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This opinion will be unpublished and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
A17-0250

In the Matter of:

Marissa Jean Newton-Denila,
on behalf of minor children, petitioner,
Respondent,

vs.

Ejiro Elqanah Newton-Denila,
Appellant.

Filed September 11, 2017
Affirmed
Reilly, Judge

Stearns County District Court
File No. 73-FA-16-11553

Cynthia J. Vermeulen, Vermeulen Law Office, P.A., St. Cloud, Minnesota (for respondent)

Russell R. Cherne, Pennington, Cherne & G aarder, PLLC, St. Cloud, Minnesota (for
appellant)

Considered and decided by Reyes, Presiding Judge; Re illy, Judge; and Stauber,
Judge.
*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant Ejiro Elqanah Newton-Denila challenges an order for protection
prohibiting his contact with his wife and three children, arguing that the evidence does not
support the requisite findings for the issuance of an order for protection. We affirm.
FACTS
Respondent Marissa Newton -Denila and appellant Ejiro Elqanah Newton-Denila
married in November 2009 an d have three children in co mmon. In December 2016,
respondent and appellant agreed to separate and decided that appellant would move out of
the family home.
On December 18, 2016, appellant returned to the family home to watch the children
while respondent visited a coworker and a former acquaintance. In the early morning hours
on December 19, 2016, appellant sent respondent a text message in which he stated that he
was leaving the family home to go to the hospital. When respondent returned home, she
discovered that appellant had not left to go to the hospital and had instead waited for her to
return. Upon her arrival, appellant started to yell at respondent and asked her repeatedly
where she had been and with whom she had been. He grab bed her cellphone and pushed
her into a chair in the living room, telling her that she needed to answer the questions before
he would let her get up. While he attempted to look through her phone, appellant continued
to push and “shoulder” responde nt in an effort to “corner[] ” her in the living room.
Respondent repeatedly told appellant that she did not feel safe, but appellant continued to

3
respond, “I’m not hitting you,” while pushing respondent into the chair and telling her that
she could leave only after she answered his questions.
Respondent eventually left the house, but appellant followed her; he refused to give
her back her cellphone, and begged her not to call the police. When she went back into the
house, appellant pushed her against a wall an d continued to push her down onto a couch
until she collapsed because she was unable to breathe. As she attempted to crawl away
from appellant, he yelled to their oldest child, who was sleeping, and woke the child to ask
her to “beg” respondent not to call the police, explaining that if respondent called the police
he would “get in trouble.” The child starte d crying and begged respondent not to call the
police. Because respondent did not want the children to witness the incident, she again
asked appellant if she could leave. Appellant responded that he would leave and returned
respondent’s cellphone to her on the conditi on that she “promise to the kids that she
wouldn’t call the police.” When he went downstairs to “get [his] things,” respondent went
into their daughter’s bedroom, closed the door, and called 911. The police arrived within
several minutes of the phone call and placed appellant under arrest.
Respondent petitioned for an order for protection (OFP) on December 21, 2016,
and filed an affidavit in supp ort of her petition. Respondent described the December 19
incident and stated that appellant’s “behav ior is unpredictable,” explaining that she
“fear[ed] retaliation because [she] called the police” and “was very afraid and terrified for
her life.” The district court granted respondent’s request for an ex parte OFP and scheduled
an evidentiary hearing. The district court also granted a domestic abuse no contact order
(DANCO) against appellant the following day.

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After the OFP hearing on Janu ary 3, 2017, at which the district court found that
appellant “shouldered” responde nt and “push[ed] her around the living room and into a
chair,” the district court determined that respondent feared for her own safety, credited the
testimony of respondent, found that appellant’s testimony was not credible, and concluded
that clear and convincing evid ence established “domestic abuse occurred with respect to
[respondent] and her children.” That same day, the district court granted an order for
protection, in which the district court found that the following ac ts of domestic abuse
occurred: “[appellant] pushed [respondent] into a chair, kept pushing [respondent] into a
chair and then into a wall and threatened to kill [her]. Events occurred in front of at least
one of the children who [appellant] encouraged . . . to tell mom not to call 911.” The order
restrained appellant from committing acts of dom estic abuse against the protected parties
and prohibited appellant from contacting respond ent and the children fo r two years, with
the exception of supervised parenting time as provided in the DANCO.
This appeal follows.
ANALYSIS
Appellant challenges the OFP prohibiting his contact with his wife and three
children, arguing that the evidence does not support the district court’s findings that (1) the
altercation between appellant and respondent occurred in front of at least one of the parties’
children, and (2) appellant threatened to kill respondent.
The Minnesota Domestic Abuse Act provides for the issuance of an OFP “only if
the petitioner shows the respondent 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

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N.W.2d 523, 527 (Minn. 2012) (footnote omitted); see also Minn. Stat. § 518B.01 (2016)
(identifying acts that constitute domestic abuse). Domestic abuse, when committed against
a family or household member by a family or household member, includes:
(1) physical harm, bodily injury, or assault;

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

(3) terroristic threats, within the meaning of section 609.713,
subdivision 1; . . . or interference with an emergency call
within the meaning of section 609.78, subdivision 2.

Minn. Stat. § 518B.01, subd. 2(a). An OF P petitioner must prove “the existence of
domestic abuse” by a preponde rance of the evidence. 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.”);
see also Oberg v. Bradley, 868 N.W.2d 62, 64 (Minn. App. 2015) (“[A] petitioner must
meet the . . . preponderance-of-the-evidence st andard to obtain an OFP.”). Evidence of
past domestic abuse is generally insufficient to establish “the existence of domestic abuse”
within the meaning of Minn. Stat. § 518B.01, subd. 4(b); instead, the petitioner must
demonstrate either “present harm, or an intention on the part of the responding party to do
present harm.” Rew ex rel. T.C.B. 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 Bjergum v. Bjergum, 392 N.W.2d 604, 605-06 (Minn. App. 1986)
(holding that evidence of domestic abuse that occurred about two years earlier is too remote
to support the grant of an OFP).

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The decision to grant an OFP is within the discretion of the district court, Pechovnik
v. Pechovnik, 765 N.W.2d 94, 98 (Minn. App. 2009), and we generally will not reverse a
grant of an OFP absent an abuse of that discretion, Braend ex rel. Minor Children v.
Braend, 721 N.W.2d 924, 927 (Minn. App. 2006). “A district c ourt abuses its discretion
if its findings are unsuppo rted by the record or if it misapplies the law.” Pechovnik, 765
N.W.2d at 98 (quotation omitted ). When determining whether a district court abused its
discretion, this court reviews the record “in th e light most favorable to the district court’s
findings,” and will reverse those findings only when this court is “left with the definite and
firm conviction that a mistake has been made.” Id. at 99 (quotations and citations omitted).
The district court first granted respondent’ s petition for an OFP at the hearing, at
which the district court orally made findi ngs of fact, including: (1) appellant was
“shouldering” respondent, (2) appellant pushed respondent around the living room and into
a chair, and (3) appellant’s statements to re spondent show controlling behavior of which
respondent is right to be “f earful.” The district court al so credited the testimony of
respondent and determined that respondent established that “domestic abuse occurred with
respect to [respondent] and her children, be cause they were draw n into the event and
engaged to the extent that they were asked, begging their mother—one of them anyway—
not to call the police.” In its written order, the district court similarly found that the
following acts of domestic abuse occurred: “[ appellant] pushed [respondent] into a chair,
kept pushing [respondent] into a chair and then into a wall” and found that these “events
occurred in front of at least one of the child ren [when] respondent encouraged [the] child

7
to tell mom not to call 911.” The district court, however, also included in its written order
the finding that appellant “threatened to kill” respondent.
Appellant argues that the record is devoid of evidence that he committed these acts
in front of at least one of the parties’ childre n. We disagree. At the hearing, respondent
testified that appellant woke up the parties’ oldest daughter, who was seven years old at
the time of the incident, and told her to beg her mother not to call the police. She also
testified that the other children woke up after the oldest child started to cry and came into
the living room where they witnessed the parties fighting. And the district court determined
that respondent’s testimony was credible. We conclude that the district court did not err
by finding that the domestic abuse occurred w ith respect to respondent and her children
because at least one of the children was drawn into the event.
Appellant also argues that the record does not support the district court’s finding
that he “threatened to kill” re spondent and that any evidence contained in the record that
supports this finding is too re mote to warrant the grant of an OFP. Appellant correctly
points out that the evidence does not support this finding. The only evidence that suggests
appellant threatened to kill respondent is contained in respondent’s affidavit, which states:
On Sunday, February 2 nd, [2014], [appellant] was very
violent against me, including in front of our children, and he
threatened he would kill me (a nd said this more than once),
took my phone, my computer router and my keys so that I
could not ask for help. On that day, I was very afraid he would
hurt me or worse and afraid for the emotional and physical
safety of my children. I managed to reach the neighbor’s house
to get help and ask that they call the police.

At the hearing, the district court excluded this evidence as “too remote” to support an OFP.

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This additional finding amounts, at most, to harmless error. See Minn. R. Civ. P.
61 (“[N]o error or defect in any ruling or order . . . is ground for . . . disturbing a judgment
or order, unless refusal to take such action appears to the court inconsistent with substantial
justice. The court at every stage of the proc eeding must disregard any error or defect in
the proceeding which does not affect the substantial rights of the parties.”). There is ample
evidence in the record to support the district court’s findings of domestic abuse against
respondent and the parties’ children. Th e record clearly shows that (1) appellant
“shouldered” and “pushed” respondent around the living room and into the chair until she
collapsed because she was unable to breathe, and (2) appellant woke up the parties’ seven-
year-old daughter around 1:30 a.m. to tell her to beg her mother not to call the police.
Affirmed.