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In re the Marriage of McIntosh: FAMILY - existing stipulated Order For Protection extended without showing current abuse

STATE OF MINNESOTA
IN COURT OF APPEALS
Filed October 16, 2007
Affirmed in part, reversed in part, and remanded
Halbrooks, Judge
Washington County District Court
File No. F8-03-3484
Steven A. Sicheneder, 20 North Lake Street, Suite 302, Forest Lake, MN 55025 (for
respondent)
Mark A. Olson, 2605 East Cliff Road, Suite 100, Burnsville, MN 55337 (for appellant)
Considered and decided by Randall, Presiding Judge; Halbrooks, Judge; and
Parker, Judge.*
S Y L L A B U S
1. A petitioner does not need to show the existence of current domestic abuse
in order to obtain an extension of an existing order for protection under Minn. Stat.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, 10.
A06-1432
A06-1444
In re the Marriage of:
Marjorie Mary McIntosh, petitioner,
Respondent,
vs.
Kenneth King McIntosh,
Appellant.
2
518B.01, subd. 6a (2006), when the subject of the order stipulated to the original order
for protection.
2. The district court did not abuse its discretion by extending an existing order
for protection under Minn. Stat. 518B.01, subd. 6a (2006), when the record evidence
sufficiently supports the conclusion that the petitioner is reasonably in fear of physical
harm.
O P I N I O N
HALBROOKS, Judge
In this consolidated matter, appellant argues that the district court erred by
including, as marital property, the undistributed subchapter S corporation earnings and
the rents paid to the business but owed to appellant. Respondent argues that the district
court erred when it (1) determined that the proceeds from the sale of appellants mothers
home during the marriage constituted nonmarital property and (2) credited appellant for
the amount appellant paid in federal and state tax liabilities incurred during the marriage.
Because we conclude that the district court erred by treating the undistributed subchapter
S earnings and the rents paid to the business as marital property, we reverse that portion
of the dissolution judgment. Because we conclude that the district court did not clearly
err in determining that the proceeds from the sale of appellants mothers home
constituted nonmarital property and that appellant should be credited for the taxes that he
paid, we affirm the district court on those issues.
Appellant also challenges the district courts decision to extend the original order
for protection against him, arguing that (1) because he stipulated to the original order for
3
protection without a finding of the existence of domestic abuse, the district court must
make a finding of domestic abuse in order to extend an existing order and (2) the
evidence does not support the district courts decision to extend the order for protection.
Because the district court is not required to make a finding of domestic abuse in order to
extend an order for protection if the original order is based on a stipulation and because
the evidence sufficiently supports the extension, we conclude that the district court did
not abuse its discretion by granting respondents request to extend the order for
protection against appellant.
We therefore affirm in part, reverse in part, and remand.
FACTS
I. Marriage Dissolution
The marriage of appellant Kenneth King McIntosh and respondent Marjorie Mary
McIntosh was dissolved by judgment and decree on September 12, 2005. The parties
have eight children, six of whom were minors at the time of the dissolution. The parties
agreed that respondent would be awarded sole legal and physical custody of the minor
children, subject to appellants parenting time. Appellant was ordered to pay child
support in the amount of ,474 per month and temporary monthly spousal maintenance
of ,000 for three years. The parties also agreed that the homestead, valued at 0,000,
would be awarded to respondent.
Appellant was the owner of Unidale Insurance Agency, a subchapter S corporation
that was described as a substandard agency dealing with risk insurance products for
people or companies unable to obtain insurance elsewhere. Appellant was the only
4
licensed agent at Unidale and the only person to write policies and perform consulting
services. He took an annual salary of ,000 from the company and received the
balance of his compensation in the form of distributions from the subchapter S
corporation. Although the distribution was technically available to appellant at the end of
the calendar year, his practice was to hold back much of the distribution until his income
taxes were prepared the following March.
During trial, both parties presented expert testimony concerning the value of
Unidales assets. The experts agreed that Unidales value had two componentsthe
assets of the company (name reputation, good will, etc.) and the cash on hand. Stephen
Dennis, respondents expert, testified that the value of the company was 0,861.
Edward Bates, appellants expert, determined that the value of the agency was at most
,330, and at the very least ,913. The district court, concluding that Mr Dennis
valuation did not take adequately into account the fact that Unidale is a substandard risk
agency with very limited marketability, determined that the fair market value of Unidale
was ,913.
The district court also examined the amount of cash in Unidales bank accounts.
The district court found that Unidale had a bank account with University Bank carrying a
balance of 1,673.26, and another account with Western Bank valued at 3,942.12.
Appellants expert, Jeffrey Pletcher, reconciled the accounts payable and owners equity
from the accounts and concluded that Unidale had a cash value of ,199.12 after
deducting: (1) ,630 for undistributed subchapter S earnings; (2) ,443 for rents
collected by Unidale but owed to appellant; (3) ,093.98 for insurance company
5
payables; (4) ,097.64 for regular accounts payable; (5) ,009.40 for commissions
received in 2003 for 2004; (6) ,009.40 for policy fees received in 2003 for 2004; and
(7) ,132.84 for insurance deposits received in 2003 for policies to be issued in 2004.
The district court determined that if Unidale were sold, all of the above amounts, with the
exception of the undistributed subchapter S earnings and the rents paid to Unidale but
owed to appellant, would be payable by Unidale from available cash. The district court
determined that the undistributed subchapter S earnings and rents paid to Unidale but
owed to appellant were a marital asset and therefore would not be payable to a buyer.
Accordingly, the district court declined to deduct the amounts for undistributed
subchapter S earnings and rents paid, concluding that Unidale had a cash balance of
2,272.12 that constituted a marital asset.
In addition, in its analysis of investment accounts, the district court made the
following finding:
The parties had a Certificate of Deposit at Lino Lakes State
Bank with Certificate No. 3319 having a balance in the
amount of 0,000.00. On June 13, 2003, [appellant] cashed
in the certificate. A new certificate in the amount of
,000.00 was purchased with [appellant] keeping
,000.00 plus interest of ,202.78 for himself. [Appellant]
is being awarded this bank account with its value being taken
into consideration in the division of the marital estate.
Appellant subsequently brought a motion for a new trial or amended findings,
requesting, in part, that the district court amend its findings with regard to: (1) the cash
value of Unidale and (2) the amount of credit due appellant for marital tax liabilities paid
using the ,000 that he cashed out of the Lino Lakes certificate of deposit. The district
6
court denied appellants request to amend the finding on the cash value of the Unidale
accounts, finding that the matter was fully litigated at the trial, including presentation of
experts and evidence by both parties and that the district court properly and thoroughly
considered the matter and in [its] discretion, fully and appropriately decided this matter.
But the district court granted appellants request to amend the finding on the Lino Lakes
certificate of deposit, finding that appropriate credit was not given to [appellant]
regarding marital tax liabilities that he accounted for as paid from these amounts.
II. Order for Protection
On December 27, 2002, respondent petitioned for an order for protection against
appellant, alleging that appellant had inflicted or threatened domestic abuse upon her
and stating that she fear[ed] immediate and present danger of further acts of domestic
violence. In an accompanying affidavit, respondent stated that beginning in October
2002, appellant would wake her up during the night to lecture her, calling her names and
blaming her for his troubles. Respondent alleged that appellant would grab her shoulders
and shake her, starting slowly and then speeding up before realizing what he was doing
and stopping.
Respondent also stated that appellant had threatened her with his fist and that, on
one occasion, he entered the kitchen and hit her with a glancing blow to the chin.
Respondent stated that prior to December 24-25, 2002, appellant was continually
growling at her, blaming her for his problems. On the morning of December 25,
appellant was very angry with respondent and raged at [her]. As a result, respondent
spent the night at a safe place. When respondent returned home the morning of
7
December 26, appellant confronted her in the kitchen and rammed [her] with his
shoulder, causing [her] to fall to the floor with force. When respondent called 911,
appellant followed her through the house while she was on the phone, eventually forcing
his way into a bathroom where respondent and the couples daughter had retreated,
blocking their exit. Respondent stated that she was afraid of the physical and emotional
damage [appellant] could inflict on [her], and was afraid appellant would physically
hurt her.
On December 30, 2002, the district court issued an emergency ex parte order for
protection against appellant. At a subsequent hearing, appellant stipulated to an order,
and the district court issued an order for protection that was effective for one year.
Specifically, paragraph 4.b. of the order states: [appellant] does not object to an Order
for Protection and understands that the Order will be enforced as if there were an
admission or finding of domestic abuse.
On January 20, 2004, respondent applied for an extension of the order for
protection. The district court issued an extended order for protection on March 22, 2004,
effective for two years, finding that appellant had violated the previous order, that
respondent was reasonably in fear of physical harm from [appellant], and that appellant
had engaged in acts of harassment or stalking. The district court subsequently
amended a portion of the order for protection, stating, in part, that appellant should have
no contact with respondent other than for purposes of mediation.
On February 13, 2006, respondent sought another extension of the order for
protection. The district court initially entered a temporary order to extend the order for
8
protection, pending a hearing. At the hearing, respondent testified that on December 28,
2005, she had a conversation with appellant when he answered a call she had placed to
one of their children on the childs cell phone. Respondent testified that during the
conversation, appellant raged at her, causing her to fear him. The district court found
that respondents testimony was credible and that she evidenced an obvious fear of
physical harm from [appellant]. The district court also noted that appellant had violated
the previous order for protection on two occasions. While the district court recognized
that these violations alone were not sufficient to extend the order for protection, the
district court found that the prior incidents, along with the incidents as recent as
December 2005 taken as a whole support [respondents] assertion that she is in
reasonable fear of physical harm from [appellant]. Accordingly, the district court
granted respondents motion to extend the order for protection for two years, concluding
that respondent was reasonably in fear of physical harm from [appellant].
This consolidated appeal follows.
ISSUES
1. Did the district court clearly err in determining Unidales cash balance?
2. Did the district court err by determining that the entire proceeds from the sale of
appellants mothers home during the marriage were appellants nonmarital
property?
3. Did the district court clearly err in crediting appellant for the amounts he paid in
federal and state income taxes?
4. Did the district court abuse its discretion when it extended the order for protection
against appellant absent a showing of the existence of domestic abuse when the
original order for protection was stipulated to?
9
5. Is the evidence sufficient to support the district courts decision to grant
respondents petition to extend the order for protection?
ANALYSIS
I.
A. Valuation of Unidale
Appellant argues that the district court clearly erred because it included in its
valuation of Unidale the undistributed subchapter S earnings and rents paid to Unidale
but owed to appellant while also including the same amounts in appellants income. As a
result, the undistributed subchapter S earnings and rents were treated as both a marital
asset and as appellants income in calculating his child-support obligation.
A district courts valuation of an item of property is a finding of fact, and it will
not be set aside unless it is clearly erroneous on the record as a whole. Maurer v.
Maurer, 623 N.W.2d 604, 606 (Minn. 2001); Hertz v. Hertz, 304 Minn. 144, 145, 229
N.W.2d 42, 44 (1975). An appellate court does not require the district court to be exact
in its valuation of an asset; it is only necessary that the value arrived at lies within a
reasonable range of figures. Johnson v. Johnson, 277 N.W.2d 208, 211 (Minn. 1979)
(citing Hertz, 304 Minn. at 145, 229 N.W.2d at 44).
The district court found that, as of the valuation date, Unidale had bank balances
of 1,673.26, and 3,942.12. Appellants expert testified that, in determining
Unidales value, those balances should be reduced by Unidales outstanding obligations,
resulting in a net value for the accounts of ,199.12. But the district court found that
the proposed deductions in the amount of ,630 for undistributed subchapter S
10
earnings and ,443 for rents paid to Unidale but owed to appellant were marital assets
that would not be payable to a buyer. Therefore, the district court concluded that these
amounts should not be deducted, leaving a cash value of 2,272.12 to be divided
between the parties.
Appellant contends that because the undistributed subchapter S earnings and rents
paid to Unidale but owed to appellant were treated by the district court as income for
child-support purposes, the district court erred in finding that the cash amounts should not
be deducted from the value of Unidale. We agree.
In determining appellants income, the district court found that appellant earned a
yearly salary of ,000 and receives the rest of his compensation as distributions from
the Subchapter S Corporation. The district court also found that appellant receives
social-security-retirement benefits, interest income from investment accounts, and rental
income from the Unidale building. Because appellant did not provide either corporate or
personal income tax records for 2004, the district court determined appellants income by
averaging appellants reported earnings in 2001-2003, resulting in a gross annual income
of 3,164. This amount included 2003 distributions from the subchapter S corporation
and rents paid to Unidale. The district court then used appellants average gross annual
income minus the allowable statutory deductions to determine his net income for childsupport
purposes. See Minn. Stat. 518.551, subd. 5(b) (2004) (listing allowable
deductions from gross income).
But when determining the amount of cash that Unidale possessed, the district court
declined to deduct the relevant amounts for the undistributed earnings and rents paid that
11
were supposed to be paid to appellant as income, instead finding that such amounts
should not be deducted from the cash value of Unidale. Accordingly, the undistributed
earnings and rents that were attributed to appellant as income were also included in the
cash value of Unidale and, therefore, divided as a marital asset.
Based on our review of the record, we conclude that the district courts finding of
the value of Unidales cash assets was clearly erroneous. Pletcher testified that the
undistributed subchapter S earnings should have been deducted from the cash value of
Unidale because the undistributed earnings were included in the earnings that appeared
on [appellants] 2003 tax returns. Similarly, Pletcher opined that the rents paid to
Unidale should have been deducted from the value of the company, as the relevant
amounts were included as income in appellants 2003 tax returns. Specifically, Pletcher
stated, [Appellant] owns the building, but [Unidale] collects some rents. And
[appellant] deposited them in the [Unidale] checking book, but they belong to [appellant].
So, therefore, there is money sitting in an account that wasnt given to [appellant] for his
rents.
Because the record supports the finding that the undistributed subchapter S
earnings and the rents paid to Unidale but owed to appellant should have been deducted
from the cash value of Unidale, we conclude that the district court clearly erred in
determining the cash value of the business.
B. Sale proceeds from appellants mothers home
Respondent argues that the district court erred when it determined that the
proceeds from the sale of appellants mothers home during the marriage constituted
12
nonmarital property. While respondent concedes that the home was a gift to appellant
from his mother, she contends that because appellant co-mingled the nonmarital funds
related to the sale of the house with marital funds and did not adequately trace the funds,
the funds are marital property.
The district court found:
Both parties confirmed that the monies were placed in the
joint Western Bank account for a few days and then used
along with joint funds to purchase the Lino Lakes Certificate
of Deposit. As there is no dispute as to the source of funds as
coming from a gift to [appellant] and as both parties agree that
the funds were ultimately placed in the Lino Lakes Certificate
of Deposit, the court awards [appellant] the sum of
,547.96 from the Lino Lakes Certificate of Deposit as his
non-marital asset.
This finding is supported by the record. Therefore, we conclude that appellant
adequately traced a nonmarital interest in the certificate of deposit and we affirm the
district court on this issue.
C. Federal and state income taxes
Respondent argues that the district court erred when it credited appellant for the
amount he paid for the parties federal and state income taxes. In the judgment and
decree, the district court found:
The parties had a Certificate of Deposit [CD] at Lino Lakes
State Bank with Certificate No. 3319 having a balance in the
amount of 0,000.00. On June 13, 2003, [appellant] cashed
in the certificate. A new certificate in the amount of
,000.00 was purchased with [appellant] keeping
,000.00 plus interest of ,202.78 for himself. [Appellant]
is being awarded this bank account with its value being taken
into consideration in the division of the marital estate.
13
Appellant subsequently moved for a new trial or amended findings, arguing, in
part, that he used ,000 from the CD to pay ,729.08 in marital tax liabilities and
therefore should be given credit for those payments and be reimbursed from either the
Lino Lakes certificate, or from another asset.
The district court granted appellants motion to amend the finding regarding the
Lino Lakes CD, concluding that appropriate credit was not given to [appellant]
regarding marital tax liabilities that he accounted for as paid from these amounts. The tax
liabilities for the years 2000, 2001 and 2002 were marital obligations and due to refiling
of tax returns for these years, were incurred post-separation. Accordingly, the district
court amended the finding to read:
Lino Lakes State Bank. The parties had a Certificate of
Deposit at Lino Lakes State Bank with Certificate No. 3319
having a balance in the amount of 0,000. On June 13,
2003, [appellant] cashed in the certificate. A new certificate
in the amount of ,000 was purchased with [appellant]
keeping ,000 plus interest of ,202.78 for himself.
[Appellant] paid the joint marital tax obligations for the years
2000, 2001 and 2002 out of these proceeds, in a total amount
of ,728.58 following separation. One payment for this tax
liability was made prior to cashing the Certificate of Deposit.
The prior payment in the amount of ,793.88 is deducted
from the above tax amount that [appellant] paid. Therefore,
[appellant] is entitled to be reimbursed for ,934.70
(,728.58 taxes liability paid minus first payment of
,793.88) for his payment of the marital tax obligations for
the years 2000, 2001, and 2002. [Appellant] is being awarded
his nonmarital interest in the certificate (,547.96) pursuant
to Finding of Fact 31 below. The remaining balance of the
certificate, ,517.34, is being awarded to [appellant] as a
marital asset.
14
Findings of fact, whether based on oral or documentary evidence, shall not be set
aside unless clearly erroneous. Minn. R. Civ. P. 52.01. Findings of fact are clearly
erroneous only if the reviewing court is left with the definite and firm conviction that a
mistake has been made. Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn.
1999) (quotation omitted).
Respondent, citing finding of fact 21 and conclusion of law 21 of the original
judgment, argues that the district court erred in amending the finding because appellant
had agreed to hold respondent harmless for tax liabilities in exchange for respondents
signature on the 2002 federal and state tax returns. Respondents argument is belied by
the plain language of the district courts order. Finding of fact 21 states:
The parties have no marital debt, with the exception of taxes
resulting from [respondent] failing to sign the joint 2002 tax
return and instead filing her own return. [Respondent] agreed
under oath to sign the joint 2002 return, provided that
[appellant] held her harmless for any errors or mistakes in the
return. [Respondent] is hereby ordered to sign the joint
return, subject to the hold harmless clause.
Conclusion of law 21 orders respondent to sign the joint 2002 federal and state tax
returns, and further states that appellant shall be solely responsible and hold
[respondent] harmless for any resulting liabilities thereon.
As the district court noted, this finding and conclusion indicate that appellant
would hold respondent harmless for any errors or mistakes that appellant may make in
preparing the tax returns. But they do not provide that appellant is solely responsible for
paying the parties tax obligations. Accordingly, we conclude that the district court did
15
not clearly err by amending the finding, thereby crediting appellant for the amount he
paid on behalf of the parties for their federal and state income tax liabilities.
II.
Appellant argues that because he stipulated to the original order for protection
without an explicit finding of the existence of domestic abuse, respondent must show
domestic abuse in order to extend the existing order for protection. Whether to grant
relief under the Domestic Abuse Act (Minn. Stat. ch. 518B) is discretionary with the
district court. Chosa ex rel. Chosa v. Tagliente, 693 N.W.2d 487, 489 (Minn. App. 2005)
(citing Mechtel v. Mechtel, 528 N.W.2d 916, 920 (Minn. App. 1995)); Hall v. Hall, 408
N.W.2d 626, 629 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987).
In order to obtain an order for protection, the petition for relief must allege the
existence of domestic abuse. Minn. Stat. 518B.01, subd. 4(b) (2006). Domestic
abuse includes physical harm, bodily injury, assault, or the infliction of fear of
imminent physical harm, bodily injury, or assault, if committed by a family member
against another family member. Minn. Stat. 518B.01, subd. 2(a) (2006). Minn. Stat.
518B.01, subd. 6a (2006), which sets forth the requirements for the extension of an
existing order for protection, states that
[t]he court may extend the terms of an existing order or, if an
order is no longer in effect, grant a new order upon a showing
that:
(1) the respondent has violated a prior or existing order
for protection;
(2) the petitioner is reasonably in fear of physical harm
from the respondent;
16
(3) the respondent has engaged in acts of harassment or
stalking within the meaning of section 609.749, subdivision 2;
or
(4) the respondent is incarcerated and about to be
released, or has recently been released from incarceration.
Section 518B.01, subdivision 6a, further provides that [a] petitioner does not
need to show that physical harm is imminent to obtain an extension or a subsequent order
under this subdivision. Thus, while section 518B.01, subdivision 4(b), requires a
petitioner to allege the existence of domestic abuse to obtain an order for protection, a
petitioner seeking the extension of an existing order for protection under section 518.01,
subdivision 6a, does not need to show that physical harm is imminent, but instead must
show only that, among other alternatives, the individual is reasonably in fear of physical
harm.
Appellant has two arguments. He first contends that because he stipulated to the
original order for protection and, therefore, the district court never made a finding of
domestic abuse, respondent must now show the existence of domestic abuse in order to
obtain an extension of the existing order for protection. Statutory construction is a
question of law, which this court reviews de novo. Educ. Minn.-Chisholm v. Indep. Sch.
Dist. No. 695, 662 N.W.2d 139, 143 (Minn. 2003); Brookfield Trade Ctr., Inc. v. County
of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998). The goal of statutory interpretation is to
effectuate the intent of the legislature. Educ. Minn.-Chisholm, 662 N.W.2d at 143.
When interpreting a statute, we first look to see whether the statutes language, on its
face, is clear or ambiguous. A statute is only ambiguous when the language therein is
subject to more than one reasonable interpretation. Am. Family Ins. Group v. Schroedl,
17
616 N.W.2d 273, 277 (Minn. 2000) (citation omitted). If the meaning of a statute is
unambiguous, we interpret the statutes text according to its plain language. Molloy v.
Meier, 679 N.W.2d 711, 723 (Minn. 2004); see also Minn. Stat. 645.08 (2006). A
statute should be interpreted, whenever possible, to give effect to all of its provisions; no
word, phrase, or sentence should be deemed superfluous, void, or insignificant.
Schroedl, 616 N.W.2d at 277 (quoting Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 384
(Minn. 1999)). And [w]e are to read and construe a statute as a whole and must
interpret each section in light of the surrounding sections to avoid conflicting
interpretations. Id.
Minn. Stat. 518B.01, subd. 6a, is clear and unambiguous. Its plain language
states that the district court may extend an existing order for protection if the petitioner
shows that (1) respondent has violated the order for protection; (2) petitioner is
reasonably in fear of physical harm; (3) respondent has engaged in acts of harassment or
stalking; or (4) respondent is incarcerated and about to be released or has recently been
released. The provisions of section 518B.01, subdivision 6a, do not require a present
showing of domestic abuse. In fact, the express language of the statute provides that a
petitioner does not need to show imminent physical harm to obtain an extension of an
order for protection. Accordingly, we reject appellants argument that a petitioner must
show domestic abuse in order to obtain an extension of an order for protection under
section 518B.01, subdivision 6a, when a respondent has stipulated to the original order
for protection.
18
Paragraph 4.b. of the original order for protection against appellant states:
[Appellant] does not object to an Order for Protection and understands that the Order
will be enforced as if there were an admission or finding of domestic abuse. Because
appellant did not object to the order and understood that the order would be enforced as if
the district court had made a finding of domestic abuse, the district court does not now
have to find the existence of domestic abuse when considering an application for
extension of the existing order for protection. By its explicit terms, the stipulation
operates as if the district court already made such a finding.
Appellant also contends that the evidence does not support the district courts
decision to grant respondents request to extend the order for protection, and thus the
district courts order extending the order for protection must be reversed. A district
courts broad discretion in crafting and issuing orders for protection has been consistently
recognized by this court. See, e.g., Mechtel, 528 N.W.2d at 920; Hall, 408 N.W.2d at
629. This court will reverse a district courts decision to issue an order for protection
under the Minnesota Domestic Abuse Act if it lacks sufficient evidentiary support.
Bjergum v. Bjergum, 392 N.W.2d 604, 606-07 (Minn. App. 1986). But [a] district
courts findings of fact will not be set aside unless they are clearly erroneous. Tagliente,
693 N.W.2d at 489; see also Minn. R. Civ. P. 52.01. On review, we view the evidence in
the light most favorable to the district courts findings and give special deference to
findings that are made upon conflicting evidence. Minn. R. Civ. P. 52.01; see Sefkow v.
Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating that appellate courts defer to district
court credibility determinations). A district courts factual findings will be reversed only
19
if, after reviewing the entire record, we are left with the definite and firm conviction that
a mistake has been made. Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987).
In respondents application to extend the order for protection, she asserted that
appellant violated the prior order for protection on two occasions. Respondent testified
that the first violation occurred in the spring of 2005, when appellant pulled into her
driveway to pick up one of the children. The second violation occurred when appellant
allegedly called respondents home on an unapproved phone line. Both of those incidents
were reported to the police, but the charges were later dismissed.
Respondent also indicated in the application for extension that she was fearful of
physical harm from respondent as a result of a phone conversation she had with him.
Specifically, respondent claims that on one occasion she called one of her children on the
childs cell phone but appellant answered and proceeded to rage[] at her and demand
that she repent. At the subsequent hearing on respondents motion to extend the order,
respondent similarly stated that when she called the childs phone, appellant answered
and . . . went into a big rage . . . telling [her] to start repenting. Respondent testified that
when she was speaking with appellant, she felt afraid and that she still has fear of
physical harm from appellant. Appellant denied that he raged at respondent or told her
to repent.
The district court granted respondents motion to extend the order for protection
against appellant, finding that the prior incidents, along with the telephone incident that
occurred on December 28, 2005, taken as a whole support [respondents] assertion that
she is in reasonable fear of physical harm from [appellant]. While the district court
20
noted respondents allegation that appellant had violated the previous order for
protection, the district court did not extend the order for protection on the basis of the
alleged violations. Instead, the district court extended the order based only on the
conclusion that respondent is reasonably in fear of physical harm from [appellant].
While appellant disputes the extent of respondents reasonable fear of physical
harm, on this record, we cannot say that the district courts factual finding is clearly
erroneous. Respondents application for extension and her testimony at the hearing both
sufficiently support the district courts findings. The record evidence also supports the
district courts conclusion that respondent is reasonably in fear of physical harm from
[appellant]. Accordingly, we conclude that the district court did not abuse its discretion
when it granted respondents request to extend the order for protection pursuant to Minn.
Stat. 518B.01, subd. 6a(2).
D E C I S I O N
We conclude that the district court did not clearly err in determining that (1) the
proceeds from the sale of appellants mothers home constituted nonmarital property and
(2) appellant should be credited for the amounts he paid for state and federal income tax
liabilities incurred during the marriage. We also conclude that the district court did not
abuse its discretion in granting respondents request to extend the existing order for
protection against appellant. We therefore affirm in part. But because we conclude that
the district court clearly erred by including in the value of Unidale the amounts for
undistributed earnings and rents paid to Unidale while also including those amounts in
21
appellants income, we reverse that portion of the judgment and remand for a
recalculation of the property division.
Affirmed in part, reversed in part, and remanded.
 

 
 
 

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