Newton-Denila v. Newton-Denila
| Decision Date | 11 September 2017 |
| Docket Number | A17-0250 |
| Parties | In the Matter of: Marissa Jean Newton-Denila, on behalf of minor children, petitioner, Respondent, v. Ejiro Elqanah Newton-Denila, Appellant. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016).
Affirmed
Stearns County District Court
Cynthia J. Vermeulen, Vermeulen Law Office, P.A., St. Cloud, Minnesota (for respondent)
Russell R. Cherne, Pennington, Cherne & Gaarder, PLLC, St. Cloud, Minnesota (for appellant)
Considered and decided by Reyes, Presiding Judge; Reilly, Judge; and Stauber, Judge.*
UNPUBLISHED OPINION
Appellant Ejiro Elqanah Newton-Denila challenges an order for protection prohibiting his contact with his wife and three children, arguing that the evidence does not support the requisite findings for the issuance of an order for protection. We affirm.
Respondent Marissa Newton-Denila and appellant Ejiro Elqanah Newton-Denila married in November 2009 and have three children in common. In December 2016, respondent and appellant agreed to separate and decided that appellant would move out of the family home.
On December 18, 2016, appellant returned to the family home to watch the children while respondent visited a coworker and a former acquaintance. In the early morning hours on December 19, 2016, appellant sent respondent a text message in which he stated that he was leaving the family home to go to the hospital. When respondent returned home, she discovered that appellant had not left to go to the hospital and had instead waited for her to return. Upon her arrival, appellant started to yell at respondent and asked her repeatedly where she had been and with whom she had been. He grabbed her cellphone and pushed her into a chair in the living room, telling her that she needed to answer the questions before he would let her get up. While he attempted to look through her phone, appellant continued to push and "shoulder" respondent in an effort to "corner[]" her in the living room. Respondent repeatedly told appellant that she did not feel safe, but appellant continued torespond, "I'm not hitting you," while pushing respondent into the chair and telling her that she could leave only after she answered his questions.
Respondent eventually left the house, but appellant followed her; he refused to give her back her cellphone, and begged her not to call the police. When she went back into the house, appellant pushed her against a wall and continued to push her down onto a couch until she collapsed because she was unable to breathe. As she attempted to crawl away from appellant, he yelled to their oldest child, who was sleeping, and woke the child to ask her to "beg" respondent not to call the police, explaining that if respondent called the police he would "get in trouble." The child started crying and begged respondent not to call the police. Because respondent did not want the children to witness the incident, she again asked appellant if she could leave. Appellant responded that he would leave and returned respondent's cellphone to her on the condition that she "promise to the kids that she wouldn't call the police." When he went downstairs to "get [his] things," respondent went into their daughter's bedroom, closed the door, and called 911. The police arrived within several minutes of the phone call and placed appellant under arrest.
Respondent petitioned for an order for protection (OFP) on December 21, 2016, and filed an affidavit in support of her petition. Respondent described the December 19 incident and stated that appellant's "behavior is unpredictable," explaining that she "fear[ed] retaliation because [she] called the police" and "was very afraid and terrified for her life." The district court granted respondent's request for an ex parte OFP and scheduled an evidentiary hearing. The district court also granted a domestic abuse no contact order (DANCO) against appellant the following day.
After the OFP hearing on January 3, 2017, at which the district court found that appellant "shouldered" respondent and "push[ed] her around the living room and into a chair," the district court determined that respondent feared for her own safety, credited the testimony of respondent, found that appellant's testimony was not credible, and concluded that clear and convincing evidence established "domestic abuse occurred with respect to [respondent] and her children." That same day, the district court granted an order for protection, in which the district court found that the following acts of domestic abuse occurred: The order restrained appellant from committing acts of domestic abuse against the protected parties and prohibited appellant from contacting respondent and the children for two years, with the exception of supervised parenting time as provided in the DANCO.
This appeal follows.
Appellant challenges the OFP prohibiting his contact with his wife and three children, arguing that the evidence does not support the district court's findings that (1) the altercation between appellant and respondent occurred in front of at least one of the parties' children, and (2) appellant threatened to kill respondent.
The Minnesota Domestic Abuse Act provides for the issuance of an OFP "only if the petitioner shows the respondent committed domestic abuse against the petitioner or the person on whose behalf the petition is brought." Schmidt ex rel. P.M.S. v. Coons, 818N.W.2d 523, 527 (Minn. 2012) (footnote omitted); see also Minn. Stat. § 518B.01 (2016) (). Domestic abuse, when committed against a family or household member by a family or household member, includes:
Minn. Stat. § 518B.01, subd. 2(a). An OFP petitioner must prove "the existence of domestic abuse" by a preponderance of the evidence. See id., subd. 4(b) (); see also Oberg v. Bradley, 868 N.W.2d 62, 64 (Minn. App. 2015) (). Evidence of past domestic abuse is generally insufficient to establish "the existence of domestic abuse" within the meaning of Minn. Stat. § 518B.01, subd. 4(b); instead, the petitioner must demonstrate either "present harm, or an intention on the part of the responding party to do present harm." Rew ex rel. T.C.B. v. Bergstrom, 812 N.W.2d 832, 844 (Minn. App. 2011), aff'd in part, rev'd in part on other grounds sub nom. Rew v. Bergstrom, 845 N.W.2d 764 (Minn. 2014); see also Bjergum v. Bjergum, 392 N.W.2d 604, 605-06 (Minn. App. 1986) ().
The decision to grant an OFP is within the discretion of the district court, Pechovnik v. Pechovnik, 765 N.W.2d 94, 98 (Minn. App. 2009), and we generally will not reverse a grant of an OFP absent an abuse of that discretion, Braend ex rel. Minor Children v. Braend, 721 N.W.2d 924, 927 (Minn. App. 2006). "A district court abuses its discretion if its findings are unsupported by the record or if it misapplies the law." Pechovnik, 765 N.W.2d at 98 (quotation omitted). When determining whether a district court abused its discretion, this court reviews the record "in the light most favorable to the district court's findings," and will reverse those findings only when this court is "left with the definite and firm conviction that a mistake has been made." Id. at 99 (quotations and citations omitted).
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