This matter came on before the Honorable Catherine L. Anderson on January 18, 1996 on Petitioner's Petition for order for Protection and Affidavit filed November 20, 1995. Petitioner appeared with Linda Wold, Esq. and Respondent appeared with Ronald Ousky, Esq.

Based upon all the files, records, and proceedings herein and after a full evidentiary hearing the Court makes the following:

FINDINGS OF FACT

1. Petitioner filed an ex parte Petition for order for Protection and Affidavit on November 20, 1995 alleging facts relating to an incident that occurred on September 2, 1995.

2. Petitioner's ex parte request for an Order for Protection was granted by the Honorable Anne E. McKinsey, Judge of District court, on November 20, 1995 and the matter was set for an EXHIBIT evidentiary hearing before this Court upon a removal of all referees.

3. Both the petition and the testimony elicited in the evidentiary hearing allege that on September 2, 1995 the Petitioner and Respondent became involved in a verbal argument during which Respondent at one point grabbed Petitioner by her hair. Petitioner describes the threats to her as being abduction of her children, depletion of her financial resources, removing her from the home, and destroying everything that she loved.

4. There is nothing in the petition nor was there any evidence elicited at trial that would suggest or tend to prove in any way that Petitioner or her children were physically harmed or that they were threatened in such a way as to be in f ear of imminent physical harm, injury or assault.

CONCLUSIONS OF LAW

1. The Minnesota Domestic Abuse Act, Minnesota Statute I B.01, sets forth the definition, standards and criteria which are the grounds for issuance of an order for Protection as requiring a showing of "physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm between family members or terroristic threat or criminal sexual conduct committed against a family member."

2. The statutory grounds have been further defined as the present intention to inflict physical harm, bodily injury, or assault, or to inflict a fear of imminent physical harm, bodily injury, or assault. Andrasko v. Andrasko, 443 N.W. 2d 228 (Minn.Ct.App. 1989).

3. Past abuse alone is insufficient without allegina a present intent to do harm or to inflict fear of harm. Andrasko, at 230 and Bjergum v. Biergum, 392 N.W.2d 604 (Minn.Ct-App. 1986).

4. No evidence has been presented by petitioner or at the evidentiary hearing that would constitute physical harm, bodily injury, assault or the infliction of fear of imminent physical harm or criminal sexual conduct as set forth in Minnesota Statute section 518B.01.

ORDER

The Petition for an Order for Protection filed November 20, 1995 is hereby dismissed with prejudice.

Dated: January 25, 1996
Catherine L. Anderson
Judge of District Court
 
 
 
 
 
 
 
 
 
 
 
 
 
 

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