In the Matter of:

This opinion will be unpublished and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
A16-1450

In the Matter of:

Krystal Marie Ketchmark, petitioner,
Respondent,

vs.

Aaron Bruce Fruen,
Appellant.

Filed May 15, 2017
Reversed and remanded
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-DA-FA-16-5877

Krystal Marie Ketchmark, Osceola, Wisconsin (pro se respondent)

Jason R. Vohnoutka, Vohnoutka Law Office, Ltd., Minneapolis, Minnesota (for appellant)

Considered and decided by Peterson, Pres iding Judge; Connolly, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Aaron Bruce Fruen appeals the di strict court’s issuance of an order for
protection (OFP) against him, arguing that the district court abused its discretion by basing
the OFP on findings that are unsupported by the record and by improperly admitting certain

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text messages into evidence wi thout proper authentication. Because the record does not
support the district court’s finding of inflic tion of fear of harm, and because the findings
are not sufficiently clear to justify an OFP based on the alternative ground of physical harm,
we reverse and remand. Given our disposition, we need not reach appellant’s evidentiary
challenge to the text messages.
FACTS
Ketchmark’s OFP petition asserted that sh e and the parties’ minor child needed
protection from Fruen based on an incident that occurred on August 15, 2016. The parties
had agreed that Ketchmark woul d pick up their child at Frue n’s residence that evening.
Ketchmark arrived at Fruen’s residence and entered Fruen’s enclosed three-season front
porch. Fruen saw Ketchmark through the window and twice asked her to leave the porch,
but she did not leave. Fruen put his cell phone in his hand, walked toward Ketchmark, and
attempted to get her to leav e the porch. According to Ketchmark’s testimony, Fruen
pushed Ketchmark into the door of the porch and hit her several times. Ketchmark then
left the porch, hit Fruen’s phone out of his hand, and walked to her car. Ketchmark testified
that Fruen followed Ketchmark to her car and threw her into the side of the car.
The district court issued an emergency ex parte OFP. The district court thereafter
held an evidentiary hearing, at which Fr uen was represented by counsel and Ketchmark
was not. While Ketchmark was cross-examini ng Fruen, she asked if he had written text
messages that asked Ketchmark to drop the charges and told her to ask herself if it would
be in their child’s best inte rest to see Fruen arrested. Fruen denied writing the text
messages. The district court asked for proof that the text messages Ketchmark referred to

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came from Fruen’s phone. Ketchmark responded th at she had a printed screenshot of the
text messages and that it “says Aaron at the top.” Over Frue n’s lack-of-foundation
objection, the district court received the printed screenshot of the text messages as
exhibit 2. The district cour t’s findings state that in the text messages Fruen “accuses
[Ketchmark] of lying about the events of A ugust 15, but then begins insulting her and
saying he will make it his mission to destroy her life.”1 
The district court found that Ketchmark “tes tified credibly with respect to the threats
made to her by [Fruen] on August 15, 2016, w ith respect to the allegations of abuse on
August 15.” The district court issued an OFP against Fruen on behalf of Ketchmark based
on its finding that Ketchmark “is in reasonabl e fear for her safety.” The district court
dismissed the OFP as it related to the child because there were no allegations of threats or
harm to the child.
Fruen appeals.
D E C I S I O N
Fruen argues that there is insufficient evid ence to justify the OFP. We will reverse
an OFP if the district court abused its disc retion by misapplying th e law or by making

1 The text messages are no longer in the record . Exhibit 2 apparently was not retained in
the district court’s file but was returned to Ketchmark. In response to Fruen’s motion to
correct the record on appeal to include exhib it 2, the district court ordered Ketchmark to
provide Fruen’s counsel with a copy of the exhibit. Ke tchmark failed to do so.
Accordingly, in an order filed January 20, 2017, this court denied the motion to correct the
record to include the missing exhibit 2 and directed this panel to decide this appeal without
considering the text messages.

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findings that are unsupported by the record. Pechovnik v. Pechovnik, 765 N.W.2d 94, 98
(Minn. App. 2009).
The Minnesota Domestic Abuse Act, Minn . Stat. § 518B.01 (2016), establishes an
action for an OFP “in cases of domestic abuse.” Minn. Stat. § 518B.01, subd. 4. An OFP
“is available only if the petitioner shows th at the respondent co mmitted domestic abuse
against the petitioner or the person on whose behalf the petition is brought.” Schmidt ex
r e l . P . M . S . v . C o o n s, 818 N.W.2d 523, 529 (Minn. 20 12). Domestic abuse means, in
relevant part, “(1) physical harm, bodily injury, or assault” or “(2) the infliction of fear of
imminent physical harm, bodily injury, or as sault” if committed against a family or
household member by a family or household member. Minn. Stat. § 518B.01, subd. 2(a).
To establish domestic abuse, an OFP petitioner must either establish present physical harm
or establish that the alleged abuser has a present intention to inflict either physical harm or
fear of imminent physical harm. Chosa ex rel. Chosa v. Tagliente, 693 N.W.2d 487, 489
(Minn. App. 2005); Bjergum v. Bjergum, 392 N.W.2d 604, 606 (M inn. App. 1986). An
OFP petitioner must prove the existence of domestic abuse by a preponderance of the
evidence. Oberg v. Bradley, 868 N.W.2d 62, 63 (Minn. App. 2015).
The district court based its decision to grant the OFP on its finding that Ketchmark
“testified credibly with respect to the threats made to her by [Fruen] on August 15, 2016,
with respect to the allegations of abuse on August 15.”2 While we are aware that appellate

2 The district court found that Ketchmark met her burden for an OFP by proving that she
was “in reasonable fear for her safety.” This language indicates that the district court
applied the standard for extending an OFP or issuing a subsequent OFP after a prior OFP
has expired. See Minn. Stat. § 518B.01, subd. 6a(b )(2) (allowing a court to issue a

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courts defer to district court credibility determinations, Gada v. Dedefo, 684 N.W.2d 512,
514 (Minn. App. 2004), Ketchmark did not testif y that Fruen threatened her. The district
court found that, in the exhibit 2 text messag es, Fruen accused Ketchmark of lying about
the allegations of abuse and then said he would make it his mission to destroy Ketchmark’s
life. That finding implies that the “threats . . . with respect to the allegations of abuse” were
contained in the exhibit 2 text messages rather than in testimony. But, because exhibit 2 is
not in the record and nothing else in the re cord supports the finding that Fruen actually
threatened Ketchmark, we conclude that th e district court’s finding of threats is
unsupported by the record pr esented to this court. See Pechovnik, 765 N.W.2d at 98.
Therefore, the OFP cannot be sustained based on fear of physical harm. See id.; see also
Minn. Stat. § 518B.01, subd. 2(a)(2); id., subd. 6a(b)(2).
It is possible that an altern ative ground exists to justify the OFP. In the petition for
the OFP and in her testimony, Ketchmark allege d physical abuse. A district court may
issue an OFP if the petitioner proves “physical harm, bodily injury, or assault.” See Minn.
Stat. § 518B.01, subd. 2(a)(1). The district court addressed Ketchmark’s allegations of
physical harm in paragraph 5 of its order, stating:
[Ketchmark] testified to the ev ents of August 15, 2016.
[Ketchmark] arrived at [Fruen’s ] residence to pick up the
minor child. She entered [Fruen’s] porch, and [Fruen] entered
the porch, yelling at [Ketchmark] to leave his property. [Fruen]

subsequent OFP without a new finding of domestic abuse “if the petitioner is reasonably
in fear of physical harm” from the same abusi ng party). It may have been improper to
apply that standard here beca use the only OFP between the parties prior to the current
proceeding was an ex parte OFP that was dismissed after a hearing found no domestic
abuse. Compare id., with id., subd. 2(a). In any event, we conclude that the record does
not support the issuance of the OFP under either standard.

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pushed [Ketchmark] into the door of the porch, and then hit her
several times. When [Ketchma rk] left the porch, [Fruen]
pursued her to her car, and threw her into the side of it. These
events all happened within full view of the minor child.
It is unclear from this paragraph whether the district court found that the alleged physical
abuse occurred. Factual findings must be affi rmatively stated as fi ndings of the district
court, and statements preface d by phrases such as “petiti oner claims” are not findings.
Dean v. Pelton, 437 N.W.2d 762, 764 (Minn. App. 1989). Paragraph 5 can reasonably be
read to apply the preface that “Petitioner test ified” to the entire paragraph, which would
mean that the paragraph is a summary of Ketchmark’s alle gations but not a finding that
those events actually occurred. Furthermore, the district court made no express finding as
to the credibility of this part of Ketchmark’s testimony. In addition, the district court’s
findings describe Fruen’s testimony denying physical harm but do not make a credibility
determination regarding his testimony. From the district court’s order, we cannot conclude
that the district court made an affirmativ e finding that Fruen committed physical harm,
bodily injury, or assault amounting to domestic abuse under Minn. Stat. § 518B.01, subd.
2(a)(1).
Because the record does not support the district court’s finding of threats, and
because the district court did not make findings regarding the allegations of physical abuse
sufficient to justify the OFP on that ground, we reverse the district court’s order. We
remand to the district court to make credib ility determinations and findings regarding the
alleged physical abuse and to determine whether an OFP is warranted on that ground. The

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district court may make its determinations based on the existing record or may reopen the
record at its discretion.3 In the meantime, the emergency ex parte OFP remains in effect.
Reversed and remanded.

3 The existing record does not include the te xt messages. We therefore do not decide
Fruen’s argument that the district court cons idered the text messages without proper
authentication.