In the Matter of: Tracy Elizabeth Thompson and o/b/o Minor Child,

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STATE OF MINNESOTA

IN SUPREME COURT

A16-0378

Court of Appeals Lillehaug, J.

In the Matter of: Tracy Elizabeth Thompson and o/b/o Minor Child,

Appellant,

vs. Filed: January 31, 2018
Office of Appellate Courts
John Patrick Schrimsher,

Respondent.

________________________

Bradford Colbert, Saint Paul, Minnesota, for appellant.

Cathryn C. Schmidt, Victoria A. Elsmore, Amy M. Krupinski, Collins, Buckley, Sauntry
& Haugh, P.L.L.P., Saint Paul, Minnesota, for respondent.

Elizabeth J. Richards, Brianna H. Boone, Minnesota Coalition for Battered Women, Saint
Paul, Minnesota;

Rana Alexander, Standpoint, Minneapolis, Minnesota;

Caroline S. Palmer, Minnesota Coalition Against Sexual Assault, Saint Paul, Minnesota;
and

Kristine Lizdas, Battered Women’s Justice Project, Minneapolis, Minnesota, for amici
curiae Minnesota Coalition for Battered Women, Standpoint, Minnesota Coalition Against
Sexual Assault, and Battered Women’s Justice Project.

Ben M. Henschel, Henschel Moberg Goff P.A., Minneapolis, Minnesota;

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David L. Olson, Edina, Minnesota;

Michael D. Dittberner, Linder, Dittberner, Bryant & Winter, Ltd., Edina, Minnesota; and

Mary Catherine Lauhead, Law Offices of Mary Catherine Lauhead, Saint Paul, Minnesota,
for amicus curiae Minnesota Chapter of the American Academy of Matrimonial Lawyers.

________________________
S Y L L A B U S
1. Under the Domestic Abuse Act, Minn. Stat. § 518B.01 (2016), a petitioner
establishes “domestic abuse” by showing that “physical harm, bodily injury, or assault”
has occurred, irrespective of when it occurred . Upon that showing, the district court has
the discretion, based on all of the relevant circumstances, to grant or deny a petition for an
order for protection.
2. The district court did not abuse its discretion by granting appellant’s petition
for an order for protection against respondent.
Reversed.
O P I N I O N
LILLEHAUG, Justice.
In September 2015, appellant Tracy Thompson petitioned for an order for protection
(“OFP”) against resp ondent John Schrimsher. The petition was based largely on
allegations of physical abuse from summer 2011 through spring 2012. We granted review
to decide whether past physical abuse, standing alone, can support the issuance of an OFP
under the Domestic Abuse Act (“the Act”) , Minn. Stat. § 518B.01 (2016). Because the
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plain language of the Act imposes no temporal requirement on when the “domestic abuse”
occurred, we reverse the decision of the court of appeals.
FACTS
Appellant Tracy Thompson and respondent John Schrimsher began a romantic
relationship in 2009. After several months they moved in together, and thereafter the
couple moved to Georgia. In January 2012, their child, K.M.S., was born.
In April 2012, following many alleged instances of domestic abuse, Thompson
moved back to Minnesota with K.M.S. Schrimsher remained in Georgia. In July 2012,
Thompson petitioned for an OFP against Schrimsher in Hennepin County. The district
court issued an ex parte order and set a hearing date, but dismissed the matter when
Thompson failed to attend the hearing. She stated that she did not attend the hearing
because she “was terrified of what was going to happen.”
That same summer Schrimsher brought a custody action in Georgia state court. The
court gave Thompson and Schrimsher joint legal custody of K.M.S., but awarded primary
physical custody to Thompson.
In March 2015, Schrimsher brought a contempt action against Thompson in Ramsey
County, claiming that she had failed to accommodate his visitation rights under the Georgia
court order. In September 2015, before a hearing could be held, Schrimsher dismissed the
action. Shortly thereafter Thompson filed a new pro se OFP petition in Ramsey County
for herself and K.M.S. The court issued an ex parte OFP and then held an evidentiary
hearing.
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Thompson and Schrimsher testified at the hearing. Thompson recounted many
instances of physical abuse beginning in 2010, including being kicked, choked, knocked
over, and slapped, some of which occurred while she was pregnant. Schrimsher denied all
of her allegations and claimed that Thompson had physically abused him.
The district court issued a new OFP preventing Schrimsher from contacting
Thompson. In its order, the court found that Thompson had “established a course of
conduct that [Schrimsher] has and continues to terrorize her . . . . [S]ince the time the parties
resided together in 2010, [he] has mentally, physically, and sexually abused her.” The OFP
had a duration of two years.
Schrimsher appealed, and the court of appeals reversed in an unpublished decision.
Acknowledging that “the district court found credible the testimony that there existed a
past history of domestic abuse,” the court nevertheless held that “[i]t is well-settled that a
finding of past domestic abuse alone is insufficient to support the issuance of an OFP
without a showing of a present intent to cause or inflict fear of imminent physical harm.”
Thompson v. Schrimsher, No. A16-0378, 2017 WL 74372, at *2–3 (Minn. App. Jan. 9,
2017) (citing Bjergum v. Bjergum , 392 N.W.2d 604, 606 (Minn. App. 1986)) . Because
“the district court’s finding of domestic abuse was mostly, if not entirely, based on past
domestic abuse that occurred more than three years earlier,” id. at *2, the court of appeals
held that the “ issuance of the OFP was improper,” id. at *3.
1 We granted Thompson’s
petition for review.

1 The OFP granted in favor of K.M.S., which was overturned by the court of appeals,
is not at issue in this appeal.
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ANALYSIS
I.
The first issue for us to address is whether the court of appeals correctly concluded
that past physical abuse, standing alone, does not constitute “domestic abuse” sufficient to
support the issuance of an OFP. This requires us to interpret provisions of the Act.
“Statutory interpretation is a question of law, which we review de novo.” State v. Jones,
848 N.W.2d 528, 535 (Minn. 2014).
“The goal of all statutory construction is to effectuate the intent of the legislature.”
Premier Bank v. Becker Dev., LLC, 785 N.W.2d 753, 759 (Minn. 2010). In effectuating
the Legislature’s intent, “the entire Domestic Abuse Act must be examined.” Schmidt ex
rel. P.M.S. v. Coons, 818 N.W.2d 523, 527 (Minn. 2012); see also State v. Gaiovnik, 794
N.W.2d 643, 647 (Minn. 2011) (“[W]e do not examine different provisions in isolation.”).
This analysis begins with the plain language of the statute. A.A.A. v. Minn. Dep’t of Human
Servs., 832 N.W.2d 816, 819 (Minn. 2013). “If the statute is clear and not ambiguous, then
we apply its plain and ordinary meaning.” Id.
Thompson argues that the plain language of the Act’s definition of “domestic abuse”
does not require that the “physical harm, bodily injury, or assault” be present at the time of
filing a petition for an OFP. Schrimsher disagrees, arguing that, reading subdivision
2(a)(1) of the Act together with subdivision 2(a)(2), a showing of past “physical harm,
bodily injury, or assault” is not enough to grant an OFP; rather, the “physical harm, bodily
injury, or assault” must have happened recently or be “imminent.”
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The Act “was enacted in 1979 to provide an efficient remedy for victims of abuse
as an alternative to other available legal remedies.” State v. Errington, 310 N.W.2d 681,
682 (Minn. 1981). It accomplishes this objective by creating a cause of action “known as
a petition for an order for protection.” Minn. Stat. § 518B.01, subd. 4.
A petitioner seeking an OFP must “allege the existence of domestic abuse” by
affidavit, including the “specific facts and circumstances from which relief is sought.” Id.,
subd. 4(b). Once an OFP petition is filed, and “upon notice and hearing,” the court may
grant various forms of discretionary relief “for a period not to exceed two years, except
when the court determines a longer period is appropriate.” Id., subd. 6(a)–(b).
No relief is available, however, unless a petitioner first shows that “domestic abuse”
has occurred. Id., subd. 4(b). Subdivision 2(a) of the Act defines “domestic abuse” in
three ways:
(a) “Domestic abuse” means the following, if committed against a family or
household member by a family or household member:
(1) physical harm, bodily injury, or assault;
(2) the infliction of fear of imminent physical harm, bodily injury, or assault;
or
(3) terroristic threats . . . ; criminal sexual conduct . . . ; or interference with
an emergency call . . . .

In this case, Thompson invoked th e first of these definitions—“physical harm, bodily
injury, or assault.” Id., subd. 2(a)(1).
The plain language of subdivision 2(a)(1) does not require that the “physical harm,
bodily injury, or assault” has occurred within a specified time before the petition is filed or
be imminent. The definition simply requires that “physical harm, bodily injury, or assault”
has occurred at some point. It would be inappropriate for us to read a temporal requirement,
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or the word “imminent ,” into a statutory definition when no such requirement appears in
the text. See State v. Wenthe, 865 N.W.2d 293, 304 (Minn. 2015) (“[C]ourts cannot supply
that which the legislature purposely omits or inadvertently overlooks.” (quoting Wallace
v. Comm’r of Taxation, 184 N.W.2d 588, 594 (Minn. 1971))).
By contrast, an alternative definition of “domestic abuse,” subdivision 2(a)(2) ,
expressly defines “domestic abuse” as “the infliction of fear of imminent physical harm,
bodily injury, or assault.” Minn. Stat. § 518B.01, subd. 2(a)(2) (emphasis added). Contrary
to Schrimsher’s request, we cannot meld subdivisions 2(a)(1) and (2).
Specifically, the Act lays out three definitions of “domestic abuse,” each separated
by an “or.” Minn. Stat. § 518B.01, subd. 2(a). “Or” is a disjunctive term, “requiring that
only one of the possible factual situations linked by the ‘or’ be present.” State v. Bakken,
883 N.W.2d 264, 268 (Minn. 2016). Because the definitions are disjunctive, a plaintiff can
establish “domestic abuse” by demonstrating that the facts fit any one of the three
definitions. See Baker v. Baker, 494 N.W.2d 282, 285 (Minn. 1992) (“[ The Domestic
Abuse Act] requires a demonstration of physical harm, or fear, or sexual misconduct . . . .”
(emphasis added)). Each definition is independent of the others. We cannot create a new,
hybrid definition.
Indeed, the remainder of the Act tells us that, when the Legislature wanted to impose
a temporal requirement, it knew how to do so. In addition to subdivision 2(a)(2), two other
subdivisions of the Act contain temporal language. Subdivision 7(a) requires a petitioner
to allege an “immediate and present danger of domestic abuse” before an OFP may be
issued ex parte. Minn. Stat. § 518B.01, subd. 7(a). Similarly, subdivision 6(i) requires the
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court to “determine by a preponderance of evidence if an abusing party poses an imminent
risk of causing another person substantial bodily harm” before it can order law enforcement
to “take immediate possession of all firearms in the abusing party’s possession.” Id., subd.
6(i). The fact that specific temporal language does not appear in subdivision 2(a)(1)
suggests that to obtain an ordinary OFP—one that is not granted ex parte and does not call
for the seizure of the abuser’s firearms—the petitioner need not demonstrate that the danger
of physical harm is immediate or imminent.
The court of appeals thus erred when it concluded, as a matter of law, that “a finding
of past domestic abuse alone is insufficient to support the issuance of an OFP without a
showing of a present intent to cause or inflict fear of imminent physical harm.” Thompson,
2017 WL 74372, at *2. The court’s erroneous interpretation of “domestic abuse” was
based on the rule it had articulated in Kass v. Kass, 355 N.W.2d 335 (Minn. App. 1984).
In Kass the court interpreted “domestic abuse” to “require either a showing of present harm,
or an intention on the part of appellant to do present harm.” Id. at 337. This interpretation
was incorrect, as it borrowed the word “imminent” from subdivision 2(a)(2) and inserted
it into subdivision 2(a)(1)’s definition of “domestic abuse.”2 Therefore, we overrule Kass
to the extent that its interpretation of subdivision 2(a)(1) deviates from our analysis here.

2 When Kass was decided, the definition of “domestic abuse” was : “(i) physical
harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily
injury or assault . . . or (ii) criminal sexual conduct . . . .” Minn. Stat. § 518B.01, subd.
2(a) (1982) (emphasis added). The definition was modified into its current form in 1995.
Act of May 25, 1995, ch. 226, art. 7, § 3, 1995 Minn. Laws 1753, 1881. But even the 1982
definition had a disjunctive “or” between the “physical harm, bodily injury, assault”
portion of the definition and “the infliction of fear of imminent physical harm, bodily
injury, or assault” portion.
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Schrimsher argues that our interpretation will create absurd results because it makes
it possible for a district court to grant an OFP based on a single, isolated incident of
“domestic abuse” that occurred years ago. Schrimsher far overstates this risk. Under the
Act, OFPs are never granted automatically . Instead, once a petitioner has “allege[d] the
existence of domestic abuse,” the district court “shall order a hearing.” Minn. Stat.
§ 518B.01, subds. 4(b), 5(a). After this hearing, “the court may provide relief.” Id., subd.
6(a) (emphasis added). “May” means “[t]o be allowed or permitted to.” The American
Heritage Dictionary of the English Language 1086 (5th ed. 2011); see also Minn. Stat.
§ 645.44, subd. 15 (2016) (“ ‘May’ is permissive”). The district court’s decision is
discretionary.
In other words, once “domestic abuse” has been established , the district court may
examine all of the relevant circumstances proven to determine whether to grant or deny the
petition for an OFP. Relevant circumstances may include, but are not limited to, the timing,
frequency, and severity of any alleged instances of “domestic abuse,” along with the
likelihood of further abuse.
For these reasons, we hold that, under subdivision 2(a)(1) of the Act, a petitioner
need only show that “physical harm, bodily in jury, or assault” has actually occurred,
regardless of when it occurred, to satisfy the first definition of “domestic abuse.”
II.
Having determined that “domestic abuse” can be established by alleging and
showing past “physical harm, bodily injury, or assault,” we turn to the question of whether
the district court abused its discretion when it granted Thompson’s OFP petition.
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We review the decision to grant an OFP for an abuse of discretion. See Coons,
818 N.W.2d at 526. A district court abuses its discretion “when its decision is based on an
erroneous view of the law or is against logic and the facts in the record.” Riley v. State,
792 N.W.2d 831, 833 (Minn. 2011). We give deference “to the opportunity of the trial
court to assess the credibility of the witnesses.” Sefkow v. Sefkow, 427 N.W.2d 203, 210
(Minn. 1988).
Here, the district court did not abuse its discretion by granting an OFP. Thompson
testified to a general pattern of abuse occurring from 2010 to 2012. Thompson further
testified to multiple specific incidents of kicking, choking, and slapping, including an
occasion during which Schrimsher dragged her down a hallway, threw her onto a bed, and
attempted to handcuff her. This testimony led the district court to find that Schrimsher
“mentally, physically, and sexually abused” Thompson. As the court of appeals noted,
“the district court found credible the testimony that there existed a past history of domestic
abuse.” Thompson, 2017 WL 74372, at *3. Thompson satisfied the statutory definition of
“domestic abuse.”
The district court also found that, although the domestic abuse had occurred in the
past, it was “a course of conduct that . . . has and continues to terrorize” Thompson.
Speaking from the bench, the court further found that Schrimsher “continues, through
means that he is very aware of . . . to control and disrupt [Thompson’s] life.” In issuing
the two- year OFP, the district court considered the relevant circumstances proven by
Thompson, including the timing, frequency, and severity of the domestic abuse, as well as
the likelihood of further abuse. Plainly, the district court did not abuse its discretion.
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CONCLUSION
For the foregoing reasons, we reverse the decision of the court of appeals and
remand to the district court to reinstate the order for protection.
Reversed.