                           This opinion will be unpublished and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
                                      A16-0727

                                     In the Matter of:
                               Bret William Smith, petitioner,
                                         Appellant,

                                             vs.

                                  Timothy Patrick Lyons,
                                      Respondent.

                                 Filed January 9, 2017
          Affirmed; motion to dismiss denied; motion to strike granted in part
                                    Bratvold, Judge

                               Hennepin County District Court
                                File No. 27-DA-FA-16-1720

Bret William Smith, Richfield, Minnesota (pro se appellant)

Ryan D. Anderson, Lubov & Associates, LLC, Golden Valley, Minnesota (for respondent)

Jackie Cardinal, Minneapolis, Minnesota (guardian ad litem)

         Considered and decided by Worke, Presiding Judge; Stauber, Judge; and Bratvold,

Judge.

                          UNPUBLISHED OPINION

BRATVOLD, Judge

         Appellant challenges the district court’s decision denying an order for protection

(OFP) on behalf of his then four-year-old son, arguing that the record evidence established

by a preponderance of the evidence that respondent harmed and/or failed to protect his
son. 1 Respondent asks this court to dismiss the appeal because appellant’s brief fails to cite

any legal authority. In the alternative, respondent moves to strike the portions of appellant’s

brief that address matters outside of the record on appeal. Because this court has discretion

to consider inadequately briefed issues, we deny respondent’s motion to dismiss. This

court, however, will not consider matters outside of the record on appeal, therefore, we

grant respondent’s motion to strike. We conclude that the district court’s determination that

the evidence failed to establish that respondent harmed or failed to protect the child is not

clearly erroneous; thus, the district court did not abuse its discretion in denying the OFP

and we affirm.

                                           FACTS

       Appellant Bret Smith and respondent Timothy Lyons are involved in a custody

dispute regarding J.A.J, who is Smith’s son, and formerly, Lyons’s foster child. Smith

gained temporary custody of J.A.J. in September 2015, when J.A.J.’s biological mother

relapsed into chemical dependency. Smith initiated custody proceedings against mother.

With Smith’s consent, Lyons was a third-party intervenor in those proceedings, which were

pending at the time this appeal was submitted. Shortly after Lyons intervened in the custody

proceedings, he filed a third-party custody and visitation petition, and the district court

permitted Lyons to have visitation with J.A.J. based on the parties’ agreement.




1
  The district court judge “dismissed and vacated” the amended ex-parte OFP issued on
March 31, 2016. The district court also found that “the record as a whole” does not support
a finding that respondent physically or sexually abused the minor child. Therefore, the
district court also denied the petition requesting an extension of the OFP.

                                              2
       Lyons’s most recent visitation with J.A.J. occurred on January 15-17, 2016. Two

weeks later, on January 31, 2016, Smith emailed the guardian ad litem (GAL) alleging that

Lyons’s three-year-old daughter bit J.A.J. and stabbed him in the back with a toy knife.

Smith forwarded a cell phone photo of J.A.J.’s back and stated he would take J.A.J. to a

hospital to document the abuse and to “assist with eliminating visitation.” The GAL met

with J.A.J. and observed a single bruise on his back. J.A.J. told the GAL that Smith told

him to say that he no longer wanted to see Lyons. The GAL submitted a child protection

report, and Child Protective Services (CPS) determined that the injury did not warrant an

investigation.

       The district court held an emergency telephone conference on February 5, 2016,

after the allegations of physical abuse arose. The district court ordered that visitation

continue with Lyons every other weekend.

       On February 19, 2016, Smith reported to CPS that J.A.J. had said that Lyons had

“touched my pennies [sic] and my butt and put a finger in my butt.” Smith initially alleged

that the abuse happened on February 16, 2016, a date on which J.A.J. was not with Lyons.

Smith later claimed that the incident occurred on January 16, 2016, concurrent with the

events described above. CPS initiated a forensic interview; J.A.J. did not disclose any

sexual abuse to the interviewer. J.A.J. stated he liked Lyons and was not afraid of him. CPS

closed its investigation, making no findings of abuse, and did not restrict Lyons’s contact

with the child.

       On March 9, 2016, Smith filed an OFP petition on behalf of J.A.J., alleging physical

and sexual abuse by Lyons. The petition was denied.


                                             3
       On March 22, 2016, Smith alleged that J.A.J. was physically abused at Hope Pre-

School. The teachers had informed Smith that J.A.J. was standing in a wagon when another

child pulled the wagon, causing J.A.J. to fall and he “was scratched on his face.” Smith

claimed that J.A.J. stated the child pulled him out of the wagon and threw him on the

ground. Smith removed J.A.J. from Hope Pre-School after this incident.

       On March 23, 2016, Smith brought J.A.J. for a Sex Behavior Assessment with

Dr. Debbie Gerdes. Smith and J.A.J. “made identical reports to the evaluator,” including

that Lyons’s three-year-old daughter held J.A.J. down and pulled down his pants, and then

Lyons “sexually abused [J.A.J.].” Dr. Gerdes prepared a written assessment and Smith

forwarded this assessment to CPS; however, no investigation was opened.

       On March 29, 2016, Smith filed an amended version of the previously-denied OFP

petition, alleging the same abuse incident by Lyons and his daughter, and attaching an

email from Dr. Debbie Gerdes stating that J.A.J. had disclosed sexual abuse to her on

March 23, 2016. The district court granted a temporary ex parte OFP, “[f]or the very short

time until April 4, 2016” and scheduled a hearing. The order also stated that Smith “appears

to be judge shopping.”

       On April 14, 2016, the district court heard both parties on the amended OFP petition.

The district court received as evidence two photographs of J.A.J., taken with Smith’s cell

phone. Regarding the photographs, the district court observed:

              one photograph, which [Smith] maintains he took on
              January 20, 2016, was downloaded as a bitmap file onto his
              computer that day. It depicts nine bruises across the child’s
              lower back and is annotated by [Smith] with comments such as
              “bite injury” and “stab injury.” It looks nothing like the


                                             4
              photograph [Smith] forwarded to the [GAL] on January 31,
              2016, which depicted a single bruise. The other photograph,
              which [Smith] maintains he took with his cell phone and
              downloaded onto his computer as a jpg file on January 31,
              2016, appears to be identical to the photograph sent to the
              [GAL] that day, except it contains annotations by [Smith]
              indicating the location of “healing” bruises, bites and stab
              marks that are not apparent on the photograph. [Smith] said he
              immediately deleted the original photographs taken on his cell
              phone.

       The district court also heard testimony from Smith, J.A.J.’s grandfather, and Lyons.

Lyons testified that J.A.J. got along well with his children and denied that J.A.J. was held

down physically or sexually abused in his home. Lyons testified that over the weekend of

January 16, 2016, when he last saw J.A.J., the family visited a “bounce” house, J.A.J.

behaved normally, and did not report any injuries.

       Additionally, the district court received Dr. Gerdes’s written assessment, which

stated, in part, that Smith had noticed “a number of concerning behaviors” by J.A.J., but

Smith did not report any sexualized behaviors. Nonetheless, Dr. Gerdes recommended that

the child’s anxiety should be addressed because “it appears that [J.A.J.] may have

experienced sexual abuse and/or other trauma in his past” and would benefit from therapy.

       The district court found that J.A.J. did not experience a significant injury on

January 16, 2016, reasoning that Smith claimed he saw J.A.J.’s bruises on January 18,

2016, but did not take photos until January 20, 2016, waited until January 31, 2016 to

contact the GAL, and waited several more days to take J.A.J. to the hospital. The district

court concluded that this “time frame” and the absence of medical evidence failed to

establish that significant injury occurred.



                                              5
       Additionally, the district court found that Smith’s “description of the injury is

inconsistent,” because Smith first stated that J.A.J. had only a single bruise on his back,

and “later provided edited photographs depicting numerous bruises.” Further, Smith

provided “inconsistent allegations about the date of the alleged sexual abuse.” The district

court concluded that “[t]hese inconsistencies, combined with [Smith’s] history of alleging

unsubstantiated physical and sexual abuse by others who come into contact with the child,

undermine [Smith’s] credibility.” 2 The district court found that J.A.J. had been

traumatized, but that the trauma could not be attributed to Lyons. Thus, the district court

concluded that Smith had not met his burden to prove that domestic abuse had occurred,

and denied the petition for an OFP.

       This appeal followed. Lyons filed a motion to dismiss and, alternatively, a motion

to strike portions of Smith’s appellate brief. Lyons’s motions were reviewed in special term

and deferred to the merits panel.

                                      DECISION

       The parties raise three issues on appeal. First, Lyons moves to dismiss the appeal,

arguing that appellant’s brief is inadequate. Second, Lyons asks that portions of Smith’s

brief be struck because he raises matters that are not in the record on appeal. Third, Smith



2
  In addition to the incident reported at Hope Pre-School, the district court’s decision
referred to two other incidents where Smith alleged his son had been abused. Smith testified
that J.A.J. was bitten at a daycare facility. He does not remember the names of the children
who allegedly bit J.A.J., but maintains that they were “kicked out” of the daycare. Smith
also accused a student at a different preschool of sexually abusing J.A.J. on November 3,
2015. After reviewing school records, the preschool determined that the accused student
did not attend school on November 3, 2015.

                                             6
argues that the district court abused its discretion when it denied the OFP. Each issue will

be discussed in turn.

I.     Motion to Dismiss

     Caselaw establishes that parties to an appeal must cite legal authority to support their

arguments, or this court will not consider them. State v. Tomassoni, 778 N.W. 327, 335

(Minn. 2010). “An assignment of error based on mere assertion and not supported by any

argument or authorities in appellant’s brief is waived and will not be considered on appeal

unless prejudicial error is obvious on mere inspection.” Balder v. Haley, 399 N.W.2d 77,

80 (Minn. 1987).

     Here, Smith’s brief cites no legal authority. Based on our review, the district court

applied the correct rules of law, so prejudicial error is not obvious. The gist of Smith’s

appeal, however, is that the district court clearly erred in its factual findings. Balder notes

that this court retains discretion to consider inadequately briefed issues. Id. This court

“may review any other matter as the interest of justice may require.” Minn. R. Civ. App.

P. 103.04. Thus, this court may consider unsupported arguments if it is in “the interest of

justice” to do so. Id.

     Because Smith asserts asks us to review an order denying an OFP on behalf of a child

based on allegations of physical and sexual abuse, we conclude that exercising our

discretion is appropriate. Appellate review of this order implicates “the state’s interest in

protecting the well-being of [the] child[].” Putz v. Putz, 645 N.W.2d 343, 350 (Minn. 2002)

(invoking appellate rule 103.04 in a child support appeal to decide an issue not raised in

the district court because a child’s well-being was at stake). This court has exercised its


                                              7
discretion to consider similar issues, even though the issues were not properly presented.

See, e.g., Beardsley v. Garcia, 731 N.W.2d 843, 849 (Minn. App. 2007) (reviewing an

issue in the interest of justice even though the issue was not raised in district court

proceedings that granted an OFP petition and also permitted supervised parenting time to

an alleged abuser), aff’d, 753 N.W.2d 735 (Minn. 2008). Because this court has discretion

to consider an issue in the interest of justice even when inadequately briefed, the order on

appeal denied an OFP petition on behalf of a child, and Lyons is not prejudiced by

proceeding with the merits of the appeal, Lyons’s motion to dismiss is denied.

II.    Motion to Strike

      “The documents filed in the [district] court, the exhibits, and the transcript of the

proceedings, if any, shall constitute the record on appeal in all cases.” Minn. R. Civ. App.

P. 110.01. “An appellate court may not base its decision on matters outside the record on

appeal, and may not consider matters not produced and received in evidence below.” Thiele

v. Stich, 425 N.W.2d 580, 582–83 (Minn. 1988); see Turner v. Alpha Phi Sorority House,

276 N.W.2d 63, 68 n.2 (Minn. 1979) (striking a document not included in district court

record). Lyons asks this court to strike portions of Smith’s brief because it refers to matters

that are outside of the appeal record. Smith asks the court to consider his brief, without

specifically addressing whether it raises matters outside of the record. We agree with

Lyons. We have limited our review to the statements in the record. Lyons’s motion to strike

is granted in part, and the statements in Smith’s appellate brief that are outside of the appeal

record are stricken.




                                               8
III.    Denial of OFP

       A party requesting an OFP must prove by a preponderance of the evidence that

domestic abuse has occurred. Minn. Stat. § 518B.01, subd. 4(b) (2014); Oberg v. Bradley,

868 N.W.2d 62, 64 (Minn. App. 2015) (holding preponderance standard applies even

though statute is silent on the matter). “Domestic abuse” is any act “committed against a

family or household member by a family or household member” that results in: (1)

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

bodily injury, or assault”; or (3) terroristic threats, criminal sexual conduct, or interference

with an emergency call. Minn. Stat. § 518B.01, subd. 2(a)(1)–(3) (2014). “In order to

establish domestic abuse, a party must show present harm or an intention [by the alleged

abuser] to do present harm.” Chosa ex rel. Chosa v. Tagliente, 693 N.W.2d 487, 489 (Minn.

App. 2005) (quotation omitted).

       This court reviews a district court’s decision to deny an OFP by applying a mixed

standard of review. Factual findings are reviewed for clear error and the decision to grant

or deny an OFP is reviewed for an abuse of discretion. Pechovnik v. Pechovnik, 765

N.W.2d 94, 98–99 (Minn. App. 2009). “A finding is clearly erroneous if it is either

manifestly contrary to the weight of the evidence or not reasonably supported by the

evidence as a whole.” In re Welfare of Children of T.R., 750 N.W.2d 656, 660–61 (Minn.

2008) (quotation omitted). This court “neither reconcile[s] conflicting evidence nor

decide[s] issues of witness credibility, which are exclusively the province of the

factfinder.” Pechovnik, 765 N.W.2d at 99.




                                               9
     After an evidentiary hearing, the district court denied the OFP petition, even though

the court found that J.A.J. had been traumatized, because the evidence was insufficient to

conclude that Lyons had physically or sexually abused J.A.J. The district court also

determined that Smith’s testimony was inconsistent and lacked credibility. Smith argues

that the district court erred in its factual findings when it stated that Lyons’s three-year-old

daughter held J.A.J. down during an alleged assault. Additionally, Smith argues that the

evidence was sufficient to grant an OFP. Smith’s arguments fail for two reasons.

     First, Smith’s claim that the district court clearly erred regarding who allegedly held

down J.A.J. is not persuasive. Smith’s March 29, 2016 petition asserts that Lyons held

down J.A.J. Dr. Gerdes’s report, however, states that J.A.J. reported the three-year-old

“pinned [him] down and pulled his pants down.” Smith essentially asks this court to

reconsider the evidence and substitute its judgment for that of the district court. This court,

however, will not reconcile conflicting evidence, as that is the exclusive function of the

factfinder. Pechovnik, 765 N.W.2d at 99. Because the district court’s factual determination

is supported by record evidence, it is not clearly erroneous.

     Second, the district court issued detailed findings of fact regarding evidentiary and

credibility determinations when it denied the OFP, and it found Smith’s credibility to be

undermined by numerous inconsistencies. Because “the district court is in the best position

to judge the credibility of the witnesses” and weigh conflicting evidence, we defer to the

district court’s factual and credibility findings. Braith v. Fischer, 632 N.W.2d 716, 724

(Minn. App. 2001), review denied (Minn. Oct. 24, 2001). After a careful review of the

record, we conclude that the district court’s findings are supported and not clearly


                                              10
erroneous. Thus, the district court’s decision to deny the OFP was not an abuse of

discretion.

       Affirmed; motion to dismiss denied; and motion to strike granted in part.




                                         11
