                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A14-1693

              In re the Matter of: Cindy Jean Oberg obo minor child, petitioner,
                                         Respondent,

                                             vs.

                                   Gregory Brian Bradley,
                                        Appellant.

                                    Filed August 3, 2015
                                          Affirmed
                                      Connolly, Judge

                               Ramsey County District Court
                                File No. 62-DA-FA-14-731


Kathy S. Kimmel, Mark P. Schneebeck, Oppenheimer Wolff & Donnelly LLP,
Minneapolis, Minnesota (for respondent)

Jennifer M. Macaulay, Macaulay Law Offices, Ltd., St. Paul, Minnesota (for appellant)


         Considered and decided by Chutich, Presiding Judge; Connolly, Judge; and Kirk,

Judge.

                                      SYLLABUS

         The standard of proof for a petition for an order for protection under Minn. Stat.

§ 518B.01 (2014) is a preponderance of the evidence.

                                       OPINION

CONNOLLY, Judge

         Respondent sought an order for protection (OFP) for the parties’ 12-year-old son

against appellant, based on allegations that appellant had excessively punished him.
Following a hearing at which respondent and two mental health professionals testified as

to the boy’s out-of-court statements concerning appellant, the referee issued an OFP,

which was confirmed by the district court. Appellant challenges the OFP, arguing that

the admission of the boy’s out-of-court statements deprived appellant of due process

because appellant did not have adequate notice that respondent would offer them.

Because there was no violation of appellant’s right to due process in the admission of the

out-of-court statements and a preponderance of the evidence supported the issuance of

the OFP, we affirm.

                                        FACTS

      Appellant Gregory Bradley and respondent Cindy Oberg are the parents of G.,

born on July 7, 2002. They share custody, with appellant having parenting time on

Wednesdays and alternate weekends.

      G. went to appellant’s house for scheduled parenting time on July 4, 2014. On

July 5, a dispute over a video game between appellant and G. resulted in appellant

spanking G. G. later claimed he was struck between 10 and 20 times; appellant claimed

he struck G. twice. On July 7, G. returned to respondent’s house and told her appellant

had spanked him.      G.’s mental health case manager (MHCM) recommended that

respondent report the incident to the police and went with appellant and G. to the police

station the next day when the incident was reported.

      On July 21, a hearing was held on respondent’s petition for an OFP. Neither party

was represented by counsel. The referee continued the matter until August 1 and issued

an order providing that, by July 28, respondent was to serve appellant by e-mail with


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notice of G.’s out-of-court statements describing appellant’s abuse or neglect that

respondent intended to offer in support of her petition for an OFP. Appellant provided an

incorrect e-mail address and did not receive the e-mail giving notice of respondent’s

intent to offer G.’s out-of-court statements to respondent, to the police officer, to the

MHCM, and to his psychologist pursuant to Minn. Stat. § 595.02, subd. 3 (2012), and

Minn. R. Evid. 807. Because appellant did not receive the e-mail, he also did not learn

that respondent had retained counsel.

       When the parties met prior to the hearing, appellant learned that respondent had

retained counsel and would offer G.’s out-of-court statements in evidence. Neither party

suggested that G. testify. G.’s MHCM and psychologist were examined by respondent’s

attorney and cross-examined by appellant, and respondent began her testimony. The

hearing was then continued for two weeks.

       When it reconvened, appellant was still not represented by counsel. His attempt to

offer the testimony of a friend who had seen G. interact with appellant many times was

not admitted because appellant had not served and filed notice that he intended to offer

G.’s out-of-court statements.1

       The referee found that (1) appellant had committed two acts of domestic abuse

against G., (2) appellant presented a credible threat to G.’s safety, and (3) it was in G.’s

best interest for respondent to have temporary sole legal and physical custody of him and

appellant to have supervised parenting time. An OFP issued by the referee prohibited


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  Appellant also attempted to introduce as an exhibit the police department record of
respondent’s report; it was not admitted into evidence because it was not authenticated.

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appellant from committing further acts of domestic abuse against G., physically abusing

or injuring G.’s cat, having direct or indirect contact with G. except as recommended by

G.’s psychologist, and entering or going within two blocks of respondent’s home. The

district court confirmed the referee’s OFP.

       Appellant, now represented by counsel, challenges the OFP.

                                         ISSUE

       Does Minn. Stat. § 518B.01 require a petitioner to show by a preponderance of the

evidence that an OFP should be issued?

                                       ANALYSIS

       “Interpretation of a statute presents a question of law, which we review de novo.”

Swenson v. Nickaboine, 793 N.W.2d 738, 741 (Minn. 2011). “We are to read and

construe a statute as a whole and must interpret each section in light of the surrounding

sections to avoid conflicting interpretations.” Am. Family Ins. Grp. v. Schroedl, 616

N.W.2d 273, 277 (Minn. 2000).


       Minn. Stat. § 518B.01 does not specify any standard of proof for the issuing of an

OFP, but the statute has been interpreted to require sufficient evidence.      See, e.g.,

Bjergum v. Bjergum, 392 N.W.2d 604, 606-07 (Minn. App. 1986) (reversing an OFP

because “[e]vidence presented at the domestic abuse hearing was insufficient to warrant

issuance of a[n OFP] under Minn. Stat. § 518B.01, subd. 2(a)”). Moreover, Minn. Stat.

§ 518B.01 does provide a standard for modifying or vacating an OFP: “a preponderance

of the evidence that there has been a material change in circumstances and that the



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reasons upon which the court relied in granting or extending the [OFP] no longer apply

and are unlikely to occur.” Minn. Stat. § 518B.01, subd. 11(b) (emphasis added). By

stating the requirement that a respondent meet a preponderance-of-the-evidence standard

to modify or to vacate an OFP, the statute implies the requirement that a petitioner must

meet the same preponderance-of-the-evidence standard to obtain an OFP, and we so hold.

See Am. Family Ins. Grp., 616 N.W.2d at 277 (“[An appellate court] must interpret each

section [of a statute] in light of the surrounding sections.”); see also Rixmann v. City of

Prior Lake, 723 N.W.2d 493, 495 (Minn. App. 2006) (“In a statutorily created cause of

action [such as a domestic-abuse proceeding], the legislature generally has the power to

determine the standard of proof. We regard the legislature’s silence about the standard of

proof as a signal that the legislature intended the preponderance-of-the-evidence

standard.” (citation omitted)), review denied (Minn. Jan. 24, 2007).

       Our issue becomes whether a preponderance of the evidence supported issuing the

OFP or whether the district court abused its discretion by granting the OFP without a

preponderance of the evidence. See McIntosh v. McIntosh, 740 N.W.2d 1, 9 (Minn. App.

2007) (holding that granting relief under Minn. Stat. § 518B.01 is discretionary). “The

preponderance of the evidence standard requires that to establish a fact, it must be more

probable that the fact exists than that the contrary exists.” City of Lake Elmo v. Metro.

Council, 685 N.W.2d 1, 4 (Minn. 2004).

       Appellant argues that the admission of G.’s out-of-court statements violated

appellant’s right to due process and that, without those statements, the preponderance of




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the evidence did not support issuing an OFP. The statements were admitted under Minn.

R. Evid. 807, providing an out-of-court statement may be admitted if:

              (A) the statement is offered as evidence of a material fact;
              (B) the statement is more probative on the point for which it
              is offered than any other evidence which the proponent can
              procure through reasonable efforts; and (C) the general
              purposes of these rules and the interests of justice will best be
              served by admission of the statement into evidence.

Appellant concedes that G.’s statements were material to whether G. had been physically

abused by appellant, but argues that they did not meet the other two criteria.

       He argues first that G. could have testified himself and that his testimony would

have been more probative than statements he made to the MHCM, the psychologist, and

respondent.   But the record does not indicate that appellant (or respondent) ever

suggested that G. testify himself. Having accepted the lack of G.’s direct testimony at the

hearing, appellant cannot challenge it now. See Thiele v. Stich, 425 N.W.2d 580, 582

(Minn. 1988) (party may not raise the same general issue under a different theory).

       Finally, appellant argues that the interests of justice were not served by admitting

G.’s out-of-court statements because that admission deprived appellant of the “full

hearing” provided by Minn. Stat. § 518B.01, subd. 7. Appellant relies on Anderson v.

Lake, 536 N.W.2d 909, 911 (Minn. App. 1995), and El Nashaar v. El Nashaar, 529

N.W.2d 13, 14 (Minn. App. 1995), for this argument, but the “full hearing” language

those cases construed has been deleted from Minn. Stat. § 518B.01, subd. 7. 1995 Minn.

Laws ch. 142 § 5, at 404. Moreover, appellant provides no legal support for his view that

the failure to have G. testify denied appellant his statutory right to a “full” or other



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hearing. Appellant’s right to due process was not violated by the admission of G.’s out-

of-court statements.

      Appellant also challenges the district court’s findings that he abused or

excessively punished G., relying on Johnson v. Smith, 374 N.W.2d 317, 320 (Minn. App.

1985), review denied (Minn. Nov. 18, 1985), and Andrasko v. Andrasko, 443 N.W.2d

228, 230 (Minn. App. 1989). Both cases are distinguishable. In Johnson, a custody

modification was based on the conclusion that a 12-year-old boy who had been slapped

once or twice, spanked with a wooden spoon at least once, struck on the face, and hit on

the arm with a broomstick and on the back with a fist was endangered. 374 N.W.2d at

320. The modification was reversed because “three witnesses—the child’s guardian ad

litem, a child abuse investigator, and the author of a comprehensive social report—

interviewed the boy and testified that he was not in danger.” Id. at 321. Here, the

testimony of G.’s MHCM and his psychologist supported issuing an OFP. Andrasko

construed domestic abuse to require “either a showing of present harm or an intention on

the part of [the] appellant to do present harm,” 443 N.W.2d at 230, and reversed an OFP

because “[t]here was no testimony at the hearing concerning the specific allegations of

abuse in [the] petition [for an OFP].” Id. at 229. Here, both parties, the social worker,

and the MHCM testified about the allegations.

                                    DECISION

      Because the admission of G.’s out of-court statements did not violate appellant’s

due-process rights, those statements were properly admitted; because the evidence met




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the preponderance-of-the-evidence standard of proof required by Minn. Stat. § 518B.01,

the issuance of the OFP was not an abuse of discretion.

      Affirmed.




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