Minnesota Court of Appeals Affirms Order for Protection Based on Fear of Imminent Physical Harm
In an unpublished decision entitled Karasek v. Karasek, the Minnesota Court of Appeals has affirmed the issuance of an Order for Protection based upon a district court's finding that the alleged victim was fearful of imminent physical harm. Judge Johnson wrote the opinion without dissent.
The parties were divorced in June of 2006 and have a young child together. When mom went to dad's residence to pick up the child, she told dad that she was pregnant with another man's child. According to mom, dad became enraged, criticized her for being lazy and unemployed, and screamed at her about his being required by their dissolution decree to contribute to her medical expenses.
Mom testified that, during the argument, “[Dad] came at me, puffed his chest out and asked me if I wanted to go, as if I wanted to fight him.” She also testified that he bumped her and pushed her backward.
In his testimony, dad could not recall whether he had puffed out his chest or whether he had asked her “to go.” Dad and his two brothers, who were present during the argument, testified that dad never touched mom.
Three witnesses, however, testified that one of dad's brothers tried to intervene and that dad shoved him or swung at him. Mom did not sustain any physical injuries during the argument. But she testified that she feared for her physical safety during the incident. As a result, the District Court entered an Order for Protection. Dad appealed.
An individual seeking an OFP under the Minnesota Domestic Abuse Act must allege and prove "domestic abuse," defined as an actual assault or infliction of fear of assault. The statutory standard requires that a party show “present harm or an intention on the part of the [alleged abuser] to do present harm.”
Judge Johnson wrote:
The district court’s finding that domestic abuse occurred is supported by evidence that Jason Karasek threatened Autumn Karasek during the January 20, 2008, incident. It is undisputed that Jason Karasek yelled at Autumn Karasek while standing very close to her, that Jason Karasek’s brother physically intervened to separate Jason Karasek and Autumn Karasek, and that Jason Karasek shoved his brother. Jason Karasek does not deny walking toward Autumn Karasek with his chest puffed out and asking her if she “wanted to go.” Autumn Karasek testified that she interpreted his statement to be an invitation to engage in a physical fight. The district court credited her testimony that Jason Karasek had “challenged her to a physical fight.”
Domestic abuse situations like those in Karasek are more difficult than they may seem at first glance because it is difficult to prove a feeling (such as fear). The subjectivity of feelings are tested by the court, whose job it is to determine whether that particular feeling (such as fear) is objectively reasonable. In situations like those discussed in Karasek, it may be simpler than a situation where an alleged victim waits weeks to file for a protective order and spends ample time with the alleged abuser in the interim. How fearful could they really be, after all, if they voluntarily spend time with the perpetrator between the alleged acts of abuse and the time of the court hearing?
If you seek to obtain an Order for Protection or must defend a claim of domestic abuse, we can help. The domestic abuse attorneys with the Brown Law Offices, P.A. are prepared to answer your questions and advocate on your behalf. You may contact us by calling (763) 323-6555. If you prefer, feel free to fill out our online contact form.
