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This opinion will be unpublished and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 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-2046

In re the Matter of:

Amanda Lynn Smith, petitioner,
Respondent,

vs.

Christopher Gordon Carothers,
Appellant.

Filed July 8, 2019
Reversed
Smith, Tracy M., Judge

Dakota County District Court
File No. 19AV-FA-18-2651

Amanda Lynn Smith, Apple Valley, Minnesota (pro se respondent)

Christopher G. Carothers, Cannon Falls, Minnesota (pro se appellant)

Considered and decided by Jess on, Presiding Judge; Schellhas, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Upon petition by respondent Ama nda Smith, the district court is sued an order for
protection (OFP) against appellant Christopher Carothers, finding that Carothers had taken
Smith’s cell phone and gone through its contents and had taken her laptop. Carothers

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appeals, arguing that the distr ict court’s findings do not supp ort the OFP. We agree and
reverse.
FACTS
Carothers and Smith were in a romantic relationship from 2011 u ntil 2018. On
October 3, 2018, Smith and Carothers got into an argument. Seve ral facts regarding the
argument are not disputed: Carothers took Smith’s cell phone, r ead through its contents,
and then took Smith’s laptop and went outside. While Carothers was outside, Smith
contacted the police, using a second cell phone. The police cam e to the house and asked
Carothers to return Smith’s property; he did so.
In late October 2018, Smith petitioned the district court for an OFP based primarily
on the incident of October 3. The petition also alleged a prior incident in which Carothers
had hit Smith with a disc-golf di sc and had implicitly threaten ed her with his body
language. The district court granted an ex-parte OFP pending a hearing. About a week later,
Smith sought to modify the order for protection by adding the p arties’ joint children as
protected parties. Smith alleged that Carothers had physically abused the children. The
district court modified the ex-parte OFP accordingly.
At the evidentiary hearing, held a few days later, the bulk of the evidence was
testimony from Smith and Carothers, though Smith called several witnesses who testified
t h a t C a r o t h e r s h a d h i t b o t h o f t h e p a r t i e s ’ c h i l d r e n o n s e v e r a l occasions and Carothers
called a witness who testified, essentially, that she did not witness any abuse.
The testimony of Smith and Caroth ers as to the events of Octobe r 3 differed on
several points. Smith testified that Carothers had taken the se cond cell phone from her.

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Carothers testified that, while h e remembered Smith having a se cond phone, and
remembered being surprised that she had two cell phones, he did not remember taking the
second phone. Smith testified that, when Carothers took the first phone, he snatched it out
of her hand and, when he took the second phone, he twisted her arm behind her back in
order to make her release it. Carothers testified that he took the first phone after Smith set
it down on a counter. Carothers said that he did not recall tak ing the second phone and
challenged Smith’s testimony that he twisted her arm behind her back, stating that, if he
had done so, the police likely would have seen bruises or redne ss. But he did not
specifically deny Smith’s testim ony about the arm twisting, sta ting only that he did not
recall. Smith also described how Carothers blocked a door to a room that she was in after
a second “tussle” over the second cell phone. Carothers did not mention any such event
and was not asked about it.
The district court granted an OFP in favor of Smith and the chi ldren for two years,
using a form order. In its writt en finding of abuse, the district court checked the box next
to “Acts of domestic abuse have o ccurred, including the followi ng:” and wrote “Taking
phone & going through it; Taking laptop.” The district court also described its findings and
rationale orally, on the record:
Okay. I’m going to make a finding that domestic abuse did
occur with respect to the incidents around the phone and the
laptop. I think in this day and age taking somebody’s phone
away and going through it constitutes a statement that “I’m in
control.” And taking away somebody’s laptop and phone is an
effort to say “I’ll decide what part of the world you’ll be in
touch with.”

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Though it did not make any exp licit credibility determinations, the district court
appears not to have believed the testimony of Smith’s witnesses who described abuse
against the children. After Smith had presented her evidence, t he district court stated that
it was only interested in “the incident with respect to the phone and the computer that she
testified about. Those are the incidents that I think may involve domestic abuse.” And the
district court directed Carothers to focus on those incidents i n his testimony. The district
court did not find that Caroth ers had committed domestic abuse against the children. Nor
did the district court find that Carothers had committed any acts of domestic abuse against
Smith other than on October 3.
Carothers appeals.
D E C I S I O N
“A petitioner seeking an OFP must ‘allege the existence of dome stic abuse’ by
affidavit, including the ‘specific facts and circumstances from which relief is sought.’”
Thompson o/b/o Minor Child v. Schrimsher, 906 N.W.2d 495, 498 (Minn. 2018) (quoting
Minn. Stat. § 518B.01, subd. 4(b ) (2016)). “[A]n OFP is availab le only if the petitioner
shows the respondent committed domestic abuse against the petit ioner or the person on
whose behalf the petition is sought.” Schmidt ex rel. P.M.S. v. Coons , 818 N.W.2d 523,
527 (Minn. 2012) (footnote omitted).
“Domestic abuse” means: “(1) physical harm, bodily injury or as sault; (2) the
infliction of fear of imminent physical harm, bodily injury, or assault; or (3) terroristic
threats . . . criminal sexual conduct . . . or interference with an emergency call . . . .” Minn.
Stat. § 518B.01, subd. 2(a) (2018). Whether the facts found by the district court constitute

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domestic abuse is a question of statutory interpretation. Thompson, 906 N.W.2d at 498.
Appellate courts review the district court’s interpretation of a statute de novo, because the
meaning of a statute is a question of law. Id. Be c a us e “ a ppe l l a t e c our t s m ay not s i t a s
factfinders,” Dunn v. Nat’l Beverage Corp., 745 N.W.2d 549, 555 (Minn. 2008) (quotation
omitted), they review the district court’s findings for clear e rror but may not “make or
amend findings of fact,” Butch Levy Plumbing & Hea ting, Inc. v. Sallblad , 126 N.W.2d
380, 387 (Minn. 1964).
By checking box 4.a on the OFP form and adding a description, t he district court
indicated that “Acts of domestic abuse have occurred, including the following: taking
phone & going through it; Taking laptop.” These described acts were taken against Smith,
but they do not meet the statutory definition of “acts of domestic abuse.” Taking property
and going through another’s digital files may be bad conduct, but it does not cause physical
harm, bodily injury, or assault, and it does not constitute terroristic threats, criminal sexual
conduct, or interference with an emergency call. See Minn. Stat. § 518B.01, subd. 2(a)(1),
(3). And even if those acts communicate the messages suggested by the district court—
“I’m in control,” and “I’ll decide what part of the world you’l l be in touch with”—those
messages, by themselves, do not inflict “fear of imminent physical harm, bodily injury, or
assault.” Id., subd. 2(a)(2). Thus, Carothers’s conduct as found by the district court did not
constitute domestic abuse. The dis trict court therefore erred i n granting the OFP. See
Schmidt, 818 N.W.2d at 529 (holding that an OFP may only be issued “to a victim of
domestic abuse”).

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Smith argues that this court should nonetheless affirm the OFP, pointing to the
evidence of other alleged domestic abuse that she introduced at trial. But the district court
did not find that other domestic abuse occurred. After Smith presented her case, the district
court instructed Carothers to focus on “the incident with respe ct to the phone and the
computer,” stating “[t]hose are the incidents that I think may involve domestic abuse.” By
doing so, the district court indi cated that it was not persuade d by the evidence of other
events. Similarly, when giving its oral findings, the district court focused specifically on
the invasive and controlling messages sent by taking another person’s electronics and going
through the person’s cell phone. If the district court had beli eved that an assault occurred
when Carothers took the phone, there would have been no need to explain the coercive
message conveyed by controlling another’s communication devices—the court could have
simply said that there was an assault. The fact that it did not do so suggests that the district
court did not believe Smith’s testimony about how the phones were taken from her. Finally,
in its written findings, the cour t mentioned only that Carother s took Smith’s phone and
laptop and read through her cell phone. The district court prem ised the OFP solely on
conduct that was not domestic abuse. Even if the evidence would have supported findings
that met the statutory definition of domestic abuse, it is beyo nd the power of this court to
make such findings. Dunn, 745 N.W.2d at 555.
As for the children, the distric t court made no findings of any acts taken against
them. An OFP is not available unl ess the restrained party commi tted domestic abuse
against the protected parties. Schmidt, 818 N.W.2d at 527. The district court erred by

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issuing an OFP to protect the children without finding that Car others had committed
domestic abuse against them.
Because the only conduct found by the district court does not m eet the statutory
definition of domestic abuse, its findings do not support the i ssuance of the OFP with
respect to Smith or the children.
Reversed.