In the Matter of: Natasha June Marie Courtney v. Barry Ishmael McReynolds

• Court: Court of Appeals of Minnesota
• Decided: January 4, 2016
• Docket: A15-578
• Status: Unpublished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This opinion will be unpublished and may not be cited except as provided by Minn.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 A15-0578

In the Matter of:

Natasha June Marie Courtney, petitioner, Respondent,

vs.

Barry Ishmael McReynolds, Appellant.

Filed January 4, 2016 Affirmed Rodenberg, Judge

Hennepin County District Court File Nos. 27-FA-15-654; 62-FA-10-2783

Michael J. Ortner, Theresa A. Bofferding, Ortner & Bofferding, LLC, St. Paul, Minnesota (for respondent)

Barry I. McReynolds, West St. Paul, Minnesota (pro se appellant)

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

Reilly, Judge.

UNPUBLISHED OPINION

RODENBERG, Judge

Pro se appellant Barry Ishmael McReynolds contends that the district court abused

its discretion by issuing an order for protection against him, and argues that service was

deficient, he was wrongly denied a continuance to prepare for the hearing, various evidentiary rulings were improper, and the evidence was insufficient to support the order.

We affirm.

FACTS

Appellant Barry Ishmael McReynolds and Respondent Natasha June Marie

Courtney were intermittently intimate for over ten years. They lived together from 2008

to 2010. They have one child together, born in January 2010. Respondent alleges that

appellant was violent and abusive to her during the time that they lived together, and that

on one occasion he attempted to strangle her.

Respondent petitioned the district court for an order for protection (OFP) against

appellant in Ramsey County in 2010, but withdrew that petition. She testified that she

did so because of “intimidation[],” “manipulation[],” and “abuse” by appellant.

Respondent again petitioned for an OFP against appellant on February 2, 2015 in

Hennepin County. In her petition, respondent invoked the past abuse from 2008 through

2010, and also alleged recent harassment, intimidation, and stalking-like behavior. She

alleged that, in the summer of 2014, appellant picked her up off the floor by her shirt and

scratched her breast. The petition stated, in part: “I do not feel safe with him anywhere

near me[.] . . . I am afraid of [appellant] and how he is acting and I need this order for

protection to keep him away from me and my home.” That same day, an ex parte order

was granted which was effective for a period of two years or “until modified or vacated at

a hearing.”

Appellant became aware of the petition on February 4, 2015, before he was

formally served with papers relating to the OFP. On that day, he signed a document

2 acknowledging the effect of the ex parte order. He requested a hearing using a document

on which, just above the line where he signed his name, is printed in capital letters: “A

HEARING WILL TAKE PLACE WITHIN 10 DAYS FROM THE DATE THE COURT

RECEIVES THIS REQUEST.” Appellant was formally served with respondent’s

petition on February 11, 2015.

A hearing was held on February 12, 2015. Both parties were present and appeared

pro se. Respondent was accompanied by a non-attorney advocate who did not testify.

The district court heard testimony from respondent, appellant, and respondent’s mother.

At the end of the hearing, the district judge verbally advised the parties that she

was granting the OFP because, based on the testimony at the hearing, she believed that

respondent’s fear of appellant hurting her was reasonable. The district judge stated that it

was “a very close case” but that she was granting the order since the standard of proof in

an OFP case is proof by a preponderance of the evidence, which the district judge

paraphrased as authorizing the OFP “if I find that [it is] even [a] little more likely than

not that domestic abuse occurred” or “if I believe that one side is more credible than the

other side.” The district judge advised the parties that she would include an exception to

the no-contact provision for the parties to participate in court-ordered parenting-time

mediation and for exchange of their child at neutral drop-off points (to be arranged at the

parenting-time mediation). An amended two-year OFP was issued that same day. This

appeal followed.

3 DECISION

I. Service

Appellant argues on appeal that service was deficient, but it is unclear from his

briefing whether he challenges the sufficiency of service of the petition or of the notice of

the hearing. In either case, his argument fails. The Minnesota Supreme Court has held

that defective service cannot later be raised as a defense by a party who has

“affirmatively invoke[d] the court’s power to determine the merits” of a claim. Patterson

v. Wu Family Corp., 608 N.W.2d 863, 869 (Minn. 2000). Provided the opportunity at the

hearing to accept entry of a no-contact order with no findings regarding domestic abuse,

appellant asked to proceed with the hearing on the merits. Additionally, appellant was

served with the ex parte order and the underlying petition,1 and the February 12 hearing

resulted from his request for a hearing. On inquiry by the district court, appellant did not

contest the sufficiency of either service of the petition or notice of the hearing.

II. Denial of continuance

Appellant also argues that he should prevail in this appeal because the district

court abused its discretion in denying his request for a continuance to obtain an attorney

and otherwise prepare for the hearing.

The Domestic Abuse Act provides that an OFP hearing may be continued if “for

good cause shown either party is unable to proceed at the initial hearing” and if the court

1 While appellant was not formally served with respondent’s OFP petition until the day before the hearing, appellant acknowledged at the hearing that he was on notice of respondent’s petition on February 4, 2015—the same date on which he requested the hearing to contest the ex parte order, and over a week in advance of the hearing.

4 finds it appropriate. Minn. Stat. § 518B.01, subd. 5(e) (2014). Within this framework,

the decision to grant or deny a continuance is within the broad discretion of the district

court. Gada v. Dedefo, 684 N.W.2d 512, 513-14 (Minn. App. 2004).

When a petitioner in an OFP action seeks only basic remedies that are available by

an ex parte order, no hearing is required unless requested by the respondent. Minn. Stat.

§ 518B.01, subd. 5(b), (d); Id., subd. 7 (outlining remedies available ex parte without

hearing). Appellant requested a hearing on February 4 and the hearing was scheduled for

February 12. In requesting a hearing, appellant signed a document containing a written

notice that the requested hearing would take place within ten days, which indeed it did.

See id., subd. 5(d) (requiring that a hearing requested by OFP respondent “shall be held

within ten days of the court’s receipt of the . . . request”). Appellant had eight days to

prepare for the hearing he had requested. The district court acted within its broad

discretion in denying appellant’s request for continuance.

III. Evidentiary rulings

Appellant argues that the district court abused its discretion and violated his due-

process rights in its evidentiary rulings. A district court’s evidentiary ruling should not

be disturbed on appeal unless they demonstrate a clear abuse of discretion. State v. Nunn,

561 N.W.2d 902, 906-07 (Minn. 1997). “A district court abuses its discretion . . . when it

improperly applies the law.” Hemmingsen v. Hemmingsen, 767 N.W.2d 711, 716 (Minn.

App. 2009), review granted (Minn. Sept. 29, 2009) and appeal dismissed (Minn. Feb. 1,

2010).

5 The Minnesota Rules of Evidence apply at OFP hearings. See Minn. R. Evid.

1101; see also Oberg v. Bradley, 868 N.W.2d 62, 65 (Minn. App. 2015) (applying

Minnesota Rules of Evidence in OFP appeal). Rule 401 defines relevant evidence as

“evidence having any tendency to make the existence of any fact that is of consequence

to the determination of the action more probable or less probable than it would be without

the evidence.”

The district judge ruled at the outset of the hearing that she would only allow

testimony and evidence relevant to the allegations in respondent’s 2015 petition. The

district judge evenhandedly enforced this ruling by eliciting offers of proof before the

testimony of each witness and during questioning. She confined the evidence to what she

had determined was relevant. The district judge allowed respondent to testify about past

abuse to the extent it was referenced in her petition, but cut her off when she strayed from

what was strictly relevant to the question of her present fear of appellant. Both parties

were denied permission to present witnesses to testify concerning matters deemed

irrelevant by the district court. Appellant was denied permission to put his sixteen-year-

old child on the stand because of the child’s age. The district judge admitted into

evidence two exhibits: a note written by appellant and left on respondent’s car in January

2015 telling her not to come to his home, and a Ramsey County court document relating

to the dismissed 2010 petition for OFP. The district judge declined to consider or review

police reports offered by either party. Contrary to appellant’s brief, the district judge did

not view or admit into evidence an undated photo offered by respondent of her alleged

6 injury resulting from the summer 2014 incident. The district court acted within its

discretion in its evenhanded evidentiary rulings.

IV. Sufficiency of the evidence

A district court’s decision to issue an OFP is discretionary. Chosa ex rel. Chosa v.

Tagliente, 693 N.W.2d 487, 489 (Minn. App. 2005). We will reverse only for an abuse

of discretion. Braend v. Braend, 721 N.W.2d 924, 926-27 (Minn. App. 2006). Appellate

courts “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.

Issuance of an OFP requires a finding, supported by a preponderance of the

evidence, that domestic abuse has occurred. Oberg, 868 N.W.2d at 64. Domestic abuse

includes but is not limited to physical harm, the infliction of fear of imminent physical

harm, and terroristic threats between persons who have a child in common. Minn. Stat.

§ 518B.01, subd. 2(a)(1)-(3), (b)(5) (2014). The preponderance-of-the-evidence standard

“requires that to establish a fact, it must be more probable that the fact exists than that the

contrary exists.” Oberg, 868 N.W.2d at 65 (quotation omitted). The Domestic Abuse

Act is a remedial statute, which is to be construed liberally in favor of an injured party.

Pechovnik v. Pechovnik, 765 N.W.2d 94, 98-99 (Minn. App. 2009).

Here, respondent testified that she feared appellant based on a history of physical

abuse and recent stalking-like behavior, including 282 phone calls from blocked numbers

that she reasonably concluded were from appellant, several text messages and voicemails

in which she recognized appellant’s voice saying “this is going to get ugly,” and

appellant lingering uninvited around her home. Appellant testified otherwise, but the

7 district court found respondent’s testimony more credible than appellant’s. Critically, the

district court accepted as true respondent’s testimony that she had a present fear of

appellant based on domestic abuse. See Pechovnik, 765 N.W.2d at 99-100 (holding that a

history of abuse or threatening behavior may be properly considered in assessing the

existence or likelihood of domestic abuse). And the district court found respondent’s fear

of appellant to be reasonable.

Appellant argues that the district court’s findings were insufficient. But while

particularized findings are required when “time-significant child[-]custody decisions” are

at issue in a domestic-abuse proceeding, Andrasko v. Andrasko, 443 N.W.2d 228, 230

(Minn. App. 1989), no such requirement exists for other OFPs. See Pechovnik, 765

N.W.2d at 99-100 (deferring to credibility determination and accepting that general

finding of domestic abuse was supported by the record). In this appeal, appellant

challenges the finding of domestic abuse, not the district court’s disposition of the

custody and parenting time issues.

Given the evidence of record and the district court’s broad discretion, we affirm

the district court’s issuance of the OFP.

Affirmed.