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This opinion is nonprecedential except as provided by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
A21-0612

In re the Matter of:

Josie Marie Martin, petitioner,
Respondent,

vs.

Justin Michael Martin,
Appellant.

Filed February 7, 2022
Reversed and remanded
Smith, Tracy M., Judge

Mille Lacs County District Court
File No. 48-FA-21-430

April A. Lindstrom, Lindstrom Family Law, Milaca, Minnesota (for respondent)

Brian K. Lewis, Francis White Law, PLLC, Woodbury, Minnesota (for appellant)

Considered and decided by Slieter, Pres iding Judge; Smith, Tr acy M., Judge; and
Gaïtas, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
Appellant Justin Michael Martin challe nges an order for protection (OFP) issued
against him that prohibits contact with his wife and children, denies parenting time, grants
temporary legal and physical custody of the children to his wife, and establishes temporary
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child support.1 At the time of the OFP petition and hearing, Justin was the subject of civil-
commitment proceedings. Justin argues that (1) the district court erred by issuing the OFP
because he lacked compet ency to agree to any part of th e order and (2) the district court
erred by ordering him to pay temporary child support without adequate record support.
We conclude that, given the particular ci rcumstances of this case suggesting that
Justin was facing significant mental-health challenges at the time of the hearing, the district
court was obligated to conduct an inquiry into Justin’s competency to enter into a stipulated
order before issuing an order that depended on his agreement. Because three elements of
the district court’s order—specifically, the no-contact provision, the temporary-custody
provision, and the no-parenting-time provision—are premised on Justin’s agreement, and
because temporary child supp ort depends on custo dy and parenting-time determinations,
we reverse and remand for further proceedings.
FACTS
On March 2, 2021, respondent Josie Ma rie Martin petitioned for an OFP against
Justin for herself and their two children. At the time, Josie and Justin were in the midst of
a separate dissolution-of-marriage case. In her petition, Josie alleged a history of serious
physical and emotional abuse by Justin. She also alleged that Justin had been recently
diagnosed with schizophrenia, had told her that he had “a whole body movement with God
and God wants to help us (my family) through him,” and was not taking his schizophrenia
medication. In addition to no-contact provisions, Josie requested that the OFP provide for

1 This opinion will use the parties’ first names because they have the same last name.

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insurance coverage, temporary child suppor t, and temporary use and possession of the
marital home, and that it award temporary cust ody of the children to Josie. Josie alleged
that her monthly income was $1,400, that she did not know Justin’s income, and that she
had child-care costs of $400 per month.
The district court granted Josie an emer gency ex parte OFP and scheduled a hearing
for two weeks later. The hearin g was held by videoconferen ce. Josie was represented by
counsel, and Justin was not. The district cour t recognized that Jus tin was attending the
hearing “from a facility.” Josie’s counsel no ted that there was a civil-commitment action
pending against Justin in another county
2 and that Justin had been unable to “to demonstrate
his stability.” Justin stated that he had been in treatment for about seven to eight days and
had seven to eight days to go, that he believed he would be “out within the next week or
so,” that he was on medication for his mental health, and that he had restrictions on phone
calls at the treatment facility. The district court asked Justin if he was making progress on
his mental health and encouraged him to pursue his treatment to gain stability.

2 In his brief to this court, Justin cited extensively to the civil-commitment case; Justin was,
apparently, subject to multiple involuntary holds and civilly committed from April 2, 2021,
to October 2, 2021. However, the civil-commitment case is not the case on appeal here and
is not part of the record. Thus, we consider only the information that the district court had
about the civil-commitment case and the information it had about Justin’s mental health at
the time of the hear ing in this case. See Minn. R. Civ. App. P. 11 0.01 (providing that the
record on appeal shall constitute the documents filed in the district court, the exhibits, and
the transcript of the proceedings); Stageberg v. Stageberg, 695 N.W.2d 609, 613 (Minn.
App. 2005) (“Appellate courts may not consider matters outside the record on appeal and
will strike references to such matters from the parties’ briefs.”), rev. denied (Minn. July 19,
2005).

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At the outset of the hearing, the district court suggested that it issue an OFP without
factual findings and asked Justin if he would be agreeable to that resolution. In response,
Justin said that he did not want “what was written” to be “used against [him] in this court
order because a lot of informa tion has been falsified and isn’ t true.” The district court
explained that an order without findings would mean that the court is not considering the
allegations but is just recogniz ing that the parties agree. Th e district court asked, “Make
sense?” Justin responded, “Yes, sir. So, I would be willing to do that but I would like some
parenting time with my kids.” The district court stated, “Okay. Well, so let’s say an order
for protection is appropriate by agreement of th e parties. That’s fine .” The district court
then turned to the remaining matters at issue.
The parties discussed insurance, custod y, parenting time, and temporary child
support. As to custody and parenting time, Ju stin expressed that he would like to have
parenting time with the children, stating that he had “done bad things around [the children]
but it wasn’t the intention to put them into danger.” Josie opposed any parenting time for
Justin given the allegations in the petition and Justin’s civil-commitment action. Justin also
said that he would “fight for full custody” if he were not allowed to see his children.
Ultimately, after the parties discussed the appointment of a guardian ad litem, Justin said,
“I’d be willing to go that route. I’d be willing to wait a couple months just for the safety of
everyone since it seems so uncertain,” and later said that he “respect[ed]” the approach of
having no contact with the ch ildren until the guardian ad litem issued a report. As to
temporary child support, the pa rties did not come to an agreement and the district court
instead took testimony on the parties’ current financial situations.
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On March 17, the district court granted a purportedly stipulated OFP on behalf of
Josie and the children. The orde r states that “[Justin] does not object to an order for
protection and understands that the order will be enforced as if there was an admission or
finding of domestic abuse.” Th e order grants temporary custod y of the children to Josie,
denies Justin any parenting time until the court reviews the guardian-ad-litem report, and
orders Justin not to contact Josie or the children and to st ay away from several locations.
Additionally, the district court ordered Justin to pay $928 per mont h for temporary child
support and $155 per month for child-care cost s, starting on May 1; ordered Justin to
continue existing health-insurance covera ge; and awarded temporary use and possession
of the marital home to Josie.
Following the issuance of the OFP, Justin obtained counsel. Justin’s counsel
requested a hearing date to bring a motion for a new trial under Minn. R. Civ. P. 59, arguing
that Justin “lacked th e capacity to enter into” the stipul ation for the OFP and contending
that there was “no other mechanism available under which [the district court] can withdraw
the ineffective consent given by [Justin] to th e order for protection.” The district court
denied the request for a hearing date to br ing a new trial motion under rule 59. Justin
appeals. Josie has not submitted a brief in this appeal, and this court ordered that the appeal
proceed under Minn. R. Civ. App. P. 142.03, which directs us to resolve the appeal on its
merits.
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DECISION
Justin contends that the district court e rred by entering a stip ulated OFP when he
was in a mental-health facil ity at the time of the heari ng, was facing civil-commitment
proceedings, and was not competent to enter into an agreement.
“[Appellate courts] review the decision to grant an OFP for an abuse of discretion.
A district court abuses its discretion when its decision is based on an erroneous view of the
law or is against logic and facts in the record.” Thompson v. Schrimsher, 906 N.W.3d 495,
500 (Minn. 2018) (quotation and citation omitted).
A. We are required to consider Justin’s competency-based challenge in the
interests of justice.

As an initial matter, we observe that the district court did not make any factual
findings about Justin’s competen cy to enter an agreement. Justin, however, did not raise
this issue to the district cour t until his motion for a new trial. This is problematic for two
reasons. First, domestic-abuse proceedings under Minn. Stat. § 518B.01 (2020) are special
proceedings in which a motion for a new trial is not authorized. Steeves v. Campbell, 508
N.W.2d 817, 818 (Minn. App. 1993). Second, even ignoring th e impropriety of Justin’s
motion for a new trial, an issue raised for the first time in a motion for a new trial is raised
“too late.” Antonson v. Ekvall , 186 N.W.2d 187, 189 (Minn. 1971); see also Grigsby v.
Grigsby, 648 N.W.2d 716, 726 (Minn. App. 2002) (applying this principle from Antonson
in a marital-dissolution action), rev. denied (Minn. Oct. 15, 2002). Thus, because neither
Justin’s motion for a new trial nor his competency-based challenge was properly before the
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district court, the district court denied hi s motion for a new trial and did not address his
competency.
Generally, appellate courts address only “tho se issues that the record shows were
presented to and considered by the trial court in deciding the matter before it.” Thiele v.
Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quotation omitted); see Aljubailah v. James ,
903 N.W. 2d 638, 643 (Minn. App. 2017) (applying this aspect of Thiele in an OFP appeal).
Nonetheless, appellate courts can consider issu es not raised in the district court “as the
interest of justice may require.” Minn. R. Civ. App. P. 103.04. For three reasons, we
conclude that the peculiar facts of this case require us, in the interests of justice, to consider
Justin’s competency-based challenge to the OFP despite th e fact that the question is not
otherwise properly before us.
First, the record presented to the district court included many indicators that, at the
time of the hearing, Justin was experiencing a severe mental-health crisis. Those indicators
included the facts that Josie’s petition for the OFP alleged both that Justin had been recently
diagnosed with schizophrenia and that he wa s not taking his schizophrenia medication at
the time of the petition. Additionally, no later th an the hearing, the di strict court became
aware that Justin was subject to civil-commitment proceedi ngs, was in a mental-health
facility, and had started taking medications.
Second, a lack of competence to enter a stipulation can, “under the peculiar facts of
[a] case,” amount to a fraud on the court, wh ich could justify reopening the stipulated
ruling. Lindsey v. Lindsey , 388 N.W.2d 713, 716 (Minn. 1986); see also Blattner v.
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Blattner, 411 N.W.2d 24, 26 (Minn. App. 1987) (citing to this provision of Lindsey), rev.
denied (Minn. Oct. 30, 1987).
Third, generally, stipula tions in family matters 3 are treated as contracts. Shirk v.
Shirk, 561 N.W.2d 519, 521-22 (M inn. 1997). This OFP, howe ver, significantly impacts
the parties’ children, and the interests of children are “nonbargainable” and “less subject
to restraint by stipulation” than other interests of parties involved in a family matter. Kaiser
v. Kaiser, 186 N.W.2d 678, 683 (Minn. 1971) (makin g this statement in the context of a
child-support dispute).
Against this background, we will address the competency question.
B. The district court had an obligation to conduct an inquir y into Justin’s
competence to enter into a stipulated OFP.

As noted by Justin, different degrees of competency are required for different legal
activities. In his appellate brief, Justin does not cite, and we have not found, any law
specifying the degree of compet ency required to stipulate to the issuance of an OFP
Nevertheless, generally, competency to contract requires that a person “can understand the
nature and effect of [their] acti ons when executing the contract.” Nelson v. Holland, 776
N.W.2d 446, 450-51 (Minn. App. 2009); see Blattner, 411 N.W.2d at 26 (Minn. App. 1987)
(identifying the standard for competency as “whether or not [a] person can fairly and

3 We acknowledge that this a ppeal involves the district cour t’s grant of an OFP and that
the focus of domestic-abuse proc eedings is on the safety of the concerned persons, while
the focus of family pr oceedings is the equitable dispositi on of the issues surrounding the
dissolution of the parties’ relationship. Justin and Josie were married and had children, and
the bulk of the OFP at issue in this appeal addresses how they would, at least temporarily,
deal with their children. Thus, there is a significant family component to this appeal.

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reasonably understand the matter he is cons idering” in a dissolution-of-marriage case)
(citing Krueger v. Zoch, 173 N.W.2d 18, 20 (Minn. 1969)). For purposes of this appeal, we
assume, without deciding, that this is the level of competen cy required to enter into a
stipulated OFP.
Generally, one is presumed competent to contract. Fisher v. Schefers, 656 N.W.2d
592, 595 (Minn. App. 2003); Jasperson v. Jacobson , 27 N.W.2d 788, 792 (Minn. 1947)
(stating that whether a person is incompetent in a guardianship proceeding is tried against
“the presumption, obtaining universally, that the one proceeded agai nst is competent in
fact”). When, however, the competency of a potential witness is at issue, the district court
typically “conducts a preliminary examin ation to determine whether the witness
understands the obligation of the oath and ca n correctly narrate the facts to which her
testimony relates.” Wall v. Fairview Hosp . & Healthcare Servs. , 584 N.W.2d 395, 409
(Minn. 1998).
Here, the same concerns mentioned above th at weigh in favor of our addressing the
competency question should have alerted the district cour t that Justin may not have been
competent to enter into an agreement.
In addition to those concer ns, the awkward progression of the hearing should also
have suggested to the district court that at least a preliminary inquiry into Justin’s
competence was in order. Speci fically, there was much back and forth at the hearing
between Justin and the district court regard ing exactly what it was to which Justin was
agreeing, and the district court, while undoubtedly with good intentions, seemed to guide
Justin along a path to agreement, making it unclear if Justin truly consented to the stipulated
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OFP. First, when the district court proposed a stipulated OFP without findings, it asked
Justin, “Make sense?” and Justin replied, “Yes, sir. So, I would be willing to do that but I
would like some parenting time with my kids.” It is unclear if Justin’s “Yes” indicated his
intent to enter into the stipulated OFP or if it merely indicated that he understood the district
court’s proposal. And Justin’s response that he “would be willing to do that” included the
condition that he be granted parenting time, which, at least pending the guardian ad litem’s
report, he was not awarded. Cf. Clark v. Clark, 642 N.W.2d 459, 465 (Minn. App. 2002)
(noting that while a district court may acce pt all or part of a proposed stipulation,
“generally, [a district court] cannot, by judi cial fiat, impose conditions on the parties to
which they did not stipulate and thereby deprive the parties of their ‘day in court’” (quoting
Toughill v. Toughill , 609 N.W.2d 634, 6 38-39 n.1 (Minn. App. 2000)). Second, Justin
initially demanded parenting time and said th at he would fight for full custody. Then,
following a discussion and suggestion by the dist rict court that Justin take “a pause to let
medication . . . go into place” and wait for th e guardian ad litem’s report, Justin said,
“Yeah,” when asked if he was “agreeable” to “no contact.” Absent more, it is unclear what
precisely––if anything––Justin agreed to with regarding custody, parenting time, and no
contact. Importantly, Justin was unrepresented by counsel at the hearing, and Jodie had
counsel, a fact that heightened the duty of the district court to ensure that Justin, who was
evidently facing a severe mental-health crisis, had the competency to consent, understood
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what it was to which he was (purportedly) consenting, and actually did consent to the terms
of the OFP.4
In these narrow circumstances, the distri ct court had an obligation to conduct an
inquiry into Justin’s competence to enter into a stipulat ed OFP. By not conducting this
inquiry before ordering the OFP, the district court abused its discretion. See Thompson,
906 N.W.3d at 500. Because the no-contact, custody, and parenting-time provisions of the
OFP provisions depended on Justin’s agreem ent and because it is unclear that he was
competent to agree to those conditions, we reverse these provisions of the OFP and remand
for further proceedings on those matters.
C. Because temporary child support depends on the stipulated OFP, the district
court abused its discretion by ordering Justin to pay child support.

Justin also argues that the district court abused its discretion when it ordered him to
pay temporary child support because it failed to make specific findings, did not require the
parties to submit documentation, and improperly relied on Justin’s testimony at the hearing
given his mental illness and incapacity.
We review a district court’s order rega rding temporary child support for abuse of
discretion. See Trebelhorn v. Uecker , 362 N.W.2d 342, 345- 46 (Minn. App. 1985)

4 The court of appeals, in an OFP case involving a mutual restraining order, concluded that
“the district court should have been very car eful to make sure that [the appellant] was
agreeing to a mutual restraining order” beca use the appellant was pro se, had expressed
confusion about the concept of a mutual restraining order, and had twice indicated that she
did not want a mutual restraining order. Mechtel v. Mechtel , 528 N.W.2d 916, 919-20
(Minn. App. 1995). Similarly, it is uncertain on this record whether Justin clearly agreed
to the stipulated OFP.

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(applying abuse-of-discretion standard of review to a question of temporary child support).
Generally, a district court abuses its disc retion if it makes findings unsupported by the
evidence, improperly applies the law, or reso lves the discretionary question in a manner
that is contrary to logic and the facts on record. Honke v. Honke, 960 N.W.2d 261, 265
(Minn. 2021).
We initially observe that, unlik e the issues addressed in the previous section, the
issue of temporary child support was not stipulated to by the parties but rather was litigated
at the hearing and determin ed by the district court. 5 However, child support is tied to
custody and parenting time. See Minn. Stat. §§ 518A.36 (addressing adjustment of child
support based on parenting time), 518B.01, subd. 6(a)(5) (allowing district courts to award
temporary child support through an OFP “on th e same basis as provid ed in chapter . . .
518A,” which deals with child support) (2020); Shearer v. Shearer, 891 N.W.2d 72, 77-79
(Minn. App. 2017) (applying Minn. Stat. § 5 18A.36). Thus, the district court’s award of
temporary child support was dependent on the stipulated custody and parenting-time
provisions of the OFP. Because we have reve rsed and remanded on those provisions, the
district court’s award of temporary child support is premature. Therefore, we also reverse
the temporary child-support award and remand for further proceedings on the award.

5 Justin argues in his brief that there was no agreement between the parties as to temporary
child support and thus the child -support award should be re versed. However, the district
court did not purport to base its award on an agreement between the parties.

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On remand whether to reopen the record sh all be discretionary with the district
court.6
Reversed and remanded.

6 We note that this opinion does not affect any decisions made in the related commitment
and dissolution cases, and only a pplies with respect to this OFP appeal. If, on remand, a
record is developed showing that the re lated commitment and di ssolution cases have
evolved since Justin took this appeal, the district court may consider the developments in
either or both of those cases to the extent it is equitable to do so.