In re the Matter of: Katie Lynne Spooner, on behalf of the minor children, 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This opinion is nonprecedential except as provided by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
A21-1011

In re the Matter of:
Katie Lynne Spooner, on behalf of the minor children, petitioner,
Respondent,

vs.

Jesse Dean Warden,
Appellant.

Filed May 9, 2022
Affirmed
Segal, Chief Judge

Chisago County District Court
File No. 13-FA-21-195

Spencer T. White, Spencer T. White, PLLC, Eagan, Minnesota (for respondent)

Beau D. McGraw, McGraw Law Firm, P.A., Lake Elmo, Minnesota (for appellant)

Considered and decided by Segal, Chief Judge; Bratvold, Judge; and Slieter, Judge.
NONPRECEDENTIAL OPINION
SEGAL, Chief Judge
On appeal from the district court’s grant of an order for protection (OFP), appellant
argues that the record does not support the district court’s findings and that the district court
erred because it allowed and considered inadmissible hearsay evidence. We affirm.

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FACTS
Appellant-father Jesse Dean Warden and respondent -mother Katie Lynne Spooner
were married from July 2008 until February 2017. The parties have two minor daughters
for whom they share joint custody . On July 6, 2021, mother petitione d for an OFP on
behalf of the children to prohibit father from committing acts of domestic abuse and from
contacting the children.1 The district court issued an ex parte OFP and scheduled a hearing
on the petition.
Mother and father were the only people to testify at the hearing. Mother provided
testimony about three specific incidents. First, mother testified that R.P., father’s
significant other at the time, told mother in a January 2021 phone call that father had hit
R.P. Neither mother nor the children were present or witnessed this alleged assault.
Mother testified that the second incident occurred in April 2021 during a video call
from the children to mother. The children called mother from the yard outside father’s
house. Mother said that the older daughter told mother that father was drunk and fighting
with R.P., and that the daughter was scared and wanted to go back to mother’s house.
While mother was on the video call, father came outside and told the older daughter to get
off the phone. Mother testified that she could see during the video call that father grabbed
the older daughter , causing the daughter to drop the phone. Mother explained that the
phone landed on the ground face up, allowing mother to be able to continue to observe the

1 Mother also sought in the petition to have father undergo a chemical -dependency
assessment and a mental-health evaluation. The district court did not grant this request in
the OFP and the denial is not before us in this appeal.
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incident. Mother said that she told father, via the phone, to let the daughter go; R.P. then
intervened and told m other that the daughter was scared. Mother testified that she then
went to father’s house and picked up the children.
The third incident occurred in July 2021. Mother testified that she received a phone
call from the children while they were at father’s house. According to mother, the children
were in R.P.’s vehicle with the doors locked. The children had the phone on speaker; the
younger daughter said that father was acting weird and scary . The older daughter ,
according to mother’s testimony, said that father became angry after the daughter told
father that he was acting weird , and that he then threw items and punched a hole in the
wall. Mother testified that she asked the older daughter to call 911, but the older daughter
responded that R.P. had begged her not to because R.P. felt bad for father. Mother also
testified that the children were scared when they returned to her house that night.
Father denied that he hit R.P. in January 2021. With respect to the April 2021
incident, father stated that he and R.P. got into a disagreement and he “got loud” and
slammed several doors in the house. He claimed that this scared the older daughter because
she is sensitive to loud noises, and that the younger daughter then got scared because her
sister was scared. Father denied grabbing the older daughter in an aggressive way ; he
testified that he was merely trying to get the daughter’s attention to find out why she was
“freaking out” and that the phone fell while he was trying to get her attention. Finally,
father denied punching a hole in the wall or throwing things during the July 2021 incident,
but he acknowledged that he was “being loud” and “raising [his] voice.”
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The district court also received five exhibits into evidence by stipulation of the
parties, including text messages between the older daughter and father, and text messages
between mother and R.P.
Following the hearing, the district court issued an OFP. The district court , citing
the April and July 2021 incidents, determined that acts of domestic abuse had occurred .
The OFP prohibits father from committing acts of domestic abuse against the children. The
district court did not grant mother’s request that father be prohibited from contact with the
children. Father appeals.
DECISION
Father argues that the evidence is not sufficient to support the grant of an OFP
because mother’s testimony was bia sed and because the OFP was based on inadmissible
hearsay testimony. We conclude , however, that even setting aside the allegedly
inadmissible hearsay evidence, the evidence is sufficient to support the district court’s grant
of the OFP.
“We review the district court’s decision to grant an OFP for an abuse of discretion.”
Ekman v. Miller , 812 N.W.2d 892, 895 (Minn. App. 2012). “A district court abuses its
discretion if its [factual] findings are unsupported by the record or if it misapplies the law.”
Pechovnik v. Pechovnik , 765 N.W.2d 94, 98 (Minn. App. 2009) (quotation omitted); see
Bender v. Bernhard, 971 N.W.2d 257, 262 (Minn. 2022). We view the record in the light
most favorable to the findings and will reverse a finding of fact “only if we are left with
the definite and firm conviction that a mistake has been made.” Braend ex rel. Minor
Child. v. Braend, 721 N.W.2d 924, 927 (Minn. App. 2006 ) (quotation omitted). We also
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will not make credibility determinations or reconcile conflicting evidence on ap peal.
Aljubailah v. James, 903 N.W.2d 638, 643 (Minn. App. 2017).
The Minnesota Domestic Abuse Act provides that a district court may issue an OFP
upon a finding of domestic abuse. Minn. Stat. § 518B.01, subd s. 4 , 6(a) (2020).
“[D]omestic abuse ” includes “physical harm, bodily injury, or assault,” as well as “the
infliction of fear of imminent physical harm, bodily injury, or assault” when it is
“committed against a family or household member by a family or household member.” Id.,
subd. 2(a)(1)-(2) (2020). An OFP petitioner has the burden of proving that domestic abuse
occurred. Oberg ex. rel Minor Child v. Bradley, 868 N.W.2d 62, 64 (Minn. App. 2015).
“[O]nce ‘domestic abuse’ has been established, the district court may examine all of the
relevant circumstances proven to determine whether to grant or deny the petition for an
OFP.” Thompson ex rel. Minor Child v. Schrimsher, 906 N.W.2d 495, 500 (Minn. 2018).
Here, the district court found that mother testified “credibly” and provided
“stipulated exhibits corroborating the fact that [father] inflicted the fear of imminent
physical harm, bodily injury, or assault on the Parties’ minor children on two separate
occasions.” The “two separate occasions” referenced by the district court were the April
and July 2021 incidents. The district court found that during the April 2021 incident father
“was agitated and grabbed [the older daughter ] from behind, surprising her, scaring her,
and causing her to drop her phone onto the ground.” As to the July 2021 incident, the
district court found that father “threw items around his house, screamed obscenities at his
children, and punched a hole in his wall in the presence of both [children], thereby causing
them to suffer fear of the infliction of imminent physical harm, bodily injury, and assault.”
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The district court determined that these two incidents constituted domestic abuse within
the meaning o f the Minnesota Domestic Abuse Act , Minn. Stat. § 518B.01, subd. 2(a)
(2020).
Father argues that mother’s claims “were baseless” and that the district court
“should have looked beyond [mother’s] unfounded claims” because she “is an aggrieved
ex-spouse.” This argument, however, is essentially nothing more than a challenge to the
district court’s determination that mother testified credibly. As an appellate court we are
not at liberty to make our own credibility determinations; such determinations are
“exclusively the province of the factfinder.” Pechovnik, 765 N.W.2d at 99 (quotation
omitted). We therefore defer to the district court’s determination that mother’s testimony
was credible.
We turn next to father’s hearsay argument. Father challenges the admission of
mother’s testimony about the three alleged incidents, including the allegation that R.P. told
mother in January 2021 that father hit R.P. We note first that the district court did not make
any findings, or otherwise reference in the OFP, mother’s testimony that R.P. told mother
she was hit by father in January 2021. It thus appears that the testimony did not impact the
outcome and we have excluded this testimony from consideration in our analysis of the
sufficiency of the evidence.
Second, we conclude that the record supports the district court’s findings about the
April and July 2021 incidents without the challenged testimony. For example, the district
court’s finding that the April 2021 incident involved domestic abuse is supported by
mother’s firsthand observations made during the video call with the older daughter.
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Mother testified that she was able to observe father grab the daughter, causing the daughter
to drop the phone. In addit ion, f ather himself admitted that he and R.P. got into a
disagreement that night, that he “got loud,” that the children were afraid during the incident,
and that the older daughter was “freaking out” while she was on the video call with her
mother. Finall y, father stipulated to the admission of te xt messages .2 The messages
include an exchange between mother and R.P. during and after the April 2021 incident. In
those text messages, R.P. stated that the older daughter was scared and that “[i]t was best
for the girls to go home with [mother].”
As to the July 2021 incident, the district court’s findings that father “threw items
around his house, screamed obscenities around and at his children, and punched a hole in
his wall in the presence of both [children], ” are based on statements made by the older
daughter to mother in a phone call. The older daughter cal led mother when both children
were outside father’s home, locked in R.P.’s car. Mother testified that the call was on
speaker and that her younger daughter told her that father “had another blackout” and “was
acting really weird and scary.” Mother furthe r testified that the older daughter stated that
she had told “her dad that he was being weird and that triggered something where he threw
items and then also punch ed a hole in the wall.” While this is hearsay testimony, father
made no objection to the testimony.

2 We note that some of these text messages contain hearsay statements, but father stipulated
to the admission of the text messages and on appeal only challenges their evidentiary
weight.
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Even without this testimony concerning the specifics of father’s conduct, however,
the district court’s finding that father’s conduct was such that it caused the children to fear
harm is supported by the record. For example, father admitted that he was “being loud,”
“raising [his] voice,” and that the children “were scared” during the July 2021 incident.
And the stipulated text messages include a text string between the older daughter and father
the day after the incident in which the daughter stated she did not want to go back to father’s
house and, when he asked why , she responded, “Because you were really scary.” Father
texted in response that he was “sorry . . . for scaring [her].” Father argues that it is
“unclear” from the text messages whether he “was apologizing to [ the older daughter] for
acting violently like [mother] claims.” But while these text messages do not establish
precisely what occurred, they corroborate mother’s assertion that father’s behavior caused
significant fear in the children.
Mother also testified that R.P. brought the children back to mother’s house right
after the incident and that, based on mother’s personal observations, the children were
visibly sca red. See Minn. R. Evid. 701 (allowing certain non -expert opinions that are
“rationally based on the perception of the witness”).
Finally, the stipulated text messages include a text message from mother to R.P.
thanking R.P. for bringing the children to mother’s house and acknowledging that the night
“was difficult,” to which R.P. responded, “Thank you. I wish things were different for all
of us.”
Thus, even setting aside the allegedly inadmissible evidence, the record supports the
district court’s fin dings of domestic abuse. The district court’s determination that father
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engaged in acts of domestic abuse during the April and July 2021 incidents is supported by
the firsthand testimony of mother , the admissions of father, and the stipulated text
messages. We conclude, therefore, that t he district court did not abuse its discretion in
granting the OFP.
Affirmed.