In re the Matter of:

This opinion is nonprecedential except as provided by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
A20-1503

In re the Matter of:

Erica Ann Cortez, and OBO Minor,
Appellant,

vs.

Francisco Fredrick Galvan,
Respondent.

Filed August 30, 2021
Affirmed
Johnson, Judge

Hennepin County District Court
File No. 27-DA-FA-20-5032

Eric R. Sherman, Dorsey & Whitney L .L.P., Minneapolis, Minnesota (for appellant)

Francisco Fredrick Galvan, Litchfield, Minnesota ( pro se respondent)

Considered and decided by Gaïtas, Presiding Judge; Worke, Judge; and Johnson,
Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
In 2016, Erica Ann Cortez obtained an order for protection against Francisco
Fredrick Galvan for the benefit of herself and her three minor children. The order expired
two years later. In 2020, Cortez petitioned for a new order for protection on behalf of
herself and her three minor children. The district court issued a new order for protection
that protects Cortez and one minor child but does not protect the two other minor children.
Cortez appeals on behalf of the two minor children who are not protected by the new order
for protection. We affirm.
FACTS
Cortez and Galvan were married in 2004. They are the parents of two joint children:
a son , J.J.G., who was born i n 20 04, and a daughter, J.A.G., who was born in 20 05.
Cortez’s and Galvan’s marriage was dissolved in June 2013. Approximately t wo months
later, Cortez gave birth to a son, F.C.L., who is not Galvan’s biological child.
In 2016, Cortez petitioned the Kandiyohi County District Court for an order for
protection (OFP) on behalf of herself, J.J.G., J.A.G., and F.C.L. The district court granted
the petition on the ground that Galvan had threatened Cortez and had contacted an older,
then-minor child of Cortez (who apparently is not Galvan ’s biological child ) for the
purpose of obtaining controlled substances. The district court issued an OFP prohibiting
Galvan from contacting Cortez, J.J.G., J.A.G., and F.C.L. for two years.
In February 2017, Galvan contacted Cortez by telephone and attempted to contact
J.A.G. through social media. Cortez reported the contacts to law enforcement. In March
2017, the state charged Galvan in Kandiyohi County with two counts of violating an OFP,
in violation of Minn. Stat. § 518B.01, subd. 14(c) (2016). In June 2017, Galvan pleaded
guilty, and he was sentenced to a period of confinement in a county jail.
In September 2020, Cortez petitioned , on behalf of herself and her three minor
children, the Hennepin County District Court for a new OFP. She alleged that Galvan had
violated the prior OFP. She also summarized electronic messages that Galvan had recently
sent to her and to their children, and she described physical abuse that Galvan had inflicted
on her during their marriage. In addition, s he alleged that she and her children feel
threatened by Galvan.
The district court granted an ex parte OFP and scheduled an evidentiary hearing.
At the evidentiary hearing, Cortez appeared wit h an attorney and testified in support of her
petition. She testified that Galvan was abusive toward her during their marriage . For
example, she testified that Galvan was convicted of felony domestic assault in 2007 for an
incident in which, while they were se parated, Galvan broke into her home, confined her
for hours, punched her in the eye , and hit her with a towel bar that he had ripped from the
wall. Cortez also testified that Galvan was physically and emotionally abusive toward her
in various other ways during their marriage . She testified that she is afraid of Galvan
because he continues to use abusive tactics that he previously used when they were married
and because he generally is angry, hostile, bitter, and resentful . She explained that Galvan
threatens to report her to law enforcement for violating the law (an accusation she denies)
and threatens to ruin her career. She testified generally that she is afraid for her children
because Galvan contacts them and says negative things about he r and inappropriately
shares other upsetting information with them.
On cross-examination by Galvan, Cortez testified that when Galvan has asked to
visit with J.J.G. and J.A.G., she usually has told him to contact the visitation center but has
allowed visits in other places on two occasions because the children prefer not to go to the
visitation center. When asked whether the children have said that they fear Galvan, Cortez
testified only that their daughter, J.A.G., has said so.
Galvan testified on his own behalf that he was in Texas and unaware of the
Kandiyohi County OFP when he violated it. He also testified that he is interested in
spending time with his children and believes that they are not afraid of him.
At the conclusion of the hearing, the district court announced that it would grant a
new OFP on the ground that Galvan had violated the Kandiyohi County OFP. The district
court stated that the new OFP would protect Cortez and J.A.G. The district court stated
that there is insufficient evidence for a new OFP to protect J.J.G. or F.C.L. based on
Galvan’s violation of the OFP. The district court explained that the only evidence of a
previous violation was of a violation “ involving Ms. Cortez and [ J.A.G.].” Before
adjourning the hearing, the district court stated that the OFP would include an exception
for parenting time between Galvan and his children in the manner provided in the
dissolution decree. Cortez’s attorney stated that Cortez preferred that communications
concerning parenting time be done using the Our Family Wizard website.
Later that day , the district court issued an OFP that includes the terms described by
the district court at the hearing. The OFP includes the following findings of fact:
The Court finds that Petitioner has sufficiently established that
Respondent has violated a prior Order for Protection and that
she is fearful of Respondent as defined by Minn. Stat.
§ 518B.01, subd. 6. Petitioner has met her burden and that a
subsequent Order for Protection should be issued.

Petitioner is also required to meet the burden of proof
that it is more likely than not that the allegations in the petition
are not only true but also rise to the statutory requirement for a
subsequent order for protection . . . . Petitioner did meet the
burden of proof necessary for an Order for Protection for
herself and the minor child [J.A.G.].

However, the Court did not receive any testimony or
evidence that Respondent violated the prior order in relation to
[J.J.G.] and [F.C.L.]. Additionally, there was no evidence that
they are in fear of him, that he has physically harmed them, or
that he has harassed them. Therefore, the Order for Protection
will not be granted on their behalf, and they will be removed
from this proceeding and the caption.

The OFP prohibits Galvan from having any contact with Cortez or J.A.G., with certain
exceptions relating to parenting time and proceedings in family court. The OFP also
prohibits Galvan from being present within two blocks of Cortez’s home and from being
present at Cortez’s workplace, Cortez’s mother’s residence, and a local school.
Cortez appeals. Galvan has not filed a responsive brief. “If the respondent fails or
neglects to serve and fi le its brief, the case shall be determined on the merits.” Minn. R.
Civ. App. P. 142.03. This court previously issued an order stating that the appeal would
be submitted pursuant to rule 142.03. Accordingly , we proceed to consider and resolve
Cortez’s arguments for reversal.
DECISION
Cortez argues that the district court erred by issuing a new OFP that does not protect
J.J.G. and F.C.L. Specifically, she contends that the district court erred for the following
reasons:
The district court erred by basing its denial of the
children’s application for a subsequent OFP upon an incorrect
interpretation of subdivision 6a of the Domestic Abuse Act.
The unambiguous text of subdivision 6a requires an applicant
to show only that “ the respondent has violated a prior or
existing order for protection” to obtain an extended or
subsequent OFP. It does not require an applicant to show that
a respondent directed his or her violation of a prior OFP at any
particular protected person. Und er settled principles of
statutory interpretation, the district court was not free to
impose a requirement upon petitioner that the legislature
omitted.

To the extent that Cortez challenges the district court’s interpretation of the
Domestic Abuse Act, w e apply a de novo standard of review. Thompson ex rel. Minor
Child v. Schrimsher , 906 N.W.2d 495, 498 (Minn. 2018). To the extent that Cortez
challenges the district court’s exercise of its discretion to grant or deny an OFP, we apply
an abuse-of-discretion standard of review. Id. at 500.
A.
The purpose of the Domestic Abuse Act is “to provide speedy, effective relief to
victims of domestic abuse.” Burkstrand v. Burkstrand, 632 N.W.2d 206, 213 (Minn. 2001).
The act defines “domestic abuse” to mean “(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 . . . ,” if
such actions are “committed against a family or household member by a family or
household member.” Minn. Stat. § 518B.01, subd. 2(a) (2020).
Under the act, a person may petition a district court for an OFP against a family or
household member. Id., subd. 4(a). The district court may provide relief to a petitioner by
issuing an OFP that, among other things, “restrain[s] the abusing party from committing
acts of domestic abuse,” “exclude[s] the abusing party from the dwelling which the parties
share or from the residence of the petitioner,” or “exclude[s] the abusing party from a
reasonable area surrounding the dwelling or residence, which area shall be described
specifically in the order.” Id., subd. 6(a)(1)-(3); see also id., subd. 6(a)(4)-(15). In addition,
the district court may “ order, in its discretion, other relief as it deems necessary for the
protection of a family or household member.” Id., subd. 6(a)(13). This provision allows a
district court to “grant relief to minors in a family or h ousehold where domestic abuse
occurs, pursuant to an OFP granted to the victim of the abuse.” Schmidt ex rel P.M.S. v.
Coons, 818 N.W.2d 523 , 529 n.6 (Minn. 2012).
In general, an OFP may be in force for no more than two years. Minn. Stat .
§ 518B.01, subd. 6(b). A petitioner who has obtained an OFP may apply for an extension
of the OFP or a new OFP if the initial OFP has expired . See id., subd. 6a(a). A district
court may extend an OFP or grant a new OFP subsequent to an initial OFP if the petitioner
establishes 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 the 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).
In Thompson, the supreme court stated that “OFPs are never granted automatically.”
906 N.W.2d at 500. Rather, the issuance of an OFP is a matter of discretion. Id. A district
court “may provide relief” to a petitioner in a variety of forms. Minn. Stat. § 518B.01,
subd. 6(a) (emphasis added); see also id. , subd. 6(a)(1)-(15). The word “may” in
subdivision 6(a) indicates that “[t]he district court’s decision is discretionary.” Thompson,
906 N.W.2d at 500. If a petitioner has established that the respondent engaged in domestic
abuse, the district court “may examine a ll of the relevant circumstances proven to
determine whether to grant or deny the petition for an OFP.” Id. “Relevant circumstances
may include, but are not limited to, the timing, frequency, and severi ty of any alleged
instances of ‘domestic abuse,’ along with the likelihood of further abuse.” Id.
The subdivision authorizing the issuance of a new OFP subsequent to an initial OFP
uses similar language. It provides generally that, after notice and a hearing, the district
court “may extend the relief granted in an existing order for protection or, if a petitioner ’s
order for protection is no longer in effect when an application for subsequent relief is made,
grant a new order.” Minn. Stat. § 518B.01, subd. 6a(a) (emphasis added). That subdivision
provides more specifically that, if the petitioner establishes any of the four grounds
necessary for an extension of an existing OFP or a new OFP, the district court “may extend
the terms of an existing order or . . . grant a new order.” Id., subd. 6a(b) (emphasis added).
The use of the word “may” in two different sentences in subdivision 6a indicates that the
district court has discretion to extend an OFP or to issue a new OFP or to not do so. See
Thompson, 906 N.W.2d at 500. Similarly, the statute authorizi ng the various forms of
relief that may be provided by an OFP states that a district court may “ order, in its
discretion, other relief as it deems necessary for the protection of a family or household
member.” Minn. Stat. § 518B.01, subd. 6(a)(13) (emphasis added) .

B.
In this case, the district court granted Cortez’s petition for a new OFP for two
reasons: Galvan had violated the Kandiyohi County OFP, and Cortez and J.A.G. are afraid
of Galvan. See Minn. Stat. § 518B.01, subd. 6a(b)(1) -(2). The district court stated that
Cortez had satisfied “ the burden of proof necessary for an order for protection for herself
and the minor child , [J.A.G.].” Accordingly, the OFP protects Cortez and J.A.G. But the
OFP does not protect J.J.G. and F.C.L. The district court did not order protection for J.J.G.
and F.C.L. because it found that there was no evidence that Galvan “violated the prior order
in relation to ” them. In addition, the district court found with respect to J.J.G. and F.C.L.
that “there was no evidence that they are in fear of [Galvan], that [Galvan] has physically
harmed them, or that [Galvan] has harassed them.”
The district court ’s decision to issue a new OFP that protects Cortez and J.A.G. is
consistent with the circumstances re vealed by the evidence presented at the hearing. See
Thompson, 906 N.W.2d at 500. Cortez proved that Galvan violated the prior OFP by
contacting her by telephone and by attempting to contact J.A.G. through social media.
Cortez testified about prior physical abuse of her by Glavan. Cortez also testified that both
she and J.A.G. are afraid of Galvan. In light of the evidence and the findings of fact, the
district court appropriately exercised its discretion by issuing a new OFP to protect Cortez.
In addition, the district court appropriately exercised its discretion by issuing a new OFP
that prohibits Galvan from contacting J.A.G. because it is reasonable to believe that such a
provision is “necessary for the prote ction of a family or household membe r.” See Minn.
Stat. § 518B.01, subd. 6(a)(13). There is no argument to the contrary on appeal.
The district court’s decision to issue a new OFP that does not prohibit contact with
J.J.G. and F.C.L. also is consistent with the evidence presented at the hearing . In its
findings of fact, the district court stated that it “did not receive any testimony or evidence
that [Galvan] violated the prior order in relation to [J.J.G.] and [F.C.L.]” and further stated
that “there was no evidence that they are in fear of him, that he has physically harmed them,
or that he has harassed them. ” Cortez does not challenge these findings. Indeed, Cortez
did not seek to prove that Galvan violated the prior OFP by contacting or attempting to
contact J.J.G. or F.C.L. In addition, Cortez testified that she has allowed visits between
Galvan and J.J.G., including visits not at the visitation center because that is J.J.G.’s
preference, which indicates that J.J.G. does not fear Galvan. Furthermore, J.J.G. was
nearly 17 years old at the time of the hearing, and he will become an adult in January 2022.
Moreover, Cortez did not present any evidence whatsoever concerning any contact or
attempted contact between Galvan and F.C.L., apparently because F.C.L. was only eight
years old at the time of the hearing and because F.C.L. has no biological connection to
Galvan.
The evidence as a whole indicates that Galvan is not likely to abuse J.J.G. and F.C.L.
in the future, which is one of the relevant circumstances identified in Thompson. See 906
N.W.2d at 500. To reiterate, the act provides that a district court may “ order, in its
discretion, other relief as it deems necessary for the protection of a family o r household
member.” Minn. Stat. § 518B.01, subd. 6(a)(13) (emphasis added). In light of the evidence
and the findings of fact, the district court did not abuse its discretion by issuing a new OFP
that does not prohibit Galvan from contacting J.J.G. or F.C.L. because it is reasonable to
believe that such a provision is not “necessary for the protection of a family or household
member.” See id.
C.
Cortez urges this court to reverse on the ground that the district court’s decision is
based on “ an incorrect interpretation of subdivision 6a ” of the act. More specifically,
Cortez contends that the district court committed an “error of law” by making a “legal
conclusion that the Domestic Abuse Act . . . required [J.J.G. and F.C.L.] to show that each
was a target of an OFP violation.” There is no indication in t he OFP itself or in the record
that the district court imposed such a requirement as a matter of law. The relevant
paragraphs of the OFP are phrased as case -specific, fact -dependent determinations, not
statements of law. The relevant paragraphs of the OFP do not cite any legal authorities.
Nothing in the transcript of the hearing indicates that the district court misunderstood the
applicable law. Cortez has not demonstrated that the district court did anything other than
exercise discretion when it ordered protection for Cortez and J.A.G. but not for J.J.G. and
F.C.L.
Cortez appears to contend that the district court was required to order protection for
all three of the children because all three of them were protected by the initial OFP. For
example, she asserts in her brief that proof of a violation of an initial OFP “is a sufficient
factual predicate for an extended or subsequent OFP r egardless whether the applicant was
the target of the violation.” But the supreme court has made clear that “ OFPs are never
granted automatically.” Thompson, 906 N.W.2d at 500. Rather, the statute authorizing the
issuance of a new OFP confers discretion on a district court by providing that, if a petitioner
establishes any of the four prerequisites, the district court “ may extend the terms of an
existing order or . . . grant a new order .” Minn. Stat. § 518B.01, subd. 6a(b) (emphasis
added). Furthermore, the statute authorizing relief for family members of petitioners who
are victims of domestic abuse states that a district court may, “in its discretion,” order such
relief “as it deems necessary for the protect ion of a family or household membe r.” Id.,
subd. 6(a)(13) (emphasis added) ; see also S chmidt, 818 N.W.2d at 529 n.6 . Cortez does
not cite subdivision 6(a)(13) and does not acknowledge the ways in which the pertinent
statutory provisions grant discretion to a district court in the circumstances of this case .
In sum, the district court did not err by issuing a new OFP that protects Cortez and
J.A.G. but does not protect J.J.G. and F.C.L.
Affirmed.