In re the Matter of: Sara Marie Gasper o/b/o A. R. G., A. J. G. and A. L. G. v. Jacob Carl Gasper

• Court: Court of Appeals of Minnesota
• Decided: August 17, 2015
• Docket: A14-2113
• Status: Unpublished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This opinion will be unpublished and may not be cited except as provided by Minn.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 A14-2113

In re the Matter of: Sara Marie Gasper o/b/o A. R. G., A. J. G. and A. L. G., petitioner, Respondent,

vs.

Jacob Carl Gasper, Appellant.

Filed August 24, 2015 Affirmed Hooten, Judge

Dodge County District Court File No. 20-FA-14-712

Amber M. Lawrence, Dittrich & Lawrence, P.A., Rochester, Minnesota (for appellant)

Ryan B. Magnus, Jennifer Thon, Jones and Magnus, Mankato, Minnesota (for respondent)

Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and

Hooten, Judge.

UNPUBLISHED OPINION

HOOTEN, Judge

Appellant was convicted of domestic assault in 2012, and in 2014 the state filed

criminal charges against him after he allegedly assaulted his child. Respondent,

appellant’s former spouse, obtained an order for protection (OFP) for herself and their three children. Appellant now argues that the district court violated his right to due

process during the OFP hearing and abused its discretion in granting the OFP. Because

the district court conducted a proper hearing and because there is sufficient evidence

supporting the district court’s findings to issue the OFP, we affirm.

FACTS

Appellant Jacob Carl Gasper and respondent Sara Marie Gasper married in 2004.

During their marriage, respondent gave birth to their three children in 2005, 2008, and

2010. In 2012, appellant was convicted of misdemeanor domestic assault of the parties’

four-year-old son. Following appellant’s conviction, respondent sought a divorce, and, in

2013, the district court dissolved their marriage.

In 2014, the state charged appellant with the gross misdemeanor of assaulting the

parties’ eight-year-old son within ten years of a previous domestic abuse conviction. The

state alleges that appellant injured his son after grabbing the child’s chin, neck, and head.

Respondent then petitioned the district court for an emergency OFP, filing 91 pages of

documents detailing her allegations of appellant’s history of domestic abuse. These

allegations largely consisted of a series of events where respondent claimed that

appellant’s physical discipline of their three children escalated and became abusive.

Respondent also alleged that she and the children feared appellant would physically harm

them. Respondent’s documents included a reference to appellant’s conviction for

domestic abuse as well as the recently filed criminal complaint. After the district court

reviewed these files, it granted respondent and the three children an emergency OFP.

2 Appellant requested a hearing to challenge the OFP. At the hearing, respondent

directed the district court to the 91 pages of documents that she submitted to support her

petition for an emergency OFP. She testified that she feared for the safety of her children

and herself following the state’s decision to formally charge appellant for domestic

assault, and she “had seen anger escalate in him over the time, over the recent months.”

Appellant testified and admitted that the state had filed criminal charges against

him for domestic assault. When the district court asked if he wished to add to the

responsive affidavit he filed, appellant stated that respondent’s allegations “aren’t

accurate statements.” When asked about his pending criminal charge, appellant stated

that “there’s been a long history of [the child] making allegations against me that aren’t

true.” The district court noted that social services has repeatedly been involved with

appellant and his children, and appellant stated the reason for this was because “instead

of calling me directly, [respondent] just call[s] law enforcement to . . . report the

situation.” When asked if he had anything else to add, appellant stated, “I have been

fully cooperative with Child Protection Services every time they’ve gotten involved,

which is numerous times.”

Counsel for both sides addressed the specific allegations in respondent’s

affidavits. Appellant’s counsel stated that “just because there was probable cause from a

criminal complaint . . . doesn’t mean that your hands are tied in an OFP hearing.” The

parties indicated that they had nothing further to add. Later that day, the district court

issued its written order affirming the emergency ex parte order that it had previously

3 granted, with the one exception that appellant was granted “supervised parenting time

with the minor children through the Family Access Center.”

Appellant now challenges the district court’s order.

DECISION

I.

Appellant argues that the district court violated his right to due process during the

OFP hearing because the district court (1) denied him the opportunity to present and

cross-examine witnesses, (2) prevented him from introducing documents, and (3) did not

decide the case on the merits. There is no support in the record for these claims.

If the district court grants an ex parte OFP, the order shall be effective until

modified or vacated by the district court following a hearing. Minn. Stat. § 518B.01,

subd. 7(c) (2014). The Domestic Abuse Act is silent as to the scope of the hearing that

follows an ex parte OFP. See Minn. Stat. § 518B.01, subd. 5 (2014). But, this court has

determined that during an OFP hearing regarding the issues raised by the issuance of an

emergency OFP, the challenging party has the right “to present and cross-examine

witnesses, [to] produce documents, and [to] have [the] case decided on [the] merits.”

Beardsley v. Garcia, 731 N.W.2d 843, 849 (Minn. App. 2007), aff’d, 753 N.W.2d 735

(Minn. 2008).1

1 Beardsley’s description of a “hearing” is built on El Nashaar v. El Nashaar, 529 N.W.2d 13, 14 (Minn. App. 1995), which described the “full hearing” requirement under the Domestic Abuse Act in effect during El Nashaar’s appeal. After El Nashaar was filed, the Domestic Abuse Act was amended to remove the “full hearing” language, and now only a “hearing” is required. See 1995 Minn. Laws ch. 142, § 5 at 404. Because the

4 Appellant argues first that the district court denied him the opportunity to present

and cross-examine witnesses at the OFP hearing. Appellant asserts that during a

telephone conference prior to the OFP hearing, the district court informed the parties that

they could not call or cross-examine any witnesses. The record on appeal does not

contain any evidence that such a telephone conference actually occurred. See Minn. R.

Civ. App. P. 110.01 (“The documents filed in the trial court, the exhibits, and the

transcript of the proceedings, if any, shall constitute the record on appeal in all cases.”).

Because appellant did not object to the district court’s purported restrictions at the OFP

hearing we deem it waived. See Beardsley, 731 N.W.2d at 850 (“Although a petitioner in

an OFP proceeding is entitled to a hearing, the failure to request a particular procedure

. . . constitutes waiver.”). And, even if we wanted to excuse this waiver, we could not as

his lack of objection means there is no decision that we can review. See Thiele v. Stich,

425 N.W.2d 580, 583 (Minn. 1988) (“An appellate court may not base its decision on

matters outside the record on appeal, and may not consider matters not produced and

received in evidence below.”).

Appellant asserts next that the district court prevented the parties from offering

evidence. The record indicates that both parties submitted affidavits and supporting

documentation. Both parties repeatedly testified about these documents. The district

court, agreeing that these documents were “part of the record,” repeatedly asked each

party and counsel whether they wanted to add any further testimony or add “anything

impact of the 1995 amendment was not argued to the district court or briefed to this court, we decline to address whether that amendment affects appellant’s argument.

5 else” to their testimony. There is no support in the record for appellant’s assertion that

the district court denied the parties the opportunity to introduce evidence.

Appellant argues next that he was entitled to have his case decided on the merits

and the district court’s “failure to allow for a hearing as required under the Act” deprived

him of this right. Appellant does not explain how the district court failed to decide this

case on the merits. And the record unambiguously reveals that the district court carefully

considered the arguments and ordered the OFP based on the substance of the parties’

evidence and testimony. And, since we have already concluded that appellant received

the procedures required under Beardsley, we reject his assertion that the district court

decided this case on any basis other than “the merits.”

II.

Appellant challenges the district court’s decision to grant the OFP, arguing that the

district court’s findings that appellant committed domestic abuse and is a danger to

respondent and the three children is not supported by the record.

The district court has discretion to grant an OFP under the Domestic Abuse Act,

and this court will not reverse the district court’s decision unless the district court abuses

its broad discretion. Braend ex rel. Minor Children v. Braend, 721 N.W.2d 924, 926–27

(Minn. App. 2006). A district court abuses its discretion when deciding whether or not to

grant an OFP when it makes findings of fact that are unsupported by the record. Chosa

ex rel. Chosa v. Tagliente, 693 N.W.2d 487, 489 (Minn. App. 2005). When reviewing a

district court’s decision to grant an OFP, this court does not attempt to “reconcile

6 conflicting evidence” as that task belongs exclusively to the district court as the fact

finder. Gada v. Dedefo, 684 N.W.2d 512, 514 (Minn. App. 2004).

The Domestic Abuse Act permits a family member to petition for an OFP in cases

of domestic abuse. Minn. Stat. § 518B.01, subd. 4(a) (2014). The petition must “allege

the existence of domestic abuse” by reference to “specific facts and circumstances.” Id.,

subd. 4(b) (2014). If the alleged victim is a former spouse or a child, “[d]omestic abuse”

includes “physical harm, bodily injury, or assault,” or “the infliction of fear of imminent

physical harm, bodily injury, or assault.” Id., subd. 2(a) (2014). If the petitioner

persuades the district court that an OFP should be granted, the district court has wide

latitude in granting relief. See id., subd. 6(a) (2014).

We affirm because the district court’s finding that respondent and the three

children are in “immediate danger of domestic abuse” is supported by the record. The

district court analyzed 91 pages of respondent’s documents that detailed specific

allegations of appellant’s history of domestic abuse. The district court observed that

appellant has a criminal conviction for assaulting one of his children. And, the district

court considered that appellant is currently charged with assaulting one of his other

children. These allegations, the conviction, and the pending criminal charge provide

sufficient support for the district court’s findings. See Gada, 684 N.W.2d at 514; see also

Boniek v. Boniek, 443 N.W.2d 196, 198 (Minn. App. 1989) (“Past abusive behavior,

although not dispositive, is a factor in determining cause for protection.”).

Appellant’s two arguments against the OFP are not persuasive. First, appellant

contends that respondent made no specific allegations of abuse against her or the child

7 who was not a victim in either of the two domestic abuse charges brought against

appellant. He therefore contends that the district court erred in granting the OFP to

include not only the two children who were the victims in the criminal charges, but also

respondent and his third child. This argument misstates the district court’s findings and

ignores the statute’s definition of domestic abuse. The district court found that all four

family members feared that they were subject to imminent harm based on appellant’s

past and present abusive behavior. This fear was increasingly credible because

respondent testified that appellant’s “anger” had escalated in “the recent months.” And

the family members who were not physically harmed still witnessed the physical harm

appellant inflicted on the other members. That is domestic abuse. See Minn. Stat.

§ 518B.01, subd. 2(a) (defining “[d]omestic abuse” to include “the infliction of fear of

imminent physical harm, bodily injury, or assault”). There is nothing in the Domestic

Abuse Act to support appellant’s implicit argument that he must physically harm every

member of his family before the district court may extend the OFP beyond those

physically harmed in the past. And the caselaw rejects this approach. See Pechovnik v.

Pechovnik, 765 N.W.2d 94, 99 (Minn. App. 2009) (stating that district court may infer a

present intent to commit domestic abuse against one family member based on the totality

of the circumstances, including previous abusive behavior). Appellant offers no

compelling argument why his conduct toward two of his children that was so severe it

resulted in criminal charges could not support the district court’s view that respondent

and the other child feared appellant.

8 Second, appellant misconceives this court’s review on appeal. Appellant

repeatedly attempts to challenge respondent’s allegations of domestic abuse, but he must

challenge the district court’s findings. For example, appellant disputes respondent’s

allegation that he “choked” the child at issue in the pending criminal charge. But he does

not challenge the district court’s finding that he committed domestic abuse because he

physically harmed his child and caused the child bodily injury even though the state’s

criminal complaint did not also use the word “choke.” See Minn. Stat. § 518B.01, subd.

2(a) (defining “[d]omestic abuse” to include “physical harm, bodily injury, or assault”).

He attempts to rebut many of respondent’s allegations, but we do not reverse a district

court’s findings simply because there may be conflicting accounts in the record; it is the

district court’s obligation to reconcile these conflicting accounts and we will not disturb

the district court’s well-reasoned decision here to find that the weight of the evidence

favored granting the OFP. See Gada, 684 N.W.2d at 514. Because appellant does not

argue that there is no support for the district court’s findings, but instead only asks us to

resolve the conflicting evidence differently than the district court, we decline to reverse.

See id.

Respondent provided a detailed account of specific allegations that appellant

committed domestic abuse against her and their three children. Respondent provided the

district court with evidence of appellant’s criminal conviction for domestic abuse and a

pending criminal charge for domestic abuse against two of their children. Appellant does

not directly challenge the district court’s findings but makes arguments that misconceive

9 the nature of domestic abuse. Under this record, we affirm the district court’s decision to

grant an OFP on behalf of respondent and all three children.

Affirmed.