Aljubailah ex rel. A. M. J. v. James

• Decision Date: 23 October 2017
• Docket Number: A17-0153
• Citation: 903 N.W.2d 638
• Parties: In re the Matter of: Shadiyah K. ALJUBAILAH for herself and ON BEHALF OF A. M. J., petitioner, Respondent, v. Aaron JAMES, Appellant.
• Court: Minnesota Court of Appeals

903 N.W.2d 638

In re the Matter of: Shadiyah K. ALJUBAILAH for herself and ON BEHALF OF A. M. J., petitioner, Respondent,

v.Aaron JAMES, Appellant.

A17-0153

Court of Appeals of Minnesota.

Filed October 23, 2017

Shadiyah K. Aljubailah (pro se respondent).

Jennifer M. Moore, Moore Family Law, PA, Plymouth, Minnesota (for appellant).

Considered and decided by Reyes, Presiding Judge; Schellhas, Judge; and Stauber, Judge.^*

STAUBER, Judge

Appellant-father challenges the district court's order for protection (OFP) issued against him for the benefit of respondent-mother and the parties' child, and the order for temporary sole legal and physical custody granted in conjunction with that proceeding. Because the district court did not abuse its discretion by issuing the OFP as to both mother and child, did not improperly prevent father's attorney from questioning mother, and did not err by ordering temporary legal and physical custody without making custody findings under Minnesota Statutes section 518.17, we affirm.

FACTS

Shadiyah Aljubailah and Aaron James are the parents of a child, A.J., who was born in 2009. The parties have had a lengthy involvement with the district court and family court services regarding custody and parenting-time issues. Since 2011 family and court service personnel have expressed serious concerns about mother's chemical-health issues. In March 2013, after an evidentiary hearing, the district court granted sole legal and physical custody to father, subject to mother's reasonable parenting time, which was conditioned on her abstinence from alcohol and mood-altering drugs and submitting to hair-follicle testing. Following a 2014 hearing, the district court ordered mother to submit to another hair-follicle test, to complete a rule 25 assessment, and to have supervised parenting time in a public setting.

On October 24, 2016, mother filed a pro se petition for an emergency OFP, alleging that A.J. had (1) shown her bruises on his leg, which he stated were inflicted by his father, and (2) when mother confronted father about the child's report of abuse, he shoved her with such force that she fell backwards into a table and she feared for her and A.J.'s safety. The district court granted an ex parte emergency OFP as to both mother and A.J.

At an evidentiary hearing on the petition, mother testified that A.J. had indicated that father "[w]hooped" him with a belt when A.J. unintentionally woke father from a nap on October 16, 2016. She testified that when she went to drop A.J. off at father's home, she asked him why he had hit the child, and father told her to "get the f--k out of the house" and that she would "never see [her] son again," and he "became enraged" and shoved her. She introduced evidence in the form of photographs of A.J.'s bruises, which she stated were taken on October 14, 2016, and also photographs of her own bruises taken a week after the incident.

Mother also testified that in 2015, father told her that in order to have overnight visits with A.J., she had to have sex with father, which she did, and he apparently made a video which he threatened to release if she did not continue a sexual relationship with him. She testified that she was fearful for herself and A.J., that father had previous domestic-abuse convictions, and that she had concerns about father's chemical use.

Father testified that the photographs of A.J. submitted by mother were not taken in October, 2016, but in June, because there was green grass in the background. Father testified that A.J.'s bruises were caused when he spanked him and A.J. "jumped and got hit with" the belt. He testified that he had spanked A.J. with a belt because A.J. had lied, but that he did not hit A.J. hard and that A.J. bruises very easily. He testified that he had only spanked A.J. "three to four [times] maybe his whole life."

Father further testified that during the October 2016 incident, mother had arrived late to return A.J., and he told her that until they went back to court, it could be the last time she would see her son. According to him, she told him that she would tell people that he had beaten A.J. He testified that he never touched her and she did not lose her balance or fall. He denied the existence of a video tape or that the parties had a sexual liaison. He acknowledged that another woman obtained an OFP against him in 2006.

The child's guardian ad litem testified that he interviewed A.J., and A.J. corroborated mother's account that father hit him with a belt when he accidentally woke father. According to the guardian ad litem, A.J. indicated that although father had spanked him only four times, the spankings were very hard.

The district court found that, with respect to allegations of domestic abuse, mother's affidavit and testimony were credible and father's testimony was less credible. The district court found that mother had sufficiently established that father committed domestic abuse against herself and A.J. See Minn. Stat. § 518B.01. The district court granted an OFP for the benefit of both mother and A.J. and ruled that their safety required that mother be granted temporary sole legal and temporary sole physical custody of A.J. See id. This appeal follows.

ISSUES

I. Was the record sufficient to sustain the issuance of an OFP for the benefit of both A.J. and mother?

II. Did the district court improperly preclude father's counsel from questioning mother about the prior custody proceeding?

III. Did the district court err by failing to make best-interests findings in granting temporary custody and parenting time?

ANALYSIS

Father argues that the district court abused its discretion by granting an OFP in favor of mother and A.J. He also argues that the district court improperly prevented his counsel from inquiring further into the circumstances of the parties' prior custody proceeding. And he maintains that the district court erred by awarding temporary legal and temporary physical custody to mother without making best-interests findings under Minn. Stat. § 518.17, subd. 1.

I.

The Minnesota Domestic Abuse Act provides that an order for protection may be issued if domestic abuse has occurred. Minn. Stat. § 518B.01, subd. 4. "[D]omestic abuse," means, in relevant part, "physical harm, bodily injury, or assault" or "the infliction of fear of imminent physical harm, bodily injury, or assault" if committed against a family or household member. Id., subd. 2(a). We review the district court's decision to grant an OFP for an abuse of discretion. Pechovnik v. Pechovnik, 765 N.W.2d 94, 98 (Minn. App. 2009). The district court abuses its discretion if it misapplies the law or makes factual findings that are unsupported by the record. Id. An appellate court will "neither reconcile conflicting evidence nor decide issues of witness credibility." Gada v. Dedefo, 684 N.W.2d 512, 514 (Minn. App. 2004).

"The definition of ‘domestic abuse’ under the Act requires either a showing of present harm or an intention on the part of [the actor] to do present harm." Andrasko v.Andrasko, 443 N.W.2d 228, 230 (Minn. App. 1989) ; see Chosa ex rel. Chosa v. Tagliente, 693 N.W.2d 487, 489 (Minn. App. 2005) (concluding that the district court erred by finding that domestic abuse occurred when the petitioner produced evidence of neither "physical harm nor alleged any intent to do present harm" (quotation omitted)). The petitioner must show the existence of the requirements for granting an OFP by a preponderance of the evidence. Oberg v. Bradley, 868 N.W.2d 62, 64 (Minn. App. 2015).

Father alleges that the record does not support the district court's grant of an OFP as to either mother or A.J. He argues that he did not intend to harm A.J. and that A.J. did not sustain physical harm. In its order, the district court did not address the issue of whether intent to harm is required for the issuance of an OFP based on physical harm. "A reviewing court must generally consider only those issues that the record shows were presented and considered by the [district] court in deciding the matter before it." Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quotation omitted)). Therefore, we decline to address that issue on appeal.

Father also alleges that A.J. did not sustain physical harm. But he admitted that he struck A.J. with a belt, and mother produced photographic evidence of bruising on the child's legs. Although father testified that these photographs were taken in June, the district court was entitled to credit mother's version of events that they were taken shortly after the October incident. See Gada, 684 N.W.2d at 514.

Father also maintains that he physically disciplined A.J. only three or four times and no previous disciplinary incidents resulted in injury. His arguments about prior incidents, however, are not determinative of whether an OFP was warranted based on this incident. Further, the testimony of A.J.'s guardian ad litem supported the issuance of the OFP. See Oberg, 868 N.W.2d at 66 (upholding an OFP based in part on testimony of a guardian ad litem). Therefore, we conclude that the evidence sufficiently supports the district court's issuance of the OFP as to the child.

Father also argues that the record does not establish by a preponderance of the evidence that he committed domestic abuse against mother. We agree with father that the allegations regarding his 2015 behavior are insufficient to establish domestic abuse committed against mother. Any threats of a general nature made by father to mother, which did not result in either physical harm or fear of imminent harm, do not rise to the level necessary to support an OFP. See Minn. Stat. § 581B.01, subd. 2(a) (defining domestic abuse). But the district court also granted the OFP on the basis of mother's allegation that father shoved her in the October 2016 incident, causing her to fall against a table and sustain injuries. Mother produced a photograph of bruises on her arm from that incident. Father does not deny that the...