In the Matter of: Natasha June Marie Courtney v. Barry Ishmael McReynolds ( 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This opinion will be unpublished and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
A15-0578
In the Matter of:
Natasha June Marie Courtney, petitioner,
Respondent,
vs.
Barry Ishmael McReynolds,
Appellant.
Filed January 4, 2016
Affirmed
Rodenberg, Judge
Hennepin County District Court
File Nos. 27-FA-15-654; 62-FA-10-2783
Michael J. Ortner, Theresa A. Bofferding, Ortner & Bofferding, LLC, St. Paul,
Minnesota (for respondent)
Barry I. McReynolds, West St. Paul, Minnesota (pro se appellant)
Considered and decided by Rodenberg, Presiding Judge; Schellhas, Judge; and
Reilly, Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
Pro se appellant Barry Ishmael McReynolds contends that the district court abused
its discretion by issuing an order for protection against him, and argues that service was
deficient, he was wrongly denied a continuance to prepare for the hearing, various
evidentiary rulings were improper, and the evidence was insufficient to support the order.
We affirm.
FACTS
Appellant Barry Ishmael McReynolds and Respondent Natasha June Marie
Courtney were intermittently intimate for over ten years. They lived together from 2008
to 2010. They have one child together, born in January 2010. Respondent alleges that
appellant was violent and abusive to her during the time that they lived together, and that
on one occasion he attempted to strangle her.
Respondent petitioned the district court for an order for protection (OFP) against
appellant in Ramsey County in 2010, but withdrew that petition. She testified that she
did so because of “intimidation[],” “manipulation[],” and “abuse” by appellant.
Respondent again petitioned for an OFP against appellant on February 2, 2015 in
Hennepin County. In her petition, respondent invoked the past abuse from 2008 through
2010, and also alleged recent harassment, intimidation, and stalking-like behavior. She
alleged that, in the summer of 2014, appellant picked her up off the floor by her shirt and
scratched her breast. The petition stated, in part: “I do not feel safe with him anywhere
near me[.] . . . I am afraid of [appellant] and how he is acting and I need this order for
protection to keep him away from me and my home.” That same day, an ex parte order
was granted which was effective for a period of two years or “until modified or vacated at
a hearing.”
Appellant became aware of the petition on February 4, 2015, before he was
formally served with papers relating to the OFP. On that day, he signed a document
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acknowledging the effect of the ex parte order. He requested a hearing using a document
on which, just above the line where he signed his name, is printed in capital letters: “A
HEARING WILL TAKE PLACE WITHIN 10 DAYS FROM THE DATE THE COURT
RECEIVES THIS REQUEST.” Appellant was formally served with respondent’s
petition on February 11, 2015.
A hearing was held on February 12, 2015. Both parties were present and appeared
pro se. Respondent was accompanied by a non-attorney advocate who did not testify.
The district court heard testimony from respondent, appellant, and respondent’s mother.
At the end of the hearing, the district judge verbally advised the parties that she
was granting the OFP because, based on the testimony at the hearing, she believed that
respondent’s fear of appellant hurting her was reasonable. The district judge stated that it
was “a very close case” but that she was granting the order since the standard of proof in
an OFP case is proof by a preponderance of the evidence, which the district judge
paraphrased as authorizing the OFP “if I find that [it is] even [a] little more likely than
not that domestic abuse occurred” or “if I believe that one side is more credible than the
other side.” The district judge advised the parties that she would include an exception to
the no-contact provision for the parties to participate in court-ordered parenting-time
mediation and for exchange of their child at neutral drop-off points (to be arranged at the
parenting-time mediation). An amended two-year OFP was issued that same day. This
appeal followed.
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DECISION
I. Service
Appellant argues on appeal that service was deficient, but it is unclear from his
briefing whether he challenges the sufficiency of service of the petition or of the notice of
the hearing. In either case, his argument fails. The Minnesota Supreme Court has held
that defective service cannot later be raised as a defense by a party who has
“affirmatively invoke[d] the court’s power to determine the merits” of a claim. Patterson
v. Wu Family Corp., 608 N.W.2d 863, 869 (Minn. 2000). Provided the opportunity at the
hearing to accept entry of a no-contact order with no findings regarding domestic abuse,
appellant asked to proceed with the hearing on the merits. Additionally, appellant was
served with the ex parte order and the underlying petition,1 and the February 12 hearing
resulted from his request for a hearing. On inquiry by the district court, appellant did not
contest the sufficiency of either service of the petition or notice of the hearing.
II. Denial of continuance
Appellant also argues that he should prevail in this appeal because the district
court abused its discretion in denying his request for a continuance to obtain an attorney
and otherwise prepare for the hearing.
The Domestic Abuse Act provides that an OFP hearing may be continued if “for
good cause shown either party is unable to proceed at the initial hearing” and if the court
1
While appellant was not formally served with respondent’s OFP petition until the day
before the hearing, appellant acknowledged at the hearing that he was on notice of
respondent’s petition on February 4, 2015—the same date on which he requested the
hearing to contest the ex parte order, and over a week in advance of the hearing.
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finds it appropriate. Minn. Stat. § 518B.01, subd. 5(e) (2014). Within this framework,
the decision to grant or deny a continuance is within the broad discretion of the district
court. Gada v. Dedefo, 684 N.W.2d 512, 513-14 (Minn. App. 2004).
When a petitioner in an OFP action seeks only basic remedies that are available by
an ex parte order, no hearing is required unless requested by the respondent. Minn. Stat.
§ 518B.01, subd. 5(b), (d); Id., subd. 7 (outlining remedies available ex parte without
hearing). Appellant requested a hearing on February 4 and the hearing was scheduled for
February 12. In requesting a hearing, appellant signed a document containing a written
notice that the requested hearing would take place within ten days, which indeed it did.
See id., subd. 5(d) (requiring that a hearing requested by OFP respondent “shall be held
within ten days of the court’s receipt of the . . . request”). Appellant had eight days to
prepare for the hearing he had requested. The district court acted within its broad
discretion in denying appellant’s request for continuance.
III. Evidentiary rulings
Appellant argues that the district court abused its discretion and violated his due-
process rights in its evidentiary rulings. A district court’s evidentiary ruling should not
be disturbed on appeal unless they demonstrate a clear abuse of discretion. State v. Nunn,
561 N.W.2d 902, 906-07 (Minn. 1997). “A district court abuses its discretion . . . when it
improperly applies the law.” Hemmingsen v. Hemmingsen, 767 N.W.2d 711, 716 (Minn.
App. 2009), review granted (Minn. Sept. 29, 2009) and appeal dismissed (Minn. Feb. 1,
2010).
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The Minnesota Rules of Evidence apply at OFP hearings. See Minn. R. Evid.
1101; see also Oberg v. Bradley, 868 N.W.2d 62, 65 (Minn. App. 2015) (applying
Minnesota Rules of Evidence in OFP appeal). Rule 401 defines relevant evidence as
“evidence having any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it would be without
the evidence.”
The district judge ruled at the outset of the hearing that she would only allow
testimony and evidence relevant to the allegations in respondent’s 2015 petition. The
district judge evenhandedly enforced this ruling by eliciting offers of proof before the
testimony of each witness and during questioning. She confined the evidence to what she
had determined was relevant. The district judge allowed respondent to testify about past
abuse to the extent it was referenced in her petition, but cut her off when she strayed from
what was strictly relevant to the question of her present fear of appellant. Both parties
were denied permission to present witnesses to testify concerning matters deemed
irrelevant by the district court. Appellant was denied permission to put his sixteen-year-
old child on the stand because of the child’s age. The district judge admitted into
evidence two exhibits: a note written by appellant and left on respondent’s car in January
2015 telling her not to come to his home, and a Ramsey County court document relating
to the dismissed 2010 petition for OFP. The district judge declined to consider or review
police reports offered by either party. Contrary to appellant’s brief, the district judge did
not view or admit into evidence an undated photo offered by respondent of her alleged
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injury resulting from the summer 2014 incident. The district court acted within its
discretion in its evenhanded evidentiary rulings.
IV. Sufficiency of the evidence
A district court’s decision to issue an OFP is discretionary. Chosa ex rel. Chosa v.
Tagliente, 693 N.W.2d 487, 489 (Minn. App. 2005). We will reverse only for an abuse
of discretion. Braend v. Braend, 721 N.W.2d 924, 926-27 (Minn. App. 2006). Appellate
courts “neither reconcile conflicting evidence nor decide issues of witness credibility,
which are exclusively the province of the factfinder.” Gada, 684 N.W.2d at 514.
Issuance of an OFP requires a finding, supported by a preponderance of the
evidence, that domestic abuse has occurred. Oberg, 868 N.W.2d at 64. Domestic abuse
includes but is not limited to physical harm, the infliction of fear of imminent physical
harm, and terroristic threats between persons who have a child in common. Minn. Stat.
§ 518B.01, subd. 2(a)(1)-(3), (b)(5) (2014). 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.” Oberg, 868 N.W.2d at 65 (quotation omitted). The Domestic Abuse
Act is a remedial statute, which is to be construed liberally in favor of an injured party.
Pechovnik v. Pechovnik, 765 N.W.2d 94, 98-99 (Minn. App. 2009).
Here, respondent testified that she feared appellant based on a history of physical
abuse and recent stalking-like behavior, including 282 phone calls from blocked numbers
that she reasonably concluded were from appellant, several text messages and voicemails
in which she recognized appellant’s voice saying “this is going to get ugly,” and
appellant lingering uninvited around her home. Appellant testified otherwise, but the
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district court found respondent’s testimony more credible than appellant’s. Critically, the
district court accepted as true respondent’s testimony that she had a present fear of
appellant based on domestic abuse. See Pechovnik, 765 N.W.2d at 99-100 (holding that a
history of abuse or threatening behavior may be properly considered in assessing the
existence or likelihood of domestic abuse). And the district court found respondent’s fear
of appellant to be reasonable.
Appellant argues that the district court’s findings were insufficient. But while
particularized findings are required when “time-significant child[-]custody decisions” are
at issue in a domestic-abuse proceeding, Andrasko v. Andrasko, 443 N.W.2d 228, 230
(Minn. App. 1989), no such requirement exists for other OFPs. See Pechovnik, 765
N.W.2d at 99-100 (deferring to credibility determination and accepting that general
finding of domestic abuse was supported by the record). In this appeal, appellant
challenges the finding of domestic abuse, not the district court’s disposition of the
custody and parenting time issues.
Given the evidence of record and the district court’s broad discretion, we affirm
the district court’s issuance of the OFP.
Affirmed.
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