In the Matter of: Mara Jareth Butler, and on behalf of minors, Respondent,

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1600

In the Matter of: Mara Jareth Butler, and on behalf of minors,
Respondent,

vs.

Andrew John Jakes,
Appellant.

Filed June 27, 2022
Affirmed
Reyes, Judge

Dakota County District Court
File No. 19AV-FA-1748

Corey W. Kobbervig, Kobbervig Law, L.L.C., St. Paul, Minnesota (for respondent)

Brian S. VanMeveren, VanMeveren Law Firm, Woodbury, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Jesson, Judge; and Rodenberg,
Judge.
*
SYLLABUS
A party forfeits an argument on appeal in a civil case based on any technological
problem they experienced during a virtual proceeding before a district court when that
problem does not appear in the record and the party did not attempt to correct or supplement
the record.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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OPINION
REYES, Judge
Appellant argues on appeal that the record does not support the district court’s grant
of an order for protection (OFP) and that the district court violated his due -process rights
when it granted the OFP despite his assertion that he and his attorney lost their internet
connection during the video hearing for approximately three minutes . Because the
evidence supports issuing an OFP and because appellant forfeited his argument regarding
the technological problem, we affirm.
FACTS
Appellant Andrew John Jakes and respondent Mara Jareth Butler dated for nine
years and have two minor children together. In October 2021, Butler filed a petition for an
OFP for herself and the two minor children based on four alleged incidents of domestic
abuse. The district court held a virtual evidentiary hearing on the petition over Zoom, a
web-based video-conference application. A court reporter was present and transcribed the
proceedings. At the hearing, the district court heard testimony from Butler, Jakes, and a
police officer who responded to one of the incidents. Two incidents are relevant to this
appeal.
The first incident occurred in July 2021. At the hearing on the OFP petition, Butler
testified that while she slept, Jakes, who had been drinking, accessed data on her cell phone.
Jakes woke Butler up by shaking her and yelling at her. The two minor children observed
Jakes throwing items at the front door during the incident before Butler told the children to
go upstairs. A responding police officer testified that, when police arrived, there “was a
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lot of property that was kinda thrown around the front yard.” The officer testified that
Jakes was “civil” and “cooperative” while Butler was “[e]xtremely upset” but not angry.
Jakes and Butler both appeared intoxicated.
The second incident occurred about a month later in August 2021. Jakes became
angry after drinking in Butler’s home, and Butler threatened “to dump out the bottle” from
which Jakes was drinking. Butler testified that, in response, Jakes told her that he would
go home to “grab his gun from his top drawer, and shoot his kids in the face and then shoot
his father and his brother.” Eventually Butler and Jakes went to bed, and Jakes “passed
out.”
Jakes claims that he and his attorney lost their internet connection during Butler’s
testimony and that they could not participate in the hearing for approximately three
minutes. Once they restored their connection, neither Jakes nor his attorney alerted the
district court to the technological problem. This loss of internet connection is not reflected
in the record.
The district court, recognizing that Butler’s credibility was “in many instances,
impeached” throughout the hearing, nonetheless granted her petition for an OFP for her
and the minor children because a preponderance of the evidence supported a finding that
Jakes committed domestic abuse against them. The OFP lasted for six months and required
Jakes to maintain a distance of a one -mile radius from Butler’s home and not to go to the
children’s school. Jakes was allowed to email or text Butler only “for purposes of child
visitation and school.” This appeal follows.

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ISSUES
I. Did the district court abuse its discretion by determining that sufficient evidence
supported issuing an OFP?
II. Did the district court deny Jakes due process of law?
ANALYSIS
I. The district court did not abuse its discretion by determining that sufficient
evidence supported issuance of an OFP.

Jakes first argues that the district court abused its discretion by issuing the OFP
because a preponderance of the evidence does not support the finding that domestic abuse
occurred. We disagree.
A district court may issue an OFP upon a finding of domestic abuse. Minn. Stat.
§ 518B.01, subds. 4, 6 (2020). The person requesting a n OFP has the burden of proving
that domestic abuse occurred by a preponderance of the evidence. Oberg ex rel. Minor
Child v. Bradley, 868 N.W.2d 62, 64 (Minn. App. 2015). A preponderance of the evidence
is evidence showing that it is “more probable that the fact [in question] exists than that the
contrary exists.” City of Lake Elmo v. Metro. Council, 685 N.W.2d 1, 4 (Minn. 2004).
Domestic abuse includes the following “if committed against a family or household
member by a family or household member: (1) physical harm, bodily injury, or assault;
(2) the infliction of fear of imminent physical harm, bodily injury, or assault; or (3) . . .
criminal sexual conduct.” Minn. Stat. § 518B.01, subd. 2(a) (2020). To establish domestic
abuse, a party must show “present harm or an intention on the part of [the alleged abuser]
to do present harm.” Andrasko v. Andrasko, 443 N.W.2d 228, 230 (Minn. App. 1989).
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Intention to do present or imminent harm may “be inferred from the totality of the
circumstances, including a history of past abusive behavior,” and the petitioning party need
not show an “overt physical act” of abuse. Pechovnik v. Pechovnik, 765 N.W.2d 94, 99
(Minn. App. 2009).
We review the district court’s decision to issue an OFP for an abuse of discretion.
See Thompson v. Schrimsher, 906 N.W.2d 495, 500 (Minn. 2018). “A district court abuses
its discretion when its decision is based on an erroneous view of the law or is against logic
and the facts in the record.” Id. (quotation omitted). On appeal, we view the evidence in
the light most favorable to the district court’s findings and will reverse “only if we are left
with the definite and firm conviction that a mistake has been made.” Pechovnik, 765
N.W.2d at 99 (quotation omitted). We defer to the district court’s cre dibility
determinations and do not “reconcile conflicting evidence.” Id. (quotation omitted); see In
re Civ. Commitment of Kenney, 963 N.W.2d 214, 221-23 (Minn. 2021) (discussing clear-
error standard of review).
As for the first incident, Butler testified that Jakes threw items around the front door
near where the children slept, waking the children up. And one of the responding officers
confirmed seeing items strewn around the front yard and that Butler seemed extremely
upset. A preponderance of the evidence in the record supports the district court’s finding
that Jakes committed domestic abuse against Butler and the children during the first
incident.
As for the second incident, Butler testified that Jakes was drinking in her home, and
Jakes became angry when Butler threatened “to dump out the bottle” of alcohol he was
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drinking from. According to Butler, Jakes responded by stating that he would shoot his
children, his father, and his brother. Butler’s petition says that this statement “terrified”
her because Jakes “does not give empty threats.” These remarks in the record support the
district court’s finding that a preponderance of the evidence showed that, in the second
incident, Jakes committed domestic abuse against Butler and the children . We there fore
conclude that the district court’s findings were not clearly erroneous.
Jakes’s two arguments against this conclusion are unpersuasive. Jakes first argues
that the district court mischaracterized the second incident by finding that Jakes “threatened
to shoot [ Butler] and the children,” despite the fact that Jakes never threatened to shoot
Butler. (Emphasis added.) Jakes asserts that this alleged error constitutes reversible error
by the district court. But Jakes still threatened to shoot his children and father and brother,
and these threats instilled in Butler a fear of imminent physical harm to her children. Thus,
even if the district court partially erred in describing the second incident, Jakes has failed
to show how that error would change the district court’s conclusion that domestic abuse
occurred. Moreover, Jakes fails to show any prejudice from this alleged error. Kallio v.
Ford Motor Co., 407 N.W.2d 92, 98 (Minn. 1987) (stating that “[a]lthough error may exist,
unless the error is prejudicial, no grounds for reversal exist”). Absent more, even if the
district court made this error, it would not merit relief on appeal. See Minn. R. Civ. P. 61
(requiring harmless error to be ignored); Goldman v. Greenwood, 748 N.W.2d 279, 285
(Minn. 2008) (citing this aspect of Minn. R. Civ. P. 61).
Second, Jakes argues that the evidence does not support issuing an OFP for the two
minor children. In the first incident, the children witnessed Jakes yelling and th rowing
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items around the home. In the second incident, Jakes threatened to shoot his children. See
Hall v. Hall , 408 N.W.2d 626, 629 (Minn. App. 1987) ( concluding that, depending on
circumstances, verbal threat can inflict fear of imminent physical harm, bodily injury, or
assault), rev. denied (Minn. Aug. 19, 1987). Both incidents support issuing an OFP for the
two minor children.
II. Jakes forfeited his due-process argument by failing to inform the district court
of the problem, objecting during the hearin g, requesting relief at the district
court, or creating a record of the technological problem.

Jakes next argues that the brief period when he and his attorney could not participate
in the OFP hearing because of technological difficulties infringed on his right to procedural
due process. For two reasons, we are not persuaded.
First, neither the hearing transcript nor any other part of this record on appeal
mentions the technological problem alleged by Jakes. See Minn. R. Civ. App. P. 110.01
(stating that record on appeal consists of “[t]he documents filed in the [district] court, the
exhibits, and the transcript of the proceedings”). The record on appeal lacks any indication
that Jakes notified the district court that he and his attorney lost their connection during the
hearing. Jakes similarly failed to correct or supplement the record to mention the
technological problem after the hearing. See Minn. R. Civ. App. P. 110.05 (allowing
correction of record at district court or through motion to this court so record accurately

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reflects anything of material value omitted from the record by error or accident). The only
assertion that the technological problem occurred is in Jakes’s argument to this court.1

Second, even if we ignore the fact that the record does not show the alleged problem,
relief would still not be proper. Appellate courts generally address only those matters that
were presented to and considered by the district court. Thiele v. Stich, 425 N.W.2d 580,
582 (Minn. 1988); see Aljubailah v. James , 903 N.W.2d 638, 643 (Minn. App. 2017)
(applying this aspect of Thiele in an OFP appeal). This rule applies to constitu tional
questions. In re Welfare of C.L.L., 310 N.W.2d 555, 557 (Minn. 1981) (declining to
address a constitutional issue raised for first time on appeal in termination -of-parental-
rights matter). A ppellate courts cannot presume error by the district court , and the
complaining party has the obligation to provide the appellate court with a record sufficient
to show any alleged error. See Noltimier v. Noltimier, 157 N.W.2d 530, 531 (Minn. 1968)
(dismissing appeal for an inadequate record, stating both that “[e]rror cannot be presumed”
and that appellant has burden to provide an adequate record on appeal). This record does
not show the problem alleged by Jakes and we cannot assume error by the district court on

1 There is nothing in the record showing that Jakes lost his internet connection, and, in his
appellate brief, Jakes did not identify when he lost his connection. At oral argument, Jakes
argued, for the first time, that he lost his internet connection at the point in the proceedings
reflected on page nine of the transcript. But, based on our review, the proceedings on that
transcript page are inconclusive at best regarding whether Jakes lost a video connection to
the hearing. The district court discusses the admission of Butler’s exhibits supporting her
petition. It then begins to address Jakes’s counsel before going off the record. After the
district court goes back on the record, it mentions that the proceedings were interrupted
with “another case” and then resumed discussing Butler’s exhibi ts. This page in the
transcript neither supports Jakes’s assertion that he lost his internet connection at that time
nor shows us when he regained his connection.
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appeal. B ecause Jakes’ first assertion of his c onstitutional argument is in this court, the
argument was neither presented to nor considered by the district court. See Continental
Retail, LLC, v. County of Hennepin , 801 N.W.2d 395, 399 (Minn. 2011) (stating that
evidentiary rulings made at trial must be assigned as error in motion for new trial or
amended findings to properly preserve objection for appeal). Therefore, appellant forfeited
this argument because it is not properly before this court, and we decline to address it for
the first time on appeal.
We note that the caselaw on forfeiture does not address technological problems
specifically. Here, because the record does not show that Jakes alerted the district court to
the alleged technological problem, the district court could not address or rule on the issue.
Nor can we determine whether the technological problem occurred, or whether and to what
extent that technological problem might have affected Jakes’s procedural due -process
rights as nothing in the record suggests a technological problem o ccurred. We therefore
hold that, in a civil case, a party forfeits arguments on appeal based on any technological
problem they experience during a virtual proceeding before a district court when evidence
of that issue does not appear in the record and the party failed to correct or supplement the
record.
Jakes requests, again for the first time on appeal, that this court require district courts
to keep a video recording of district court proceedings held virtually.
2 We decline this
request. We are an error- correcting court and we neither change existing law nor have

2 Jakes argues that this is an issue of first impression and implies that we should issue a
precedential opinion.
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supervisory power. See Cmty. Cares v. Faulkner, 949 N.W.2d 296, 298 (Minn. App. 2020)
(stating that court of appeals cannot create public policy by changing how to interpret court
rules), rev. denied (Minn. Nov. 17, 2020). Further, a transcript is the official record of
district court proceedings. Minn. R. Pub. Access to Recs. of Jud. Branch 4, subd. 3(a).
DECISION
We conclude that the district court did not abuse its discretion by determining that
sufficient evidence supported issuing an OFP against Jakes. We also hold that, because
the record fails to show that any technological problem occurred during the OFP hea ring
and Jakes failed to correct or supplement the record, Jakes forfeited his arguments on
appeal based on that technological problem.
Affirmed.