                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2016).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A16-0378

                      In the Matter of: Tracy Elizabeth Thompson
                            and o/b/o Minor Child, petitioner,
                                      Respondent,

                                           vs.

                                John Patrick Schrimsher,
                                       Appellant.

                                 Filed January 9, 2017
                                       Reversed
                                     Hooten, Judge

                             Ramsey County District Court
                             File No. 62-DA-FA-15-1155

Bradford Colbert, St. Paul, Minnesota (for respondent)

Cathryn C. Schmidt, Amy E. Edwall, Collins, Buckley, Sauntry & Haugh, P.L.L.P.,
St. Paul, Minnesota (for appellant)

       Considered and decided by Johnson, Presiding Judge; Hooten, Judge; and Smith,

T., Judge.

                        UNPUBLISHED OPINION

HOOTEN, Judge

       In this appeal from an order for protection (OFP), appellant-father argues that the

district court abused its discretion in issuing the OFP in favor of respondent-mother and

their minor child. Because there is no evidentiary support in the record of continuing
physical abuse or a present intent to inflict imminent physical abuse by appellant against

respondent mother, and no evidentiary support of domestic abuse by appellant against their

minor child, we reverse.

                                          FACTS

       Appellant John Schrimsher and respondent Tracy Thompson met in Minnesota in

2009 and are the parents of a minor child, who was born on in 2012. According to

respondent, appellant was verbally and physically abusive throughout their relationship.

In April 2012, while respondent was living with appellant in Georgia, they became

involved in a physical altercation in which he dragged her to their bedroom, attempted to

handcuff her, and then finally forced her to sit silently on the back porch with him for two

hours. After this incident, respondent took their minor child and moved back to Minnesota.

       In July 2012, respondent filed for an OFP against appellant in Hennepin County,

but it was dismissed with prejudice because she did not attend the hearing. Appellant, who

continued to reside in Georgia, filed a petition in Georgia to establish parentage and to get

custody rights to the minor child. The parties went through a long and contentious battle

for custody of the minor child in Georgia, which culminated in the court awarding the

parties’ joint legal custody and primary physical custody of the minor child to respondent.

Appellant, who eventually moved to California, was allowed to visit with the minor child

twice each week via Skype.

       On September 28, 2015, respondent filed the petition for the OFP at issue here.

Appellant denied that he had ever physically abused respondent or threatened to physically

abuse her, and alleged that she had mental health issues. Respondent did not claim that


                                             2
appellant physically abused her or threatened physical abuse after she moved back to

Minnesota in 2012. However, respondent testified that she and her family were terrified

of appellant and that she believed that he was still trying to exert control over her, noting

that recently he prompted the police to perform an unnecessary welfare check on her.

Respondent’s father also testified that appellant was very controlling and claimed that

respondent was being threatened on the internet by a woman whom he believed was

associated with appellant. There was no description in the record as to the nature of these

internet threats from this unidentified woman.

       At the conclusion of the evidentiary hearing, the district court granted a two-year

OFP in favor of respondent and the minor child. The district court found that respondent

had an unhealthy fear of appellant and that, over the years, appellant has controlled or

attempted to control and disrupt respondent’s life. With respect to the minor child, the

district court found that any violence towards the child happened early on in the child’s

life, mostly by being subjected to the violence against his mother. Father appeals.

                                     DECISION

 I.    Standard of review

       Appellant argues that the district court abused its discretion in issuing an order for

protection in favor of respondent and their minor child. “The decision to grant an OFP

under the Minnesota Domestic Abuse Act . . . is within the district court’s discretion.”

Pechovnik v. Pechovnik, 765 N.W.2d 94, 98 (Minn. App. 2009) (quotation omitted). We

will reverse the issuance of an OFP only if the district court abused its discretion. Braend

ex rel. Minor Children v. Braend, 721 N.W.2d 924, 926–27 (Minn. App. 2006). A district


                                             3
court abuses its discretion when it issues an OFP that lacks evidentiary support. Gada v.

Dedefo, 684 N.W.2d 512, 514 (Minn. App. 2004); see also Chosa ex rel. Chosa v.

Tagliente, 693 N.W.2d 487, 490 (Minn. App. 2005) (concluding that district court erred

when there was no evidence to support its conclusion that domestic abuse occurred). An

OFP lacks evidentiary support when the findings are clearly erroneous, are contrary to the

weight of the evidence, or not supported by the evidence as a whole. Gada, 684 N.W.2d

at 514. We review the record in the light most favorable to the district court’s findings.

Pechovnik, 765 N.W.2d at 99. On appeal from the issuance of an OFP, “[w]e 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.

II.    The district court abused its discretion in issuing an OFP in favor of respondent
       and the minor child.

       Appellant argues that respondent’s domestic abuse allegations are too remote to

warrant the issuance of an OFP. A district court may issue an OFP if domestic abuse has

been inflicted upon a family or household member by a family or household member.

Minn. Stat. § 518B.01, subds. 2, 4, 6 (2014). Domestic abuse is defined as “(1) physical

harm, bodily injury, or assault; (2) the infliction of fear of imminent physical harm, bodily

injury, or assault; or (3) terroristic threats.” Minn. Stat. § 518B.01, subd. 2(a). Absent a

stipulation allowing the district court to grant an OFP without a finding that domestic abuse

occurred, a district court must make a finding of domestic abuse before issuing an OFP.

See Mechtel v. Mechtel, 528 N.W.2d 916, 921 (Minn. App. 1995) (concluding that findings

were insufficient when district court “made no written or oral findings, and filled in the



                                             4
blank space for findings with a statement that it was not making a determination of guilt or

any violation”). The statutory definition of domestic abuse “require[s] either a showing of

present harm, or an intention on the part of [the abusing party] to do present harm.” Kass

v. Kass, 355 N.W.2d 335, 337 (Minn. App. 1984). It is an abuse of discretion to issue an

OFP on behalf of a minor household member unless that child is a victim of abuse within

the meaning of the Domestic Abuse Act. Schmidt ex rel. P.M.S. v. Coons, 818 N.W.2d

523, 528–29 (Minn. 2012).

       Respondent has not alleged that appellant is presently committing physical abuse

against her. But, because respondent has only alleged past physical abuse, the most recent

incident occurring in April 2012, we must look to the second prong of the domestic abuse

definition to determine whether the evidence supports a conclusion that appellant possesses

a present intention to inflict fear of imminent physical harm.

       It is well-settled that a finding of past domestic abuse alone is insufficient to support

the issuance of an OFP without a showing of a present intent to cause or inflict fear of

imminent physical harm. Bjergum v. Bjergum, 392 N.W.2d 604, 606 (Minn. App. 1986).

Furthermore, we have repeatedly held that, in the absence of ongoing physical abuse, the

petitioner must show that the abusing party has a present intent to inflict harm or to inflict

fear of imminent harm. See id.; Boniek v. Boniek, 443 N.W.2d 196, 198 (Minn. App. 1989).

       Here, the district court’s finding of domestic abuse was mostly, if not entirely, based

on past domestic abuse that occurred more than three years earlier.               In crediting

respondent’s testimony that there was a past history of domestic abuse, the district court

concluded that appellant’s continued course of controlling behavior had disrupted


                                               5
respondent’s personal life, entitling her to an OFP. However, appellant has not lived in

Minnesota since at least 2011 and was living in California at the time of the evidentiary

hearing. Even though past domestic abuse should be a factor that the district court

considers in the issuance of an OFP, taking all of respondent’s testimony as true, we

conclude that there is insufficient evidence for a finding that appellant has a present intent

to do harm or inflict fear of harm upon respondent.

       Respondent argues that appellant’s controlling behavior, in the context of his past

abusive behavior, is sufficient to find a present intention to inflict bodily harm upon

respondent. In support of her argument, respondent cites Pechovnik and Boniek. In

Pechovnik, this court upheld the district court’s issuance of an OFP on behalf of a wife

against her husband. 765 N.W.2d at 100. We concluded that the wife, whose husband

woke [her] up in the middle of the night by “slapp[ing] her on her feet,” pinned her in

corners, screamed persistent questions at her, and called her names, was placed “in fear of

immediate bodily harm,” particularly in light of “an old history of threatening behavior.”

Id. at 99. Further, in Boniek, this court found that the husband’s leaving of a mutilated

marriage certificate on his wife’s doorstep, coupled with a threat to his wife, his stalking

behavior, and a physical altercation with an insurance salesman when the husband arrived

at his wife’s home unannounced, was sufficient evidence of the husband’s “present intent

to inflict fear of imminent physical harm.” 443 N.W.2d at 197–98.

       Here, as in Pechovnik and Boniek, the district court found credible the testimony

that there existed a past history of domestic abuse and that the existence of that history was

a factor to be considered in determining whether to issue an OFP. Pechovnik, 765 N.W.2d


                                              6
at 100; Boniek, 443 N.W.2d at 198. However, what is lacking in this case is any factual

support that appellant, who has not lived in Minnesota since 2011, has acted or conducted

himself in a manner intending to presently place appellant in fear of imminent physical

harm. See Kass, 355 N.W.2d at 337 (holding that former wife’s concern for her safety

based upon bad experiences with her former husband, which occurred four years prior,

were insufficient to support claim of domestic abuse without evidence of his present

intention to do harm or inflict fear of harm).

       Respondent testified that appellant requested the police complete an unnecessary

welfare check on her and the minor child, was often “bizarre” on Skype when he exercised

his parenting time with the minor child, and would call the minor child’s school to attempt

to find out what time the minor child was getting dropped off and picked up from school.

But, none of appellant’s acts constitute domestic abuse or evince a present intent to commit

harm against respondent or the minor child. Moreover, there is no evidence in the record

that the minor child has ever been a victim of domestic abuse. While respondent claims

that in 2012, a few days after the minor child was born, appellant kicked the bassinet during

one of their altercations. This incident, which occurred more than three years earlier, is

insufficient to support a finding of appellant’s domestic abuse against the minor child.

       Because there is no evidence in the record to support a finding that appellant has

recently physically abused respondent, that he possesses a present intent to inflict harm

upon respondent or the minor child, or that he ever physically abused the minor child, there

is an insufficient basis to find that domestic abuse has occurred. Therefore, the district

court abused its discretion when it issued an OFP to respondent and the minor child.


                                                 7
Because we conclude that the issuance of the OFP was improper, we need not address

appellant’s other arguments as they are based on the existence of the OFP.

      Reversed.




                                            8
