Kerry M. Mokalla, on behalf of A.M. and A.M. v. Mani M. Mokalla ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1287
Kerry M. Mokalla,
on behalf of A.M. and A.M., petitioner,
Respondent,
vs.
Mani M. Mokalla,
Appellant
Filed June 20, 2016
Affirmed
Worke, Judge
Hennepin County District Court
File Nos. 27-FA-15-555, 27-FA-15-1380
Michael D. Dittberner, Linder, Dittberner, Bryant & Winter, Ltd., Edina, Minnesota (for
respondent)
Dan Rasmus, Hovland & Rasmus, PLLC, Edina, Minnesota (for appellant)
Considered and decided by Worke, Presiding Judge; Halbrooks, Judge; and
Schellhas, Judge.
UNPUBLISHED OPINION
WORKE, Judge
Appellant-father challenges the district court’s issuance of an order for protection
(OFP), arguing that the record does not support a finding that domestic abuse occurred
and that the district court’s order is inconsistent because it grants protection to
respondent-mother and two children while denying protection to another child.
Respondent-mother argues that the district court erred by failing to incorporate an order
for custody and parenting time. We affirm.
FACTS
Appellant-father Mani M. Mokalla and respondent-mother Kerry M. Mokalla have
three children: A.M.M., A.A.M., and A.B.M. On January 27, 2015, mother petitioned for
an OFP. At the evidentiary hearing, mother testified that she hosted a book-club meeting
on January 23 at the parties’ residence. During the meeting, mother heard a child scream.
A.M.M. went to his mother and said that he needed help because father had hurt and
scared him. A.M.M. was “shaking and very scared.” Mother later noticed that A.M.M.
had texted her, indicating that he felt like calling 911 and needed help.
A.M.M. informed mother that father pushed him on his bed. Father approached
and mother told him to leave, but father cornered her and screamed: “I’m not gonna
f-cking leave this f-cking house. I’m gonna take a f-cking sauna in my f-cking house.”
That night, mother slept in A.M.M.’s room because she feared what father might do.
Mother testified that A.A.M. “burst into tears” the next morning and stated that
father had been mean to A.M.M. A.A.M. told mother that she saw A.M.M. and father
arguing over a cell phone. A.A.M. also heard A.M.M. say “ouch,” “[g]et off of me,” and
“North Duluth.”1 A.B.M. made similar statements to mother.
Mother also testified that after returning from a trip on January 19, A.A.M.
indicated that father had poked A.M.M. hard in the chest, yelled at him, and shook him.
1
“North Duluth” is a safe phrase the family created to help deescalate arguments.
2
A.M.M. told mother that father poked him hard in the chest and yelled at him. Mother
also testified that in January 2014, A.M.M. told her that father “held his fist up at him,”
went into the dining room, and said “I hate that f-cking kid.”
Mother testified that in October 2013, she heard A.M.M. scream. Mother went
downstairs and saw A.M.M. “cowering in fear” while father stood over him and yelled
loudly. A.A.M. witnessed the incident and appeared terrified. A.M.M. stated that father
poked him hard in the chest and twisted his arm behind his back. A.M.M. said that father
also grabbed his hands and used them to hit A.M.M.’s face while stating, “[T]his is what
I could do to you.” Mother testified that A.A.M. confirmed the story.
Mother testified that in February 2013, she heard a “loud slapping noise.” In the
basement, mother saw father holding A.M.M.’s wrists. A.A.M. was hiding behind
furniture, “looking terrified.” Mother told father to leave, but father backed her against a
wall and yelled in her face. Mother grabbed father, and father grabbed her wrists “really
hard” for a long time and shook her. Mother was scared, and her wrists hurt for several
days. A.A.M. told mother that father had also grabbed A.M.M. by the face “really
roughly.”
Mother testified that father hit his hand with his fist near her face while
vacationing in 2011. When mother asked father why he put his hand near her face, father
became angrier and placed his fist within centimeters of her face several times while
stating, “This is what putting my fist in your face looks like.”
E.M., mother’s sister, testified that mother called her on January 23, 2015, and
sounded concerned. Mother stated that father refused to leave the house, she was worried
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about calling the police, and she asked if she could bring the children to E.M.’s home.
E.M. slept at the parties’ residence that night until A.A.M. woke her and started crying.
A.A.M. stated that father had screamed at A.M.M. and hurt him. A.A.M. also stated that
she tried to reach mother, but father blocked her inside her bedroom. A.M.M. informed
E.M. that father pushed him and screamed and cursed at him.
C.M., mother’s brother, testified that in 2008 he witnessed father pin A.M.M. on a
bed and scream at him. Father pressed A.M.M’s shoulders into the bed, placed his knee
between A.M.M.’s legs, and continued to yell within inches of A.M.M.’s face.
Father testified that on January 23, 2015, A.M.M. accused him of deleting a school
project from a cell phone. Father entered A.M.M.’s personal space, causing him to fall
onto his bed. Father denied pushing A.M.M. and cornering and swearing at mother.
Father also denied threatening or harming A.M.M. between January 16 and 19.
Father testified that in February 2013, he slapped A.M.M.’s hands together to gain
his attention. Father testified that mother started yelling and grabbed him, causing him to
briefly grab her wrists. Father denied ever twisting A.M.M.’s arm and stated that he
never raised his hand toward the children in a way that could be interpreted as though he
would strike them. Father denied threatening mother during the 2011 vacation or pinning
A.M.M. to his bed as C.M. recalled witnessing in 2008.
In June 2015, the district court issued an OFP for mother, A.M.M., and A.A.M.,
but it did not include A.B.M. The district court did not address custody and parenting
time in its order. Father appeals.
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DECISION
A district court’s decision to grant relief under the Domestic Abuse Act, Minn.
Stat. § 518B.01 (2014), is reviewed for an abuse of discretion. See McIntosh v.
McIntosh, 740 N.W.2d 1, 9 (Minn. App. 2007). A district court abuses its discretion if it
grants an OFP that lacks evidentiary support. Gada v. Dedefo, 684 N.W.2d 512, 514
(Minn. App. 2004). An OFP lacks evidentiary support when the findings are clearly
erroneous, contrary to the weight of the evidence, or not supported by the evidence as a
whole. Id. This court reviews the record in the light most favorable to the district court’s
findings. Pechovnik v. Pechovnik, 765 N.W.2d 94, 99 (Minn. App. 2009). An appellate
court will “neither reconcile conflicting evidence nor decide issues of witness
credibility.” Gada, 684 N.W.2d at 514.
Sufficiency of the evidence
Father argues that the evidence is insufficient to support the district court’s order.
A district court may issue an OFP in cases involving domestic abuse. Minn. Stat.
§ 518B.01, subd. 6(a). Domestic abuse includes the infliction of physical harm or fear of
imminent physical harm by one family or household member against another. Id., subd.
2(a). A district court should issue an OFP when a person manifests a present intent to
harm or inflict fear of harm. Pechovnik, 765 N.W.2d at 99. An act that does not seem
abusive, such as verbal threats or indirect physical aggression, may be found to be
abusive when viewed in the context of past abuse or threats. Boniek v. Boniek, 443
N.W.2d 196, 198 (Minn. App. 1989).
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Father first argues that the evidence is insufficient to establish that he intended to
inflict fear of physical harm against A.M.M. We disagree. A.M.M. indicated that on
January 23, father pushed him, scared him, and that he needed help.2 A.M.M. was
“shaking and very scared.” A.A.M. reported that father screamed at and hurt A.M.M.
The district court also found that a history of abusive and threatening behavior
existed. “Present intent to inflict fear of imminent physical harm . . . can be inferred from
the totality of the circumstances, including a history of past abusive behavior.”
Pechovnik, 765 N.W.2d at 99. Father previously poked A.M.M. hard in the chest
numerous times, shook A.M.M., twisted A.M.M.’s arm behind his back, and grabbed
A.M.M.’s hands and used them to hit A.M.M.’s face. Mother previously witnessed father
grab A.M.M.’s wrists and scream in his face. C.M. testified that father pressed A.M.M’s
shoulders into a bed, placed his knee in between A.M.M.’s legs, and screamed within
inches of A.M.M.’s face. Considering the totality of the circumstances, the record
supports the district court’s order.
Father next argues that the evidence is insufficient to establish that he intended to
inflict fear of physical harm against mother. We disagree. Mother testified that on
January 23, father cornered her and screamed in her face. Mother was scared because
2
Father briefly argues that A.M.M.’s statements are hearsay and inadmissible due to
inconsistencies. But the determination of whether the statements were admissible is
based on the totality of the circumstances. State v. Edwards, 485 N.W.2d 911, 915
(Minn. 1992). Moreover, district courts have “considerable leeway” when making a
determination regarding the admissibility of evidence. In re Welfare of L.E.P., 594
N.W.2d 163, 170 (Minn. 1999); Bowen v. Arnold, 380 N.W.2d 531, 535 (Minn. App.
1986) (stating that evidentiary rulings are reviewed for an abuse of discretion), review
denied (Minn. Mar. 27, 1986). Here, the district court thoroughly analyzed the applicable
factors and did not abuse its discretion by admitting A.M.M.’s statements.
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father previously acted violently toward her. Mother considered calling the police and
asked E.M. for help. Father previously grabbed mother’s wrists “really hard” for a long
time and shook her. Mother was scared and her wrists hurt for several days. Mother also
testified that father placed his fist near her face several times. Considering the totality of
the circumstances, the record supports the district court’s order. See id. (considering the
totality of the circumstances and past abusive behavior).
Father next argues that the evidence is insufficient to establish that he intended to
inflict fear of physical harm against A.A.M. We disagree. On January 23, A.A.M.
witnessed father and A.M.M. arguing over a cell phone. A.A.M. reported that father
screamed at and hurt A.M.M. A.A.M. heard A.M.M. screaming in pain, and she
attempted to reach mother several times but father trapped her in her room.
The district court found that A.A.M. previously witnessed father scream at
A.M.M., poke his chest, twist his arm behind his back, and grab his wrists. A.A.M.
appeared terrified when she witnessed these events. Considering the totality of the
circumstances, the record supports the district court’s order. See Boniek, 443 N.W.2d at
198 (stating that witnessing a party’s physical aggression toward a third-party may also
be seen as an attempt to inflict fear).
Father also argues that the OFP is inconsistent because it excluded A.B.M. from
its protection. Assuming that father can challenge the OFP on the ground that it should
have covered A.B.M. in addition to the others, we are not persuaded. The record does
not establish that A.B.M. witnessed the incidents detailed in the OFP, and the only
evidence establishing that A.B.M. might fear father is that she overheard the January 23
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incident. Therefore, considering the totality of the circumstances, the district court did
not abuse its discretion by granting the OFP.
Custody and parenting time
Mother argues that the district court abused its discretion by not incorporating an
order for custody and parenting time. We are not persuaded. “Upon notice and hearing,
the [district] court may . . . award temporary custody or establish temporary parenting
time with regard to minor children . . . .” Minn. Stat. § 518B.01, subd. 6(a)(4) (emphasis
added); see also Minn. Stat. § 645.44, subd. 15 (2014) (defining “[m]ay” as
“permissive”). Therefore, the district court did not abuse its discretion by choosing not to
address custody and parenting time.
Affirmed.
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