In the Matter of: Colleen Marie Siverling v. Dominic Andrew Bjerke

• Court: Court of Appeals of Minnesota
• Decided: August 15, 2016
• Docket: A15-1974
• Status: Unpublished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This opinion will be unpublished and may not be cited except as provided by Minn.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 A15-1974

In the Matter of:

Colleen Marie Siverling, petitioner, Respondent,

vs.

Dominic Andrew Bjerke, Appellant.

Filed August 15, 2016 Affirmed Smith, Tracy M., Judge

Olmsted County District Court File No. 55-FA-15-2918

Matthew S. Johnson, Rochester Business Law, LLC, Rochester, Minnesota; and David L. Liebow, Restovich Braun & Associates, Rochester, Minnesota (for respondent)

Christopher R. Braden, J. Scott Braden, P.A., Faribault, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Worke, Judge; and

Smith, John, Judge.

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 UNPUBLISHED OPINION

SMITH, TRACY M., Judge

Appellant Dominic Andrew Bjerke appeals the district court’s issuance of an order

for protection (OFP). Bjerke contends that the issuance of the OFP should be reversed

because the district court did not specifically find that he personally committed an act of

domestic abuse against the parties’ minor child and because the evidence presented at the

hearing is insufficient to sustain the OFP. Because the district court’s findings are

sufficient and the record supports the issuance of an OFP against Bjerke, we affirm.

FACTS

Bjerke and respondent Colleen Marie Siverling (mother) are the parents of a four-

year-old child, C.M.S. Bjerke and mother live separately. C.M.S. was in Bjerke’s custody

from May 1 to May 3, 2015. After receiving C.M.S. back into her custody on May 3,

mother noticed bruising on C.M.S.’s back and buttocks. Bjerke later sent mother an e-mail

stating that the bruising happened when C.M.S. fell down three stairs on the deck and onto

the ground below. The following day, mother applied for an OFP on behalf of C.M.S. and

the district court issued an emergency ex parte OFP. The district court also appointed a

guardian ad litem to investigate potential domestic abuse.

The district court held an evidentiary hearing to determine if an OFP should be

issued. Both parties testified and offered testimony of supporting witnesses, and the district

court received seven photographs into evidence showing the bruising on C.M.S.’s back and

buttocks. Mother offered testimony from herself, her mother (C.M.S.’s maternal

2 grandmother), the court-appointed guardian ad litem, and a physician. Bjerke offered

testimony from his wife, his grandmother, two friends, R.R. and G.O., and himself.

Mother testified that she first discovered the bruising on C.M.S. shortly after she

and Bjerke exchanged C.M.S. Mother stated that she took photos of the bruising and

brought C.M.S. to the emergency room. Mother testified that when she asked C.M.S. how

the bruising happened, C.M.S. responded that Bjerke did it.

C.M.S.’s grandmother testified that she dropped C.M.S. off with Bjerke on May 1.

According to her testimony, C.M.S.’s demeanor that day was “typical” and there were “no

bruises or marks at that time.” C.M.S.’s grandmother testified that her memory of the

events was consistent with mother’s and that she heard C.M.S. tell the guardian ad litem

that Bjerke caused the bruising.

The guardian ad litem testified that she has served in that role for 18 or 19 years and

that her investigation led her to have concerns about Bjerke’s parenting style. The guardian

ad litem testified that C.M.S. may have fallen down the stairs, but she also testified that

“based on all the information” she believed that “more happened to [C.M.S.]” She stated

that she was concerned Bjerke’s parenting style put C.M.S. “at risk of some type of harm”

and that C.M.S. behaved in a way that was consistent with a child who has been disciplined

physically. The guardian ad litem also testified that she has “great concerns” regarding

C.M.S.’s wellbeing with Bjerke and that another of Bjerke’s children told her that C.M.S.

“gets spankings” from Bjerke. On further questioning from the district court, the guardian

ad litem testified that C.M.S. told her that his dad caused the bruising.

3 Mother’s final witness was the physician who examined C.M.S.’s bruising on

May 4. According to the physician’s evaluation, C.M.S.’s injuries were inconsistent with

falling down the stairs. The physician reasoned that the lack of family history of “any type

of bleeding disorder,” the extensive bruising that reflected the tightening of skin to avoid

injury from repeated striking, and the fact that C.M.S. was wearing diapers when he

allegedly fell led him to conclude that the injury was “consistent with an inflicted injury.”

The physician further explained that “[s]omeone caused [the injury] to this child since there

is no other adequate history to explain an accident.” The physician stated that he believed

that “there was a questionable area of a finger outline” on C.M.S.’s buttocks. On cross-

examination, the physician acknowledged that he “had no way of knowing who caused the

injuries.”

R.R., Bjerke’s first witness, testified that he had a cookout with Bjerke on May 1,

and that he did not see Bjerke discipline or hit C.M.S. R.R. further testified that he has

never seen Bjerke hit a child. R.R. also stated that C.M.S. may have fallen down while

helping stack firewood and that C.M.S. and the other children at the cookout had a “pig

pile” during the evening.

Bjerke’s grandmother testified that she spent several hours with Bjerke and C.M.S.

on May 2. She testified that C.M.S. fell several times while playing at the park. She further

testified that she did not see Bjerke hit or injure C.M.S. that day and agreed that she has

never seen him “inappropriately discipline his children.”

Bjerke’s wife testified that she did not see Bjerke physically discipline or hit C.M.S.

at any time during May 1, May 2, or May 3. According to Bjerke’s wife, Bjerke left the

4 house around 7:30 a.m. on May 3 for a service project and was gone until they later met to

exchange C.M.S. with mother. Bjerke’s wife stated that after C.M.S. finished a timeout on

May 3, he ran across the deck to join the other children playing in the yard and tripped and

fell down three stairs on his backside. She testified that she later bathed C.M.S. and noticed

the beginnings of bruising but forgot to tell mother about the bruising when they exchanged

C.M.S. According to Bjerke’s wife, Bjerke e-mailed mother about the fall and bruising as

soon as they got home.

Bjerke’s friend G.O. testified that on the morning of May 3 he and Bjerke drove to

Houston, Minnesota, for a club service project and returned later that evening.

Bjerke testified that he did not physically harm C.M.S. and denied ever intending to

cause fear in C.M.S. Bjerke also testified that he had no reason to suspect his wife of

hitting C.M.S. during the period from May 1 through May 3. Bjerke agreed with G.O.’s

testimony that they spent most of May 3 together in Houston.

Following the hearing, the district court filed an order granting mother’s petition for

an OPF on behalf of C.M.S. against Bjerke. The district court concluded:

[Mother] has demonstrated by a preponderance of the evidence that an OFP should be issued against [Bjerke]. Domestic abuse occurred while C.M.S. was in the custody and care of Bjerke between May 1-3, 2015 which resulted in injury to C.M.S. as indicated by bruising on the waist, lower back, and buttocks.

Bjerke appeals.

DECISION

“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.

5 App. 2009) (quotation omitted). We will reverse the issuance of an OFP only if the district

court abused its discretion. Braend v. Braend, 721 N.W.2d 924, 926-27 (Minn. App. 2006).

Findings of fact

Bjerke contends that the district court could not issue an OFP because it did not

specifically find that he personally committed acts of domestic abuse against C.M.S. 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. See generally Minn. Stat.

§ 518B.01, subds. 2, 4, 6 (2014). 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 the district court “made no written or oral

findings, and filled in the blank space for findings with a statement that it was not making

a determination of guilt or any violation”); Andrasko v. Andrasko, 443 N.W.2d 228, 230

(Minn. App. 1989) (concluding that the district court “erred by failing to make findings

regarding domestic abuse”).

Bjerke argues that it is not enough to find that domestic abuse occurred, but that the

district court must also find that he committed the domestic abuse. He relies on Schmidt

ex rel. P.M.S. v. Coons, where the supreme court reversed an OFP because the district court

had not found that the minor child was a victim of the domestic abuse. 818 N.W.2d 523,

525, 529 (Minn. 2012). We need not address the viability of a Schmidt-based argument,

however, because on this record we conclude that the district court did find, albeit

implicitly, that Bjerke committed domestic abuse of C.M.S.

6 It is true that the district court did not include in its findings of fact that Bjerke

committed certain acts that would support the legal conclusion that he committed domestic

abuse. But the district court concluded:

[Mother] has demonstrated by a preponderance of the evidence that an OFP should be issued against [Bjerke]. Domestic abuse occurred while C.M.S. was in the custody and care of Bjerke between May 1-3, 2015 which resulted in injury to C.M.S. as indicated by bruising on the waist, lower back, and buttocks.

A finding of fact incorrectly labeled as a conclusion of law will be treated as a factual

finding despite its incorrect label. Dailey v. Chermak, 709 N.W.2d 626, 631 (Minn. App.

2006) (citing Graphic Arts Educ. Found., Inc. v. State, 240 Minn. 143, 145-46, 59 N.W.2d

841, 844 (1953)), review denied (Minn. May 16, 2006). From the district court’s

conclusion of law, we are able to discern the mislabeled “finding” that Bjerke committed

the domestic abuse of C.M.S. See id. The two sentences read together convey that Bjerke

was the perpetrator of the domestic abuse, especially in light of other findings in the district

court’s order, including that the guardian ad litem was concerned about Bjerke’s parenting

and observed C.M.S. to be hesitant and minimally affectionate toward Bjerke, consistent

with the behavior of other children who have been abused. In addition, the district court

necessarily rejected Bjerke’s explanation that C.M.S.’s injuries were the result of an

accident.

Although sparse, there are adequate “findings” in the district court’s order to support

its conclusions of law, and we therefore perceive no abuse of discretion. C.f. Mechtel, 528

N.W.2d at 921; Andrasko, 443 N.W.2d at 230. But we strongly caution against the practice

of summarizing the court’s determination without making findings of fact as to the

7 credibility and weight of the evidence when warranted. See Minn. R. Civ. P. 52.01 (stating

that “[i]n all actions tried upon the facts without a jury . . . , the [district] court shall find

the facts specially and state separately its conclusions of law thereon and direct the entry

of the appropriate judgment”). When the evidence presented at an evidentiary hearing

supports the issuance of an OFP, the district court’s order should include particularized

findings of fact regarding the occurrence, victim, and perpetrator of domestic abuse. See

Andrasko, 443 N.W.2d at 230; see also Minn. Stat. § 518B.01, subd. 2(a)(1)-(2) (defining

“domestic abuse”).

Sufficiency of the evidence

Bjerke also contends that the record fails to support the issuance of an OFP. A

district 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 Chosa ex rel. Chosa v.

Tagliente, 693 N.W.2d 487, 490 (Minn. App. 2005) (concluding that the 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, 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, we “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.

A district court is authorized to issue an OFP to “restrain the abusing party from

committing acts of domestic abuse.” Minn. Stat. § 518B.01, subd. 6(a)(1). “Domestic

8 abuse” includes “(1) physical harm, bodily injury, or assault”; or “(2) the infliction of fear

of imminent physical harm, bodily injury, or assault” that is “committed against a family

or household member by a family or household member.” Id., subd. 2(a)(1)-(2). The

existence of domestic abuse must be established by a preponderance of the evidence.

Oberg v. Bradley, 868 N.W.2d 62, 64 (Minn. App. 2015).

Bjerke argues that there is no evidence or testimony that establishes his infliction of

“physical harm” or “bodily injury” upon C.M.S. See Minn. Stat. § 518B.01, subd. 2(a)(1).

We disagree. Mother and C.M.S.’s grandmother testified that C.M.S. was injury-free when

they placed him in Bjerke’s care on May 1 and that mother discovered the bruises on

C.M.S.’s back and buttocks after C.M.S. was returned to her on the evening of May 3. The

physician who examined C.M.S. shortly after mother discovered his injuries testified that,

for several reasons, C.M.S.’s injuries were inconsistent with falling down the stairs but

were consistent with “an inflicted injury.” The physician further explained that “[s]omeone

caused [the injury] to this child since there is no other adequate history to explain an

accident.” The physician stated that based on his examination he believed that “there was

a questionable area of a finger outline.” The guardian ad litem testified that she was

concerned that Bjerke’s parenting style put C.M.S. “at risk of some type of harm” and that

C.M.S. behaved in a way that was consistent with a child who had been disciplined

physically. And the guardian ad litem stated that another of Bjerke’s children told her that

C.M.S. “gets spankings” from Bjerke. Finally, mother, C.M.S.’s grandmother, and the

9 guardian ad litem all testified that C.M.S. reported that Bjerke was responsible for the

bruising.1

The issuance of the OFP against Bjerke indicates that the district court implicitly

credited the testimony of the witnesses proffered by mother, see Pechovnik, 765 N.W.2d

at 99 (noting that the district court’s findings “implicitly indicate[d]” that it found certain

evidence credible), and we defer to the district court’s credibility determinations, see Gada,

684 N.W.2d at 514. The credited testimony supports the inference that Bjerke caused the

bruising on C.M.S. and the district court’s conclusion that an OFP was warranted against

Bjerke. See Minn. Stat. § 518B.01, subds. 2(a)(1), 6(a)(1). Because the OFP does not lack

evidentiary support, the district court did not abuse its discretion. See Gada, 684 N.W.2d

at 514.

Affirmed.

1 Bjerke does not challenge these statements as inadmissible hearsay on appeal.