In the Matter of:

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1412

In the Matter of:

Kathryn M. Larson, on behalf of Minor Child, petitioner,
Respondent,

vs.

Keith Norman Marohn,
Appellant.

Filed April 29, 2019
Affirmed in part, reversed in part, and remanded
Smith, Tracy M., Judge

Isanti County District Court
File No. 30-FA-18-13

Leigh J. Klaenhammer, Hennek Klae nhammer Law, PLLC, Roseville, Minnesota (for
respondent)

Keith Norman Marohn, North Branch, Minnesota (pro se appellant)

Considered and decided by Larki n, Presiding Judge; Smith, Tracy M., Judge; and
Randall, Judge.


 Retired judge of the Minnesota Court of Appeals, serving by app ointment 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
SMITH, TRACY M., Judge
Appellant Keith Norman Marohn challenges an order for protecti on (OFP) issued
against him on a petition filed by respondent Kathryn M. Larson on behalf of the parties’
minor child, R.N.M. Because the district court did not abuse i ts discretion by granting
Larson’s petition with respect to R.N.M., we affirm in part. Bu t , b e c a u s e t h e o r d e r i s
ambiguous as to whether it rela tes not just to R.N.M. but also to Larson, we reverse and
remand for the district court to modify the OFP to clarify that it relates only to R.N.M.
FACTS
In January 2018, Larson filed a petition for an OFP against he r ex-husband, Marohn,
on behalf of the parties’ then-six-year-old child, R.N.M. Lars on and Marohn shared
custody of R.N.M., along with the parties’ other minor children . In her petition, Larson
alleged that, on December 31, 2017, during Marohn’s parenting t ime, Marohn dropped
R.N.M. on a kitchen table. The d istrict court issued an ex part e OFP, and an evidentiary
hearing was held.
Larson testified that R.N.M. spent the New Year’s weekend with Marohn and
returned to her home on January 1, 2018. When she was driving R .N.M. to school on
January 2, R.N.M. complained about a headache and told her, as described by Larson, that
Marohn “came up from behind, picke d [R.N.M.] up, [and] dropped him on the kitchen
table where he fell onto the chairs on his way down to the floo r.” Larson noticed slight
bruising on R.N.M.’s cheek and took pictures of it. On January 3, Larson took R.N.M. to
Julie Carlson, R.N.M.’s therapist. Carlson also testified at the hearing. She said that, during

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the appointment, R.N.M. shared that Marohn “had picked him up b y the tummy and had
dropped him on the table and then he subsequently hit a chair o r two chairs on his way
down . . . receiving a bruise on his left cheek.” R.N.M. did not testify.
Marohn testified and denied t he allegations. He also called th ree witnesses—his
parents and the parties’ adult daughter—who had been home with Marohn and R.N.M. at
different times during the New Year’s weekend. They testified t hat R.N.M. seemed
perfectly normal during the weekend, that R.N.M. is happy when he is with Marohn, and
that Marohn is not violent.
The district court granted Larson’s petition for an OFP, findi ng that Marohn
“push[ed]” and “dropp[ed]” R.N.M., “causing bruising.” The chec k-the-box form order
includes a paragraph relating to “Protected Person(s)” and lists both the child and Larson
(identified as the petitioner) but does not have a check mark i n either of the boxes next to
the names. Marohn appeals.
D E C I S I O N
“[Appellate courts] review the decision to grant an OFP for an abuse of discretion.
A district court abuses its discretion when its decision is based on an erroneous view of the
law or is against logic and the facts in the record.” Thompson v. Schrimsher, 906 N.W.2d
495, 500 (Minn. 2018) (quotation and citation omitted).
“The Minnesota Domestic Abuse Ac t provides that a person may s eek an OFP by
filing a petition with the district court alleging the existence of domestic abuse.” Olson ex
rel. A.C.O. v. Olson, 892 N.W.2d 837, 840 (Minn. A pp. 2017). If the district court issues
an ex parte OFP and the responding party contests it by requesting a hearing, “the petitioner

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has the burden to prove by a preponderance of the evidence that domestic abuse, as defined
in the Minnesota Domestic Abuse Act, has occurred in order for a district court to issue an
OFP.” Id. “Domestic abuse” is defined, in the relevant portion of the statute, as “physical
harm, bodily injury, or assault” “committed against a family or household member by a
family or household member.” Minn. Stat. § 518B.01, subd. 2(a) (2018).
The district court found that M arohn committed domestic abuse b y pushing and
dropping R.N.M. Marohn argues that the district court abused its discretion in several ways
by issuing the OFP. We address each of Marohn’s arguments in turn.
I. Protected person
Marohn argues that the district court abused its discretion by failing to clarify who
the “protected person” is in the O F P . T h e o r d e r r e s t r a i n s M a r o hn from “hav[ing] any
contact with the Protected Person(s).” The paragraph identifying the “Protected Person(s)”
lists “Petitioner Kathryn M. Larson” and R.N.M.; it also includes a box next to each name,
but neither box is checked.
The Domestic Abuse Act “authorizes a district court to grant a n OFP only to a victim
of domestic abuse,” and a district court errs if it issues an O FP with respect to a person
without finding that the person was a victim of domestic abuse. Schmidt ex rel. P.M.S. v.
Coons, 818 N.W.2d 523, 524-25 (Minn. 2012). Larson petitioned for an OFP on behalf of
R.N.M., and the district court found that Marohn had committed domestic abuse against
R.N.M. The district court made no finding of abuse against Lars on. The only protected
person in the OFP must therefore be R.N.M. Clarity regarding the identity of the protected
person is important because law enforcement could be called upon to enforce the order in

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the future. Because the OFP does not unambiguously identify only R.N.M. as the protected
person, we reverse and remand to the district court to correct this aspect of the order.
II. Nondisclosure of exculpatory evidence
Marohn argues that exculpatory evidence—specifically, an intak e summary from
child protective services—was withheld from him in violation of his due-process rights.
We first note that Marohn mischaracterizes the intake summary. He describes it as
“a forensic interview” of R.N.M. In fact, the intake summary is not an interview of R.N.M.;
it is the summary of a report made to child protective services via a phone call. The reporter,
whose identity is not clear from the summary, reiterated Larson’s and R.N.M’s description
of the dropping. The child-protection worker who wrote the inta ke summary “screened
out” the report, concluding that t here was “insufficient eviden ce that the incident was
nonaccidental and that the bruise was the result of the fall.”
Marohn relies on Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).1 In Brady,
the United States Supreme Court he ld that the Due Process Claus e of the Fourteenth
Amendment obligates the governme nt to disclose potentially excu lpatory information in
criminal proceedings. 373 U.S. a t 86-87, 83 S. Ct. at 1196. Eve n if Brady applied to this
civil proceeding, Marohn has not shown that his due-process rights were violated because

1 Marohn also refers to rule 26 of the Minnesota Rules of Civil Procedure. But, rule 26.01,
defining certain required disclo sures, does not apply to Domest ic Abuse proceedings.
Minn. R. Civ. P. 26.01(a)(2)(H); Minn. R. Gen. Prac. 301.01(b)(3). And even if rule 26.01
did apply, because Larson did not use the intake summary to support her claim, Marohn’s
argument that she violated an obl igation to automatically discl ose the document is
unpersuasive. See Minn. R. Civ. P. 26.01(a) (providing for initial disclosure of documents
that a party “may use to support its claims”).

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of nondisclosure of the intake summary. “Three elements must be met to succeed on the
claim of a Brady violation: (1) the evidence must be favorable to the defendant as either
exculpatory or impeaching; (2) the evidence must have been suppressed by the prosecution,
intentionally or otherwise; and (3) the evidence must be material.” Campbell v. State, 916
N.W.2d 502, 510 (Minn. 2018). “Evidence is material under Brady if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the proceeding
would have been different.” Walen v. State, 777 N.W.2d 213, 216 (Minn. 2010) (quotation
omitted). The intake summary was not material. The district cou rt found that Marohn
pushed and dropped R.N.M. because it credited the testimony by Larson and Carlson
regarding R.N.M.’s statements. R.N.M.’s statements are not cont radicted in any way by
the undisclosed evidence; the exculpatory nature of the intake summary comes solely from
its disposition that the statements were “insufficient” to prov e maltreatment. There is no
reasonable probability that that d etermination by the child-protection worker would have
substantially affected the district court’s decision when the c ourt reviewed additional
evidence and made independent det erminations about the credibil ity and weight of the
evidence.
III. Hearsay
Marohn complains that the dis trict court’s finding of abuse—sp ecifically, that he
pushed and dropped R.N.M., causing a bruise—is based solely on hearsay. “‘Hearsay’ is a
statement, other than one made by the declarant while testifyin g at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.” Minn. R. Evid. 801(c).
R.N.M. did not testify at the hearing. The witnesses who testif ied that Marohn pushed or

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dropped R.N.M. did so based on R.N.M.’s out-of-court statements . Thus, the finding that
Marohn pushed and dropped R.N.M. was based on hearsay. Under the Minnesota Rules of
Evidence, which apply to OFP hearings, Olson, 892 N.W.2d at 841, “[h]earsay is not
admissible except as provided by [the Rules of Evidence] or by other rules prescribed by
the Supreme Court or by the Legislature,” Minn. R. Evid. 802.
But, as Marohn acknowledges, he failed to object to the admiss ion of the hearsay
statements, and the district c ourt did not consider whether the y were admissible. An
appellate court generally will not consider matters not argued to and considered by the
district court. Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988). We see no reason to
deviate from the general rule here and thus decline to address the issue of admissibility. To
the extent that Marohn argues that his testimony and that of his witnesses should have been
given more weight than the hearsay statements, the argument is unavailing. On appeal from
a district court’s decision regard ing whether to grant an OFP, an appellate court does not
decide issues of witness credibility. Aljubailah v. James, 903 N.W.2d 638, 643 (Minn. App.
2017) (quoting Gada v. Dedefo, 684 N.W.2d 512, 514 (Minn. App. 2004)).
IV. Factual finding of pushing
Marohn argues that the district court abused its discretion by finding that he
“push[ed]” R.N.M. “Findings of fact, whether based on oral or documentary evidence,
shall not be set aside unless clearly erroneous . . . .” Minn. R. Civ. P. 52.01. “If there is
reasonable evidence to support the [district] court’s findings o f f a c t , a r e v i e w i n g c o u r t
should not disturb those findings.” Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101
(Minn. 1999).

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Larson testified that R.N.M. told her that “he was slammed up a gainst the wall
between the kitchen and the living room” by Marohn. 2 This statement provides the
necessary record support for the f inding of pushing. The testim ony to the contrary from
Marohn’s witnesses does not change that result. “It is not the province of [an appellate]
court to reconcile conflicting evidence,” id., and “due regard [must] be given to the
opportunity of the [district] court to judge the credibility of the witnesses,” Minn. R. Civ.
P. 52.01. And, because the district court did not clearly err by finding that Marohn pushed
R.N.M., Marohn’s argument that dropping alone does not constitu te domestic abuse is
moot.
V. Other alleged errors
Marohn also argues that the dis trict court made the following miscellaneous errors:
(1) overruling his objections to some of the opposing counsel’s questions; (2) not
considering “the family-law file”;3 and (3) dismissing the OFP petition that Marohn filed
against Larson based on the same i njury suffered by R.N.M., which Marohn attributed to
Larson. Marohn cites no authority showing that these decisions were in fact erroneous.
“[O]n appeal error is never presumed. It must be made to appear affirmatively before there
can be reversal . . . [and] the burden of showing error rests u pon the one who relies upon
it.” Waters v. Fiebelkorn, 13 N.W.2d 461, 464-65 (Minn. 1944). An assignment of error in

2 Marohn ignores this testimony by Larson and incorrectly argues that the pushing is
mentioned only in Larson’s recounting of what she had told the police.

3 “The family-law file” is a case with the district court file number 30-FA-15-117. The file
is not part of the record and is allegedly “filled with a histo ry of [Larson] making similar
allegations with previous OFPs” that have been dismissed.

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a brief based on “mere assertion” and not supported by argument or authority is forfeited
unless prejudicial error is obvious on mere inspection. Scheffler v. City of Anoka , 890
N.W.2d 437, 451 (Minn. App. 2017) (citing Schoepke v. Alexander Smith & Sons Carpet
Co., 187 N.W.2d 133, 135 (Minn. 1971)), review denied (Minn. Apr. 26, 2017). No
prejudicial error is obvious her e. Given that the finding of do mestic abuse was based on
R.N.M.’s statements, prejudicial error, if any, must go to the weight given to those
statements by the district court. Inspection of the record does not make clear that, but for
the alleged errors, Marohn woul d have so undermined the credibi lity of R.N.M.’s
statements that the district court would have ruled in Marohn’s favor. Marohn’s arguments
are forfeited.
Affirmed in part, reversed in part, and remanded.