NEW MINNESOTA FAMILY LAW CASE – ORDER FOR PROTECTION UPHELD

In Arnold v. Arnold, A14-1097 (Minn. Ct. App. Apr. 27, 2015), the Court of Appeals upheld an order for protection (OFP) although the husband argued that the wife was not presently being harmed, finding that the district court could infer a present intent to commit domestic abuse based on the totality of the circumstances.  The abuser’s past behavior may be considered, but it is not dispositive.

 

The Family Law Case

Minnesota’s Domestic Abuse Act, Minn. Stat. Section 518B.01, allows a family member to petition for an OFP in case of domestic abuse.  The statute defines domestic abuse as:  “(1) physical harm, bodily injury, or assault; (2) the infliction of fear of imminent physical harm, bodily injury, or assault; or (3) terroristic threats, criminal sexual conduct, or interference with an emergency call.”   518B.01, subd. 2(a).  To find domestic abuse, there must be a showing of present harm or an intention to do present harm.  The Act is remedial and, therefore, intended to protect domestic abuse victims, not to punish the abusers.

In Arnold, the court found three separate abusive acts occurred on the same day, December 21st.    First, he put his hand in the shape of a gun against her temple, making the sound of the gun and yelling a curse at her, and poked her with his fingertips and caused pain which the court found was both   (1) physical harm, bodily injury or assault and (2) the infliction of fear of imminent physical harm, bodily injury or assault.  Second, he threw a vase at her although it hit the wall; the court found that was (2) the infliction of fear of imminent physical harm, bodily injury, or assault.  Third, when his wife tried to call 911, he grabbed the phone out of her hands; the court found that was (3) interference with an emergency call.

The huRow of law books on shelfsband argued that subsequent events showed she was not afraid of him and, even if she was afraid, her fear was unreasonable.  He noted that he had petitioned for divorce, and they exchanged text messages.  The Minnesota Court of Appeals noted that it accords great deference to the district court’s determinations regarding credibility, and the district court had found the wife’s testimony credible, noting text messages with her mother from the time in question.

The court also found that the four-month span between the events in question and the wife’s filing for the order of protection was an insufficient gap to weigh against an OFP.  The court noted that a two-year gap between an incident of domestic abuse and filing for an order for protection is a long passage of time that may weigh against an order of protection, a four-month span of time is not so remote.   Therefore, the court upheld the order for protection.

This case does suggest that it is a good idea to pursue an order for protection quickly. It is always best to promptly petition for an order of protection rather than waiting months or years to file. As in most legal arenas, timeliness is in your best interests.

If you need an order for protection or someone has sought an order of protection against you in our area, you may want to consider consulting an experienced Woodbury family law attorney today.

Minnesota Will Only Recognize a Foreign Marriage if the Marriage Was Valid Where Performed

The Minnesota Court of Appeals recently reversed a district court decision that had recognized a “cultural marriage ceremony” performed in Thailand because there was no evidence that the marriage was legally valid in Thailand.  Chang v. Yang  #14-1158 (Minn. Ct. App. Apr. 27, 2015).  The Court of Appeals held that, to have a valid foreign marriage recognized in Minnesota, the marriage must have been valid in the place where it was performed, here Thailand.

 

The Minnesota Family Law Case

 

In this case, the two individuals had participated in a traditional Hmong wedding ceremony almost forty years ago while they were living in a refugee camp in Thailand.  They held themselves out as husband and wife until the wife filed for divorce, and the husband objected, claiming they were never married.

They both took oath before an American official stating that they were married, and then they immigrated to the United States in 1978.  They filed tax returns as “married filing jointly” for twenty-five years.  They had six children, all of whom were adults by the time their mother filed for divorce.

The appellant argued that they were not legally married because, although they participated in a Hmong cultural marriage ceremony, that ceremony did not meet the requirements of Thailand for a legal marriage.  He also said that the appellee was already married to another man at the time of the Hmong cultural ceremony.

The Minnesota Court of Appeals agreed with the appellant that a cultural marriage does not create a legal, valid marriage and that the district court was required to determine whether the Hmong cultural marriage would create a legal marriage in Thailand.  The Minnesota Supreme Court stated the following rule:   “The validity of a marriage is normally determined by the law of the place where the marriage is contracted.  If valid by that law the marriage is valid everywhere unless it violates a strong public policy of the domicile of the parties.”   In re Kinkead’s case, 239 Minn. 27, 30, 57, N.W.2d 628 631 (1953).

The Minnesota Court of Appeals found that the appellant had presented evidence that the cultural marriage was not a valid marriage, namely, material from the U.S. Embassy in Thailand that marriage requires in-person registration of the marriage in the local Civil Registry Office and that Thailand does not recognize common-law marriage.  The court noted that the parties did not have a marriage certificate, and there was no evidence that either party attempted to register the marriage with the Civil Registry Office.   The court found that they had taken an oath before an American official as part of immigration proceedings and that it did not appear that such an oath would support a valid Thai marriage.

The court, thus, remanded the case to the district court to determine whether the cultural marriage was valid under Thai law.

The court also required that the district court issue findings of fact and conclusions of law whether the respondent was entitled to  “putative spouse status,” as per Xiong v. Xiong, 800 N.W.2d 187, 191 (Minn. Ct. App. 2011).

 

Help with Minnesota Divorce
If  you need a divorce or are considering a motion to modify an order and judgment dissolving a marriage, you should consult an experienced Minnesota family law attorney.