This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA IN COURT OF APPEALS A23-0698
In the Matter of Ariana Williams and OBO Minor Child, Appellant,
vs.
Santo Che Zarate, Respondent.
Filed February 12, 2024 Affirmed Ross, Judge
Ramsey County District Court File No. 62-DA-FA-23-193
Susan A. Yager, Ames, Iowa (for appellant)
Michael G. Hamilton, Tanner & Hamilton, P.A., Hastings, Minnesota (for respondent)
Considered and decided by Bratvold, Presiding Judge; Ross, Judge; and Schmidt,
Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
Parents Ariana Williams and Santo Zarate have been engaged in a lengthy custody
and parenting-time dispute, during which Williams recently unsuccessfully petitioned the
district court to issue an order for protection against Zarate. Williams appeals, arguing that
the district court abused its discretion by denying her petition by erroneously imposing a
de facto statute of limitations on her abuse allegations. We affirm, observing that the district court did not impose the alleged time limit and holding that it acted within its
discretion by denying Williams’s petition for an order for protection.
FACTS
Appellant Ariana Williams and respondent Santo Zarate are the parents of a ten-
year-old daughter over whom they exercise joint legal and physical custody. For the past
ten years, the parties have frequently litigated custody and parenting time. Williams has
twice unsuccessfully petitioned for an order for protection against Zarate, and they are
currently engaged in parenting-time litigation before the same district court judge who
decided the petition at issue in this appeal.
Williams petitioned the district court ex parte in February 2023 for an order for
protection that prohibited Zarate from having any contact with her or the child. The petition
alleged that Zarate “abused their daughter” and that Williams had previously “reported
bruises on [the child’s] arm and buttocks.” The petition did not reveal to whom the alleged
abuse was reported or what resulted from the report. It alleged that Williams feared Zarate
and characterized him as a “bully” with an “unpredictable temper.”
Williams testified at the consequent hearing. Responding to her attorney’s
suggestive leading question, “[H]as the respondent ever hit you, strangled you, thrown a
plate at you?” Williams answered only, “There was one incident where he did assault me
with a can of pop during an exchange.” Williams did not testify that the can itself struck
her or the child, and she mentioned no other act of alleged violence. Responding to her
attorney’s prompting to describe the pop-can incident, Williams recounted that it happened
after “a verbal altercation” between them during a parenting-time exchange of their
2 daughter “when she was a lot younger,” and Williams detailed only, “He threw the can at
me, and it got all over me, all over my daughter.”
Williams also testified that Zarate showed up at her house with police during a
parenting-time dispute. Zarate remained in the car while police went to the door to retrieve
their daughter. Williams testified that this incident caused her fear because her address was
confidential in court records. Williams clarified that her alleged fear of Zarate did not result
from any physical assault and did not lead her to fear him physically, saying, “I never said
that my fear . . . was a physical fear. It’s my fear of mental, emotional, and could be
physical, but there’s been no evidence of that.”
Zarate moved to dismiss Williams’s petition for an order for protection at the end
of testimony. The district court granted the motion, finding that Williams presented no
evidence constituting domestic abuse. It said that relying on the pop-can incident as a basis
for issuing an order for protection might be precluded by collateral estoppel, surmising that
Williams previously litigated the incident in her failed 2017 petition. The district court
issued a written order, expressly finding that Williams failed to prove the allegations in her
petition.
Williams appeals.
DECISION
Williams argues that the district court erroneously imposed a de facto statute of
limitations and abused its discretion by denying her petition for an order for protection. We
review a district court’s decision to deny an order for protection for an abuse of discretion.
McIntosh v. McIntosh, 740 N.W.2d 1, 9 (Minn. App. 2007). Because Williams’s statute-
3 of-limitations argument misstates the district court’s findings and because the record
supports the district court’s conclusion that Williams offered no evidence of domestic
abuse, we hold that the district court did not abuse its discretion by denying Williams’s
Williams sought an order protecting her and the parties’ daughter from Zarate based
on Zarate’s alleged domestic abuse. The Minnesota Domestic Abuse Act authorizes a
district court to issue an order for protection to protect domestic-abuse victims. Minn. Stat.
§ 518B.01 (2022). A district court may issue an order for protection when a petitioner
proves by a preponderance of the evidence that the other party committed “domestic
abuse.” Id., subds. 2(a), 4(b), 6; Oberg ex rel. Minor Child v. Bradley, 868 N.W.2d 62, 64
(Minn. App. 2015). The act defines “domestic abuse,” in relevant part, as “(1) physical
harm, bodily injury, or assault; [or] (2) the infliction of fear of imminent physical harm,
bodily injury, or assault . . . .” Minn. Stat. § 518B.01, subd. 2(a)(1), (2). We consider the
district court’s decision denying Williams’s petition in this framework.
The district court found that Williams failed to prove any act of domestic abuse. We
view the record in the light most favorable to the district court’s findings and will reverse
only if we are “left with the definite and firm conviction that a mistake has been made.”
Braend ex rel. Minor Child. v. Braend, 721 N.W.2d 924, 927 (Minn. App. 2006) (quotation
omitted). Williams contends that the district court failed to consider her evidence of
domestic abuse because it erroneously imposed a de facto statute of limitations to disregard
the pop-can incident and that, relatedly, it erroneously applied the doctrine of collateral
estoppel to the incident. Our review of the record informs us that Williams wrongly
4 characterizes the district court’s rationale as imposing a temporal limit on her claim about
the pop-can incident. And our view of the law informs us that the incident could not support
her petition regardless of its timing.
Williams is correct that no statute of limitations applies to preclude older incidents
of domestic abuse from being considered when deciding whether to issue an order for
protection. The supreme court has held that a petitioner for an order for protection “need
only show that ‘physical harm, bodily injury, or assault’ has actually occurred, regardless
of when it occurred.” Thompson ex rel. Minor Child v. Schrimsher, 906 N.W.2d 495, 500
(Minn. 2018) (quoting Minn. Stat. § 518B.01, subd.
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This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA IN COURT OF APPEALS A23-0698
In the Matter of Ariana Williams and OBO Minor Child, Appellant,
vs.
Santo Che Zarate, Respondent.
Filed February 12, 2024 Affirmed Ross, Judge
Ramsey County District Court File No. 62-DA-FA-23-193
Susan A. Yager, Ames, Iowa (for appellant)
Michael G. Hamilton, Tanner & Hamilton, P.A., Hastings, Minnesota (for respondent)
Considered and decided by Bratvold, Presiding Judge; Ross, Judge; and Schmidt,
Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
Parents Ariana Williams and Santo Zarate have been engaged in a lengthy custody
and parenting-time dispute, during which Williams recently unsuccessfully petitioned the
district court to issue an order for protection against Zarate. Williams appeals, arguing that
the district court abused its discretion by denying her petition by erroneously imposing a
de facto statute of limitations on her abuse allegations. We affirm, observing that the district court did not impose the alleged time limit and holding that it acted within its
discretion by denying Williams’s petition for an order for protection.
FACTS
Appellant Ariana Williams and respondent Santo Zarate are the parents of a ten-
year-old daughter over whom they exercise joint legal and physical custody. For the past
ten years, the parties have frequently litigated custody and parenting time. Williams has
twice unsuccessfully petitioned for an order for protection against Zarate, and they are
currently engaged in parenting-time litigation before the same district court judge who
decided the petition at issue in this appeal.
Williams petitioned the district court ex parte in February 2023 for an order for
protection that prohibited Zarate from having any contact with her or the child. The petition
alleged that Zarate “abused their daughter” and that Williams had previously “reported
bruises on [the child’s] arm and buttocks.” The petition did not reveal to whom the alleged
abuse was reported or what resulted from the report. It alleged that Williams feared Zarate
and characterized him as a “bully” with an “unpredictable temper.”
Williams testified at the consequent hearing. Responding to her attorney’s
suggestive leading question, “[H]as the respondent ever hit you, strangled you, thrown a
plate at you?” Williams answered only, “There was one incident where he did assault me
with a can of pop during an exchange.” Williams did not testify that the can itself struck
her or the child, and she mentioned no other act of alleged violence. Responding to her
attorney’s prompting to describe the pop-can incident, Williams recounted that it happened
after “a verbal altercation” between them during a parenting-time exchange of their
2 daughter “when she was a lot younger,” and Williams detailed only, “He threw the can at
me, and it got all over me, all over my daughter.”
Williams also testified that Zarate showed up at her house with police during a
parenting-time dispute. Zarate remained in the car while police went to the door to retrieve
their daughter. Williams testified that this incident caused her fear because her address was
confidential in court records. Williams clarified that her alleged fear of Zarate did not result
from any physical assault and did not lead her to fear him physically, saying, “I never said
that my fear . . . was a physical fear. It’s my fear of mental, emotional, and could be
physical, but there’s been no evidence of that.”
Zarate moved to dismiss Williams’s petition for an order for protection at the end
of testimony. The district court granted the motion, finding that Williams presented no
evidence constituting domestic abuse. It said that relying on the pop-can incident as a basis
for issuing an order for protection might be precluded by collateral estoppel, surmising that
Williams previously litigated the incident in her failed 2017 petition. The district court
issued a written order, expressly finding that Williams failed to prove the allegations in her
petition.
Williams appeals.
DECISION
Williams argues that the district court erroneously imposed a de facto statute of
limitations and abused its discretion by denying her petition for an order for protection. We
review a district court’s decision to deny an order for protection for an abuse of discretion.
McIntosh v. McIntosh, 740 N.W.2d 1, 9 (Minn. App. 2007). Because Williams’s statute-
3 of-limitations argument misstates the district court’s findings and because the record
supports the district court’s conclusion that Williams offered no evidence of domestic
abuse, we hold that the district court did not abuse its discretion by denying Williams’s
Williams sought an order protecting her and the parties’ daughter from Zarate based
on Zarate’s alleged domestic abuse. The Minnesota Domestic Abuse Act authorizes a
district court to issue an order for protection to protect domestic-abuse victims. Minn. Stat.
§ 518B.01 (2022). A district court may issue an order for protection when a petitioner
proves by a preponderance of the evidence that the other party committed “domestic
abuse.” Id., subds. 2(a), 4(b), 6; Oberg ex rel. Minor Child v. Bradley, 868 N.W.2d 62, 64
(Minn. App. 2015). The act defines “domestic abuse,” in relevant part, as “(1) physical
harm, bodily injury, or assault; [or] (2) the infliction of fear of imminent physical harm,
bodily injury, or assault . . . .” Minn. Stat. § 518B.01, subd. 2(a)(1), (2). We consider the
district court’s decision denying Williams’s petition in this framework.
The district court found that Williams failed to prove any act of domestic abuse. We
view the record in the light most favorable to the district court’s findings and will reverse
only if we are “left with the definite and firm conviction that a mistake has been made.”
Braend ex rel. Minor Child. v. Braend, 721 N.W.2d 924, 927 (Minn. App. 2006) (quotation
omitted). Williams contends that the district court failed to consider her evidence of
domestic abuse because it erroneously imposed a de facto statute of limitations to disregard
the pop-can incident and that, relatedly, it erroneously applied the doctrine of collateral
estoppel to the incident. Our review of the record informs us that Williams wrongly
4 characterizes the district court’s rationale as imposing a temporal limit on her claim about
the pop-can incident. And our view of the law informs us that the incident could not support
her petition regardless of its timing.
Williams is correct that no statute of limitations applies to preclude older incidents
of domestic abuse from being considered when deciding whether to issue an order for
protection. The supreme court has held that a petitioner for an order for protection “need
only show that ‘physical harm, bodily injury, or assault’ has actually occurred, regardless
of when it occurred.” Thompson ex rel. Minor Child v. Schrimsher, 906 N.W.2d 495, 500
(Minn. 2018) (quoting Minn. Stat. § 518B.01, subd. 2(a)(1)). But Williams’s statute-of-
limitations argument misstates the district court’s findings and order. The district court did
not impose a temporal requirement to the pop-can incident. It instead found that, “at best,”
collateral estoppel precluded relitigating the incident because it occurred before Williams’s
2017 failed petition for an order for protection.
We need not address Williams’s collateral-estoppel argument because, even
assuming the pop-can incident was properly before the district court, the district court did
not abuse its discretion by concluding that Williams failed to allege any instance
constituting domestic abuse. Williams’s brief to this court makes or references many
physical-abuse allegations that lack evidentiary support in the record. We do not consider
arguments that rest on allegations of fact not included in the record. Minn. R. Civ. App. P.
110.01; Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988). Neither of the two incidents
in the record here undermine the district court’s decision. Williams’s testimony about the
pop-can incident could, and apparently did, leave the district court with the understanding
5 that Zarate never struck Williams or the child with the can, despite her attorney’s repeated
characterization of the incident on appeal as “[t]he pop can assault.” Williams testified that
Zarate threw the can at her and that it resulted only in her and the child becoming wet.
Williams additionally acknowledged, “I never said that my fear . . . was a physical fear,”
and she admitted that, although her fear “could be physical, . . . there’s been no evidence
of that.” The only other incident—Zarate accompanying police and showing up at her
allegedly confidential address to retrieve the child for his parenting time—cannot
reasonably be construed as an act of domestic abuse either as an incident of physical harm
or an act causing fear of physical harm. Viewing the record in the light most favorable to
the district court’s findings, the district court acted within its discretion by ruling that
Williams failed to establish an incident of domestic abuse.
We add that, even if the two incidents constituted domestic abuse, it was still within
the district court’s discretion to deny Williams’s requested order for protection. The
domestic abuse act affords that discretion, stating that, “[u]pon notice and hearing, the court
may provide [the listed] relief.” Minn. Stat. § 518B.01, subd. 6 (emphasis added). The
supreme court has explained further:
[O]nce “domestic abuse” has been established, the district court may examine all of the relevant circumstances proven to determine whether to grant or deny the petition for an OFP. Relevant circumstances may include, but are not limited to, the timing, frequency, and severity of any alleged instances of “domestic abuse,” along with the likelihood of further abuse.
Thompson, 906 N.W.2d at 500. We are mindful too that the district court judge who
carefully considered and rejected Williams’s petition presides over the parties’ ongoing
6 custody litigation and is familiar with the overlapping issues, concerns, and allegations,
particularly those that might involve any need to protect the parties and their child.
We hold that the district court acted within its discretion by denying Williams’s
petition for an order for protection.
Affirmed.