In the Matter of: Emma Marie Welter, petitioner, 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This opinion will be unpublished and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
A17-0519

In the Matter of:
Emma Marie Welter, petitioner,
Respondent,

vs.

Richard Preston Blackwell,
Appellant.

Filed January 16, 2018
Affirmed
Halbrooks, Judge

Washington County District Court
File No. 82-FA-16-5007

Veena A. Iyer, Nilan Johnson Lewis, P.A., Minneapolis, Minnesota (for respondent)

Richard Preston Blackwell, St. Paul, Minnesota (pro se appellant)

Considered and decided by Halbrooks, Presiding Judge; Schellhas, Judge; and Kirk,
Judge.
U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
Appellant challenges the district court’s grant of an order for protection (OFP) to
respondent on the grounds that (1) the district court erred by not granting his motions for
an evidentiary hearing, (2) the district court made an improper award of custody of their
child to respondent, and (3) the evidence is insufficient to support the OFP. We affirm.

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FACTS
Appellant Richard Preston Blackwell and respondent -petitioner Emma Marie
Welter lived together between 2006 and 2013 and have a child together. Blackwell has
never established paternity of the child, and he and Welter never married.
On May 28, 2014, Welter obtained an OFP against Blackwell after an evidentiary
hearing at which Blackwell testified that he “would rather [Welter] die as [his] wife than
live as somebody’s whore.” Blackwell violated the May 28, 2014 OFP at least twice. The
county charged Blackwell with felony stalking. While the stalking charge and an unrelated
third-degree assault charge were pending, a district court deemed Blac kwell incompetent
to proceed, and the c ounty petitioned for his judicial commitment. The di strict court
granted the petition in April 2015. Blackwell’s commitment ended in August 2015.
The May 28, 2014 OFP expired on May 2 8, 2016. Six months later, Blackwell
entered a restaurant where Welter, her daughter, and other family members were eatin g
and sat at the table right next to them.1 A few days later, Blackwell drove to Welter’s
apartment and yelled out his car window.
Welter subsequently petitioned for an ex parte OFP, which the district court granted
on November 23, 2016. On December 1, 2016, Blackwell came to Welter’s apartment and
followed her daughter through the apartment building’s main door. Police responded and
served Blackwell with the short-form notification of the ex parte OFP. The following

1 Because Blackwell has never established paternity, we refer to the child as Welter’s
daughter.

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morning, the Washington County Sheriff’s Office served Blackwell with the full ex parte
OFP.
Blackwell requested a hearing under Minn. Stat. § 518B.01, subds. 5, 7 (2016). The
district court granted Blackwell’s request and scheduled a hearing for December 13, 2016.
On December 9, 2016, Blackwell requested a continuance because he wanted to consult an
attorney. The district court continued th e hearing to January 12, 2017. Both parties
appeared on January 12, but Blackwell did not have an attorney . As a result, the district
court conti nued the hearing a second time and scheduled it for January 18, 2017. A
Washington County sheriff deputy served Blackwell with the order continuing the hearing.
The district court held the evidentiary hearing on January 18, 2017, but Blackwell
did not appear. Welter testified about the restaurant incident when Blackwell sat down at
the table adjacent to her, her daughter, her father, and her brother. Welter testified that it
made her feel “afraid for the safety of [her]self, as well as [her] daughter and [her] family.”
She also testified that two days later, she witnessed Blackwell driving in circles outside her
apartment in the parking lot and yelling out the window. Welter stated that this incident
made her feel “[e]xtremely scared.”
Welter testified that she obtained an ex parte OFP on November 23, 2016, and that
Blackwell came to Welter’s apartment on December 1, 2016, and followed Welter’ s
daughter into the apartment, frightening her daughter. Welter stated that Blackwell made
contact with her and her daughter at 5:00 a.m. on December 31, 2016 , when Blackwell
came to Welter’s mother’s house where Welter and her daughter were sleeping. According
to Welter, Blackwell “potentially could have gotten in” the house but Blackwell saw

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Welter’s brother and ran. Welter testified that she believed that Blackwell had followed
her that night and that the incident made her feel “very afraid for [her] own safety and [her]
daughter’s.”
The final incident that Welter described was when Blackwell appeared at her
daughter’s school on January 9, 2017, during the end -of-the-day dismissal and took her
daughter with him. Welter’s daughter, who was nine years old at the time, “was in tears
when she told [Welter] about what happened.” Although Blackwell eventually dropped
off the child at Welter’s apartment building, Welter testified she had “never been more
afraid.”
The district court granted Welter an OFP with a duration of ten years based on the
fact that (1) Welter had an existing ex part e OFP against Blackwell that he had violated,
(2) Welter reasonably feared physical harm by Blackwell , and (3) Blackwell had engaged
in acts of harassment and stalking. The district court also checked two boxes in the OFP
signifying that Blackwell had not established paternity and that Welter had sole legal and
sole physical custody of her daughter under Minn. Stat. § 257.541 (2016).
Blackwell requested a new evidentiary hearing on February 2, 2017, explaining that
he could not attend the January 18 hearing because he was “arrested on January 17” and
“in custody at the Ramsey County Detention Center for a case unrelated to the hearing.”
The district court denied Blackwell’s request for an evidentiary hearing, reasoning that
Blackwell received notice of the hearing and inexcusably failed to appear.
On March 7, 2017, Blackwell filed a nother motion requesting an evidentiary
hearing. The district court denied Blackwell’s motion, again reasoning that the January 18

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hearing proceeded by default because of Blackwell’s “inexcusable failure to appear.” This
appeal follows.
D E C I S I O N
I.
Blackwell argues the district court erred by denying Blackwell ’s two requests for
an evidentiary hearing after he failed to appear at the hearing that was rescheduled twice
at his request. We review the decision to grant or deny a request for an additional OFP
evidentiary hearing for abuse of discretion. See Gada v. Dedefo , 684 N.W.2d 512, 513
(Minn. App. 2004) (applying abuse-of-discretion standard to review of a denial of a request
to continue OFP hearing).
The district court explained in denying Blackwell’s motion s that Blackwell had
already requested and been granted two continuances, had notice of th e January 18, 2017
hearing, and inexcusably failed to appear by getting arrested on January 17, 2017. The
district court did not abuse its discretion by denying Blackwell’s request s for a new
evidentiary hearing.
II.

Blackwell contends that the district court erred by making a custody determination.
Blackwell’s argument lacks merit because the district court did not make any ruling on
custody. In the January 18, 2017 OFP, t he district court checked a box that states:
“Paternity has not been decided by a Court, and the Court is not addressing issues of
custody, parenting time (visitation), and support. (Under Minnesota law, where paternity
has not been decided, sole physical and legal custody of a child is with the biological

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mother.)” The district court also checked the box signifying that Welter has sole legal and
physical custody of her daughter under Minn. Stat. § 257.541, subd. 1 (2016), which
provides that an unmarried, biological mother of a child has sole custody of the child “until
paternity has been established under sections 257.51 to 257.74, or until custody is
determined in a separate proceeding under section 518.156. ” Because Blackwell and
Welter have never married and Blackwell has never established paternity, the district court
accurately reflected the circumstances of this matter on the OFP and did not make any
ruling concerning custody.
III.

Blackwell asserts that the evidence is insufficient to support the January 18, 2017
OFP because Welter was not reasonably in fear of harm and his mere presence does not
constitute stalking and is “not an indicator to believe physical harm will arise.”
We review a district court’s decision whether to grant an OFP for abuse of
discretion. Ekman v. Miller, 812 N.W.2d 892, 895 (Minn. App. 2012). “A district court
abuses its discretion when its findings are not supported by record evidence or when it
misapplies the law.” Id. On appeal, we review the findings serving as the basis for an OFP
for “clear error, which means that the district court’s findings must be manifestly contrary
to the weight of the evidence or not reasonably supported by the evidence as a whole.” Id.
(quotation omitted). “[W]e view the evidence in the light most favorable to the decision.”
Id.
A district court may extend an OFP or grant a new order if a previous order has
expired upon a showing that

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(1) the respondent has violated a prior or existing [OFP];
(2) the petitioner is reasonably in fear of physical harm
from the respondent;
(3) the respondent has engaged in the act of stalking
within the meaning of section 609.749, subdivision 2; or
(4) the respondent is incarcerated and about to be
released, or has recently been released from incarceration.

Minn. Stat. § 518B.01, subd. 6a(b) (2016).
There is sufficient evidence in this record to support the district court’s decision to
grant Welter an OFP. Welter testified that Blackwell appeared unexpectedly at her
apartment, picked up her daughter from school without authorization, and came to Welter’s
mother’s house while Welter and her daughter were staying there . See P echovnik v.
Pechovnik, 765 N.W.2d 94, 99 (Minn. App. 2009) (“Present intent to inflict fear of
imminent physical harm, bodily injury, or assault can be inferred from the totality of the
circumstances, including a history of past abusive behavior.”). Welter credibly testified
that each instance made her feel afraid and fearful for her and her daughter’s safety.
Blackwell also argues the district court erred in finding that he violated the May 28,
2014 OFP and the November 23, 2016 ex parte OFP, reasoning that he “has no convictions
related to violating orders.” Blackwell’s argument is misplaced. Minn. Stat. § 518B.01,
subd. 6a (2016), requires that a district court find violations of an OFP, not convictions, to
grant a subsequent OFP. In Eckman, we concluded that Minn. Stat. § 518B.01, subd. 6a
does not require proof of convictions but “rather proof of violations of a previous OFP,”
stating that there is “a meaningful difference between the concepts of ‘violation’ and
‘conviction’” and that “[h]ad the legislature intended that only convictions for violating an

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OFP could serve as a basis for an increased term, it could easily have made that clear.” 812
N.W.2d at 896.
Because the district court’s findings are well-supported by the record, the district
court properly exercised its discretion in granting Welter a ten-year OFP.
Affirmed.