In the Matter of Katie Ann Pyka On Behalf Of Minor Children, 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This opinion is nonprecedential except as provided by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
A22-1485

In the Matter of Katie Ann Pyka On Behalf Of Minor Children,
Respondent,

vs.

Steven David Pyka,
Appellant.

Filed June 20, 2023
Affirmed
Jesson, Judge

Waseca County District Court
File No. 81-FA-22-520

Jacob M. Birkholz, Michelle K. Olsen, Birkholz & Associates, LLC, Mankato, Minnesota
(for respondent)

Tammy J. Stafford, Jovanovich, Dege & Athmann, P.A., St. Cloud, Minnesota (for
appellant)

Considered and decided by Jesson, Presiding Judge; Smith, Tracy M., Judge; and
Hooten, Judge.
∗
NONPRECEDENTIAL OPINION
JESSON, Judge
After bruises in the shape of fingerprints were discovered on respondent Katie Ann
Pyka’s (mother’s) two minor children following the children’s visit with their father,

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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appellant Steven David Pyka (father), mother filed an order for protection (OFP) petition
on behalf of her children. The district court granted the OFP. Father appeals, arguing that
the district court abused its discretion by granting the OFP based on hearsay testimony by
mother regarding one of the children’s out-of-court statements and consideration of his two
criminal charges, and because by granting the OFP, the court changed the custody
agreement he made with mother regarding the children. Further, father asserts that the
district court erred when it did not appoint the children a guardian ad litem for the OFP
hearing. Because the district court did not abuse its discretion in determining that mother
met her burden of proof and granting supervised parenting time per its authority under the
applicable statute, and because father did not object to mother’s testimony as hearsay and
did not request a guardian ad litem, we affirm.
FACTS
In August 2022, mother filed an OFP petition on behalf of her two minor children—
twin five-year-old sons—against father. Mother’s petition alleged that, upon the children’s
return from an unsupervised visit with father, she noticed bruising on both children’s
shoulders that appeared to be in the shape of a thumb and fingerprints. She explained in
the petition that when she asked one of her sons who hurt him, he replied, “Daddy
did . . . but he was real sorry.” Mother claimed that after she sent pictures of the bruising
to father and asked him where the children got the bruises, father responded that he did not
know and that nothing happened.
In her petition, mother also listed other allegations of abuse, citing to circumstances
leading to father’s open criminal cases. One was a domestic-abuse charge from an incident
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with mother, and the other was a malicious -punishment-of-a-child charge with one of his
twin sons, where father allegedly punched his son in the face resulting in a bruise on the
child’s cheek. Finally, mother requested that father have no parenting time until his
criminal cases are resolved, apart from having video calls with the children. The district
court granted the OFP in an ex parte order. Father denied all allegations, and the OFP was
set for a contested hearing.
At the hearing, both mother and father testified. Mother’s testimony mirrored her
allegations from her OFP petition, testifying that her son told her , “Daddy gave me those
owies, but he was really sorry, mommy, he was really, really sorry.” Father did not object
to this testimony but mentioned in closing remarks that “whatever [mother] said is
hearsay.” Mother also testified that father has two open criminal cases, providing case
numbers to the court. Father did not object.
And mother and father testified that they have an open marriage-dissolution case,
but that they had reached a mediated settlement on custody and parenting time for the two
children in June 2022, approximately two months before mother filed her OFP petition.
The district court issued the OFP for the two minor children against father, finding
that father subjected his sons to domestic abuse under Minnesota Statutes section 518B.01
(2022). In granting the OFP, it reasoned that “[w]hile [father] has been charged with prior
domestic incident and malicious punishment of a child, those are no[t] convictions at this
point, however, they can be considered as incidents of prior abuse.” And the district court
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ordered that father cannot have contact with his children for a period of two years, except
for supervised parenting time.
Father appeals.
DECISION
Father argues that the district court abused its discretion when it granted the OFP
based on hearsay testimony by mother and on evidence of his criminal charges and when
it ordered supervised parenting time, which changed the custody agreement between father
and mother. And he contends that the district court erred by not appointing a guardian ad
litem to represent his sons for the OFP hearing.
Generally, we review for an abuse of discretion the district court’s decision to grant
an OFP. 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). In conducting our review, we
give deference to the district court’s assessments regarding witness credibility.
Id. at 500-01.
With this standard of review in mind, we turn to Minnesota Statutes
section 518B.01, which governs the issuance of OFPs. This section explains that, at a
contested hearing, the petitioner has the burden to prove by a preponderance of the
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evidence1 that domestic abuse has occurred for a district court to issue an order for
protection. Oberg, 868 N.W.2d at 64.
Applying that burden of proof consistent with our standard of review, we address
each argument in turn.
I. The district court did not abuse its discretion by granting the OFP after
consideration of the hearsay evidence and father’s criminal charges.

Hearsay Evidence

Father maintains that the district court abused its discretion by misapplying the law
when, at the hearing, it allowed mother to testify to out-of-court statements regarding what
her son told her. He further asserts that this error was prejudicial because this hearsay
testimony was the primary basis for granting the OFP.
But father did not object to this testimony at trial. If he had objected, we would
apply an abuse-of -discretion standard of review to this evidentiary issue.
See Aljubailah v. James, 903 N.W.2d 638, 644 (Minn. App. 2017) (holding that “[r]ulings
on the admissibility of evidence lie within the district court’s discretion” and an appellate
court is not to “disturb an evidentiary ruling unless it is based on an erroneous view of the
law or is an abuse of that discretion”).

1 The preponderance-of-the-evidence burden of proof is the lowest burden of proof in a
court of law, meaning that the petitioner must prove that it is more likely than not that the
alleged events occurred. Oberg v. Bradley, 868 N.W.2d 62, 65 (Minn. App. 2015)
(explaining that “the preponderance of the evidence standard requires that to establish a
fact, it must be more probable that the fact exists than that the contrary exists” (quotation
omitted)).
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When an appellant did not object to an evidentiary error, this argument may be
forfeited at the appellate level, because “an undecided question is not usually amenable to
appellate review.” Hoyt Inv. Co. v. Bloomington Com . & Trade Ctr. Assocs.,
418 N.W.2d 173, 175 (Minn. 1988); see Thiele v. Stich, 425 N.W.2d 580, 582
(Minn. 1988) (explaining that appellate courts generally address only those questions
previously presented to and considered by the district court).
Here, father did not object to mother’s testimony about son telling her that father
gave him the bruises on his arms. Accordingly, the district court did not analyze whether
these statements were inadmissible as hearsay or if they met an exception to hearsay. As
a result, father forfeited this argument.
Still, father argues that he preserved this issue on appeal because he mentioned in
closing remarks that mother’s testimony was hearsay. We disagree. Because, under the
contemporaneous-objection requirement for trial errors, father was required to object to
mother’s testimony as hearsay at the time the issue arose, his mention in his closing
argument of hearsay testimony by mother was not sufficient. See State v. Ramey,
721 N.W.2d 294, 299 (Minn. 2006) (explaining, in a criminal trial context, that the
contemporaneous-objection requirement encourages trial participants to seek a fair and
accurate trial the first time around).
Yet, father asserts that his case mirrors Olson v. Olson. 892 N.W.2d 837, 842
(Minn. App. 2017) (reversing and remanding the grant of an OFP because statements in
the petition constituted inadmissible hearsay and the district court abused its discretion by
considering those statements as the exclusive basis for a finding of domestic abuse and the
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grant of an OFP). But in Olson, Olson objected to the admission of the hearsay statements
at the time they were introduced and in their main arguments on the record, unlike father
here. Id. at 839. Thus Olson is distinguishable.
Finally, even if father objected to the testimony by mother as hearsay and we
concluded that the testimony regarding the child’s out-of-court statements was erroneously
admitted, father must demonstrate that the error reasonably would have influenced the
factfinder and changed the result of the proceeding. Id. at 841. Father has not done so.
Father argues that the district court exclusively found that the burden was met to prove
domestic abuse because of mother’s statements about what her son told her. But that is not
accurate. In addition to mother’s statements, three pictures of the children were admitted
showing the bruising on their shoulders,
2 mother testified that she noticed these bruises
right after her sons had an unsupervised visit with their father, and mother testified that she
experienced past incidents of domestic abuse between herself and father and father and the
children, which led to criminal charges. Even if the contested statements were excluded,
given the remainder of the record, it would not have been against logic to conclude that it
was more likely than not that domestic abuse had occurred by father against sons, and we
cannot say that excluding the contested statements would have changed the result of the
proceeding.

2 Although father objected to the admission of these pictures at the hearing, he does not
challenge their admission on appeal.
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In sum, even if father objected to mother’s statements at the OFP hearing and the
statements were inadmissible as hearsay, the district court would not have abused its
discretion in making a finding of domestic abuse by a preponderance of the evidence.
Father’s Criminal Charges

Next, father contends that the district court abused its discretion by considering his
two pending criminal charges of domestic abuse and malicious punishment of a child as
prior-bad-acts evidence and using them as a basis for granting the OFP. But again, father
did not object to the introduction of these charges at the hearing. See Thiele,
425 N.W.2d at 582. As a result, father has forfeited this argument on appeal.
Still, father asserts that the district court’s consideration of these charges was an
abuse of its discretion because every citizen enjoys the “right to be presumed innocent until
proven guilty.” And, in fact, father was not convicted of either charge. But we are not
persuaded that the district court abused its discretion.
The district court did not research father’s criminal charges.3 Nor did it utilize the
citations or complaints that accompanied them. Rather, it appears that what the district
court considered was not the charges themselves, but the events that underlie those charges,
which mother presented through her testimony. And the district court deemed this
testimony credible. We defer to the district court’s witness-credibility determinations.
Thompson, 906 N.W.2d at 500-01.4 Because the district court’s consideration of father’s

3 Father does not argue that this occurred.
4 Further, OFP proceedings are civil in nature, and the burden of proof in OFP
proceedings—preponderance of the evidence—is significantly lower than the

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charges was within th e limited context of mother’s testimony regarding the incidents
underlying the charges, it properly exercised its discretion when it took into account
witness testimony before granting the OFP.
II. The district court did not abuse its discretion in granting supervised parenting
time after finding domestic abuse occurred.

Father next argues that the district court abused its discretion when it ordered
supervised parenting time when it granted the OFP. Minnesota Statutes section 518B.01,
subdivision 6, governs the district court’s discretionary ability to order relief after a hearing
on an OFP. Specifically, section 518B.01, subdivision 6(a)(4), relates to the court’s
parenting-time determinations:
[T]he court may provide relief as follows:

. . . .

(4) award temporary custody or establish temporary parenting
time with regard to minor children of the parties on a basis
which gives primary consideration to the safety of the victim
and the children. . . . If the court finds that the safety of the
victim or the children will be jeopardized by unsupervised or
unrestricted parenting time, the court shall condition or restrict
parenting time as to time, place, duration, or supervision , or
deny parenting time en tirely, as needed to guard the safety of
the victim and the children.

Minn. Stat. § 518B.01, subd. 6(a)(4) (emphasis added).

beyond-a-reasonable-doubt burden of proof applicable to the criminal charges based on the
events that underlie both mother’s testimony and the criminal charges against father. Thus,
a ruling in this civil proceeding that the lower standard of proof is satisfied would not be
logically inconsistent with a ruling in a criminal proceeding that the higher standard of
proof applicable there was not satisfied.
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Here, the district court properly exercised its discretion under the statute in ordering
supervised parenting time in conjunction with the OFP. The statute explicitly grants the
district court authority to order such parenting time, stating that if the children’s safety will
be jeopardized by unsupervised parenting time, the court shall restrict parenting time as to
supervision. Id. Since the district court made the finding that domestic abuse more likely
than not occurred by father against the two minor children, the parenting-time decision was
not error.
To persuade us otherwise, father asserts that the ordering of supervised parenting
time essentially terminated his parental rights with an unwarranted custody modification.
This argument is unpersuasive because the OFP is not a custody modification.
See Minn. Stat. § 518.18 (2022) (addressing modification of custody). Nor did it terminate
his parental rights. See Minn. Stat. § 260C.301 (2022) (addressing termination of parental
rights). Rather, the order provided relief to mother and the children in the form of
supervised visitation between father and the children, whom he still has legal rights to
parent. And the OFP is in effect temporarily for a period of two years—it is not a
permanent modification of custody or parenting time.
III. The district court did not err by not appointing a guardian ad litem for the two
children for the OFP hearing.

Finally, father asserts that the district court erred by not appointing a guardian ad
litem for his two minor children during the OFP proceeding, citing Minnesota Statutes
section 518.165, subdivision 2 (2022), to support this contention. We review this issue
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de novo. Harlow v. State Dep’t of Hum. Servs., 883 N.W.2d 561, 568 (Minn. 2016)
(holding that appellate courts review the district court’s application of the law de novo).
Turning to the circumstances before us, the district court did not err when it did not
sua sponte appoint a guardian ad litem for the children for the OFP hearing. Minnesota
Statutes section 518.165, subdivision 2, states that a district court is required to appoint a
guardian ad litem “[i]n all proceedings for child custody or for marriage dissolution or legal
separation in which custody or parenting time with a minor child is an issue, if the court
has reason to believe that the minor child is a victim of domestic child abuse or neglect.”
But father never requested a guardian ad litem for his children at the district court.
And a party on appeal generally cannot complain about their own mistake.
See Eisenschenk v. Eisenschenk, 668 N.W.2d 235, 243 (Minn. App. 2003) (holding that
“a party cannot complain about a district court’s failure to rule in [the party’s] favor when
one of the reasons it did not do so is because that party failed to provide the district court
with the evidence that would allow the district court to fully address the question”),
rev. denied (Minn. Nov. 25, 2003). Further, father does not cite to any caselaw supporting
his position that a guardian ad litem appointment is mandatory. Accordingly, we do not
need to reach the question of whether the appointment of a guardian ad litem is mandatory
in this context because it was neither presented to nor considered by the district court.
See Thiele, 425 N.W.2d at 582.
In sum, since father’s unobjected-to evidentiary issues would not have affected the
district court’s ability to find by a preponderance of the evidence that domestic abuse had
occurred, and because the district court has clear discretion to order relief through
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supervised parenting time, the district court did not abuse its discretion in granting the OFP
or ordering such relief. And since father did not request a guardian ad litem for his children,
the district court also did not err in this regard.
Affirmed.