In the Matter of: Ashley Rose Henke and o/b/o I.J.S.-H. and M.J.S.-H. v. Kidane Sante Shulbe ( 2015 )

This opinion will be unpublished and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
A15-0211
In the Matter of:
Ashley Rose Henke and o/b/o I.J.S.-H. and M.J.S.-H., petitioner,
Respondent,
vs.
Kidane Sante Shulbe,
Appellant.
Filed August 31, 2015
Affirmed; motion denied
Bjorkman, Judge
St. Louis County District Court
File No. 69DU-FA-14-775
Ashley Rose Henke, Cloquet, Minnesota (pro se respondent)
Kidane S. Shulbe, Hastings, Minnesota (pro se appellant)
Considered and decided by Hudson, Presiding Judge; Bjorkman, Judge; and
Toussaint, Judge.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
BJORKMAN, Judge
Appellant challenges an order for protection (OFP), arguing that his stipulation to
entry of the OFP without a finding of domestic abuse was not knowing and voluntary.
We affirm.
FACTS
Appellant Kidane Shulbe and respondent Ashley Henke were involved in a long-
term relationship until 2011, and share custody of their two minor children. In August
2014, Henke petitioned for an OFP against Shulbe, alleging that he had a history of
unstable and threatening behavior and recently refused to return the children to her as
required by the custody order. Henke did not obtain an ex parte OFP, but the district
court granted a hearing on her petition.
Both parties appeared pro se at the hearing, but Henke was accompanied by a
domestic-abuse advocate. Henke testified that she ended her relationship with Shulbe
“because of physical and emotional abuse.” She described conflicts that had regularly
occurred during parenting-time exchanges, describing the exchanges as “rough,” and
alleging that Shulbe often videotaped her and once hit her in front of the children. Henke
explained that her greatest concern was that Shulbe would not return the children at the
end of his scheduled parenting time. This concern was realized just prior to filing the
petition, when Shulbe refused to return the children to Henke for three days, before
finally leaving them with her parents. The domestic-abuse advocate also spoke on
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Henke’s behalf, reiterating concerns about past abuse and recommending that parenting-
time exchanges be supervised.
Shulbe denied the allegations of abuse and made numerous allegations of his own,
including that Henke had physically abused him and that their children were not safe in
her care. The district court reminded Shulbe that the purpose of the hearing was to
address Henke’s allegations against him and that he had not filed a similar petition
against her. And the court expressed concern that Shulbe’s child-safety allegations
threatened to turn the hearing into a “mini child protection trial” and exceeded the scope
of the proceeding by raising parenting-time issues unrelated to Henke’s abuse allegations.
The district court then proposed issuing an order, without a finding of domestic abuse,
that required supervised parenting-time exchanges. After a lengthy discussion regarding
how supervision could be implemented, the parties agreed to this proposal.
Pursuant to the parties’ stipulation, the district court issued an OFP that expressly
stated that Shulbe did not object to the OFP and that the court made no finding that
domestic abuse had occurred. The order included the parties’ agreement to supervised
parenting-time exchanges, provided that the existing parenting-time schedule would
remain in effect, and limited contact between the parties to “respectful, brief, and limited”
text messages concerning the children and parenting time. The district court reviewed
these provisions of the OFP on the record and asked whether he missed anything. Shulbe
responded, “That’s perfect,” and received a copy of the signed OFP before he left the
courtroom.
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Shulbe moved to vacate the OFP, asserting that he had only stipulated to
supervised parenting-time exchanges, and did not agree to an OFP. Following a hearing,
the district court denied the motion. Shulbe appeals.
DECISION
District courts are authorized to issue an OFP against a family or household
member to “restrain the abusing party from committing acts of domestic abuse.” Minn.
Stat. § 518B.01, subd. 6(a)(1) (2014). To establish domestic abuse, a party must show
“present harm or an intention on the part of the [alleged abuser] to do present harm.”
Chosa ex rel. Chosa v. Tagliente, 693 N.W.2d 487, 489 (Minn. App. 2005). We review a
district court’s issuance of an OFP for abuse of discretion. Id.Shulbe urges this court to reverse and dismiss the OFP because he misunderstood
the import of his stipulation. He asserts that he agreed only to implement supervised
parenting-time exchanges, not to entry of an OFP. We are not persuaded.
First, Shulbe was brought into court for a hearing on Henke’s OFP petition. The
district court advised the parties of this fact and reminded Shulbe throughout the hearing
that its scope was confined to the issues raised by Henke’s petition against him. Second,
while much of the discussion at the hearing focused on possible resolution of the conflict
between the parties through supervised parenting-time exchanges, the district court
clearly framed the issue in the context of an OFP order. The district court specifically
proposed doing “an order, without a finding, that says we’re going to have supervised
exchanges.” And the record reflects that Shulbe affirmatively and unequivocally agreed
to this option.
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Third, at the end of the hearing, the district court reviewed the terms of the
stipulated order with the parties, stating, “So, here’s what we got. So, no in person
contact, but no finding that domestic abuse occurred.” The district court then went on to
list remaining terms of the order, to which Shulbe responded, “That’s perfect.” Finally,
as the district court noted in its order denying the motion to vacate, Shulbe was served
with the OFP order at the conclusion of the hearing, had an opportunity to review it, and
acknowledged its receipt. On this record, we conclude that there is ample support for the
district court’s finding that Shulbe voluntarily and knowingly stipulated to the OFP. See
Hafner v. Hafner, 237 Minn. 424, 431, 54 N.W.2d 854, 858 (1952) (stating whether a
party mistakenly consented to stipulation was question of fact).
Shulbe also challenges Henke’s abuse allegations, the district court’s authority to
order supervised parenting-time exchanges, and the propriety of allowing the domestic-
abuse advocate to participate in the hearing. These arguments are unavailing. The
district court issued the OFP without a finding of domestic abuse based on the stipulation
of the parties. Accordingly, Shulbe’s challenge to the veracity of Henke’s allegations is
irrelevant. Likewise, Shulbe’s argument that the district court lacked the authority to
order supervised parenting-time exchanges is undermined by the undisputed fact that he
agreed that the court should do so. And the law affords a district court broad discretion to
decide issues presented in OFP cases, including parenting-time questions. See Minn.
Stat. § 518B.01, subd. 6 (2014) (outlining broad forms of relief district court may grant in
OFP proceedings, including authority to address parenting-time issues); Olson v. Olson,
534 N.W.2d 547, 550 (Minn. 1995) (recognizing district court’s broad discretion to
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decide parenting-time questions based on the best interests of child). Finally, our
supreme court expressly authorized domestic-abuse advocates to attend OFP hearings,
confer with the victim and “at the judge’s discretion, address the court.” In re Domestic
Abuse Advocates, No. C2-87-1089 (Minn. Feb. 5, 1991). Here, the domestic-abuse
advocate’s comments were limited to repeating general concerns about past abuse and
recommending supervised parenting-time exchanges. We discern no abuse of discretion.
Moreover, we cannot conclude that the domestic-abuse advocate’s participation unduly
prejudiced Shulbe when he voluntarily agreed to both the OFP and supervised parenting-
time exchanges. In sum, none of Shulbe’s additional arguments convince us that the
district court abused its discretion by granting the OFP. 1
Affirmed; motion denied.
1
By motion, Shulbe also requests removal of the referee and the chief judge of the
district court from this case and a related matter. Shulbe has not provided proof of
service of his motion. See Minn. R. Civ. App. P. 127 (requiring service of any motion
seeking relief from the appellate courts). Furthermore, the removal question is not
properly before us as Shulbe did not seek that relief in district court. See Thiele v. Stich,
425 N.W.2d 580, 582 (Minn. 1988). Accordingly, we deny Shulbe’s motion.
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