In re the Matter of: Mikayla Lee Swanson, and on Behalf of Minor Children, petitioner, Respondent, vs. Edward Wayne Swanson, Appellant.

This opinion is nonprecedential except as provided by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
A21-0910
In re the Matter of: Mikayla Lee Swanson,
and on Behalf of Minor Children, petitioner,
Respondent,
vs.
Edward Wayne Swanson,
Appellant.
Filed March 14, 2022
Reversed and remanded
Johnson, Judge
Hennepin County District Court
File No. 27-DA-FA-21-2597
Mikayla Lee Swanson, Maple Plain, Minnesota (pro se respondent)
John G. Westrick, Savage Westrick, P.L.L.P., Bloomington, Minnesota (for appellant)
Considered and decided by Ross, Presid ing Judge; Johnson, Judge; and Kirk,
Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
Mikayla Lee Swanson petitioned the district court for an order for protection against
her former husband, Edward Wayne Swanson. The district court granted the petition and
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant
to Minn. Const. art. VI, § 10.
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issued an order for protection. We conclude that the district court erred by admitting and
relying on inadmissible hearsay evidence. Therefore, we reverse and remand.
FACTS
Mikayla and Edward were married in 2014 . They separated in September 2019, and
their marriage was dissolved in June 2020. They have two minor children, who now are
five and six years old. Mikayla has joint lega l and sole physical custody of the children,
and Edward has joint legal custody and parenting time on alternating weekends.
In May 2021, Mikayla petitione d the district court for an order for protection (OFP)
on behalf of herself and the two minor childre n. In her petition, Mikayla alleged, among
other things, that her then-five -year-old son had told her that Edward had told him that
Edward was going to shoot Mikayla and her boyfriend. Mikayla also alleged that Edward
owns and possesses firearms. Mikayla furthe r alleged that, when they were married,
Edward “was very controlling, emotionally and verbally abusiv e, and he acted in a very
scary and aggressive manner on several occasions.” She a lleged that, on one occasion in
2019, Edward punched a hole in a door near where Mikayla had been standing, which, she
alleged, caused her to fear physical harm.
Three days later, the district court issued a temporary ex parte OFP and scheduled
an evidentiary hearing, which later was continued. Shortly before the evidentiary hearing,
Edward filed a motion in limine in which he sought, am ong other things, a ruling
prohibiting testimony about out-of-court statements of the parties’ minor children.
The district court conducted an evidentiary hearing in July 2021. Both parties were
represented by counsel. At the outset of the hearing, the district court considered Edward’s
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motion in limine. Mikayla’s attorney asserted that testimony about out-of-court statements
by the children would not be offered for the truth of the matter asserted—i.e., “not for the
purpose of proving that Mr. Swanson said th e things that the children say he said”—but
only to show Mikayla’s state of mind and to explain the timing of her filing of the petition.
The district court deferred ruling on the motion.
Mikayla testified first. She began by stating that she no longer was seeking an OFP
on behalf of the minor children. She testified that, during her marriage to Edward, he
frequently was controlling and verbally abusive. She also testified that Edward sometimes
was physically aggressive, and she described the incident in 2019 when he punched a hole
in a door near where she was standing.
On direct examination, Mi kayla’s attorney asked her a question that referred to the
parties’ son’s statements to Mikayla that Edward said that he was going to shoot Mikayla
and her boyfriend. Edward’s a ttorney objected on hearsay grounds. The district court
overruled the objection. Mikayla answered the question by desc ribing several such
statements by her son between March 2021 and May 2021. Mikayla testified that her son’s
statements made her feel afraid and prompted her to call a domestic-abuse hotline and file
the OFP petition. Mikayla explained that she was concerned because she knew that Edward
owned and carried firearms.
Mikayla called one other witness: her mo ther, who testified that she had heard
Edward call Mikayla names and had seen him be controlling at social events. Mikayla’s
mother also testified that she twice had stat ed to medical professionals that she believed
that Mikayla was being abused.
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Edward also testified. He denied ever in juring or threatening to injure Mikayla. He
responded to Mikayla’s testimony about the door incident by testifying that he did not
intend to punch a hole in the door but that his hand went through the door when Mikayla
forcefully closed it on him.
At the conclusion of the evid entiary hearing, the district court made an oral finding
that Edward had engaged in domestic abuse. The district court stated that Mikayla’s
testimony was “very credible” a nd that Edward’s testimony was “slightly less credible.”
The district court also stated: “I do believe that there were more than one instances in
which [the parties’ son] was told by his fath er that he would shoo t his mother. I do find
that to be concerning and a basis for issuing this order for protection.” The district court
elaborated by stating: “[A] threat . . . was made more than once through the children in a
situation where there has been past abuse, verbal, physical and repeated abuse. That’s why
I’m ordering the order for protection today.”
Immediately following the hearing, the district court extended the temporary ex
parte OFP to allow time for the parties to discuss and agree on a means by which the parties
could facilitate Edward’s exercise of parenting time. On the day following the evidentiary
hearing, the district court filed an OFP in which it found that Edward punched a hole in a
door while Mikayla was standing in front of it. The district court also found that the parties’
minor children told Mikayla that Edward “was making threats against her” and that the
parties’ son had told her th at Edward “threatened to sh oot both her and her current
boyfriend.” The district court made an ultimate finding that Edward engaged in domestic
abuse toward Mikayla. The di strict court ordered Edward to not have any contact with
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Mikayla, with no exceptions. The OFP also prohibits Edward from being at or near
Mikayla’s residence, requires him to partic ipate in domestic-violence programming as
deemed necessary by court staff, requires him to submit to a chemical-dependency
evaluation, and results in his being prohibited by law from possessing firearms. The district
court stated that the OFP will be in effect for two years from the date of the temporary ex
parte OFP.
Shortly after the OFP was issued, the parties jointly requested that the district court
amend the order to allow them to communicate about the children in limited ways via the
Our Family Wizard co-parenting communication website. The district court then filed an
amended OFP that allows Edward to contac t Mikayla via Our Family Wizard “regarding
necessary legal custody decisions; parenti ng time arrangements, including vacation
requests; and any out-of-pocket medical or dental reimbursement requests.”
Edward appeals.
DECISION
Edward argues that the district court e rred by admitting three types of inadmissible
evidence. Specifically, he contends that the district court erred by admitting
(1) inadmissible hearsay evidence concerning the parties’ son’s out-of-court statements
that Edward said that he was going to shoot Mikayla and her boyfriend; (2) testimony of
Mikayla’s mother that was beyond the scope of the issues raised by Mikayla’s petition; and
(3) testimony of Mikayla about matters not alleged in her petition. We begin by
considering Edward’s first argument.
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The Minnesota Domestic Abuse Act authori zes a district court to issue an OFP to
protect victims of domestic abuse. See generally Minn. Stat. § 518B.01 (2020). To obtain
an OFP, a petitioner must prove by a preponde rance of the evidence that the respondent
has committed domestic abuse “against a family or household member.” Id., subd. 2(a);
Oberg v. Bradley, 868 N.W.2d 62, 64 (Minn. App. 20 15). The term “domestic abuse” is
defined by statute to mean “(1) physical harm, bodily injury , or assault; (2) the infliction
of fear of imminent physical harm, bodily inju ry, or assault; or (3) terroristic threats . . . ;
criminal sexual conduct . . . ; or interference with an emergency call . . . .” Minn. Stat.
§ 518B.01, subd. 2(a).
The rules of evidence apply in an evidentiary hearing on a petition for an OFP.
Minn. R. Evid. 1101(a), (b); Olson ex. rel. A.C.O. v. Olson, 892 N.W.2d 837, 841 (Minn.
App. 2017). Under the rules of evidence, hearsay evidence is inadmissible as substantive
evidence unless a hearsay exception applies. Minn. R. Evid. 802; State v. Greenleaf, 591
N.W.2d 488, 502 (Minn. 1999). Hearsay evidence is defined as “a statement, other than
one made by the declarant while testifying at th e trial or hearing, offered in evidence to
prove the truth of the matter asserted.” Minn. R. Evid. 801(c). But an out-of-court
statement that is not offered for the truth of the matte r asserted, such as a statement
introduced to show its effect on the state of mind of another person, is not hearsay and may
be considered by the factfinder for the purpose for which it is offered. See State v. Sillday,
646 N.W.2d 557, 563-64 (Minn. App. 2002), rev. denied (Minn. Aug. 20, 2002). This
court applies an abuse-of-discretion standard of review to a district court’s ruling on a
hearsay objection. Olson, 892 N.W.2d at 841.
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In this case, the district court overruled Edward’s objection to Mikayla’s testimony
about the parties’ son’s out-of-c ourt statements based on Mi kayla’s attorney’s statement
that it was not being offered to prove “that Mr. Swanson said the things that the children
say he said.” Accordingly, Mikayla’s tes timony about the son’s out-of-court statements
was inadmissible for that purpose but was admi ssible to prove Mikayla’s state of mind.
See Sillday, 646 N.W.2d at 563-64; GN Danavox, Inc. v. St arkey Laboratories, Inc., 476
N.W.2d 172, 176 (M inn. App. 1991), rev. denied (Minn. Dec. 13, 1991); State v. Amos ,
347 N.W.2d 498, 502 (Minn. 1984).
However, the district court did not consider and use Mikayla’s testimony about the
parties’ son’s out-of-court statements for th e limited purpose for wh ich it was offered.
Rather, the district court considered and used the evidence as substantive evidence
supporting a finding that Edward had told the son that he was going to shoot Mikayla and
her boyfriend. Furthermore, the district court relied on that finding when it made the
ultimate finding that Edward engaged in domestic abuse toward Mikayla. This is apparent
not only from the amended OFP itself but also from the district court’s statements at the
conclusion of the evidentiary hearing. The district court stated that it “believe[d] that there
were more than one instances in which [the parties’ son] wa s told by his father that he
would shoot his mother” and that the district court found that conduct “to be concerning
and a basis for issuing this or der for protection.” Mikayla do es not argue on appeal that
any hearsay exception applies to either Edward’s or the son’ s out-of-court statements.
Thus, the district court erred by admitting and relying on inadmissible hearsay evidence.
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See Olson, 892 N.W.2d at 841-42 (conc luding that district c ourt erred by admitting and
relying on inadmissible hearsay evidence in issuing OFP).
We are mindful that a district court’ s erroneous ruling on the admissibility of
evidence may be a harmless error. See Minn. R. Civ. P. 61. In another case concerning
the erroneous admission of hear say evidence in an OFP proc eeding, this court described
the harmless-error rule by stating that an appellant “bears the burden of demonstrating that
an evidentiary error resulted in prejudice” and that an erroneous evidentiary ruling is
prejudicial “if it might reasonably have infl uenced the fact-finder and changed the result
of the proceeding.” Olson, 892 N.W.2d at 842. We conc luded in that case that the
erroneous admission of hearsay evidence was not harmless because the district court’s
finding of domestic abuse n ecessarily depended on the inadmissible hearsay evidence,
which meant that “the eviden tiary error of considering th ese statements changed the
outcome of the hearing and prejudiced appellant.” Id.
Similarly, in this case, the district court’s finding of domestic abuse and issuance of
the OFP and the amended OFP were based on and influenced by the inadmissible hearsay
evidence. The district court said as much at the conclusion of the hearing when it referred
to the hearsay evidence that Edward told the parties’ son that he was going to shoot Mikayla
and her boyfriend and then stated, “That’s why I’m ordering the order for protection
today.” Thus, the district court’s error is not a harmless error.
In sum, the district court erred by ad mitting and relying on inadmissible hearsay
evidence, and the error is not harmless. Beca use Edward is entitled to appellate relief on
his first argument, we need not consider his second and third arguments.
Therefore, we reverse the district court's issuance of the amended OFP and remand
the matter to the district court for further proceedings not inconsistent with this opinion.
The amended OFP shall remain in effect until the clerk of appellate courts enters judgment.
Upon entry of judgment by the clerk of appellate courts, the temporary ex parte OFP shall
be deemed reinstated to the extent that it protects Mikayla (but not the children, who are
not protected by the amended OFP), except that the temporary ex parte OFP shall be
qualified by the agreed-upon method of communication concerning the children that is
described in paragraph 3.a. of the amended OFP. We note that Mikayla requested relief
that requires a hearing, see Minn. Stat. § 518B.01, subd. 7(e), and that Edward requested
an evidentiary hearing, see id., subd. 5( d). The district court shall conduct a hearing on the
petition within ten days of the date on which the clerk of appellate courts enters judgment.
See id. The temporary ex parte OFP, as modified herein, shall be effective for ten days
after the clerk of appellate courts enters judgment or until modified or vacated by the
district court pursuant to a hearing. See id., subd. 7(c).
Reversed and remanded.
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