In the Matter: Nita Maria Hicks, Respondent,

This opinion will be unpublished and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
A16-2043

In the Matter:
Nita Maria Hicks,
Respondent,

vs.

Richard Warren Hicks,
Appellant.

Filed October 23, 2017
Affirmed
Bjorkman, Judge

Hennepin County District Court
File No. 27-DA-FA-16-4340

Nita Maria Hicks, St. Paul, Minnesota (pro se respondent)

Larry E. Reed, Law Offices of Larry E. Reed, Minneapolis, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Bjorkman, Judge; and
Hooten, Judge.
U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellant challenges an order for protection (OFP) issued against him, arguing that
the district court lacked jurisdiction , the record does n ot support the finding that he

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committed domestic abuse, and he did not receive effective assistance of co unsel. We
affirm.
FACTS
On June 21, 2016, respondent Nita Hicks filed an affidavit and petition for an OFP
against her husband, appellant Richard Hicks. Wife alleged that on June 5, 2016 , while
the parties were arguing, husband “grabbed the kitchen counter and lifted it, separating it
from the wall,” and that she “felt very threatened and packed to leave.” Wife also described
an earlier incident in which husband, during an argument, “broke a beer bottle and cut
[wife’s] arm with the glass.” She indicated that she was residing at a confidential address
and separately filed that address with the district court. The district court issued an ex parte
OFP that same day, precluding husband from contacting wife and excluding him from the
parties’ home, wife’s confidential address, and wife’s workplace.
After a continuance that husband requested to permit the parties to mediate in their
separate marriage -dissolution proceeding, the district court conducted an evidentiary
hearing on October 26. Both parties testified about the two alleged incidents of domestic
abuse. Husband acknowledged that both incidents occurred but disputed their timing,
tenor, and effect. The district court found that husband had committed domestic abuse
against wife and issued a two-year OFP on essentially the same terms as the ex parte order,
with an exception to permit the parties to participate in alternative d ispute resolution in
their dissolution proceeding. Husband appeals.

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D E C I S I O N
I. The district court had jurisdiction.
Husband asserts two “jurisdictional” challenges, one based on the county in which
wife filed the OFP petition and the other based on the timeliness of the evidentiary hearing.
We address each in turn, apply ing a de novo standard of review. See Burkstrand v.
Burkstrand, 632 N.W.2d 206, 209 (Minn. 2001) (subject-matter jurisdiction is reviewed
de novo).
County of Filing
Husband contends that the Hennepin County District Court lacked “jurisdiction” to
address wife’s petition because the parties live in Ramsey County, the alleged abuse
occurred in Ramsey County, and the parties’ (subsequently filed) dissolution proceeding is
in Ramsey County. He relies on a provision in the Minnesota Domestic Abuse Act (the
act) entitled “Court jurisdiction,” which states that an OFP petition “may be filed in the
court having jurisdiction over dissolution actions, in the county of residence of either party,
in the county in which a pending or completed family court proceeding . . . was brought,
or in the county in whi ch the alleged domestic abus e occurred.” Minn. Stat. § 518B.01,
subd. 3 (2016). Husband argues that this language establishes a jurisdictional requirement.
We disagree.
Husband places undue emphasis on the reference to “jurisdiction” in the
subdivision’s headnote, which is not part of the statute itself. See Minn. Stat. § 645.49
(2016) (noting that statutory headnotes are “mere catchwords”). In so doing, he overlooks
the absence of statutory language imposing a jurisdictional requirement. Analysis of the

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act’s operative language shows that the references to counties are non-jurisdictional venue
directives.
Minnesota’s district court s have original jurisdiction in all types of civil and
criminal cases. Minn. Const. art. VI, §§ 1, 3. While each district court has the power to
hear cases throughout the state, the particular county in which a case is heard is determined
by matters of convenience and location of trial. State v. Smith , 421 N.W.2d 315, 320
(Minn. 1988). The provision of the act on which husband relies lists the possible venues
in which a petitioner may seek an OFP. See Minn. Stat. § 518B.01, subd. 3. Even if we
were to construe this list as exhaustive and mandatory, noncompliance would not render
the OFP void. “[T]he fact that a civil action is brought or tried in the wrong county is not
jurisdictional.” See Claseman v. Feeney, 211 Minn. 266, 268, 300 N.W. 818, 819 (1941).
The remedy for improper venue is a change of venue, and failure to request a change waives
that objection. Rosnow v. Comm’ r of Pub. Safety , 444 N.W.2d 591, 592 (Minn. App.
1989).
When wife initiated this action , she resided at a confidential Hennepin County
residence and properly filed the OFP petition in that venue . After she moved back to the
parties’ St. Paul residence, h usband had numerous opportunities to move for a transfer of
venue to Ramsey County . He did not do so. Accordingly, he has waived any venue
objection.

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Timely Hearing
Husband also argues that even if the district court had jurisdiction initially, it lost
jurisdiction to issue the OFP because it did not timely conduct the evidentiary hearing.
Both the record and the applicable law defeat this argument. The district court conducted
a hearing one week after issuing the ex par te order, as required under Minn. Stat.
§ 518B.01, subd. 5(c) (2016). Because husband denied wife’s allegations, the court
scheduled an evidentiary hearing. Husband then requested a two-month continuance. He
cannot now challenge the delay that he reques ted. See Torchwood Props ., LLC v.
McKinnon, 784 N.W.2d 416, 419 (Minn. App. 2010) (recognizing that the party who
procured an action from the district court cannot claim error or prejudice from that action).
Moreover, any delay would not have deprived the district court of jurisdiction because the
statutory time frames for holding hearings on OFP petitions are not jurisdictional. See
Burkstrand, 632 N.W.2d at 213. Husband’s timeliness challenge fails.
II. The record supports the district court’s finding of domestic abuse.
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 it misapplies the law or makes factual findings that are unsupported by the
record. Id. In reviewing factual findings, we will “neither reconcile conflicting evidence
nor decide issues of witness credibility” but view the evidence in the light most favorable
to the district court’s decision. Gada v. Dedefo, 684 N.W.2d 512, 514 (Minn. App. 2004).
A district court may issue an OFP if the petitioner demonstrates that “domestic
abuse” occurred. Minn. Stat. § 518B.01, subd. 4 (2016). “[D]omestic abuse” means, in

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relevant part, (1) “physical harm, bodily injur y, or assault,” (2) “the infliction of fear of
imminent physical harm, bodily injury, or assault,” or (3) “terroristic threats ” or other
specified offenses, if committed against a family or household member. Minn. Stat.
§ 518B.01, subd. 2(a) (2016). In order to establish domestic abuse, the petitioner must
show present physical harm or that the alleged abuser had a present intent to inflict physical
harm or fear of imminent physical harm. Andrasko v. Andrasko , 443 N.W.2d 228, 230
(Minn. App. 1989).
Husband argues that the record does not support a finding of domestic abuse because
he did not physically harm wife or expressly threaten to harm her , and there is evidence
refuting her claim of fear . We are not persuaded . Domestic abuse includes not o nly
physical harm and express verbal threats but also nonverbal threatening behavior that
inflicts fear of imminent physical harm, particularly when such behavior is part of an
abusive pattern or history. See Minn. Stat. § 518B.01, subd. 2 (2016); Pechovnik, 765
N.W.2 at 99. The district court’s findings indicate this type of domestic abuse.
The district court found that on June 5, 2016, the parties were arguing and husband
acted aggressively and in anger to lift up the kitchen sink, displacing it from it s setting.
The district court found that this conduct caused wife to feel threatened, and that she
physically moved out of the way. The district court further found that husband’s conduct
“would scare anyone in a way that they would believe, and consist ent with the domestic
abuse act, that there would be force or violence or an assault or physical harm.” And the
district court found that husband “has been violent towards [wife] in the past,” which
informed her reaction to the sink incident. Regarding th at history, the district court

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specifically found that in April 2016, husband “cut [wife’s] shoulder and undernea th her
arm with broken glass.”
All of these findings are based squarely on wife’s testimony and sworn affidavit ,
which the district court accepted after weighing the parties’ credibility. The district court
expressly found wife’s version of the events not only generally more credible but
specifically more believable on the issues husband raises. We defer to these credibility
determinations. See Gada, 684 N.W.2d at 514 . Because the record supports the district
court’s finding that husband committed domestic abuse against wife, we discern no abuse
of discretion by the district court in issuing the OFP.
III. Husband is not entitled to relief because of ineffective assistance of counsel.
Finally, husband urges us to rescind the OFP because he was denied his Sixth
Amendment right to effective assistance of counsel. This argument is misplaced. The
Sixth Amendment to the United States Constitution affords the right to counsel, which has
been interpreted to mean the right to effective assistance of counsel, “[i]n all criminal
prosecutions.” Strickland v. Washington, 466 U.S. 668, 68 5-86, 104 S. Ct. 2052, 206 3
(1984). The Strickland framework for reviewing claims of ineffective assistance of counsel
has been applied in certain civil cases involving a statutory right to counsel, such as civil-
commitment proceedings. See, e.g., Beaulieu v. Minn. Dep’t of Human Servs., 798 N.W.2d
542, 550 (Minn. App. 2011), aff’d, 825 N.W.2d 716 (Minn. 2013) . But absent such a
statutory right, an appellant may not bring a claim of ineffective assistance of counsel in a
civil proceeding. Maietta v. Comm’ r of Pub. Safety , 663 N.W.2d 595, 600 (Minn. App.
2003). Husband identifies no provision in the act, any other statute, or any caselaw that

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affords him a right to counsel in an OFP proceeding. Accordingly, he is not entitled to
relief based on ineffective assistance of counsel.
Affirmed.