Wiplinger v. Wiplinger
| Decision Date | 16 May 2022 |
| Docket Number | A21-1465 |
| Parties | In the Matter of: Heidi Kay Wiplinger obo minor children, petitioner, Respondent, v. Nicholas John Wiplinger, Appellant. |
| Court | Court of Appeals of Minnesota |
This opinion is nonprecedential except as provided by Minn. R Civ. App. P. 136.01, subd. 1(c).
Olmsted County District Court File No. 55-FA-21-5580
Heidi Kay Wiplinger, Rochester, Minnesota (pro se respondent)
Lisa K. Stevens, Thomas Braun, Restovich Braun & Associates Rochester, Minnesota (for appellant)
Considered and decided by Worke, Presiding Judge; Reilly, Judge; and Frisch, Judge.
On appeal from the district court's grant of an order for protection (OFP), appellant argues that the district court (1) abused its discretion by admitting hearsay evidence, (2) issued the OFP without making a specific finding of intent to commit domestic abuse, (3) displayed bias against appellant, and (4) imposed impermissible conditions in the OFP. We affirm.
Appellant Nicholas John Wiplinger (father) and respondent Heidi Kay Wiplinger (mother) were previously married and share joint custody of triplets who are approximately seven years old.
On September 19, 2021, the children were staying with father. The next day, one of the children, P.W., indicated to mother that he was sad and that he had been grabbed by the throat the previous night. Mother contacted law enforcement, and on September 22, an investigator with the Rochester Police Department interviewed all three children. On September 27, mother petitioned for an OFP on behalf of the children to prohibit father from committing acts of domestic abuse against them, along with other relief. On September 29, the district court issued an ex parte OFP against father. A hearing was scheduled for October 6.
On October 5, father's counsel filed a notice of representation. Later that day, mother submitted her witness and exhibit lists, indicating her intent to call the investigator to testify about what the children told her and to admit the police reports related to the incident. Father filed a motion to exclude the police reports as containing inadmissible hearsay, including hearsay statements attributable to P.W.
At the hearing the next day, the district court granted father's motion and excluded the police reports. The district court, however, notified the parties that it would allow the video recording of the children's interview with the investigator to be admitted pursuant to Minn. Stat. § 260C.165 (2020). Father objected to the admission of the recording because he did not receive adequate notice of mother's intent to introduce the recording into evidence. After considering father's objection, the district court granted a one-day continuance for the parties to review the recording, and, at the continued hearing the following day, it admitted the recording into evidence over father's objection.
The recording shows that P.W. told the investigator that father "grabbed [his] throat" and picked him up. P.W. described the grip as feeling like "choking" and stated that he could not breathe. The investigator testified, consistent with the recording, that P.W. "showed [her] that his dad grabbed him around his upper throat . . . under his chin and picked him up off his feet." The investigator found P.W. to be reliable and honest, and testified that she did not believe he had been coached.
The investigator also testified that she interviewed father regarding the incident. She testified that father admitted that he "grabbed [P.W.] around his face" and that "he did squeeze [P.W.] and it might have been a little harder than he meant to." The investigator interpreted father's statements as corroborating P.W.'s description of events and concluded that "maybe [father] was minimizing what really happened."
Father also testified regarding the events from that night. He stated that the children were having trouble settling down before bedtime and were acting "wild." This behavior continued after he put the children to bed in the same room, despite multiple warnings from father. After the third warning, father removed P.W. from the room. Father placed P.W. in another room and told him to stay there and to go to sleep. P.W. did not follow father's instructions and continued to leave the room. Father told P.W. that P.W. was making poor choices and needed to listen to father. After the third time P.W. left the room, father testified that he "grab[bed] [P.W.] by the jawline and told P.W. that he needed to listen." Father then picked up P.W. and placed him back in bed. On cross-examination, father admitted that he told law enforcement that he probably grabbed P.W. too tightly, and that he was frustrated with P.W.
After the hearing, the district court found that domestic abuse had occurred because father admitted that he squeezed P.W.'s face too tightly which caused physical harm. The district court also found that P.W. was fearful of bodily harm based on father's admission and P.W.'s interview with the investigator. The district court granted mother's petition for an OFP with respect to P.W., and the district court required father, in relevant part, to cooperate with law enforcement and social services during any investigations related to the incident and to exercise parenting time with P.W. only when supervised by the children's nanny. Father appeals.
Father challenges the district court's decision to admit the video recording of P.W. speaking to the investigator into evidence because mother failed to provide father with sufficient notice of her intent to offer the recording. An evidentiary ruling in an OFP proceeding is within the district court's discretion and should not be disturbed "unless [the ruling] is based on an erroneous view of the law or is an abuse of that discretion." Aljubailah v. James, 903 N.W.2d 638, 644 (Minn.App. 2017). A district court abuses its discretion if it misapplies the law, makes findings that are unsupported by the record, or resolves the discretionary question in a manner that is contrary to logic and the facts on record. Bender v. Bernhard, 971 N.W.2d. 257, 262 (Minn. 2022).
The district court admitted the recording under Minn. Stat. § 260C.165, which provides a statutory hearsay exception for out-of-court statements made by a child under ten years of age if the statements describe an act of physical abuse of the child and "the court finds that the time, content, and circumstances of the statement and the reliability of the person to whom the statement is made provide sufficient indicia of reliability," and the other parties are properly notified. However, this statutory exception does not apply to OFP proceedings;[1] it is only applicable to cases involving a "child in need of protection or services, neglected and in foster care, or domestic child abuse proceeding or any proceeding for termination of parental rights." Minn. Stat. § 260C.165.
On appeal, father only argues that the district court abused its discretion because he did not receive adequate notice of mother's intent to use the recording as required under Minn. Stat. § 260C.165. But because the statute is inapplicable to these proceedings, the district court was not required to find that father received sufficient notice under that statute before admitting the recording into evidence. We therefore do not conclude that the district court abused its discretion by admitting the recording, regardless of the amount of notice provided to father.
Even if mother were required to satisfy a notice requirement of her intent to introduce the recording, the record indicates that father received adequate notice. A party attempting to admit evidence under Minn. Stat. § 260C.165 must notify "other parties of an intent to offer the statement and the particulars of the statement sufficiently in advance of the proceeding at which the proponent intends to offer the statement into evidence, to provide the parties with a fair opportunity to meet the statement." Minn. Stat. § 260C.165(4). We are aware of no caselaw, and the parties cite to none, that explicitly defines what constitutes adequate "notice" under the statute.
Father cites to Andrasko v. Andrasko to support his argument that he was not provided with proper notice. 443 N.W.2d 228 (Minn.App. 1989). In Andrasko, the district court denied a request for a continuance when a party only received one day's notice of the OFP hearing. Id. at 229. We held that the district court abused its discretion by denying the continuance because one day was not enough time to obtain counsel and prepare for the hearing and because the district court's failure to grant a continuance ran afoul of the notice requirements of the Minnesota Domestic Abuse Act. Id. at 230; see Minn. Stat. § 518B.01, subd. 5 (2020). Father also cites to a criminal-law case where we held that seven months' notice was sufficient to satisfy the notice requirement of the residual hearsay exception. State v. Moore, 433 N.W.2d 895, 899 (Minn.App. 1988); see Minn. R. Evid. 807. In that case, we held that the only deficiency in notice related to the "form" of the notice, not the substance, and that the evidence was not improperly admitted. Moore, 433 N.W.2d at 899.
This case is more analogous to Moore than it is to Andrasko. Like the circumstances in Moore the deficiency in notice is one of form and not of substance; father received notice that mother intended to introduce hearsay statements attributable to the children via the police reports, and the same hearsay statements were instead introduced via the video recording. And unlike Andrasko, the district court here granted a...
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