In re the Matter of: Sheila Sophia Niaz, OBO C. A. N., petitioner, 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This opinion is nonprecedential except as provided by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
A23-0236

In re the Matter of: Sheila Sophia Niaz, OBO C. A. N., petitioner,
Appellant,

vs.

David Dean Niaz,
Respondent.

Filed July 31, 2023
Affirmed; motion granted
Connolly, Judge

Hennepin County District Court
File No. 27-DA-FA-22-4478

Elizabeth M. Cadem, Burns & Hansen, P.A., Minneapolis, Minnesota (for appellant)

David D. Niaz, Plymouth, Minnesota (pro se respondent)

Considered and decided by Bratvold, Presiding Judge; Worke, Judge; and Connolly,
Judge.
NONPRECEDENTIAL OPINION
CONNOLLY, Judge
On appeal from the district court’s dismissal of a petition for an order for protection
(OFP), appellant argues that the district court abused its discretion in dismissing the OFP,
failed to make sufficient findings of fact to support its ruling, and should have granted a
harassment restraining order (HRO) as an alternative to an OFP. We affirm. We also grant
appellant’s motion to strike.
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FACTS
In August 2022, appellant Sheila Niaz filed a petition fo r an OFP on behalf of her
16-year-old sister, C.N. The petition alleged that pro se respondent David Niaz, who is
appellant and C.N.’s 28-year -old brother, committed domestic abuse against C.N. The
petition sought an order protecting C.N. from respondent.
The district court granted an ex parte OFP against respondent, who then requested
an evidentiary hearing on the petition. At the hearing, C.N. testified that she lives with her
parents, and that respondent has not lived there for several years. According to C.N., she
has a “very bad” relationship with respondent because “he’s verbally and physically
abusive” towards her mother and appellant.
C.N. testified that, on August 7, 2022, respondent stopped by her parents’ house
while she was eating dinner, and that she started making an audio recording because her
brother was there. According to C.N., respondent ate dinner and then left the room. C.N.
subsequently began confronting her mother about why she still makes food for respondent.
C.N. claimed that respondent then returned to the room and “shove[d]” C.N.’s fingers in
her food and took a piece of her chicken.
C.N. testified that she stopped the audio recording so that she could make a video
recording on her phone. C.N. stated that, in the seven-second video, respondent is eating
her food and then grabs her phone, ending the video. According to C.N., when she tried to
get her phone back, respondent “grabbed [her] from . . . both sides and then shoved [her]
to the ground,” leaving marks on her foot and arm. And C.N. testified that photographs of
her alleged injuries were taken, which were admitted into evidence.
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C.N. testified that, after being thrown to the floor, she “walked after” respondent to
get her phone back. She then grabbed her iPad and started recording respondent. But
according to C.N., when respondent approached her, she “ran up to a locked room because
[she] thought he was going to hit [her].” Respondent followed C.N. up to the room, but
then put her phone on the floor and left. C.N. claimed that she was scared because
respondent had “damaged” appellant’s door in the past.
After respondent left, C.N. texted appellant and informed her of the incident. But
because appellant was busy and did not respond right away, C.N. decided to call the
“nonemergency” number for the police. Appellant eventually responded to C.N.’s text. In
the text thread, which was admitted into evidence, C.N. told appellant that she called law
enforcement and that an officer was being dispatched. Appellant told C.N. that she was
proud of her, that “[t]hey’re going to take [respondent] to jail,” and that “I feel like this is
giving justice to 15 year old me.” Appellant also told C.N. to “[g]ive the cops our note,”
which appellant testified was in reference to her “record” that “highlighted past incidences
of domestic abuse.”
An officer was dispatched to the scene of the incident. Because C.N.’s mother
“immediately” ran up and “would talk over” C.N., the officer brought C.N. outside away
from her mother, where C.N. described respondent’s conduct and the officer listened to the
recording made by C.N. The officer testified that C.N. believed that her mother would “try
and minimize what happened to her,” which he found concerning. But the officer also
recalled being told by C.N. that, during the dispute, she “reach[ed] for her brother.” The
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officer ultimately decided not to issue a metro-side crime alert for respondent “[b]ecause
it was unclear who the primary aggressor was.”
Appellant testified that she is an attorney and that she filed the OFP petition on
behalf of her sister “to protect” her. Appellant also testified that she is concerned that her
parents will not protect C.N. if there is not an OFP in place. And appellant testified that
she is very close to C.N., but that she is not on the best terms with the rest of her family
because “[t]here have been a lot of instances of just general abuse” in the past.
Respondent acknowledged eating C.N.’s food, and claimed that he paid for it and
“wanted to take it back” after hearing the things C.N. was saying to their mother.
Respondent also acknowledged taking C.N.’s phone, and testified that, after he took the
phone, C.N. “began hitting me very aggressively.” According to respondent, he proceeded
to the living-room area because he was “trying to get away [from] her.” Respondent further
claimed that C.N. “continued hitting” him, prompting him to grab her arm, and that when
he let go, she “fell on the couch, and it was very gentle.” Although respondent admitted
seeing the marks on C.N. as depicted in the photographs, he stated that it was “impossible
for th[o]se to have occurred” from the incident. Finally, respondent claimed that appellant
“is the root of this,” and that her animosity towards him stems from a prior disagreement.
The parties’ mother testified that appellant and respondent, who are about a year
apart in age, fought “all the time” when they were teenagers. She also testified that C.N.
instigated the incident and that respondent did not harm her. She further claimed that, after
the police left the house on August 7, appellant and C.N. were “celebrating” and “dancing
in the house saying we have a case now.” And according to the parties’ mother, she has
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never seen respondent harm her daughters, and if she did see him harm them, she would
“go after him” herself.
The district court denied the OFP petition, finding that “all witnesses that testified,
except [the officer], lack some credibility.” (Emphasis added.) The district court also
found that it “had the opportunity to observe [C.N.’s] testimony and demeanor throughout
the proceeding,” and found that “her demeanor is not consistent with a person who is fearful
of Respondent.” And the district court found that “[b]ecause of the lack of credibility of
each witness,” it “is unsure how the events on August 7th actually transpired.” Finally, the
district court noted that it was “concerned that [C.N.] actually acted to provoke Respondent
into an altercation.” Thus, the district court concluded that appellant did not meet the
burden of proof necessary for an OFP. This appeal follows.
DECISION
I.
Appellant argues that the district court abused its discretion in dismissing her
petition for an OFP petition because (A) the court “misinterpreted” section 518B.01 and
“failed to apply the proper legal standard”; and (B) the court’s conclusion that appellant
did not prove domestic abuse is not supported by the record.
This court reviews a district court’s decision to grant or deny an OFP for an abuse
of discretion. McIntosh v. McIntosh, 740 N.W.2d 1, 9 (Minn. App. 2007). “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.” Thompson ex rel. Minor Child v. Schrimsher, 906
N.W.2d 495, 500 (Minn. 2018) (quotation omitted). We view the record in the light most
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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.” Braend ex rel. Minor Children
v. Braend, 721 N.W.2d 924, 927 (Minn. App. 2006) (quotation omitted).
A. The district court did not misinterpret section 518B.01.
The Minnesota Domestic Abuse Act (the act) authorizes a district court to issue an
OFP to protect victims of domestic abuse. See generally Minn. Stat. § 518B.01 (2022) .
To obtain an OFP, a petitioner must prove by a preponderance of the evidence that the
respondent has committed “domestic abuse.” Id., subds. 2(a), 4(b); Oberg ex rel. Minor
Child v. Bradley, 868 N.W.2d 62, 64 (Minn. App. 2015). The act defines “domestic abuse”
as any of the following committed against 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) terroristic threats . . .; criminal sexual conduct . . . ; or interference
with an emergency call.” Minn. Stat. § 518B.01, subd. 2(a).
Here, in denying appellant’s OFP petition, the district court found on the record at
the end of the evidentiary hearing “that it is unclear who the aggressor was in this particular
instance,” and that it was unclear if C.N.’s “injury was directly a result of the aggression.”
And in its order denying the OFP petition, the district court found that C.N. may have
“purposefully acted to provoke respondent into an altercation.”
Appellant argues that this court should reverse the denial of her OFP petition
because the district court failed to apply the proper legal standard in making its decision.
Specifically, appellant asserts that “[s]ection 518B.01 contains no provision indicating that
an act is not domestic abuse if provoked, if . . . respondent is not the ‘primary aggressor,’
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or if the proposed protected person is an aggressor.” Thus, appellant argues that “[b]y
considering whether [C.N.] provoked Respondent and/or was an ‘aggressor,’ as well as
whether her injuries were a direct result of Respondent’s aggression, the District Court
improperly construed section 518.01” because section 518 B.01 “does not allow for such
considerations in determining whether a person commits domestic abuse.”
We are not persuaded. The district court did not deny the OFP petition because
C.N. was the aggressor or may have provoked respondent. Rather, the district court stated
at the hearing that section 518B.01 defines “domestic abuse as physical harm, bodily injury
or assault or the infliction of fear of imminent physical harm.” The district court then found
that “I am persuaded by the officer’s testimony that it is unclear who the aggressor was in
this particular instance.” Viewing the record in the light most favorable to the district
court’s factual findings, the findings pertaining to whether C.N. provoked respondent and
“who the aggressor was” relate to whether C.N. was in fear of physical harm. See Minn.
Stat. § 518B.01, subd. 2(a)(2) (defining domestic abuse as “the infliction of fear of
imminent physical harm, bodily injury, or assault” against a family or household member).
In other words, the record indicates that, because the d istrict court found that C.N. may
have been the aggressor, and may have provoked respondent, she failed to demonstrate that
domestic abuse occurred under section 518B.01, subdivision 2(a)(2) because C.N. was not
fearful of imminent physical harm by respondent.
Moreover, the record indicates that the district court was not convinced that
domestic abuse occurred under section 518B.01, subdivision 2(a)(1). See id., subd. 2(a)(1)
(defining domestic abuse as “physical harm, bodily injury, or assault ” against a family or
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household member). Specifically, the district court found that “it isn’t clear to me from
the testimony about exactly how the injury occurred on [C.N.’s] foot.” Although the
district court was “persuaded by the evidence” that C.N. “was hurt in some way,” the court
stated that “I’m not persuaded that it was caused by aggression by [respondent]. The best
evidence shows that it could have been a result of a fall.” The district court’s findings
demonstrate that the court applied the proper legal standard under section 518B.01, but
determined that appellant “did not meet the burden of proof necessary for an [OFP].” Thus,
the district court did not misconstrue the statute in dismissing appellant’s OFP petition.
B. The district court’s decision that appellant did not prove domestic abuse is
supported by the record.

Appellant also contends that the district court abused its discretion in concluding
that domestic abuse was not proven at trial. We disagree. 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). But our
supreme court has noted that district courts have broad discretion to issue or decline to
issue an OFP even when acts of domestic abuse are established, stating
once “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.
Relevant circumstances may include, but are not limited to, the
timing, frequency, and severity of any alleged instances of
“domestic abuse,” along with the likelihood of further abuse.

Thompson, 906 N.W.2d at 500.

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1. Physical harm, bodily injury, or assault
Appellant argues that the “record clearly supports a finding that respondent
committed physical harm, bodily injury, or assault against [C.N.].” Indeed, there is
evidence in the record, including C.N.’s testimony, that, if believed, supports appe llant’s
position. However, the district court did not find this evidence to be credible. Rather, the
district court found that “all witnesses that testified, except [the officer], lack some
credibility,” and that “[b]ecause of the lack of credibility of each witness, the Court is
unsure how the events on August 7th actually transpired.” The district court also found
that, in light of the witnesses’ lack of credibility, it was “not persuaded” that respondent
caused bodily injury or physical harm to C.N. And because the district court found that
C.N. was not particularly credible, the court determined that appellant “did not meet the
burden of proof necessary for an [OFP].” It is well settled that appellate courts “defer to
the district court’s determinations of witness credibility and the weight to be given to the
evidence.” In re Welfare of T.D., 731 N.W.2d 548, 555 (Minn. App. 2007), rev. denied
(Minn. July 17, 2007). Therefore, because the district court did not find the evidence
presented by C.N. to be credible, which is a finding to which we defer, appellant cannot
show that the district court abused its discretion in concluding that appellant did not meet
her burden of proof to show that respondent committed physical harm, bodily injury, or
assault against C.N.
2. Fear of imminent physical harm, bodily injury, or assault
Appellant also contends that the district court “abused its discretion by failing to
find [that] Appellant proved, by a preponderance of the evidence, that Respondent inflicted
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a fear of imminent physical harm, bodily injury, or assault” upon C.N. under Minn. Stat.
§ 518B.01, subd. 2(a)(2). But again, the district court did not find the evidence supporting
appellant’s position to be completely credible. In referencing C.N.’s lack of credibility,
the district court noted that it “had the opportunity to observe [C.N.’s] testimony and
demeanor throughout the proceeding and finds her demeanor is not consistent with a person
who is fearful of Respondent.” Although appellant claims that this finding improperly
focuses on the present rather than the events of August 7, it is well settled that the factfinder
is in the best position to assess the credibility of testimony because it is able to evaluate
directly the content of the testimony, the manner in which it is delivered, and the demeanor
and sincerity of the witness through whom it is given. See In re Welfare of A.D., 535
N.W.2d 643, 648 (Minn. 1995) (noting that the district court stands in a superior position
to appellate courts in assessing credibility of witnesses). As such, we are required to give
deference and due regard to the district court’s credibility determinations. See In re
Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996) (“Considerable deference is due to
the district court’s decision because a district court is in a superior position to assess the
credibility of witnesses.”).
We take seriously all allegations of domestic abuse as do the district courts in this
state. But in light of the conflicting evidence, and the deference afforded the district court
in making credibility determinations, we conclude that appellant is unable to demonstrate
that the district court abused its discretion in determining that appellant did not meet her
burden of proof to show that respondent inflicted fear of physical harm, bodily injury, or
assault against C.N.
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3. Interference with an emergency call
Appellant further contends that the district court abused its discretion “by failing to
find that appellant proved that respondent interfered with an emergency call.” But again,
the district court found that “[b]ecause of the lack of credibility of each witness, the Court
is unsure how the events on August 7th actually transpired.” We defer to this credibi lity
finding. See id. Moreover, the record reflects that when respondent took C.N.’s phone,
she was recording him; she was not making, or attempting to make, an emergency call.
There is also nothing in the record indicating that respondent knew that C.N. wanted or
intended to make an emergency call. And the record reflects that respondent returned
C.N.’s phone to her shortly after taking it. Therefore, appellant is unable to show that the
district court abused its discretion in concluding that appellant failed to meet the burden of
proof necessary for an OFP.
II.
Appellant argues that the district court “failed to make particularized findings of
fact to support its dismissal” of the OFP petition because the court made no findings
whether (1) respondent “had caused [C.N.] physical harm or bodily injury”; (2) respondent
“intended [C.N.] to fear imminent physical harm”; (3) C.N. “was fearful of Respondent on
August 7, 2022”; and (4) respondent “intentionally prevented [C.N.] from placing an
emergency call.” We disagree.
A district court must make findings and conclusions adequate to enable meaningful
appellate review. See Edina Cmty. Lutheran Church v. State, 673 N.W.2d 517, 523 (Minn.
App. 2004). The district court here made such findings. Although the district court did
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not make findings related to whether respondent committed domestic abuse, the court
declined to make such findings because the lack of witness credibility left the court “unsure
of how the events on August 7th actually transpired.” And because the district court was
“unsure” of what actually happed on August 7, it concluded that appellant “did not meet
the burden of proof necessary for an [OFP].” Accordingly, the district court’s findings are
sufficient to enable meaningful appellate review.
III.
Appellant further argues that “[a]ssuming . . . that Appellant failed to support the
Petition for an [OFP] such that an OFP is appropriate in this matter, the District Court
should have granted a[n HRO] as an alternative.” But we generally do not consider
arguments made for the first time on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582
(Minn. 1988). Because appellant’s argument was not made to the district court, it is not
properly before us, and we decline to consider it.
IV.
Finally, appellant moved to strike (1) a police report in respondent’s addendum and
all references thereto in respondent’s brief; (2) a reference in respondent’s brief to the
affidavit of the parties’ oldest sister; and (3) “the last two sentences on page 19 of
Respondent’s brief.” The appellate record is limited to “documents filed in the [district]
court, the exhibits, and the transcript of the proceedings, if any,” Minn. R. Civ. App. P.
110.01, and “[t]he court will strike documents included in a party’s brief that are not part
of the appellate record,” Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff’d,
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504 N.W.2d 758 (Minn. 1993). Because the challenged portions of respondent’s brief and
addendum are not part of the record below, we grant appellant’s motion to strike.
Affirmed; motion granted.