In the Matter of: Chelsey Lynn Ness, and On Behalf of the Minor Children, petitioner, Respondent,

This opinion will be unpublished and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
A20-0100

In the Matter of: Chelsey Lynn Ness, and On Behalf of the Minor Children, petitioner,
Respondent,

vs.

Hope Michelle Wolfe,
Appellant.

Filed November 2, 2020
Affirmed
Larkin, Judge

Stearns County District Court
File No. 73-FA-19-10421

Chelsey L. Ness, Sauk Rapids, Minnesota (pro se respondent)

Jonathan D. Wolf, Rinke Noonan, St. Cloud, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Larkin, Judge; and Reilly,
Judge.
U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges the district court’ s issuance of an order for protection (OFP) ,
arguing that the evidence was insufficient to support the OFP and that the district court

2
abused its discretion by altering the parenting time of an individual who was not a party to
the OFP proceeding. We affirm.
FACTS
On Dece mber 11, 2019, respondent Chelsey Lynn Ness (mother) petitioned the
district court for an OFP against appellant Hope Michelle Wolfe , on behalf of her three
minor children. Wolfe was in a relationship with mother’s ex-husband, Ryan Ness (father),
and had lived with him since 2018. Mother and father divorced in 2013 and have joint
physical custody of their three minor children.
Mother requested relief using a standardized form entitled “Petitioner’s Affidavit
and Petition for Order for Protection.”1 The combined affidavit and petition was submitted
under oath. See Minn. Stat. § 358.116 (2018). In a section of that form asking mother to
describe the abuse that caused her to request an OFP, mother wrote that her children needed
an OFP because Wolfe engaged in “verbal abuse,” “demoralizing statements,” and
“vulgarity,” and also “threaten[ed] physical assault.” She also wrote, “Attached,” thereby
incorporating a three-page document attached to the petition, in which mother explained
an incident that prompted her to apply for the OFP. Specifically, mother reported that her
children were with father and Wolfe on November 27, 2019. That night, mother received
a phone call from her nine -year-old daughter, who was crying and told mother that father
and Wolfe were fighting. The daughter said she was scared and asked mother to pick her

1 “The court shall provide simplified forms and clerical assistance to help with the writing
and filing of a petition [for an OFP] under this section.” Minn. Stat. § 518B.01, subd. 4(e)
(2018).

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up. Mother claimed that she could hear the fight in the background over the phone, and
that she heard Wolfe say to father, “It’ s your fault I’m a crazy a -- b-tch. I will b eat you
and your stupid a -- kids.” Mother claimed that she he ard Wolfe say, “Take your grimy
a-- kids and get the f --- out of my house.” Both the daughter and mother’s ten -year-old
son were present in the room when the fight occurred. Mother reported that she went to
Wolfe’s residence to pick up the kids and that both children “were sobbing” when they got
into mother’s car.
Mother mentioned several statements that the children and father purportedly made
to her shortly after the incident. The daughter allegedly told mother that Wolfe kicked the
daughter’s bag while she was waiting for mother to pick her up. The son allegedly told
mother that Wolfe had called him “nasty” and “f---ing gross” because he was “chewing on
his fingers.” Father a llegedly told mother that Wolfe was “flipping over the tables,
threatening my kids.”
The district court granted an ex parte OFP against Wolfe. Wolfe requested a
hearing. At the beginning of the hearing, the district court informed the parties that it had
reviewed the allegations of mother’s petition and asked mother if there was anything else
mother wanted the court to know that was not in the petition. Mother asked the district
court if it had her written stat ement, and the court i ndicated that it ha d the statement.
Mother did not testify or call any witnesses, but she offered some photographs of text
messages that were received as exhibits, without objection.
Wolfe called two witnesses at the hearing: father, and Wolfe’s sister, who was also
present during the underlying incident. Wolfe also testified at the h earing. Wolfe

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explained that her fight with father began after mother texted father that she wanted to have
the children the following morning, which was Thanksgiving, for a “run” that she had
enrolled them in. Wolfe was upset because father was supposed to have the children on
Thanksgiving morning, and she felt that mother was trying to disrupt her family’s
Thanksgiving plans.
Wolfe, father, and Wolfe’s sister all admitted that Wolfe and father argued with each
other, but they insisted that Wolfe did not make any threatening statements about the
children. They denied mother’s allegation that Wolfe had said, “I will beat you and your
stupid a-- kids” and “Take your grimy a-- kids and get the f--- out of my house.”
The district court issued an OFP against Wolfe on behalf of two of mother’s
children, effective for one year. It did not issue an OFP on behalf of the third child because
the testimony at the hearing revealed that he was no t present during the incident. The
district court used a standardized form order intended for OFP proceedings. The district
court found that “[a]cts of domestic abuse have occurred,” specifically, “verbal threats”
toward the two children who were present during the fight. The district court ordered that
Wolfe cannot commit acts of domestic abuse against the children, cannot have any contact
with the children, cannot go to the children’s residence, and must stay 500 feet away from
the children’s residence. In addition, the district court found that “[t]he prior custody order
giving [mother]/Mr. Ness custody remains in effect.” The district court crossed out
“Respondent” in a section of the form regarding limitation s on parenting time, replaced
“Respondent” with “Mr. Ness,” and ordered that father would have parenting time with the
children “as scheduled but not with Ms. Wolfe (Rsp.) present.”

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Wolfe appeals.2
D E C I S I O N
I.
Wolfe contends that the district court abused its discretion by issuing the OFP
because there was insufficient evidence that she committed domestic abuse. An appellate
court reviews a district court’s grant of an OFP for an abuse of discretion. Braend ex rel.
Minor Children v. Braend, 721 N.W.2d 924, 926-27 (Minn. App. 2006). “A district court
abuses its discretion if its findings are unsupported by the record or if it misapplies the
law.” Id. at 927.
The Minnesota Domestic Abuse Act enables a person to file a petition for an OFP
based on an allegation of domestic abuse. Minn. Stat. § 518B.01, subd. 4 (2018).
“Domestic abuse” includes, as relevant here, “the infliction of fear of imminent physical
harm, bodily injury, or assault” against a family or ho usehold member. Id., subd. 2(a)(2)
(2018). A petitioner seeking an OFP must demonstrate by a preponderance of the evidence
that domestic abuse occurred. Oberg v. Bradley, 868 N.W.2d 62, 64 (Minn. App. 2015).
Appellate courts will reverse an OFP when th e evidence is insufficient to support it.
Bjergum v. Bjergum, 392 N.W.2d 604, 606-07 (Minn. App. 1986).
Wolfe argues that there is no evidence of domestic abuse in the record. She points
out that mother did not testify at the hearing and that the witness es who did testify stated

2 Mother did not file a brief. This court ordered the appeal to proceed under Minn. R. Civ.
App. P. 142.03 (providing that if a respondent fails to file a brief, the case shall be
determined on the merits).

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that Wolfe did not make the alleged threats. Wolfe’s argument is based on her contention
that mother’s sworn affidavit and petition for an OFP, which incorporated mother’s written
statement describing abuse, was not part of the e videntiary record on which the district
court could rely when deciding whether to grant an OFP. We therefore begin our analysis
by considering whether the district court erred by treating mother’s affidavit and petition
as evidence when ruling on mother’s request for an OFP.
A petition for an OFP “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.” Minn. Stat. § 518B.01, subd. 4(b). A district court may grant
an ex parte OFP when the petition alleges an immediate and present danger of domestic
abuse. Id., subd. 7(a) (2018). When the district court grants an ex parte OFP and the
respondent requests a hearing, the district court must hold a hearing. Id., subd. 5(d) (2018).
Wolfe does not cite authority indicating that a district court errs by treating an
affidavit and petition for an OFP as evidence at a hearing on the petition. In fact, this court
has suggested, without deciding, that a supporting affidavit and petition may be part of the
evidentiary record in an OFP proceeding. For example, in Olson ex rel. A.C.O. v. Olson ,
this court held that the district court abused its discretion by considering inadmissible
hearsay statements in an affidavit and petition for an OFP as the exclusive basis for finding
domestic abuse and granting an OFP. 892 N.W.2d 837, 842 (Minn. App. 2017). In
reaching that decision, this court did not state that the affidavit and petition could not be
treated as evidence; instead, it assumed that tho se documents were evidence and applied
the hearsay rules to them. See id.

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Older opinions by this court also have assumed, without deciding, that an affidavit
and petition for an OFP can be treated as evidence . In Andrasko v. Andrasko , this court
reversed the grant of an OFP on the basis that neither the evidence presented at the hearing,
nor the allegations in the petition , were sufficient to satisfy the definition of domestic
abuse. 443 N.W.2d 228, 230 (Minn. App. 1989). And in Hall v. Hall, this court determined
that the appellant was not denied an evidentiary hearing because a hearing was held, both
parties testified, and the petitioner’s “petition and affidavit were also part of the file.” 408
N.W.2d 626, 628 (Minn. App. 1987) , review denied (Minn. Aug. 19, 1987) . The court
then explained that “[t]he specific acts of domestic abuse were outlined in the affidavit and
petition,” and it considered those allegations when determining whether there was
sufficient evidence of domestic abuse. Id. at 628-29.
In sum, although the issue has never been directly raised and determined by thi s
court, our decisions suggest that a district court may treat an affidavit and petition for an
OFP as evidence at a hearing o n the OFP. We are not aware of any precedent indicating
that a district court errs by doing so.
Moreover, Wolfe’s only objection to the district court’s reliance on mother’s
affidavit and petition for an OFP was based on the rule against hearsay; counse l did not
object that the document was not part of the evidentiary record. Once again, at the
beginning of the hearing, the district court stated that it had reviewed the allegations of
mother’s petition and asked mother if there was anything else she wanted the court to know.
Mother asked the district court if it had her written statement , and the court indicated that
it had the statement. Near the end of the hearing, Wolfe’s counsel argued that no witness

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had testified that Wolfe threatened to beat the children. The district court responded,
“Well, Ms. Ness said that in a sworn Affidavit attached to the Petition.” 3 That comment
reasonably put Wolfe on notice that the district court viewed mother’s affidavit and petition
for an O FP as evidence. Although Wolfe’s counsel responded that the children’s
statements in that document w ere hearsay, counsel did not object that the document was
not part of the evidentiary record. And even though Wolfe now complains that mother was
not put under oath and subjected to cross-examination, Wolfe never asked the district court
to do so.
This court has held that a party waived the right to cross-examination during an OFP
hearing because she never requested the opportunity to do so. Beardsley v. Garcia, 731
N.W.2d 843, 850 (Minn. App. 2007), aff’d, 753 N.W.2d 735 (Minn. 2008). “Although a
[party] in an OFP proceeding is entitled to a hearing, the failure to request a particular
procedure, such as cross -examination, constitutes waiver.” Id. In addition, 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).
Given Wolfe’s failure to object to the district court’s stated reliance on mother’s
affidavit and petition for an OFP as evidence , and Wolfe’s failure to cite authority
indicating the district court abused its discretion in doing so, we reject Wolfe’s contention

3 We understand the district court’s reference to be to t he written statement that mother
attached to her affidavit and petition . Although that statement was not formally styled as
an affidavit, it was incorporated into mother’s sworn affidavit and petition for an OFP.

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that the district court erred by treating mother’s affidavit and petition as evidence when
ruling on mother’s request for an OFP.
II.
Wolfe argues that, even if the district court did not err by treating the allegations in
mother’s affidavit and petition for an OFP as evidence, the record evidence is still
insufficient to show that she committed domestic abuse justifying an OFP. We address
each of Wolfe’s challenges to the record in turn.
Children’s Out-of-Court Statements to Mother
Mother’s affidavit and petition for an OFP contained mother’s statements regarding
what the children allegedly told her after she picked them up at Wolfe’s home on the night
of the incident. Those statements include d the daughter’s claim that Wolfe kicked the
daughter’s bag while she was waiting to be picked up and the son’s claim that Wolfe called
him “nasty” and “gross” because he was “chewing on his fingers.” Wolfe objected to those
statements at the hearing, asserting that they were hearsay. On appeal, Wolfe reiterates
that assertion.
Hearsay is “a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” Minn. R.
Evid. 801(c). The Minnesota Rules of Evidence apply to domestic abuse hearings, and a
district court abuses its discretion when it uses inadmissible hearsay statements as the
exclusive basis for finding domestic abuse. Olson, 892 N.W.2d at 841 -42. However, a
party must demonstrate prejudicial error to receive a new hearing based on an erroneo us
evidentiary ruling. See id. at 841.

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Mother’s affidavit and petition for an OFP did not claim that the children told her
that Wolfe threatened them. Moreover, at the hearing, the district court referred to mother’s
claim that she herself heard Wolfe threaten to beat the children, indicating that the district
court was influenced by that statement. Under the circumstances, we need not decide
whether the district court erroneousl y considered the children’s out -of-court statements
because any erroneous reliance on those statements was harmless and does not provide a
basis for relief. See Minn. R. Civ. P. 61 (requiring harmless error to be ignored).
Wolfe’s Out-of-Court Statements to Mother
Mother’s affidavit and petition for an OFP stated that mother heard Wolfe’s threats
over the phone, which included the statements, “I will beat you and your stupid a -- kids,”
and, “Take your grimy a-- kids and get the f--- out of my house.” Wolfe asserts, with little
supporting argument, that those statements were inadmissible hearsay. But in district court,
Wolfe’s hearsay objection was limited to the children’s out-of-court statements. Again, an
appellate court generally will not consider matters not argued to and considered by the
district court. Thiele, 425 N.W.2d at 582. Moreover, “[a]n assignment of error based on
mere assertion and not supported by any argument or authorities in appellant’s brief is
waived and will not be considered on appeal unless prejudicial error is obvious on mere
inspection.” Schoepke v. Alexander Smith & Sons Carpet Co. , 187 N.W.2d 133, 135
(Minn. 1971).
A statement is not hearsay if it is offered only to show that the statement was made,
and not to prove the truth of the matter asserted. State v. Boykin , 172 N.W.2d 754, 757
(Minn. 1969). In addition, a statement is not hearsay if it was made by a party opponent

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and it is offered against that party opponent. Minn. R. Evid. 801(d)(2). Wolfe does not
attempt to refute the application of those principles in this case. We discern n o obvious
prejudicial violation of the rule against hearsay.
The Testimony of Wolfe’s Witnesses
At the hearing, Wolfe, father, and Wolfe’s sister testified that Wolfe did not make
any of the alleged threats. That testimony contradicted mother’s assertion that she heard
Wolfe threaten to beat the children. It is the duty of the district court, as fa ct-finder, to
reconcile conflicting evidence and decide issues of witness credibility. Gada v. Dedefo ,
684 N.W.2d 512, 514 (Minn. App. 2004). In an appeal challenging the sufficiency of the
evidence to support a decision, we defer to the fact -finder’s as sessments of witness
credibility and its weighing of the evidence. Id.
The district court apparently found mother more credible than Wolfe, father, and
Wolfe’s sister. Wolfe argues that the district cour t erred by finding that domestic abuse
occurred because all of the witnesses testified that Wolfe did not make the alleged threats.
That argument is unavailing because we defer to the district court’s credibility
determinations and its weighing of the evidence. The record is sufficient to establish tha t
Wolfe made the threats that mother reported.
Wolfe’s Threats and Fear of Imminent Harm
Wolfe argues that her alleged threats did not constitute domestic abuse . Domestic
abuse includes “the infliction of fear of imminent physical harm, bodily injury, or assault.”
Minn. Stat. § 518B.01, subd. 2(a)(2). Wolfe’s threat that she would “beat you and your
stupid a-- kids” most closely satisfies that definition of domestic abuse. Wolfe maintains,

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however, that such a comment does not constitute domestic abuse because there is no
evidence that she intended to place the children in fear of imminent physical harm or that
the children feared imminent physical harm.
An OFP is justified when “a person manifests a present intention to inflict fear of
imminent physical harm, bodily injury, or assault” on another person. Pechovnik v.
Pechovnik, 765 N.W.2d 94, 99 (Minn. App. 2009). Such a present intent can be inferred
from the totality of the circumstances, and an “overt physical act is not necessary to support
the issuance of an OFP.” Id. “A verbal threat, depending on the words and the
circumstances, can also inflict fear of imminent physical harm, bodily injury or assault. ”
Hall, 408 N.W.2d at 629 (quotation omitted). Additionally, a fact-finder may infer that a
person “intends the natural and probable consequences” of her actions. State v. Cooper ,
561 N.W.2d 175, 179 (Minn. 1997).
In arguing that the evidence is insufficient to show that she inte nded to place the
children in fear of imminent physical harm, Wolfe points out that her statements were
directed at father, and not the children. That may be true, but those statements included
her threat to beat the children, and it is undisputed that Wo lfe’s statements were made
during a heated argument with father, which the children witnessed. Given the
circumstances, the evidence reasonably supports an inference that Wolfe intended to cause
the children to fear imminent physical harm. Such fear is t he natural and probable
consequence of Wolfe’s threat.
Wolfe also argues that the evidence is insufficient to show that the children feared
imminent physical harm. See Aljubailah ex rel. A.M.J. v. James , 903 N.W.2d 638, 644

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(Minn. App. 2017) (stating th at any “threats of a general nature” must result in either
physical harm or fear of imminent harm in order to constitute domestic abuse). Wolfe
posits that the children may have been afraid and upset only because they had witnessed
her heated argument with father. Accepting that view of the evidence would require us to
reweigh the evidence, which we will not do. See Gada, 684 N.W.2d at 514. Mother’s
affidavit and petition for an OFP stated that both children were “sobbing” when she picked
them up after the fight. That evidence, combined with evidence regarding the threats that
Wolfe made during the fight, is sufficient to establish that the children feared imminent
physical harm from Wolfe.
In sum, the record contains sufficient evidence that Wolfe commit ted domestic
abuse, and the district court did not abuse its discretion by issuing an OFP directed at
Wolfe.
III.
Wolfe argues that the district court erred by altering father’s parenting time under
the OFP. Once again, the district court crossed out “Re spondent” on a standardized OFP
form order, replaced it with “Mr. Ness,” and wrote that father would have parenting time
“as scheduled but not with Ms. Wolfe (Rsp.) present.” Wolfe argues that the district court
had no authority to alter father’s parenting time because father was not a party to this OFP
proceeding.4 See Sammons v. Sammons, 642 N.W.2d 450, 457 (Minn. App. 2002) (“ The
district court may not exercise jurisdiction over a nonparty.”).

4 We question whether Wolfe has standing to make that argument. See State by Humphrey
v. Philip Morris Inc. , 551 N.W.2d 490, 493 (Minn. 1996) (“Standing is the requirement

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“Upon notice and hearing,” the district court may order relief as provided in the
OFP statute. See Minn. Stat. § 518B.01, subd. 6(a) (2018) (listing 15 forms of relief). One
form of relief that the district court may provide is to “establish temporary parenting time
with regard to minor children of the parties on a basis which gives primary consideration
to the safety of the victim and the chil dren.” Id., subd. 6(a)(4) (emphasis added). The
parties to this OFP proceeding are mother and Wolfe. Father is not a party. We
acknowledge that because the OFP prohibits Wolfe from having any contact with the
children, the OFP has the effect of preventing father from exercising parenting time with
Wolfe present. Nonetheless, it is not clear to us that the district court was authorized to
separately limit father’s parenting time in this OFP proceeding between mother and Wolfe,
without first providing father notice and a hearing.
This court has held that “[a] parent meeting the criteria of Minn. R. Civ. P. 24.01
has a right to intervene in non-ex parte proceedings commenced under the Domestic Abuse
Act, Minn. Stat. § 518B.01 . . . on behalf of the parent’ s child.” Halverson ex rel.
Halverson v. Taflin , 617 N.W.2d 448, 449 (Minn. App. 2000). In Halverson, the
appellant’s ex -husband sought an OFP on beha lf of their child, alleging abuse by the
appellant’s boyfriend. Id. The appellant, the child’s joint legal and sole physical custodian,
was not made a party to the domestic-abuse proceedings. Id. The district court granted an
OFP that awarded the ex -husband temporary custody for one year. Id. The district court

that a party has a sufficient stake in a justiciable controversy to seek relief from a court.”).
But we ultimately decline to review the alteration of father’s parenting time on other
grounds.

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later denied the appellant ’s motion to intervene as untimely. Id. at 449-50. This court
concluded that the distri ct court erred by denying the appellant ’s motion to intervene,
reasoning that “absent an immediate and present danger of abuse necessitating an ex parte
order, due process compelled [the] appellant’s inclusion in the action to protect her
fundamental parental rights.” Id. at 452.
The record here does not indicate that father attempted to intervene or otherwise
challenge the district court’s order altering his parenting time. Because father is not a party
to this appeal, we do not review the portion of the OFP that alters his parenting time.
Affirmed.