                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2012).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A13-2288

               In re the Marriage of: Maria Pieternella Knight, petitioner,
                                      Respondent,

                                           vs

                                 James Donald Knight,
                                      Appellant.

                                  Filed July 28, 2014
                               Affirmed; motion denied
                                    Larkin, Judge

                              Carver County District Court
                                File No. 10-FA-13-330


John M. Jerabek, Susan Lach, Tuft, Lach & Jerabek, PLLC, Maplewood, Minnesota (for
respondent)

Matthew J. Gilbert, Gilbert Law Office, PLLC, Minneapolis, Minnesota (for appellant)



      Considered and decided by Cleary, Chief Judge; Larkin, Judge; and Klaphake,

Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                        UNPUBLISHED OPINION

LARKIN, Judge

       Appellant challenges the district court’s issuance of an order for protection (OFP),

arguing that the district court abused its discretion by issuing the OFP. Appellant also

argues that the district court judge engaged in judicial misconduct. Respondent moves

this court to strike portions of appellant’s brief regarding the judicial-misconduct

allegations. Because appellant’s allegations of judicial misconduct are without merit and

the OFP is supported by the record evidence, we affirm the district court’s issuance of the

OFP and deny respondent’s motion to strike as moot.

                                         FACTS

       On July 29, 2013, respondent Maria Pieternella Knight petitioned the Carver

County District Court for an OFP against appellant James Donald Knight, her then

husband. Respondent alleged that on July 25, as she was trying to leave the marital home

with her dog, appellant “screamed in [her] face” and “struck [her] on the shoulder with

his elbow and forearm.” The district court issued an emergency (ex parte) order for

protection, finding that respondent’s petition “allege[d] an immediate danger of domestic

abuse.”

       Appellant requested a hearing on the ex parte OFP. At the beginning of the

hearing, and after providing notice to the parties, the district court judge contacted a

Hennepin County Judge who had recently presided over the parties’ marital-dissolution

trial to determine whether the Hennepin County Judge should preside over the OFP




                                            2
hearing.1 Appellant did not object to the proposed telephone call. After speaking to the

Hennepin County Judge, the judge determined that the OFP matter was properly before

the Carver County District Court. The judge explained:

                        Before, earlier in the morning we were off the record
               and counsel did inform me that they were previously in front
               of [another judge] on this matter in Hennepin County. This
               divorce case was filed in 2011. Venue was never transferred
               to . . . Carver County. [The Hennepin County Judge] kept the
               case. She has had a trial, currently under advisement before
               her on the divorce where she is deciding a number of issues.
                        I did have an opportunity to speak with [the Hennepin
               County Judge] this morning. She did indicate to me that she
               was not aware—that she was not aware of any domestic
               abuse between the parties earlier, that it was not necessary for
               her to hear this matter and we should go ahead and hear this
               domestic abuse contested hearing today.
                        As soon as [the Hennepin County Judge] completes
               her order, she is going to transfer venue of this matter to
               Carver County. I’ve agreed that I will block the matter to
               myself so [the Hennepin County Judge] and I will work on a
               smooth transition of this file.

         Appellant did not object to the judge’s decision to preside over the OFP hearing.

At the end of the hearing, the district court issued an OFP. Appellant moved the district

court to vacate the OFP and for a new trial, arguing that “the court’s ex parte

communications with [the Hennepin County Judge] violated [his] due process rights and

1
    The Minnesota Domestic Abuse Act states that

               [a]n application for relief under this section may be filed in
               the court having jurisdiction over dissolution actions, in the
               county of residence of either party, in the county in which a
               pending or completed family court proceeding involving the
               parties or their minor children was brought, or in the county
               in which the alleged domestic abuse occurred.

Minn. Stat. § 518B.01, subd. 3 (2012).

                                              3
the Code of Judicial Conduct.” The district court held a hearing on appellant’s motion

and denied the motion. The judge explained:

             [The Hennepin County Judge] is the Judge in the parties’
             dissolution file that was mistakenly filed in Hennepin
             County—both parties reside in Carver County. This Court
             did contact [the Hennepin County Judge] during the OFP
             trial. The purpose for the call was primarily to determine if
             [the Hennepin County Judge] should hear the OFP matter
             because of her familiarity with the case in the dissolution
             action.
                     This Court learned of the Hennepin County dissolution
             file just prior to the OFP trial on August 5, 2013. This Court
             asked both counsel if there was an objection to the domestic
             abuse matter being heard in Carver County given the open
             dissolution file in Hennepin County. Neither party raised an
             objection. This Court indicated it would take a break to
             contact [the Hennepin County Judge] to determine if the
             matter should be heard in Hennepin County rather than
             Carver County. There was no objection raised by either
             counsel. Neither counsel requested that they be included on
             the telephone call to [the Hennepin County Judge]—which
             request this Court certainly would have granted. Following
             the telephone call, this Court confirmed the conversation with
             [the Hennepin County Judge] to the parties on the record.
             [The Hennepin County Judge] indicated the dissolution file
             would be transferred to Carver County once the Judgment and
             Decree was entered in Hennepin. This Court did speak with
             [the Hennepin County Judge] about the domestic abuse
             allegation before it, and [she] indicated there had been no
             domestic abuse alleged under the Hennepin County file—
             therefore [the Hennepin County Judge] did not need to hear
             the domestic abuse allegations before this Court. Following
             this discussion with counsel and the parties, neither party
             raised an objection to this Court proceeding with the OFP
             trial.

This appeal follows.




                                           4
                                     DECISION

                                            I.

      Appellant argues that his “due process rights were violated by the district court’s

ex parte communication(s) with another judicial officer.” “Whether a constitutional

violation has occurred presents a question of law, which we review de novo.” State v.

Burkland, 775 N.W.2d 372, 374 (Minn. App. 2009), review denied (Minn. Jan. 27, 2010).

Likewise, “[w]hether a judge has violated the Code of Judicial Conduct is a question of

law, which [appellate courts] review de novo.” State v. Dorsey, 701 N.W.2d 238, 246

(Minn. 2005).

      As an initial matter, the parties disagree regarding whether appellant’s judicial-

misconduct claim is properly before this court because appellant did not object to the

district court judge presiding at the OFP hearing or request the judge’s recusal before the

hearing. Assuming that the misconduct allegation is properly before us, it is entirely

without merit.

      Appellant relies on Minnesota Code of Judicial Conduct Rule 2.9 to support his

argument that the district court judge’s conduct violated his due-process rights. Rule 2.9

provides that “[a] judge shall not initiate, permit, or consider ex parte communications

. . . made to the judge outside the presence of the parties or their lawyers, concerning a

pending or impending matter.”        But “[w]hen circumstances require it, ex parte

communication for scheduling, administrative, or emergency purposes, which does not

address substantive matters, is permitted . . . .” Minn. Code Jud. Conduct Rule 2.9(A)(1).

Here, there is no indication that the district court judges discussed substantive matters.


                                            5
As the district court judge in this case explained, she contacted the Hennepin County

Judge “to determine if the matter should be heard in Hennepin County rather than Carver

County” and that “[t]he purpose for the call was primarily to determine if [the Hennepin

County Judge] should hear the OFP matter because of her familiarity with the case in the

dissolution action.”

       Moreover, a comment to rule 2.9 explicitly recognizes that “[a] judge may consult

with other judges on pending matters, but must avoid ex parte discussions of a case with

judges who have previously been disqualified from hearing the matter, and with judges

who have appellate jurisdiction over the matter.” Minn. Code Jud. Conduct Rule 2.9 cmt.

5. The Hennepin County Judge was neither disqualified from hearing the matter, nor was

she a judge with appellate jurisdiction.

       Appellant nonetheless argues that “[a]t a minimum, the district court has created

an appearance of impropriety” by receiving factual information from the Hennepin

County Judge regarding “prior claims of abuse.”2 See Minn. Code Jud. Conduct Rule 1.2

(“A judge shall act at all times in a manner that promotes public confidence in the

independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and

the appearance of impropriety.”). He cites State v. Dorsey, 701 N.W.2d at 250 to support

his contention that the district court judge conducted a “fact finding investigation and

2
  Appellant’s argument begs the question: If the judge in this case created an
“appearance of impropriety,” why did appellant allow her to preside over the OFP
hearing without objection? See Minn. Code Jud. Conduct 1.2 cmt. 5 (“The test for
appearance of impropriety is whether the conduct would create in reasonable minds a
perception that the judge violated [the] Code or engaged in other conduct that reflects
adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a
judge.”).

                                            6
reach[ed] a legal conclusion based on [her] ex-parte findings.” His reliance on Dorsey is

misplaced.

       In Dorsey, a district court judge presiding over a court trial “independently

investigated a fact not introduced into evidence,” which ultimately undermined a trial

witness’s credibility. Id. The supreme court concluded that “the judge’s questioning of

the veracity of [the witness’s] testimony and her subsequent investigation deprived [the

defendant] of an impartial judge and finder of fact.” Id.

       Here, the district court judge’s conversation with the Hennepin County Judge was

not an independent investigation into the facts of the underlying OFP case that deprived

appellant of an “impartial judge and finder of fact.” Although the district court judge

learned that “there had been no domestic abuse alleged under the Hennepin County file,”

this factual information related only to the scheduling question of whether the Hennepin

County Judge should hear the OFP case because of overlapping issues. The record does

not indicate that the district court judge obtained factual information that influenced her

determination regarding the current domestic abuse allegations.            In sum, there is a

difference between asking about prior instances of domestic violence and asking whether

domestic violence had been alleged in a prior case. The judicial communication here

involved the latter, and it did not create an appearance of impropriety.

       Appellant also argues that “[t]he district court abused its discretion in obtaining

and using ex-parte communication(s) in assessing the credibility of the parties.”

Appellant essentially argues that because the two judges each determined that he lacked

testimonial credibility, they must have discussed his credibility. That argument is based


                                             7
on pure speculation. Because there is nothing in the record to support the argument, we

reject it.

        In sum, the district court judge in this case did not violate the rules of judicial

conduct, create an appearance of impropriety, or improperly assess appellant’s

credibility. Thus, appellant’s due-process rights were not violated. Appellant’s argument

that the district court judge should have recused herself is similarly without merit. See

Minn. Code Jud. Conduct Rule 2.11 (“A judge shall disqualify himself or herself in any

proceeding in which the judge’s impartiality might reasonably be questioned . . . .”).

                                            II.

        Appellant argues that “[t]he evidence in the record does not support a finding of

domestic abuse.” The decision to grant an OFP “is within the district court’s discretion.”

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

district court abuses its discretion if its findings are unsupported by the record or if it

misapplies the law.” Id. (quotation omitted).

        “[I]n our review of an OFP, we review the record in the light most favorable to the

district court’s findings, and we will reverse those findings only if we are left with the

definite and firm conviction that a mistake has been made.”          Id. at 99 (quotations

omitted). “We will not reverse merely because we view the evidence differently.” Id.

(quotation omitted). “And we neither reconcile conflicting evidence nor decide issues of

witness credibility, which are exclusively the province of the factfinder.” Id. (quotation

omitted).




                                             8
       “An OFP is justified if a person manifests a present intention to inflict fear of

imminent physical harm, bodily injury, or assault on the person’s spouse.” Id.; see also

Minn. Stat. § 518B.01, subd. 2 (2012). The district court based the OFP on its finding

that appellant “did lunge at [respondent] when [her dog] was in her arms. And I believe

that he did it with either intent to cause her physical harm or he did it with intent to have

her in fear of imminent physical harm.”

       The record evidence supports the district court’s finding. Respondent testified as

follows:

              RESPONDENT: . . . So I went over to the stairs where [my
              dog] was and I put down my purse and my little suitcase and I
              picked up [my dog]. I was going to go towards the kitchen
              back into the garage, then to put [my dog] in the car. He
              blocked my way. I turned around, I went through the other
              opening in the hallway through the living room. And then got
              to the couch there in the living room, he – he came from the
              other side.
              THE COURT: He is?
              RESPONDENT: [Appellant].
              THE COURT: Okay.
              RESPONDENT: Then he ran to me with his arm over his
              head. I had [my dog] in my arms. I was scared to death also
              because of my eye and I was still wearing protective glasses.
              Then I’m holding [my dog] and he run towards me and he’s –
              he’s like this (indicating), screaming, screaming.
              THE COURT: He is?
              RESPONDENT: [Appellant]. That I was not supposed to
              leave the house and then he struck me on my shoulder and my
              collar, right here (indicating). He had this look on his face
              that was just terrifying. He looked like a crazy person, you
              know, screaming and trying to sort of attack me. I don’t
              know what it was.

In addition, the audio recording of respondent’s 911 call was played at the hearing, in

which respondent stated that appellant “sort of pushed [her].”


                                             9
       Appellant argues that he “never intended to inflict or attempted to inflict bodily

harm on [r]espondent.” But this court will “neither reconcile conflicting evidence nor

decide issues of witness credibility.” Pechovnik, 765 N.W.2d at 99. The district court

specifically found respondent’s testimony credible, and we defer to this credibility

determination. See id. Moreover, when viewed in the light most favorable to the district

court’s findings, the record evidence supports the findings.        Under the deferential

standard used to review the issuance of an OFP, we conclude that the district court did

not abuse its discretion by granting the OFP.

                                            III.

       Appellant argues that he is “entitled to a new trial” because his “due process rights

have been violated” and “the record does not support the Court’s factual determinations.”

“We review a district court’s new trial decision under an abuse of discretion standard.”

Moorhead Econ. Dev. Auth. v. Anda, 789 N.W.2d 860, 892 (Minn. 2010).

       The parties disagree regarding whether a motion for a new trial is independently

appealable in a domestic-abuse proceeding. See Steeves v. Campbell, 508 N.W.2d 817,

818 (Minn. App. 1993) (“[A] new trial motion in domestic abuse proceedings under

Minn. Stat. § 518B.01 is not authorized, and an order denying such a motion is not

appealable.”).   We need not decide if appellant’s new-trial motion was permissible

because we have already determined that the substantive bases for the motion are without

merit. In other words, assuming that the new trial motion was permissible, the district

court did not abuse its discretion by denying the motion on the grounds alleged. See In re

Adoption of T.A.M., 791 N.W.2d 573, 578 (Minn. App. 2010) (“[A] district court abuses


                                            10
its discretion if it acts against logic and the facts on record, or if it enters fact findings that

are unsupported by the record, or if it misapplies the law.” (quotation and citation

omitted)).

                                               IV.

       Respondent moved this court to strike portions of appellant’s brief and appendix,

including “all of [a]ppellant’s allegations pertaining to alleged collusion between” the

district court judges.     Respondent argues that these accusations are “disrespectful,

insulting, and slanderous” and “find no support in the record.” It is well established that

“when a brief is used as a vehicle for disrespect, insult, and slanderous accusations which

find no support in the record,” an appellate court may grant a motion to strike portions of

or an entire brief. State v. Gamelgard, 287 Minn. 74, 82, 177 N.W.2d 404, 409 (1970),

superseded by statute on other grounds as stated in State v. Whitledge, 500 N.W.2d 488,

489 (Minn. 1993). But because we have already determined that none of appellant’s

assertions of improper judicial conduct has merit, we deny the motion as moot. See In re

Application of Minnegasco, 565 N.W.2d 706, 710 (Minn. 1997) (stating that an issue is

moot if the court cannot grant effective relief).

       Affirmed; motion denied.




                                                11
