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This opinion will be unpublished and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
A19-0691

In the Matter of:

Amber Brook Tobin,
Appellant,

vs.

Richard Glenn Tobin, II,
Respondent.

Filed November 18, 2019
Reversed and remanded
Rodenberg, Judge

Scott County District Court
File No. 70-FA-19-5122

Joseph Ambroson, Kathleen Wheeler, Law Offices of Southern Minnesota Regional Legal
Services, Inc., St. Paul, Minnesota (for appellant)

Richard G. Tobin, Elko New Market, Minnesota (pro se respondent)

Considered and decided by Ross, Presiding Judge; Rodenberg, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant-wife Amber Brook Tobin challenges the district court’s dismissal of her
petitions for an order for protection (OFP) without first holding a hearing. Because the

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plain language of the OFP statute requires the district court to hold a hearing on the merits
of an OFP petition under the circumstances presented here, we reverse and remand.
FACTS
Wife and respondent-husband Richard Glenn Tobin II were married in 2006. Wife
and husband initiated a legal separation proceeding and, in June 2018, the district court
entered a temporary order in that case . Wife and husband then unsuccessfully tried to
reconcile their differences. Wife moved out of the marital home in February 2019.
On March 21, 2 019, wife filed a petition for an OFP under Minn. Stat. § 518B.01
(2018). Wife’s petition alleged many instances of misconduct by husband, including that
husband insisted that wife be affectionate, touched her without her consent, intimidated her
with “be littling” and “manipulative” language, refused to leave the home she was
occupying during the legal separation, repeatedly called and texted her, forced her to “get
naked and let him touch [her] body,” and punched a hole in the wall. Wife also alleged
that husband had engaged in a pattern of abuse over the previous several years during which
he punched walls, broke furniture, and threw objects at wife. Wife indicated that she
believed that domestic abuse would continue and that she was in immediate danger . She
therefore s ought ex parte relief ordering husband to have no contact with her and
prohibiting husband from going to wife’s home or workplace.
The district court denied wife’s request for ex parte relief. In a form order, the
district court found that the allegations in the affidavit and petition did not warrant ex parte
relief. The district court scheduled an admit/deny hearing on the OFP petition for
March 28. A second district court judge presided at the March 28 hearing, ordered a

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continuance, and set an evidentiary hearing for April 1 because wife “requested an
evidentiary hearing on her denied OFP petition.” A third district court judge ordered
another continuance because husband’s attorney was on vacation, and scheduled a new
evidentiary hearing for April 8.
On April 3, between the second continuance and the rescheduled evidentiary
hearing, wife filed an amended OFP petition. The am ended petition alleged mostly the
same conduct alleged in the original petition, but the amended petition included more detail
than the original petition . The amended petition contained new allegations of specific
conduct by husband, such as husband insisting that wife tuck him in at night, husband
intimidating wife into sexual activity, and husband “battering” wif e about potentially
moving out of state. These allegations all concerned husband’s behavior before March 21,
2019. Unlike the original petition, wife indicated in the amended petition that she did not
believe the domestic violence would continue or that she was in immediate danger. Wife
again sought ex parte relief but also requested that a harassment restraining order (HRO)
be issued if an OFP was denied.
In another form order on April 3, a fourth district court judge denied wife’s amended
petition for relief by way of either an OFP or an HRO. The district court found that wife’s
“affidavit and petition lack merit” and ordered that the petition be dismissed without a
hearing.
A fifth district court judge presided at the previously scheduled evidentiary hearing
on April 8. Wife’s counsel interpreted the April 3 order as a denial of ex parte relief, but
also interpreted it as meaning that the April 8 evidentiary hearing would still be held on the

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merits of wife’s petitions. The district court instead construed “all the[] requests to have
no contact with Mr. Tobin . . . as a request for a dissolution of the marriage” and suggested
that the parties consider converting the previously filed legal-separation proceeding into a
dissolution proceeding. Wife’s counsel objected and requested to move forward with the
hearing on the merits of wife’s OFP petitions , arguing that those petitions con cerned
different issues than the issues in the legal -separation case. The district court refused to
consider those arguments because the OFP had “already bee n denied” and “other judges
[had] already found [the petitions] deficient.” The judge expressed an inability to see how
a hearing on wife’s petitions would move the parties forward. The parties eventually
agreed to convert the separation proceeding into a dissolution proceeding , but the hearing
ended without the district court having received any evi dence or argument concerning
wife’s OFP petitions. T he district court issued a Domestic Abuse Order for Dismissal
because a “dissolution proceeding [was] commenced.”
This appeal followed.
D E C I S I O N
The Minnesota Domestic Abuse Act (the Act) , Minn . Stat. § 518B.01, allows
victims of domestic abuse to seek relief by way of a petition for an OFP. Thompson ex rel.
Minor Child v. Schrimsher , 906 N.W.2d 495, 498 (Minn. 2018). To obtain relief, the
petitioner must allege the existence of domestic abuse and state the specific facts and
circumstances from which relief is sought. Id.; see also Minn. Stat. § 518B.01, subd. 4(b).
Under the Act:

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“Domestic abuse” means the following, if committed against a
family or household member by a family or household
member:
(1) physical harm, bodily injury, or assault;
(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). We review a district court’s denial of an OFP for abuse
of discretion. See Sweep v. Sweep , 358 N.W.2d 451, 453 (Minn. App. 1984); see also
McIntosh v. McIntosh , 740 N.W.2d 1, 9 (Minn. App. 2007). “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, 906 N.W.2d at 500 ( citation and quotation
omitted).
Once a petition is filed, the Act directs the district court to schedule a hearing. Minn.
Stat. § 518B.01, subd. 5; Thompson, 906 N.W.2d at 500 (“ [O]nce a petitioner has alleged
the existence of domestic abuse, the district court shall order a hearing ,” (quotations and
alterations omitted)). The court has discretion to grant or d eny relief once this hearing is
held. Id. The timing of this hearing depends on the relief sought and whether the district
court grants ex parte relief. Where, as here, the petitioner requests ex parte relief and the
court declines to grant it, “a heari ng must be held within seven days.” Minn. Stat.
§ 518B.01, subd. 5(c). The Act’s usage of the word “must” indicates that the district court
has no discretion and is required to order a hearing under these circumstances. See Minn.
Stat. § 645.44, subd. 15a (2018) (providing that the word “must” is mandatory).

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Wife would have us hold that the district court must conduct a hearing on every
OFP petition that is filed. It is unnecessary for us to so declare in this case. Here, wife
alleged in her OFP petitions that husband pressured her into unwanted sexual activity in
January 2019 and would “not let [her] leave without undressing in some way for him and
or letting him touch [her] body.” Wife also alleged that, in December 2018, husband yelled
at her, punched the wall next to the bed where she was lying, followed her into another
room, and yelled at her for over an hour. Similarly, wife alleged that, on March 17, 2018,
husband broke furniture, threw objects at her head, and got “in [her] face with large objects
in hand.” Construing these allegations in the light most favorable to wife, it is evident that
wife alleged the existence of domestic abuse within the meaning of the Act. See Minn.
Stat. § 518B.01, subd. 2(a).
Because wife alleged the existence of facts sufficient to constitute domestic abuse,
she requested ex parte relief, and the district court declined to grant ex parte relief, the plain
language of subdivision 5(c) required the district court to hold a hearing within seven days
before granting or denying an OFP. See Minn. Stat. § 518B.01, subd. 5(c). By way of the
actions of five different judges, t he district court instead continued the matter twice,
purported to dismiss wife’s amended petition without a hearing because it “l ack[ed]
merit[,]” declined to hear argument or receive evidence concerning the OFP petiti ons
during the April 8 hearing, and then dismissed wife’s petition because “a dissolution
proceeding [was] commenced.” The dismissal without any hearing on wife’s petition
plainly fails to comply with subdivision 5(c) of the Act and was an abuse of the district

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court’s discretion. See Schisel v. Schisel, 762 N.W.2d 265, 272 (Minn. App. 2009) (“The
[district] court abuses its discretion if it erroneously applies the law to the case.”).
We reverse the district court’s denial of wife’s OFP petitions without any hearing
and remand the matter to the district court for further proceedings.
Reversed and remanded.