

Leatherman and Mackay first argue that “[t]here is no evidence in this case of a

physical assault or bodily harm to either Gilliard or to the minor children.” “[T]o prove a

physical assault under the first prong of [Minn. Stat. 609.748(1)(a)(1)], a petitioner must

prove the physical aspects of the statutory definition of assault in chapter 609, i.e., ‘the

intentional infliction of or attempt to inflict bodily harm upon another.’” Peterson, 755

N.W.2d at 763 (quoting Minn. Stat. § 609.02, subd. 10(2) (2006)). The threats made by

Leatherman and Mackay do not satisfy this definition. Further, there is no evidence in the

record that Leatherman or Mackay intended to inflict or attempted to inflict bodily harm

on Gilliard. See id. The first prong of Minn. Stat. § 609.748, subd. 1(a)(1) is not met.

Repeated incidents of intrusive or unwanted acts, words, or gestures

Leatherman and Mackay next argue that “[t]here is insufficient evidence of repeated

incidents of intrusive or unwanted acts that had or were intended to have a substantial

adverse effect on Gilliard and the minor children.” Specifically, they argue that “[t]he

alleged verbal threats, while inappropriate, were not harassment according to the statute,”

their “[c]ontact with CPS was objectively reasonable,” “Gilliard’s allegation regarding a

Facebook post is insufficient to prove harassment,” and “Gilliard’s personal property was

neither stolen nor wrongfully handled.”

The record contains sufficient evidence to support the district court’s findings that

there were reasonable grounds to believe that Leatherman and Mackay engaged in

9 harassment of Gilliard. 2 First, the record supports the district court’s finding that there

were repeated incidents of intrusive or unwanted acts, words, or gestures. Gilliard testified

that Leatherman and Mackay have both threatened to physically harm her, including

threatening to shoot her, kill her, punch her in the face, and throw her out of a car, and both

have threatened to take I.M.L. from her. 3 Second, Gilliard has met the burden of proving

that these threats were objectively unreasonable and that she had an objectively reasonable

belief that these threats affected her safety, security, or privacy. Threatening to physically

harm someone, especially threatening to shoot or kill them, and threatening to abduct a

child from the child’s custodial parent “is objectively unreasonable” (you think!) and any

reasonable person would feel that her safety and security had been violated. The second

prong of Minn. Stat. § 609.748, subd. 1(a)(1) is met. The district court properly issued the

HROs on behalf of Gilliard against Leatherman and Mackay.

The record contains sufficient evidence to support the district court’s findings that

there were reasonable grounds to believe that Leatherman and Mackay engaged in

harassment of the children. First, the record supports the district court’s finding that there

were repeated incidents of intrusive or unwanted acts, words, or gestures. Gilliard testified

and the HRO petition states that Leatherman and Mackay have both threatened B.C.S.,

2 We note that the record, including the district court’s order, does not include the specific dates of when the alleged verbal threats occurred. The omission of dates in this case does not change our analysis due to the volume of verbal threats that Gilliard alleges and the other specific details she provided. 3 Appellants argue that Gilliard provided no evidence of the text messages where some of these threats were made. But Gilliard’s in-court testimony, subject to cross-examination, is itself evidence of the text messages, and the district court was free to rely on this evidence in making its factual findings.

10 including threatening to kill him, and have both made false accusations about B.C.S.

inappropriately touching I.M.L. Gilliard also testified that Leatherman and Mackay have

both threatened to take I.M.L. from Gilliard and that Leatherman made threats to physically

harm Gilliard in front of I.M.L. Second, Gilliard has met the burden of proving that these

threats and false accusations were objectively unreasonable and that the children had an

objectively reasonable belief that these threats affected their safety, security, or privacy.

As stated before, threatening to physically harm someone, especially threatening to kill

them, and threatening to abduct a child from the child’s custodial parent is objectively

unreasonable and any reasonable person would feel that his or her safety and security had

been violated. Further, knowingly making false statements accusing someone of

inappropriately touching a sibling or knowingly making false statements alleging that

someone is being inappropriately touched by their sibling is also objectively unreasonable

and any reasonable person would feel that his or her privacy had been violated. The second

prong of Minn. Stat. § 609.748, subd. 1(a)(1) is met. The district court properly issued the

HROs on behalf of the children against Leatherman and Mackay.

Affirmed.