In re the Matter of: Gerardine Wiggins, 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This opinion is nonprecedential except as provided by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
A21-0055

In re the Matter of: Gerardine Wiggins,
Respondent,

vs.

Roger Wiggins,
Appellant.

Filed October 11, 2021
Affirmed
Bryan, Judge

Hennepin County District Court
File No. 27-DA-FA-20-4517

Allison Maxim, Maxim Smith Family Law PLLC, St. Paul, Minnesota (for respondent)

John Barragry, Miller & Stevens, P.A., Forest Lake, Minnesota (for appellant)

Considered and decided by Johnson, Presid ing Judge; Bryan, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
BRYAN, Judge
In this appeal from the district court’s issuance of an order for protection (OFP),
appellant argues that there is insufficient evidence to support the district court’s finding of
domestic abuse and that the district court fa iled to consider the relevant circumstances
surrounding these acts of abuse. First, we conclude that th e record supports the district
court’s finding that appellant committed acts of domestic abuse. Second, we conclude that
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the district court conducted the appropriate analysis regarding the timing, frequency, and
severity of the acts of domestic abuse. We affirm the district court’s decision.
FACTS
Appellant-husband Roger Wiggins and re spondent-wife Gerardine Wiggins were
married in 1976. On August 18, 2020, wife petitioned for an ex parte OFP against husband.
Because the petition did not allege an immediate and present danger of domestic abuse, the
district court denied the request for ex parte relief and scheduled a hearing. At the hearing
on September 3, 2020, the district court received testimony from husband, wife, and their
two adult sons. Following the hearing, the district court issued an emergency OFP and
ordered husband to surrender his firearms. On November 19, 2020, the district court issued
the OFP and husband appeals. Given the i ssues on appeal, we summarize the evidence
presented and the district court’s order.
At the evidentiary hearing, wife testified regarding th e most recent incident of
domestic abuse in 2020 and husband’s history of domestic abuse. During an argument in
July 2011, husband picked up a can of soda and threw it at wi fe’s head. The can hit wife
in the eye, cut her eyelid, and caused bleeding and a black eye. Wife still has a scar from
the incident. In August 2011, husband shoved wife into the kitchen counter. Wife left the
house, but when she returned, husband was enraged. He ju mped on top of her, held her
down, screamed at her, and continually spit in her face. In Nove mber 2011, wife was
recovering from foot surgery when husband jumped on top of her and held her down while
he hit her. Wife screamed and lost control of her bladder. After husband let her up, wife
went to the bathroom. Husband followed wife into the bathroom, put his hand on her face,
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and pushed her head into the wa ll, bruising her right cheek. Wife left the bathroom and
went into the laundry room. Husband then pushed wife against th e wall, put both hands
on her throat, and started squeezing. Wife testified that she thought she was going to die.
Wife also provided photos of the incident, sh owing her bruises. Wife testified that she
never told anyone about these incidents because she was a fraid that husband would lose
his job.
In the summer of 2020, husband’s abusive behavior again began escalating. Wife
testified that husband routinel y got angry, screamed at he r, and threw things on a daily
basis from March through July 2020. He al so ripped her pajamas and grabbed her arms
during this time. On July 28, 2020, hus band was in a rage and acting completely
irrationally. Wife testified that she “thought he was going to hurt [her] if he caught [her].”
Wife called her adult son and asked him to help her get out of the house. The son testified
that wife was crying and sounded terrified. Bo th adult sons arrived at the residence and
husband started screaming at them. Wife went inside, packed some belongings, and called
the police. According to wife, husband “was completely irrational, saying things that made
no sense,” “was furious,” and “very paranoid .” When the police arrived, husband was
sitting in the garage in his underwear. After th e incident, wife left the house and went to
her adult son’s home where she has remained. Wife testified that she was “terrified” of
husband on that day.
The district court found wife’s “affidavit and oral testimony to be credible, and
[husband’s] testimony to be less credible with respect to [wife’s] allegations of domestic
abuse.” In addition, the district cour t summarized the testimony presented and the
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statements that wife made in the petition. The district court began its description by noting
that wife “testified in her affidavit and at th e hearing about the most recent incident of
domestic abuse, as well as [husband’s] history of domestic abuse.” The district court then
went through wife’s detailed accounts of the incidents in 2011, the July 28, 2020 incident,
the months leading up to the July 28, 2020 incident, and husband’s conduct following July
28, 2020. The district court found that wife still has a scar from the domestic abuse in 2011
and that wife was currently terrified that husband was going to kill her and then kill himself.
Further, the district court recounted eviden ce regarding husband’s unwillingness to enter
treatment for substance abuse, his lack of awareness concerning the negative impact of
mental health problems or su bstance abuse, and his lack of coping skills to address his
mental health or prevent relapse. Ultimatel y, the district court found that wife “has
sufficiently established that domestic abuse as defined by Minn. Stat. § 518B was
committed against her by [husband].” The district court also concluded that wife “met her
burden of proof.” The district court issued the OFP, and husband appeals.
DECISION
I. Finding that Husband Committed Acts of Domestic Abuse
Husband argues that the evidence presented does not support a finding of domestic
abuse. Because we are not left with the de finite and firm conviction that a mistake has
been made, we conclude that th e district court did not clearly err in finding that domestic
abuse occurred.
The Domestic Abuse Act governs the issuan ce of an OFP. Minn. Stat. § 518B.01
(2020). The statute prov ides that a district court may issue an OFP upon a finding of
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domestic abuse. Id., subds. 4, 6. “[I]f committed agai nst a family or household member
by a family or household member,” domestic abuse includes “physical harm, bodily injury,
or assault.” Id., subd. 2(a)(1). To satisfy this definition, “a petitioner need only show that
‘physical harm, bodily inju ry, or assault’ has actually occurred, regardless of when it
occurred.” Thompson ex rel. Minor Child v. Schrimsher , 906 N.W.2d 495, 500 (Minn.
2018). In addition, the acts of domestic abus e also include inflicting “fear of imminent
physical harm, bodily injury, or assault.” Minn. Stat. § 518B.01, subd. 2(a)(2). This
definition does not require an “overt physi cal act” and may “be inferred from the totality
of the circumstances, including a history of past abusive behavior.” Pechovnik v.
Pechovnik, 765 N.W.2d 94, 99 (Min n. App. 2009). An OFP petitioner has the burden of
proving that domestic abuse occurred by a preponderance of the evidence. Oberg v.
Bradley, 868 N.W.2d 62, 64 (Minn. App. 2015).
“We review the district court’s fi ndings of fact for clear error.” Gada v. Dedefo ,
684 N.W.2d 512, 514 (Minn. App. 2004). In doing so, “[w]e neither reconcile conflicting
evidence nor decide issues of witness credibility, which are exclusively the province of the
factfinder.” Id. “We review the record in the light most favorable to the district court’s
findings, and we will reverse th ose findings only if we are left with the definite and firm
conviction that a mistake has been made.” Braend ex rel. Minor Children v. Braend, 721
N.W.2d 924, 927 (Minn. App. 2006) (quotation omitted).
In this case, the district court found that wife’s testimony was more credible than
husband’s and that based on wife’s testimony, domestic abuse occurred in 2011 and in
2020. The record supports this finding. Wife testified that, in 2 011, husband physically
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abused her by committing the following acts: (1) throwing a can of soda at her head, which
cut her eyelid, and caused bleeding and a black eye in July 2011; (2) shoving her into the
kitchen counter in August 2011; (3) holding her down and hitting her until she lost control
of her bladder in November 2011; and (4) pushing her against the wall and choking her in
November 2011. Each of th ese acts fits the definition of domestic abuse. Husband
challenges the district court findings regarding his conduct in 2011, arguing that the district
court erred because wife did not report any of the incidents. We are not convinced by
husband’s argument because petitioners need no t report an incident of domestic abuse to
obtain an OFP. In addition, wife testified that she chose not to report the incidents out of
a concern that husband would lose his job. Viewing this eviden ce in the light most
favorable to the district court’s findings, we are not left with the definite and firm
conviction that the district c ourt made a mistake in its findi ng that, pursuant to section
518B.01, subdivision 2(a)(1), husband committed acts of abuse against wife in 2011.
We reach a similar conclusion regarding th e district court’s finding that husband
committed an act of domestic abuse in 2020. Husband argues that the name calling and
irrational behavior he displayed on July 28, 2020, does not satisfy the statutory definition
of domestic abuse. Husband’s characterizat ion, however, does not accurately reflect the
evidence presented, which incl uded evidence of wife’s fe arful reaction to husband’s
conduct. The testimony showed that husband’s behavior began escalating for months prior
to the incident. Wife testified that husband got angry, screamed at her, threw things, ripped
her pajamas, and grabbed her arms during this time period. When husband acted like this,
wife was afraid he would hurt her. More specifically, wife testified that on July 28, 2020,
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husband was “completely irrational,” “furious,” and “very paranoid.” She was “terrified”
that husband “was going to hurt [her] if he caught [her].” This evidence supports a finding
that an act of domestic abuse occurred pursu ant to section 518B.01, subdivision 2(a)(2),
when husband inflicted fear of imminent phys ical harm, bodily injury, or assault on July
28, 2020.
II. Consideration of Circumstances Surrounding the Acts of Domestic Abuse
Husband argues that the district court abus ed its discretion because it failed to
analyze all relevant circumstances when de ciding to issue the OFP. This argument,
however, mischaracterizes the district court’s analysis and the applicable law. We discern
no error by the district court.
Under the Domestic Abuse Act, a district court may issue an OFP upon a finding of
domestic abuse. Minn. Stat. § 518B.01, subds. 4, 6. Once a district court determines that
domestic abuse has been established, it “may examine all of the relevant circumstances
proven to determine whet her to grant or deny th e petition for an OFP.” Thompson, 906
N.W.2d at 500. “Relevant circumstances ma y include, but are not limited to, the timing,
frequency, and severity of any alleged inst ances of ‘domestic abuse,’ along with the
likelihood of further abuse.” Id. This court reviews the decision to grant an OFP for an
abuse of discretion. Id. A district court abuses its discretion when its decision is against
logic or the established facts in the case. Id.
Here, husband argues that the district court failed to fulfill its obligation to conduct
a detailed analysis regarding the circumstances of the acts of domestic abuse. We are not
convinced for two reasons. Firs t, this argument mischaracter izes the applicable law.
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Husband relies on Thompson and Sobiech v. Sobiech, No. A19-1928, 2020 WL 3042133,
at *2 (Minn. App. June 8, 2020), for the pro position that once the district court finds that
domestic abuse occurred, it must then analyze the circumstances regarding the acts of abuse
before issuing an OFP. We note that Sobiech is unpublished and does not constitute
precedent. Gen. Cas. Co. of Wis. v. Wozniak Travel, Inc., 762 N.W.2d 572, 575 n.2 (Minn.
2009). In addition, we did not interpret Thomspon to require this additional step. Instead,
Thompson, Sobiech, and section 518B.01 use the discretionary term “may” not the
obligatory term “must.” Minn. Stat. § 518B.0 1, subd. 6(a) (stating that “the court may
provide relief”); Thompson, 906 N.W.2d at 500 (stating th at “once ‘domestic abuse’ has
been established, the district court may examine all of the relevant circumstances” and that
“may” is discretionary); Sobiech, 2020 WL 3042133 , at *2-3. Thus, while it may be
preferable for the district court to conduct a detailed analysis we ighing the relevant
circumstances, we disagree with husband’s interpretation of Thompson and decline to
adopt that interpretation in this case.
Second, husband’s argument also mischar acterizes the district court’s order.
Contrary to husband’s argument, the district court made detailed findings regarding the
timing, frequency, and severity of the alleged instances of abuse, as well as the likelihood
of future abuse. For instance, the district court detailed wife’s account of the incidents in
2011, the months leading up to July 28, 2020, husband’s conduct on July 28, 2020, and
husband’s conduct after July 2020. In addition, the district court analyzed the severity of
the acts of abuse, finding that wife still has a scar, presen ted evidence of bruising, and
presently expressed a fear that husband was going to kill her. Finally , the district court
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emphasized husband’s unwillingne ss to enter treatment for subs tance abuse, his lack of
awareness concerning the impact of his substance abuse, and his lack of ability to prevent
relapse, all of which relate to the likelihood of further a buse. Given these findings, we
conclude that the district court did in fact consider the circumstances of the domestic abuse
before it issued the OFP.
Affirmed.