                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-2088

                        In the Matter of: Chelsea Chantel Hall and
                                o/b/o J. B. A., petitioner,
                                       Respondent,

                                            vs.

                                 Jamison Robert Arend,
                                       Appellant.

                                Filed November 7, 2016
                                       Reversed
                                     Jesson, Judge

                              Ramsey County District Court
                              File No. 62-DA-FA-15-1044

Carla C. Kjellberg, Kjellberg Law Office, PLC, St. Paul, Minnesota (for respondent)

Kellen T. Fish, KTF Law Firm, PLLC, Minneapolis, Minnesota (for appellant)

         Considered and decided by Jesson, Presiding Judge; Stauber, Judge; and Reyes,

Judge.

                         UNPUBLISHED OPINION

JESSON, Judge

         On appeal from the district court’s decision to extend an order for protection

covering the parties’ minor child, appellant Jamison Arend argues that the record does not

support the district court’s finding that he committed domestic abuse against the child. He

also argues that his due-process rights were violated when the district court inserted the
child into the order for protection when the child was not named in the previous emergency

order. Because we conclude that the record does not support the district court’s finding

that domestic abuse occurred against the child, we reverse.

                                          FACTS

       Respondent Chelsea Hall and Jamison Arend were involved in a romantic

relationship for about four years and lived together in his home for part of that time. They

have a child together. According to Hall, one night she nudged Arend to stop his snoring.

He awoke upset and swore at her, pushing her down and into a wall, causing her injuries

of bruising and abrasions.

       Their 23-month-old child began crying, and after Arend retrieved the child, Hall

held the child in her arms. Their altercation then renewed. Hall testified that Arend “starts

grabbing the baby by his arm and is going to take him away from me . . . because he knows

I’m about to leave. And he’s yanking on my baby’s arm, so I finally just let go.” She then

“lost it” and slapped Arend. She testified that “[t]he baby was screaming as [Arend] started

to rip—pull on his arm.” Arend would not let Hall leave the house with the child, and she

was fearful for her and the child’s safety. She left the house without the child that night.

       Hall sought an order for protection against Arend for herself and the child under the

Minnesota Domestic Abuse Act, Minnesota Statutes sections 518B.01-02 (2014 & Supp.

2015). The district court referee granted an emergency ex parte order for protection on a

form document, listing Hall and the child as protected parties. The order stated that

“[Arend] must not commit acts of domestic abuse against the Protected Person[s].” The

referee, however, altered the portion of the form stating that “Respondent must not have


                                              2
any contact with the Protected Persons,” changing it instead to “Respondent must not have

any contact with the Petitioner.” (Emphasis added.) The referee also crossed out the

portion of the form stating that the petition contained allegations of child abuse or neglect.

       Arend sought a hearing on Hall’s request for a continuing order for protection. At

the hearing, Arend denied that he had ever hit Hall and testified that he had only pushed

her to fend her off when she was hitting him. He introduced an audio recording that he

made that evening, which he alleges accurately depicts the incident. Both parties were

aware that he had made the recording, which indicates the child was cooing and not

screaming. Hall alleged, however, that Arend made the recording after the transfer of the

baby occurred.

       The district court issued an order to continue the order for protection, which covered

both Hall and the child. See Minn. Stat. § 518B.01, subd. 6 (2014). Arend appeals.

                                       DECISION

       Arend argues that the evidence does not sufficiently support the issuance of a

continuing order for protection covering the child. We will reverse the district court’s

decision to grant an order for protection if it has abused its discretion, which occurs if the

district court’s findings are unsupported by the record or if it misapplies the law. Braend

ex rel. Minor Children v. Braend, 721 N.W.2d 924, 926-27 (Minn. App. 2006). We review

the district court’s findings for clear error, Minn. R. Civ. P. 52.01, but we review the district

court’s construction and application of a statute de novo. Braend, 721 N.W.2d at 927.

       The Minnesota Domestic Abuse Act provides that a district court may issue an order

for protection when one family or household member commits domestic abuse against


                                               3
another. Minn. Stat. § 518B.01, subds. 2(a), 6(a) (2014). The district court found that

Arend had committed domestic abuse against Hall and also against the child by

“wrench[ing] the minor child by the arm and t[aking] the child away from [Hall] by use of

physical force.” The district court found that Hall was credible, that Arend was not

credible, and that Arend’s recording was “manipulative and controlling.”

       The Minnesota Supreme Court has held that “an order for protection may be granted

only to a victim of domestic abuse.” Schmidt ex rel. P.M.S. v. Coons, 818 N.W.2d 523,

529 (Minn. 2012). Therefore, to sustain the district court’s finding that Arend committed

domestic abuse with respect to the child, Hall must show that Arend committed acts of

domestic abuse against the child, not just against her. See id.

       As relevant here, the definition of domestic abuse includes “physical harm, bodily

injury, or assault.” Minn. Stat. § 518B.01, subd. 2(a)(1).1 The district court found that

Arend’s act of “wrench[ing]” the child’s arm and taking the child from Hall “by . . .

physical force” amounted to domestic abuse. Arend argues, however, that his act of taking

the child from Hall’s arms did not inflict physical harm on the child, as required for

domestic abuse under subdivision 2(a).

       The petitioner has the burden of proof to show by a preponderance of the evidence

that an order for protection should be issued. Oberg v. Bradley, 868 N.W.2d 62, 64 (Minn.



1
 Domestic abuse may also include “the infliction of fear of imminent physical harm, bodily
injury, or assault.” Id., subd. 2(a)(2). But the district court did not find, and Hall has not
argued, that Arend committed domestic assault by inflicting fear of physical harm, injury,
or assault on the child. Issues not briefed are forfeited. Melina v. Chaplin, 327 N.W.2d
19, 20 (Minn. 1982).

                                              4
App. 2015); 14 Martin A. Swaden & Linda A. Olup, Minnesota Practice, § 17:8 (3d ed.

2015). Therefore, to obtain an order for protection under these facts, Hall was required to

show by a preponderance of the evidence that the child sustained physical harm or bodily

injury as a result of Arend’s action of removing the child from her arms.

       Here, the record is devoid of any such proof. Hall alleged, and the district court

found, that Arend pulled on the child’s arm when taking the child from her, but not that the

child suffered any physical harm or injury during the exchange. Hall testified, in fact, that

when Arend pulled on the child, she let go, which resulted in Arend’s holding the child.

       Although the record shows photographs of Hall’s injuries that occurred when Arend

pushed her down before the transfer occurred, it contains no photographs showing any

injury to the child. We do not discount Hall’s injuries and recognize that the district court

may have relied on these photos in assessing Hall’s credibility. See Sefkow v. Sefkow, 427

N.W.2d 203, 210 (Minn. 1988) (stating that this court defers to the district court’s

credibility determinations). But even crediting Hall’s version of events, on this record,

there was no evidence indicating physical harm or bodily injury to the child, and the

evidence is insufficient to support the district court’s finding that domestic abuse was

committed against the child. The district court therefore abused its discretion by issuing a

continuing order for protection covering the child.

       Arend also argues that he did not intend to inflict physical harm against the child.

We note that Minnesota caselaw appears unclear as to whether, when domestic abuse by

physical harm is alleged, Minnesota’s Domestic Abuse Act requires a showing of a present

intent to commit that harm, or whether the commission of physical harm without an intent


                                             5
to commit harm will suffice. See Gada v. Dedefo, 684 N.W.2d 512, 514 (Minn. App. 2004)

(concluding that the evidence was sufficient to support a finding that the defendant

“inflicted physical harm” without addressing whether a present intent to harm was shown);

see also Kass v. Kass, 355 N.W.2d 335, 337 (Minn. App. 1984) (construing the statute to

“require either a showing of present harm or an intention on the part of [the defendant] to

do present harm”) (emphasis added); cf. Kass, 355 N.W.2d at 337 (stating that the record

did not contain a “showing of [a] present intention to do harm or inflict fear of harm”). But

Arend did not raise this issue before the district court. See Thiele v. Stich, 425 N.W.2d

580, 582 (Minn. 1988) (stating that generally, an appellate court will not address issues

that were not raised before and considered by the district court). And our conclusion that

the evidence is insufficient to support the district court’s order for protection with respect

to the child makes it unnecessary to address that issue. Finally, because we are reversing

the district court’s order, we need not address Arend’s additional due-process argument

relating to the inclusion of the child in the continuing order for protection.

       Reversed.




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