                            This opinion will be unpublished and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
                                       A16-0670

                         In the Matter of: Paula Jean Ball, for herself
                         and o/b/o W. V. B. and K. A. R., petitioner,
                                         Respondent,

                                              vs.

                              Steven “Captain America” Rogers,
                                         Appellant.

                                  Filed December 19, 2016
                                         Affirmed
                                       Larkin, Judge

                                Wadena County District Court
                                   File No. 80-FA-16-9


Paula Jean Ball, Menahga, Minnesota (pro se respondent)

Douglas R. Hegg, Hegg Law Office, Alexandria, Minnesota (for appellant)



         Considered and decided by Larkin, Presiding Judge; Peterson, Judge; and Hooten,

Judge.

                           UNPUBLISHED OPINION

LARKIN, Judge

         Appellant-husband challenges the district court’s grant of an order for protection on

behalf of respondent-wife. We affirm.
                                         FACTS

        Respondent Paula Jean Ball and appellant Steven “Captain America” Rogers are the

parents of W.B., born in 2010. Ball has a second child, K.R., who was born in 2006, before

Ball met Rogers. The parties married in 2009, separated in 2012, and have had little contact

since. W.B. lived with Ball after the couple’s separation, and Rogers and W.B. had little

to no contact. On January 4, 2016, Rogers picked W.B. up from school without notifying

Ball.

        On January 5, 2016, Ball petitioned for an order for protection (OFP) against

Rogers. Rogers petitioned for an OFP against Ball shortly thereafter. The district court

held a hearing on both petitions in February 2016. The district court heard testimony from

Ball, Ball’s mother, a county child-protection employee, Rogers, and Rogers’s mother.

        The parties described their marriage differently. Ball’s petition alleged that the

marriage failed in 2012 when she locked herself in a bathroom during a fight with Rogers,

Rogers broke the door, and Rogers said that she “had better not be there when he got

home.” Ball’s petition alleged that Rogers would have abused K.R. if she had not taken

the abuse for him and that Rogers threatened to kill himself if she left him. Ball testified

that Rogers routinely verbally, mentally, and sexually abused her and that Rogers killed a

dog in front of her and the children. Ball’s mother testified regarding similar controlling

and violent behavior by Rogers. In contrast, Rogers testified that he was hardly home

during the marriage, at first because he was attending school out of town and later due to

work.    He said the marriage failed when he learned that Ball had romantically




                                             2
communicated with a man on the Internet and Rogers realized they could not keep “fighting

like this in front of the children.”

       The district court granted Ball’s request for an OFP against Rogers, granted Ball

sole physical custody of W.B., and established a supervised parenting-time schedule for

Rogers. The district court’s stated grounds for the OFP were Rogers’s “threats to kill

[Ball].” Rogers moved for reconsideration alleging that his three-year-old threats to harm

Ball did “not substantiate a finding of an imminent threat of harm,” there was “no threat of

any past or present harm” to K.R. or W.B., and the order for supervised visitation was not

supported by a finding of domestic abuse against W.B. or by consideration of the best-

interests factors. The district court denied Rogers’s requests to reconsider the order

regarding Ball and W.B. and to expand his parenting-time schedule. In doing so, the

district court made additional findings in support of the OFP. However, the district court

granted reconsideration of its order “to the extent” that it applied to K.R. This appeal

follows.1

                                       DECISION

       Rogers argues that the district court erred by granting an OFP on behalf of Ball and

W.B. because its findings of domestic abuse with respect to Ball were based on stale

allegations without a finding of present harm or threat of harm, and because it did not find

domestic abuse with respect to W.B.2 We first note that the OFP does not, on its face,


1
  Ball did not file a brief, and this court ordered the appeal to proceed under Minn. R. Civ.
App. P. 142.03.
2
  Rogers also argues that the district court erred by ordering that his parenting time be
supervised. As to this issue, Rogers states that, “Wadena County Social Service brought a

                                             3
apply to W.B. The OFP identifies only Ball as the protected party. We therefore do not

address Rogers’s argument that the district court erred in granting an OFP on behalf of

W.B.

       We review a district court’s decision to grant an OFP for an abuse of discretion.

Pechovnik v. Pechovnik, 765 N.W.2d 94, 98 (Minn. App. 2009). “A district court abuses

its discretion if its findings are unsupported by the record or if it misapplies the law.”

Braend ex rel. Minor Children v. Braend, 721 N.W.2d 924, 927 (Minn. App. 2006). “We

review the district court’s findings of fact for clear error. In doing so, we view the evidence

in the light most favorable to the decision.” Gada v. Dedefo, 684 N.W.2d 512, 514 (Minn.

App. 2004) (citation omitted).      The resolution of conflicting evidence and witness

credibility determinations “are exclusively the province of the factfinder.” Id. We will

reverse when the district court’s findings are “clearly erroneous or manifestly contrary to

the weight of the evidence or not reasonably supported by the evidence as a whole.” Id.

(quotation omitted). We will reverse the district court’s findings only if we are left with a

definite and firm conviction that a mistake has been made. Pechovnik, 765 N.W.2d at 99

(citation omitted).

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

imminent physical harm, bodily injury or assault” on his or her spouse. Boniek v. Boniek,

443 N.W.2d 196, 198 (Minn. App. 1989). “Present intent to inflict fear of imminent




CHIPS action on behalf of the minor child alleging acts of abuse and neglect by [Ball]. As
the juvenile court has exclusive jurisdiction under the CHIPS proceeding, [Rogers]
concedes this issue as moot.” Given Rogers’s concession, we do not discuss this issue.

                                              4
physical harm, bodily injury, or assault can be inferred from the totality of the

circumstances, including a history of past abusive behavior. An overt physical act is not

necessary to support the issuance of an OFP.” Pechovnik, 765 N.W.2d at 99. This court

has found that “aggressive conversation and controlling behavior” constitutes domestic

abuse in the context of “an old history of threatening behavior.” Id. at 99-100 (quotations

omitted).

       The district court credited Ball’s testimony that Rogers has a history of threatening

behavior. The district court noted that “[Ball] indicated that prior to their separation[,]

[Rogers] had made a direct threat to kill [Ball], had killed a dog in her presence, and had

broken doors in a violent manner.” The district court also credited Ball’s testimony that

when she tried to call law enforcement during one of those incidents, Rogers took and

smashed the phone. The district court viewed Rogers’s recent acts in the context of his

past abuse, finding that, “[Rogers,] after three years [of little to no contact with W.B.],

removed [W.B] from school without notice to [Ball], demonstrating an intent to cause fear

to [Ball] and [W.B.], coupled with the past instances of domestic abuse.” The district court

found that Ball remained afraid of Rogers throughout the separation, and that removal of

W.B. from school was “unreasonable and consistent with prior abuse described by [Ball].”

       Rogers does not contest his history of abusive behavior toward Ball. Instead, he

argues that the abuse allegations are stale and irrelevant. He views his removal of W.B.

from school in isolation and describes it as a valid exercise of his rights as W.B.’s joint

legal custodian, a status which Ball does not contest in these proceedings.




                                             5
       Rogers may not have violated any custody law or order when he removed W.B.

from school without notice to Ball. But when Rogers’s removal of W.B. from school is

viewed in the context of Rogers’s uncontested history of abusive behavior—which is how

the district court viewed it—we are not left with the definite and firm conviction that a

mistake has been made.

       Under the deferential standard used to review the issuance of an OFP, we conclude

that the district court did not abuse its discretion by issuing an OFP on behalf of Ball. The

evidence was sufficient for the district court to infer Rogers’s present intent to inflict fear

of imminent physical harm, bodily injury, or assault from the totality of the circumstances,

including Rogers’s history of abusive behavior.

       Affirmed.




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