Opinion
No. A03-763.
Filed May 4, 2004.
Appeal from the District Court, Dakota County, File No. F0-03-13357.
Nuvit Selcuk, (pro se respondent).
Michael L. Perlman, Karin Gjerset, Perlman Law Office, (for appellant).
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant father appeals from an order for protection (OFP) granted in favor of respondent mother, claiming that there was insufficient evidence to support the OFP's (1) grant to mother of temporary sole physical custody of the parties' child, (2) restrictions on father's parenting time, and (3) order that father participate in a domestic-abuse program and undergo an anger-management assessment and a chemical-dependency evaluation. Because there is sufficient evidence, we affirm.
FACTS
On September 28, 2002, respondent Nuvit Selcuk (mother) began proceedings to dissolve her marriage to appellant Sakir Selcuk (father). In her petition, mother requested that she be awarded sole legal and physical custody of the parties' ten-year-old son and that father be awarded reasonable parenting time. Father filed a counter-motion, in which he requested temporary joint custody of the parties' son. On November 4, 2002, the district court issued an Order for Temporary Relief and granted father's motion for temporary joint legal and physical custody.
On April 14, 2003, mother filed a petition for an OFP, including an affidavit in which she alleged three recent incidents of domestic abuse. Mother alleged that (1) on January 10, 2003, father threatened her, and, as he walked toward her, she became frightened; (2) on January 31, 2003, she and father had a "terrible argument" that prompted a cable-television contractor who was working in the parties' home to call the police because he "thought that [mother's] life was in danger"; and (3) on April 10, 2003, during an argument with father, she became frightened that father "was going to kill [her]" and that the parties' son, who was watching the argument, became "very scared" and called 911. Mother requested that she be awarded sole legal and physical custody of the parties' son and that father be allowed only supervised parenting time and then only when the son wants it, asserting that father "has a bad drinking problem. He drinks and he drives. His anger is out of control. [The minor son] is afraid of him." Mother also requested the district court to order father to obtain an alcohol evaluation and treatment and to undergo a domestic-abuse program.
On April 21, 2003, following an evidentiary hearing at which both parties testified, in addition to the cable-television contractor and the police officer who had responded to the January 31 domestic-abuse call, the district court issued an OFP that transferred sole physical custody of the parties' son to mother and restricted father to supervised parenting time, and then only when either the son wanted it or the district court ordered it. The OFP provides that it may be modified by the family court. The district court also ordered father to participate in a domestic-abuse program and to undergo a chemical-dependency evaluation and an anger-management assessment. This appeal follows.
DECISION
The decision to grant an OFP under the Domestic Abuse Act is within the district court's discretion. Mechtel v. Mechtel, 528 N.W.2d 916, 920 (Minn. App. 1995). District courts are authorized to issue an OFP to "restrain the abusing party from committing acts of domestic abuse." Minn. Stat. § 518B.01, subd. 6(a)(1) (2002). Domestic abuse includes the infliction of physical harm or fear of imminent physical harm by one family or household member against another. Minn. Stat. § 518B.01, subd. 2(a).
This court does not reconcile conflicting evidence but gives great deference to the district court's factual findings. Porch v. Gen. Motors Acceptance Corp., 642 N.W.2d 473, 477 (Minn. App. 2002), review denied (Minn. June 26, 2002). A district court's findings of fact will not be set aside unless they are clearly erroneous. Minn. R. Civ. P. 52.01. After reviewing all of the evidence, an appellate court will only reverse a district court's findings of fact if the court is "left with the definite and firm conviction that a mistake has been made." Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987). When reviewing the record, this court should look at the evidence "in the light most favorable to the court's findings." Lossing v. Lossing, 403 N.W.2d 688, 690 (Minn. App. 1987). On appeal, this court gives great deference to the district court's credibility determinations. See Minn. R. Civ. P. 52.01 (providing that "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses"). We defer to the district court's determination of witness credibility because "it has the advantage of hearing the testimony, assessing relative credibility of witnesses and acquiring a thorough understanding of the circumstances unique to the matter before it." Hasnudeen v. Onan Corp., 552 N.W.2d 555, 557 (Minn. 1996).
I.
Minnesota Statutes section 518B.01, subdivision 6(a)(4), provides that, as relief granted by an OFP under the Domestic Abuse Act, the district court may "award temporary custody or establish temporary parenting time with regard to minor children of the parties on a basis which gives primary consideration to the safety of the victim and the children." The statute further provides that "[i]f the court finds that the safety of the victim or the children will be jeopardized by unsupervised or unrestricted parenting time, the court shall condition or restrict parenting time as to time, place, duration, or supervision . . . as needed to guard the safety of the victim and the children." The question of whether to award temporary custody and to restrict parenting time is discretionary with the district court. Minn. Stat. § 518B.01, subd. 6(a)(4) (providing that as relief granted by an OFP, the district court may order relief such as awarding temporary custody or restricting parenting time); Mechtel, 528 N.W.2d at 920 (stating that relief granted under the Domestic Abuse Act is discretionary with district court).
Following an evidentiary hearing at which both parties testified, the district court found that "there was physical and oral and emotional abuse against [mother] on April 10, 2003 consisting of physical domestic assault and fear in [mother] and the minor son . . . who called 911 for mother's . . . protection," and the district court issued an OFP. As further relief granted by the OFP, the district court awarded mother temporary sole physical custody of the parties' minor child, determining that the "safety of [mother] and the child requires that custody of the child to be granted to [mother]," and restricted father's parenting time.
Father argues that there was insufficient evidence of domestic abuse to support the OFP's custody modification and parenting-time restrictions, specifically asserting that the evidence does not show that the child's safety was "ever in jeopardy." But Minn. Stat. § 518B.01 does not require that the child be a victim of domestic abuse to be the subject of a custody provision in an OFP. Instead, the statute allows the district court, after finding that one family member has committed domestic abuse against another, to award temporary custody "on a basis which gives primary consideration to the safety of the victim and the children." Minn. Stat. § 518B.01, subd. 6(a)(4).
At the evidentiary hearing, mother testified that, on April 10, 2003, while father was parked in his car in the driveway of the parties' home, she went to talk to him. She stated that (1) because his car door was open, she stood beside the door, next to father, (2) when they began to argue, father slowly backed the car up and she was hit in the back by the car door, (3) she told him to stop and asked him if he was going to kill her, (4) father then told her to kill herself, and (5) as mother ran away from the car toward the house, father followed her, grabbed her by the shoulders, and began to shake her as he again told her to kill herself. Father testified that when he and mother were arguing, he removed his foot from the brake so that she would "just remove herself between the car and the door" and that the car rolled back no more than half an inch. He further testified that although he followed mother when she moved away from the car, he did not touch her.
Because mother's affidavit and testimony describe domestic abuse by father consisting of both physical assault and the infliction of fear of imminent physical harm and because the district court obviously believed mother's testimony rather than father's, we conclude that the evidence was sufficient to support the district court's finding of domestic abuse. See Minn. R. Civ. P. 52.01 (providing that appellate courts defer to the district court's determination of witness credibility). Further, it is clear that, before awarding temporary custody, the district court gave "primary consideration" to the safety of mother and the ten-year-old child, determining that on April 10, 2003, mother feared for her safety and that the minor son was concerned and fearful "for the safety of his mother, if not for both of them" because he called 911. Thus, the district court did not abuse its discretion by awarding temporary sole physical custody of the parties' child to mother.
In addition, the district court awarded father "parenting time or visitation with the minor child of the parties, supervised; as [father] has agreed, when the parties' son desires or ordered by the Court." Although the record does not show that father "agreed" to have his parenting time limited, Minn. Stat. § 518B.01, subd. 6(a)(4), provides that if the court finds that the safety of the victim or the children will be jeopardized by unrestricted or unsupervised parenting time, the court shall restrict parenting time as needed to protect the safety of the victim and the children. Here, because we conclude that, based on mother's affidavit and testimony, the evidence supports the district court's finding that the child was concerned and fearful "for the safety of his mother, if not for both of them," the district court did not abuse its discretion by restricting father's parenting time.
II.
Father further argues that there was insufficient evidence to support the district court's order that he participate in a domestic-abuse program, that he undergo an anger-management assessment, and that he have a chemical-dependency evaluation. The question of whether to order an abusing party to participate in treatment or counseling services is discretionary with the district court. Minn. Stat. § 518B.01, subd. 6(a)(7) (providing that in an OFP, the district court may order relief such as requiring the abusing party to participate in treatment or counseling); Mechtel, 528 N.W.2d at 920 (stating that relief granted under the Domestic Abuse Act is discretionary with district court).
Father contended at oral argument that there was insufficient evidence to support the district court's order that father participate in a domestic-abuse program, but father did not address this issue in his brief. Issues not briefed on appeal are waived. Balder v. Haley, 399 N.W.2d 77, 80 (Minn. 1987). Nevertheless, because the district court's finding of domestic abuse is adequately supported by the record, we conclude that the district court did not abuse its discretion by ordering father's participation in a domestic-abuse program.
Father next argues that there was insufficient evidence to support the district court's order that father undergo a chemical-dependency evaluation, noting that at the evidentiary hearing mother made only two references to any alcohol issues regarding father. Mother's first reference came in response to being asked what relief she was requesting from the court; she stated
[a]nd also I want from you, please, my husband has to take lessons or counseling, you say, for his problems, alcohol, mental and never prevent his anger. He has to go somewhere and get counseling because whenever we ask him, he never cared [for] us. Maybe now he will care. After our marriage became disaster, maybe now it's too late. But in the future, it is important, if he and my son will meet by way, it is important he become normal person.
Mother's second reference to father's alcohol use was in response to a question regarding parenting time: "If I am sure my son is secure and [father] is counseling and he's preventing — controlling his anger and counseling about his mental and alcoholic problems, then it's okay he can take him from school."
Because mother's affidavit stated that father "has a bad drinking problem" and there was testimony at the evidentiary hearing that father may have a chemical-dependency problem and because this court gives great deference to the district court's determination of witness credibility, we conclude that there was sufficient evidence to support the district court's order that father undergo a chemical-dependency evaluation and that, therefore, the district court did not abuse its discretion by ordering the evaluation.
Father also maintains that the district court failed to make adequate findings to support its order that he undergo a chemical-dependency evaluation. But in ordering father to "participate in treatment or counseling services, including . . . chemical-dependency evaluation and anger-management assessment," the district court stated that it was "quite concerned" for the "emotional well-being of everyone concerned" and ordered father's participation so that "the family can properly determine afresh whether and to what extent if any of these things need to be taken into account" and the son could have a "safe environment in which to live, if not to thrive." See Minn. R. Civ. P. 52.01 (providing that the district court may make findings of fact orally). Thus, while the district court made no specific findings regarding father's alleged chemical dependency, the district court found mother's testimony credible and found that a chemical-dependency evaluation, among other treatment and counseling services, would be appropriate so as to provide a safe environment for the parties' son. Thus, we conclude that the district court made adequate findings to support its order.
Father also contends that there was insufficient evidence to support the district court's order that father undergo an anger-management assessment. The record shows that the cable-television contractor testified that when he saw father on January 31, 2003, father was upset and yelling and that, although he did not know father well, he thought that he had problem controlling his temper. And in her testimony, mother twice made references to father's inability to control his anger. Because mother's affidavit stated that father's "anger is out of control" and there was testimony suggesting that father has anger-management problems and because this court gives great deference to the district court's determination of witness credibility, we conclude that there was sufficient evidence for the district court to order father to undergo such an assessment and that, therefore, the district court did not abuse its discretion by ordering the assessment.