In re 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This opinion will be unpublished and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
A16-1812

In re the Matter of:

Amanda Jean Vail, petitioner,
Respondent,

vs.

Ryan Joseph Vail,
Appellant.

Filed May 15, 2017
Affirmed
Schellhas, Judge

Hennepin County District Court
File No. 27-DA-FA-16-6151

Jon G Sarff, Sarff Law Office, Shorewood, Minnesota (for respondent)

Mallory K. Stoll, Blahnik Law Office, PLLC, Prior Lake, Minnesota (for appellant)

Considered and decided by Bratvold, Pres iding Judge; Schellhas, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant asks us to reverse an order for protection against him, arguing that the
evidence does not support requisite findings for the issuance of an order for protection. We
affirm.

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FACTS
Appellant Ryan Joseph Vail and resp ondent Amanda Jean Vail married in
November 2007 and have two children in common.1 In early March 2016, Amanda asked
Ryan to move out of the marital home because she believed that he was using drugs. Ryan
moved out, and the parties co-parented the children during their separation. On the evening
of June 30, Ryan returned the children to the marital hom e after dinner. Outside the
children’s presence, Ryan moved toward Amanda, tightly grabbed her arm, and refused to
let go. While wrenching her arm away from Ryan’s grasp, Amanda experienced pain.
On August 2, 2016, Amanda petitioned the district court for marriage dissolution.
On September 1, she petitioned for an order for protection (OFP) against Ryan for herself
and the children and filed an affidavit in support of her petition. Amanda described the
June 30, 2016 incident and stated that “Ryan is engaged in the use, distribution and sale of
cocaine” and that she feared fo r her and the children’s safety . The district court denied
Amanda’s request for an ex parte OFP and scheduled an evidentiary hearing.
The evidentiary hearing began on September 8, 2016, before a district court referee.
Amanda appeared with counse l; Ryan appeared pro se. Ama nda testified and introduced
four exhibits, mostly focusing on Ryan’s a lleged involvement with drugs and association
with dangerous people. Ryan asked for time to confer with an atto rney, and the referee
continued the hearing to September 12.

1 Because the parties have the same last name, we refer to them by their first names in this
opinion.

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When the hearing continued, both parties appeared wi th counsel. Ryan’s counsel
cross-examined Amanda, and Ryan testified and introduced three exhibits. Ryan admitted
to past use of cocaine but de nied grabbing Amanda’s arm on June 30, 2016. At the close
of the evidence, the referee stated:
[U]se and abuse of cocaine in and of itself . . . is not domestic
abuse. However, Petitioner did te stify, I think credibly, about
the incident on th e 30th; and she indi cated that Mr. Vail
grabbed her arm, and she had to wrench it away. That certainly
could be domestic abuse. And I understand, Mr. Vail, that your
story is very different than that. So, I’m going to issue an Order
for Protection; however, I am not finding that his contact with
Ms. Vail is dangerous at this time. . . . [S]o, the Order is going
to allow some contact, . . . but you will be ordered not to
commit . . . any acts of domestic violence. . . . [T]here will be
some provision for parenting time and contact only with regard
to the children. There is absolutely nothing to indicate that he
has committed domestic abuse ag ainst the children; so, the
children are removed.

Based on the referee’s recommendation, the district court dismissed the children from the
action and issued a one-year O FP against Ryan in favor of Amanda. The OFP states that
Amanda “established that domestic abuse as defined by [statute] was committed against
her” by Ryan, orders Ryan “not [to] commit acts of domestic abuse” against Amanda, states
that Ryan is not “restrain[ed]” from contacting Amanda, and grants temporary supervised
parenting time to Ryan.
2 This appeal follows.

2 On November 18, 2016, the district court amended the OFP to e liminate its parenting-
time provisions, replacing those provisions with a note that “[t]emporary parenting time
has been addressed in [the dissolution action].”

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D E C I S I O N
The Minnesota Domestic Abuse Act, Minn. Stat. § 518B.01 (2016), provides for the
issuance of an OFP “in cases of domestic abuse.” Minn. Stat. § 518B.01, subds. 1, 4. “[A]n
OFP is available only if th e petitioner shows the responde nt committed domestic abuse
against the petitioner or the person on whose behalf the petition is brought.” Schmidt ex
rel. P.M.S. v. Coons, 818 N.W.2d 523, 527 (Minn. 2012) (footnote omitted).
“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, with in the meaning of section
609.713, subdivision 1; crimin al sexual conduct, within the
meaning of section 609.342, 60 9.343, 609.344, 609.345, or
609.3451; or interference with an emergency call within the
meaning of section 609.78, subdivision 2.

Minn. Stat. § 518B.01, subd. 2(a).
An OFP petitioner must prove by a preponde rance of the evidence “the existence of
domestic abuse.” See id., subd. 4(b) (“A petition for relief shall allege the existence of
domestic abuse, and shall be accompanied by an affidavit made under oath stating the
specific facts and circumstances from which relief is sought.”); Oberg v. Bradley , 868
N.W.2d 62, 64 (Minn. App. 2015) (holding that “a pe titioner must meet the . . .
preponderance of the evidence standard to obta in an OFP”). Evidence of past domestic
abuse may be insufficient to prove “the existence of domestic abuse,” within the meaning
of Minn. Stat. § 518B.01, subd. 4(b); the petiti oner also must show e ither “present harm,
or an intention on the part of the responding party to do present harm.” Rew ex rel. T.C.B.

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v. Bergstrom, 812 N.W.2d 832, 844 (Minn. App. 2011), aff’d in part, rev’d in part on other
grounds sub nom. Rew v. Bergstrom, 845 N.W.2d 764 (Minn. 2014); see also Chosa ex rel.
Chosa v. Tagliente , 693 N.W.2d 487, 489 (Minn. App. 2005) (“In order to establish
domestic abuse, [the petitioner] must show present harm or an intention on the part of the
[respondent] to do present harm.” (quotation omitted)); Kass v. Kass, 355 N.W.2d 335, 337
(Minn. App. 1984) (“[W]e construe the definition of ‘domestic abuse’ under Minnesota’s
Domestic Abuse Act to require either a showin g of present harm, or an intention on the
part of [the respondent] to do present harm.”).
The petitioner may prove pres ent harm with evidence of temporally proximate
domestic abuse; the petitioner ma y not prove present harm with evidence of temporally
remote domestic abuse or evidence of harmful actions by the respondent that do not qualify
as “domestic abuse,” within the meaning of Minn. Stat. § 518B.01, subd. 2(a). See Chosa,
693 N.W.2d at 489–90 (reversing OFP agains t mother in favor of her child, which OFP
was based on district court’s findings of “inappropriate hy giene and inadequate medical
care of the child, leaving the child unattended, active chemical dependency while caring
for the child, and an ‘overall pattern of behavior endangering the physical well being of the
child,’” where “there [wa]s no evidence of actual physical harm, bodily injury, or assault”
resulting from mother’s actions and no eviden ce that mother had “intent to do present
harm” to the child); Bjergum v. Bjergum , 392 N.W.2d 604, 605–06 (Minn. App. 1986)
(agreeing that domestic abuse that occurred about 19 months prio r to petition was “too
remote to support” OFP an d reversing OFP wh ere petitioner “fail[ed] to establish
[respondent]’s present intention to do harm or inflict fear of harm” (quotation omitted));

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Kass, 355 N.W.2d at 336–37 (r eversing OFP that was based on domestic abuse that
occurred about four years prior to petition, although petitioner “fear[ed] for her safety and
that of her children” after recently seeing re spondent traveling in a car behind her own,
where petitioner failed to make “any showing of [respondent]’s present intention to do
harm or inflict fear of harm”).
“The decision to grant an OFP . . . is within the district court’s discretion,”
Pechovnik v. Pechovnik, 765 N.W.2d 94, 98 (Minn. App. 2009) (quotation omitted), “so
we will not reverse absent an abuse of that discretion,” Braend ex rel. Minor Children v.
Braend, 721 N.W.2d 924, 927 (Minn. App. 2006). “A district court abuses its discretion if
its findings are unsupported by the record or if it misapplies the law.” Pechovnik, 765
N.W.2d at 98 (quotation omitted).
[W]e review the record in th e light most favorable to the
district court’s findings, and we will reverse those findings
only if we are left with the defi nite and firm conviction that a
mistake has been made. We w ill not reverse merely because
we view the evidence differen tly. And we neither reconcile
conflicting evidence nor decide issues of witness credibility,
which are exclusively the province of the factfinder.

Id. at 99 (quotations and citations omitted). We review the district court’s construction of
the Domestic Abuse Act de novo, Braend, 721 N.W.2d at 927, giving the Act “liberal
construction in favor of the injured party,” Pechovnik, 765 N.W.2d at 98–99 (quotation
omitted).
In this case, the district court issued the OFP based on its finding of a “single
incident” of domestic abuse of Amanda by Ryan: the June 30, 2016 incident in which Ryan
grabbed Amanda’s arm and refused to let go until Amanda wrenched her arm away and

7
experienced pain. Ryan does not challenge the court’s domestic-violence finding. Instead,
he argues that “[the June 30, 2016] incident alone is insufficient to support the issuance of
an order for protection against [him].” Essen tially, Ryan argues that Amanda failed to
prove “the existence of domestic abuse,” with in the meaning of Minn. Stat. § 518B.01,
subd. 4(b), as construed by caselaw, because her evidence showed neither present harm nor
intent to do present harm. See Minn. Stat. § 518B.01, subd. 4(b) (providing that OFP
petitioner “shall allege the existence of domestic abuse”); Chosa, 693 N.W.2d at 489 (“In
order to establish domestic abuse, [the petitioner] must show present harm or an intention
on the part of the [respondent] to do present harm.” (quotation omitted)).
Ryan correctly points out that the record is devoid of evidence that he intends to do
present harm to Amanda. Indeed, at the end of the evidentiary hearing, the district court
referee stated, “I am not finding that [Mr. Vail’s] contact with Ms. Vail is dangerous at this
time,” and the OFP does not prohibit Ryan from contacting Amanda. Ryan argues that the
June 30, 2016 incident cannot constitute present harm for the purposes of Amanda’s OFP
petition because the June 30, 2016 incident is both “singular” and “stale.” We must decide
whether the June 30, 2016 incident constitutes present harm for the purposes of Amanda’s
OFP petition.
We have concluded that a pattern of dom estic abuse that ended about 19 months
prior to an OFP petition was “too remote” to constitute present harm. Bjergum, 392 N.W.2d
at 605–06; see also Kass, 335 N.W.2d at 337 (concluding that domestic abuse that occurred
about four years prior to petition did not constitute present harm). But our research reveals
no authority for the propositio n that a shorter passage of time between a domestic-abuse

8
incident and an OFP pe tition negates the incident’s presen t harm. We conclude that the
district court did not err by c oncluding that the June 30, 2016 incident constitutes present
harm for the purposes of Amanda’s OFP petition and therefore did not abuse its discretion
by issuing the OFP.
Amanda argues that the district court erre d by not extending the OFP to the parties’
children and asks us to “reverse and remand this case with instructions to extend the OFP
to the children.” We reject Amanda’s argument for two reasons. First, Amanda did not file
a notice of related appeal on the issue and therefore cannot raise it in this appeal. See Minn.
R. Civ. App. P. 106 (“After an appeal has be en filed, respondent may obtain review of a
judgment or order entered in the same unde rlying action that may adversely affect
respondent by filing a notice of related appeal . . . .”); In re Estate of Barg, 752 N.W.2d 52,
74 (Minn. 2008) (“A respondent who does not file a notice of review to challenge an
adverse ruling of the district court waives that issue in the court of appeals.” (citing Minn.
R. Civ. App. P. 106)). Second, the district court did not find that the children are victims
of domestic abuse, and the record does not support any such finding.
Affirmed.