In re the Matter of: Jennifer Lynn Gaughan, petitioner, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0885

In re the Matter of: Jennifer Lynn Gaughan, petitioner,
Respondent,

vs.

Patrick Michael Gaughan,
Appellant.

Filed April 26, 2021
Affirmed
Reilly, Judge

Washington County District Court
File No. 82-FA-18-930

Karen I. Linder, Linder, Dittberner & Winter, Ltd., Edina, Minnesota (for respondent)

Erick G. Kaardal, Mohrman, Kaardal & Erickson, P.A., Minneapolis, Minnesota (for
appellant)

Considered and decided by Florey, Pres iding Judge; Reilly, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
REILLY, Judge
Appellant-husband challenges the district court’s grant of an extension of an
existing order for protection in favor of respondent-wife. We affirm.

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FACTS
This appeal arises out of separati on proceedings between petitioner-respondent
Jennifer Lynn Gaughan (wife) and respon dent-appellant Patr ick Michael Gaughan
(husband). In February 2018, wife petitioned the district court for an order for protection
(OFP) on behalf of herself a nd the couple’s three minor ch ildren. Wife alleged that
husband had a history of committing domestic violence against her, including times when
he hit her on the head, pushed her, pulled her hair, kicked her in the knee, pushed her head
into the wall, poured water on her, and forced her to have sex with him against her wishes.
Wife also asserted that husband held a sci ssors and a butcher knife to her face and
threatened to cut her hair and burn the house down. Wife stated that four of their children,
including the three minor chil dren, witnessed this abuse. Wife requested temporary
custody of the minor children and requested that husband not be granted parenting time
because the children witnessed the assault and were afraid of husband.
A day later, the district court granted an ex parte OFP against husband. The district
court restrained husband from having contac t with wife and the minor children, and
excluded husband from the family home and th e parties’ church. The district court
determined that the safety of wife and the children required that wife would have temporary
sole legal and physical custody of the minor children. The di strict court also scheduled a
hearing to address the relief requested in the petition.
The parties then stipulated to the filing of an OFP “without findings of fact and
conclusions of law that [hus band] committed domestic abuse upon [wife] and their joint
minor children.” The stipulation also provided that wife “shall have the right, at her sole

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discretion, to elect to extend the effective period of this Order for one additional year, upon
the filing of an affidavit exercising said right.” In April 2018, the district court adopted the
parties’ stipulation, and filed an OFP consistent with that stipulation.
In December 2018, the district court ju dge presiding over the parties’ legal-
separation proceeding filed an order for te mporary relief, recognizing that the OFP had
awarded wife temporary sole legal and physical custody of the minor children, and stating
that “[u]pon expiration of the Order for Protection . . . , the parties will share joint legal
custody of the children.”
In January 2019, wife filed an affidavit exercising her right to extend the effective
period of the OFP for one more year. The district court granted the extension in February
2019. Husband challenged the OFP extension and moved to vacate the OFP. The district
court denied his request because the OFP extension had been incorporated into the parties’
original stipulation. We affirmed the distri ct court’s decisions to extend the OFP and to
deny the motion to vacate. Gaughan v. Gaughan, No. A19-0948, 2019 WL 5690701, at
*1 (Minn. App. Nov. 4, 2019). We held that:
The record supports the district court’s conclusion that
husband understood the meaning and potential ramifications of
. . . the stipulation that he and his attorney signed. That
paragraph unambiguously provides that wife “shall have the
right, at her sole discretion, to elect to extend the effective
period of this Order for one additional year, upon the filing of
an affidavit exercising said right.”
Id. at *3.
In March 2020, before the expiration of th e extended OFP, wife applied to extend
the OFP for another five years. Wife assert ed that husband violated the OFP by trying to

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contact her through mutual friends and that she remained in fear of him. The district court
filed an emergency ex parte OFP extension, determining that wife needed an order for
protection. The district court did not include the minor children in the emergency ex parte
extension order. The district court found that the prior custody order giving mother custody
of the minor children “remains in effect,” but that “the children are not protected persons
in this file and custody is not controlled by this file.” The district court noted that husband
and wife would now share joint legal custody of their minor children under the order in the
legal-separation proceeding.
In May 2020, husband moved to dismiss the emergency ex parte OFP extension
because he had not violated the existing OFP and wanted to have a parenting role with the
children. Following a hearing, the district court issued an order in June 2020 denying
husband’s dismissal motion. The district court determined that wife “provided the [district]
[c]ourt with extensive inform ation about why she is in f ear of physical harm from
[husband],” and, because of that evidence and husband’s history of abuse, “has established
that she is reasonably in fear of physical abuse from [husband].”
Husband appeals the March 2020 emergency ex parte OFP extension, and the June
2020 order denying his motion to dismiss.
DECISION
I. The district court did not abuse its discretion by extending the OFP.
Husband argues that the district court abused its discretion by granting the
emergency ex parte extension of the OFP. We review the district court’s grant of an OFP
for an abuse of discretion. Ekman v. Miller, 812 N.W.2d 892, 895 (Minn. App. 2012). A

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district court abuses its discretion if it base s its decision on an erroneous view of the law
or if the decision is against logic and the facts on record. Thompson v. Schrimsher, 906
N.W.2d 495, 500 (Minn. 2018). We view the re cord in the light mo st favorable to the
district court’s findings and will not reverse unl ess we are left with the “definite and firm
conviction that a mistak e has been made.” Pechovnik v. Pechovnik, 765 N.W.2d 94, 99
(Minn. App. 2009) (quotations omitted). We al so defer to the district court’s credibility
determinations and do not reweigh the evidence presented. Id. But statutory construction
is a question of law, whic h we review de novo. McIntosh v. McIntosh, 740 N.W.2d 1, 9
(Minn. App. 2007).
“Upon application, notice to all parties, and hearing, the court may extend the relief
granted in an existing order for protection . . . .” Minn. Stat. § 518B.01, subd. 6a(a) (2020).
The terms of an existing OFP may be extended upon a showing that:
(1) the respondent has violated a prior or existing order for
protection;
(2) the petitioner is reasonably in fear of physical harm from
the respondent;
(3) the respondent has engaged in act of harassment 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.
Id., subd. 6a(b)(1)-(4) (2020). The petitioner need only show one of these four alternatives.
Braend v. Braend, 721 N.W.2d 924, 927 (Minn. App. 2006).
Husband argues that the OFP extension is unwarranted because the district court did
not specifically find that he violated the existing OFP or abused wife. Husband notes that

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the parties stipulated that there would be no findings of fact about domestic abuse.
Husband recognizes that wife alleged in her affidavits that husband abused her, but claims
that wife never provided “actual evidentiary support” for these allegations. Husband
argues that, without an initial finding of abuse, the district court cannot extend the OFP.
We disagree. The statute only requires that one of the four factors be met to grant
an extension. Minn. Stat. § 518B.01, subd. 6a(b)(1)-(4); Braend, 721 N.W.2d at 927. Nor
does a petitioner need to show that physical harm is imminent to obtain an OFP extension.
Minn. Stat. § 518B.01, subd. 6a(b); see also Ekman, 812 N.W.2d at 895 (recognizing that
petitioner need not show actual physical harm or even imminent harm to extend existing
OFP).
Here, the district court determined that wife was reasonably in fear of physical abuse
from husband. The district court found that wife provided “extensive information about
why she is in fear of physical harm” from husband. The district court found that husband
spoke with third parties about wanting to c ontact wife to get her signature on certain
documents, which constitute “suf ficient reason for [wife] to believe that [husband] was
actually attempting to contact her.” The dist rict court also determined that husband’s
actions, “combined with [wife’s] sworn affida vits stating she was physically abused by
[husband] during the marriage, are a sufficient basis for an objectively reasonable fear that
[husband] would physically harm [wife] without an order for protection.”
The record supports the district court’s findings. Wife submitted an affidavit stating
that husband violated the previous OFP in Ju ly 2018, by asking a mutu al friend to talk to
wife on husband’s behalf. Wife states that the mutual friend sent her an email message

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relaying husband’s message. The email allegedly contained an attachment with a request
to dismiss the OFP, which husband had filled out and wanted wife to sign. Wife reported
this contact to the police. In September 2018, husband attended church—a protected place
in the OFP—and startled the couple’s minor child. The child reported husband’s presence
to the church office, and the church notified the police. Wife asserted in her affidavit that
she has been fearful of husband in the last two years and is “extremely afraid that [husband]
will never stop abusing me, physically, sexually, and emotionally unless there is an active
Order for Protection in place.” Wife reports that she has been diagnosed with PTSD as a
result of husband’s physical abuse and continues to see a therapist regularly. Wife asserts
that two of the parties’ minor children also c ontinue to see therapists and have also been
diagnosed with PTSD.
Caselaw recognizes that a district court acts within its discretion by considering
evidence of past abuse. Thompson, 906 N.W.2d at 500; see also Braend, 721 N.W.2d at
927 (concluding that repeated phone calls, comb ined with circumstances leading to prior
OFP, was sufficient to support a finding that petitioner feared physical harm). The district
court determined that one of the statutory factors was present because wife was reasonably
in fear of physical abuse from husband. Th e district court supported this finding by
pointing to husband’s attempt to contact wife through a mutual friend and wife’s affidavit
statements that husband physica lly abused her during the pa rties’ marriage. We have
upheld an OFP extensi on in similar cases. See, e.g. , McIntosh, 740 N.W.2d at 10-11
(affirming OFP when husband violated previo us order and harassed and stalked wife);
Braend, 721 N.W.2d at 927-29 (a ffirming OFP where husband’s repeated phone calls to

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wife caused her to fear physical harm). Given the clear statutory language and the holdings
in Braend and McIntosh, we discern no abuse of discretion in the district court’s decision
to extend the OFP because wife established that she was reasonably in fear of physical
abuse from husband.
II. The district court did not abuse its dis cretion by extending the OFP while the
parties share temporary joint legal custody of the children.
Husband argues that the district court ab used its discretion by extending the OFP
while the parties share temporary joint legal custody of their childre n, because such an
arrangement will require the parents to speak to one another about their children.
In the legal-separation procee ding, the district court issued an order in December
2018, granting temporary sole legal custody of the children to wife. The order provided
that upon expiration of the ex isting OFP, “the parties will sh are joint legal custody of the
children.” In March 2020, the district c ourt here filed an emergency ex parte OFP
extension. The order did not include the minor children. The district court determined that
the custody order in the legal-separation procee ding “remains in effect,” but that “the
children are not protected persons in this file and custody is not controlled by this file.”
The March 2020 order therefor e recognized that husband and wife no w share joint legal
custody of their minor children.
Husband argues that he will need to communicate with wife in order to meaningfully
participate in sharing legal custody with her. Husband argues that he is at risk of violating
the OFP every time he communicates with wife about the children. Husband’s argument
seems to imply that the order filed in the le gal-separation proceeding limits the district

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court’s ability to extend the OFP. But the issuance of a child-custody order is not
determinative. The Domestic Abuse Act recogn izes that an OFP may be granted, even if
there is a pending action betwee n the parties. Minn. Stat. § 518B.01, subd. 4(d) (2020)
(providing that “[a] pe tition for relief may be granted, re gardless of whether there is a
pending action between the parties”); see also Braend, 721 N.W.2d at 928-29 (relying on
section 518B.01, subd. 4(d), for the propos ition that a dissolution proceeding does not
preclude the issuance of an OFP). We cannot limit the district court’s authority in a manner
that would conflict with statute.
We also note that this reco rd demonstrates that there are mechanisms in place to
allow for communication between the parents about the children. The parties agreed in the
stipulated OFP to use the services of a Paren ting Consultant to help them make decisions
about their children. In October 2020, after the district court issued the extended OFP, the
parties agreed to amend the OF P such “that it will not be a violation of the [June 2020]
Order for Protection for [the parties] to communicate through Our Family Wizard
(“OFW”)1 for the purpose of exercising joint le gal custody of the minor children.” The
parties also agreed “to grant unlimited acces s to all OFW communications and posting to
their Parenting Consultant.”
Because the order in the legal-separation proceeding does not preclude the issuance
of an OFP and the parties have a way to communicate with one another about the children,

1 The OFW is a parental communication applic ation that enables parents to communicate
about their minor children.

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the district court did not abuse its discretion by extending the OFP, while the parties share
temporary joint legal custody of the children.
Affirmed.