Hall v. Hall, C0-86-2098

• Decision Date: 23 June 1987
• Docket Number: No. C0-86-2098,C0-86-2098
• Citation: 408 N.W.2d 626
• Parties: Patricia A. HALL, Respondent, v. Robert C. HALL, Appellant.
• Court: Minnesota Court of Appeals

Page 626

408 N.W.2d 626

Patricia A. HALL, Respondent, v. Robert C. HALL, Appellant.

No. C0-86-2098.

Court of Appeals of Minnesota.

June 23, 1987.

Review Denied Aug. 19, 1987.

Syllabus by the Court

Evidence supports issuance of an order restraining appellant from abusing his former wife, excluding him from her residence and providing supervision to permit appellant to exercise his visitation rights.

Patricia A. Hall, pro se.

D. Patrick McCullough, McCullough, Dyrud & Smith, St. Paul, for appellant.

Heard, considered and decided by the court en banc, consisting of POPOVICH, C.J., and PARKER, FOLEY, WOZNIAK, SEDGWICK, LANSING, HUSPENI, FORSBERG, LESLIE, NIERENGARTEN, RANDALL, CRIPPEN, STONE, ^* and MULALLY, ^* JJ.

OPINION

LANSING, Judge.

Robert Hall appeals from (1) a referee's recommended order for protection, adopted by a district court judge, and (2) a district court order affirming the family court order. Respondent Patricia Hall did not file a brief and the case proceeded under Minn.R.Civ.App.P. 142.03. We affirm.

FACTS

On October 27, 1981, Patricia Hall petitioned for an order of protection from domestic abuse. In a sworn statement she said that her husband, Robert Hall, held a gun to her head and threatened to kill her; pushed, kicked, shoved and punched her on numerous occasions; and threatened her by asking whether she would rather be "dead or beat up." As a result of the petition, Robert Hall participated in a domestic abuse program and, at Patricia Hall's request, the protective order was removed in June 1982.

In September 1984 Patricia Hall petitioned for dissolution of the couple's six-year marriage. The marriage was dissolved by partial stipulation and entry of a family court order dated November 18, 1986. The final judgment and decree was entered on December 10, 1986. The trial court provided for joint legal custody of the couple's two children, ages four and two, with physical custody in Patricia Hall subject to Robert Hall's liberal visitation rights. As part of the dissolution proceedings, Ramsey County Family Court Services conducted a visitation investigation. Dennis Smith, a Family Court Officer, expressed concern about Robert Hall's continued chemical usage and aggressive acting-out behavior. Smith recommended that Family Court Services continue to supervise visitation and that Robert Hall's visitation be conditioned on abstention from alcohol and drug usage before or during visitation and refraining from aggressive acting-out behavior at times of pick-up and return of the children.

Before entry of the final judgment and decree, Patricia Hall petitioned for a second domestic abuse protection order. In a sworn statement dated October 2, 1986, she listed the following incidents which she stated caused her to fear further acts of domestic abuse:

9/22/86

The Resp [Robert Hall] was arguing with the Pet [Patricia Hall] about a custody issue and threatened "you better stop f---ing with me; if you don't stop f---ing with me you'll end up in a box." The Resp was verbally abusive, swearing and yelling and calling Pat filthy names. The Resp said "I'm going to be the son-of-a-bitch that buries your ass."

9/2/86

Again about the custody issue the Resp told the Pet "If you're going to f-- around you're going to get it."

The Resp tries to scare the Pet about the custody issue by verbally abusing her and threatening to "hunt her down." The Resp is a hunter and has a gun.

On October 2, 1986, the trial court issued an order to show cause and an ex parte temporary order for protection under the Domestic Abuse Act, Minn.Stat. Sec. 518B.01 et seq. (1984). On October 16, 1986, a referee held a hearing on the petition. Neither Robert nor Patricia Hall was represented by an attorney. Robert Hall initially denied having threatened Patricia Hall. However, in response to the court's question, "You weren't verbally abusive to her?", he admitted, "I may have. I did swear at her. I called her an asshole. Thought she was being a real bag." The court, observing his demeanor, stated on the record, "I can see how you could threaten by the sort of way you talk--fast and low." The court ordered Hall to become involved in the Wilder Foundation Domestic Violence Program.

The court also issued an order for protection dated October 16, 1986, signed by the referee and approved by a district court judge. The order prohibited Robert Hall from committing acts of domestic abuse against Patricia Hall and the children, excluded him from appearing at her residence except in exercise of his visitation rights and provided that the visitation should be determined and supervised by the Department of Court Services.

Robert Hall moved for review under Minn.R.Civ.P. 53.05(2). Each of the parties submitted additional written evidence and written argument. The trial court affirmed on November 20, 1986.

ISSUE

Does the evidence support issuance of the protection order?

ANALYSIS

The Domestic Abuse Act provides for the issuance of orders for protection in cases of domestic abuse, which is defined as

physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, between family or household members * * *.

Minn.Stat. Sec. 518B.01, subd. 2(a) (1984).

Robert Hall contends the court improperly issued an order for Patricia Hall's protection because the evidence was insufficient to support the order, he was not permitted an evidentiary hearing and the order conflicts with the judgment and decree in the marital dissolution action.

The court conducted the evidentiary hearing required by the statute on October 16, 1986. Although neither Robert nor Patricia Hall was represented by an attorney, each testified. Patricia Hall's petition and affidavit were also part of the file. Both submitted additional evidence in the Rule 53 review hearing. Robert Hall was not denied an evidentiary hearing.

The specific acts of domestic abuse were outlined in the affidavit and petition. These acts included past physical harm and present threats of harm. Robert Hall maintains that present threats do not constitute domestic abuse because they are not "overt" acts, which he contends are required under Kass v. Kass, 355 N.W.2d 335, 337 (Minn.Ct.App.1984), and Bjergum v. Bjergum, 392 N.W.2d 604, 605-06 (Minn.Ct.App.1986).

Kass and Bjergum hold that evidence of domestic abuse which occurred years earlier does not, in itself, justify issuance of a protective order and that a petitioner is required to show present harm or present infliction of fear of harm. We do not read those cases or the statute to impose a requirement of an overt physical act to support the issuance of a protection order. A verbal threat, depending on the words and the circumstances, can also inflict "fear of imminent physical harm, bodily injury or assault."

The trial court's finding that Robert Hall committed acts of domestic abuse is supported by the record. The threats are sufficiently specific and violent to support Patricia Hall's claim of fear of physical harm. The threats are, of course, even more serious when considered in the context of the past physical abuse, which in two instances required medical treatment.

The statute permits the trial court discretion in issuing the protective order. Specific measures for relief are provided in addition to a general power to provide relief which is deemed necessary for protection of a family or household member. Minn.Stat. Sec. 518B.01, subd. 6 (1984). The statute specifically permits restraining the abusing party from committing acts of domestic abuse, excluding the abusing party from the residence of the petitioner, ordering the abusing party to participate in treatment or counseling services, and restricting or establishing visitation, including the denial or supervision of visitation. Minn.Stat. Sec. 518B.01, subd. 6(a)-(f).

Patricia Hall has not alleged acts of domestic abuse directed at the Halls' children. In imposing supervision of visitation by Court Services, the referee was evidently attempting to provide for continued visitation by Robert Hall without risking additional problems, particularly in the children's presence. The statute provides for this remedy; it is supported on the present record to the extent that it is implemented for the pick-up and return of the children for purposes of visitation.

Finally, we note that the statute specifically permits a petition for relief regardless of whether or not there is a pending lawsuit, complaint, petition or other action between the parties. Minn.Stat. Sec. 518B.01, subd. 4(c) (1984). Although it may be economical to refer domestic abuse petitions to the same judge who is handling the marital dissolution, this is a scheduling decision that must be made in the counties where the cases arise. At oral argument counsel stated that they attempted to have the matter heard before the judge who had heard the dissolution matter, but the request was denied. We cannot penalize the litigants for following the structure imposed by the court.

DECISION

The trial court's issuance of the protection order including supervised visitation for the purpose of picking up and returning the children is affirmed.

Affirmed.

POPOVICH, Chief Judge (dissenting).

I respectfully dissent and would reverse the trial court for the following reasons:

1. When the trial court record fails to establish a present intention to do harm or inflict fear of harm, a protection order must be reversed. Bjergum v. Bjergum, 392 N.W.2d 604, 606 (Minn.Ct.App.1986); see Minn.Stat. Sec. 518B.01, subds. 2(a), 4 (1984).

The record indicates appellant was physically abusive in 1981, before he attended a domestic abuse program. The existence of domestic abuse in the past, alone, however, does not support a protective order. Bjergum, 392 N.W.2d at 606. See also Kass v. Kass, 355 N.W.2d 335 (Minn.Ct.App.1984) (evidence of domestic abuse, the most recent incident of which had...