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STATE OF MINNESOTA IN COURT OF APPEALS A08-1046 In the Matter of: Laurien Pechovnik, petitioner, Respondent, vs. Scott Anthony Pechovnik, Appellant. Filed May 5, 2009 Affirmed Larkin, Judge Anoka County District Court File No. 02-FA-07-1936

Christy Snow-Kaster, Constance S. Baillie, Central Minnesota Legal Services, 430 First Avenue North, Suite 359, Minneapolis, MN 55401 (for respondent) Christopher E. Brevik, Brevik & Associates, 120 Anoka Office Center, 2150 Third Avenue North, Anoka, MN 55303 (for appellant)

Considered and decided by Stauber, Presiding Judge; Johnson, Judge; and Larkin, Judge.

SYLLABUS Because collateral consequences attach to an order for protection, an appeal from an expired order for protection is not moot.

OPINION LARKIN, Judge Appellant claims that the district court abused its discretion by issuing an order for protection against him, arguing that the district courts findings are unsupported by the record. Respondent contends that appellants claim is moot because the underlying order for protection had expired by the time this court heard oral arguments. Because collateral consequences attach to an order for protection under statute, appellants claim is not moot. And because the district court did not abuse its discretion by issuing the order for protection, we affirm. FACTS In December 2007, respondent Laurien Pechovnik petitioned for an order for protection (OFP) on behalf of herself and her four children against her husband, appellant Scott Anthony Pechovnik. December 20, 2007. Respondent testified regarding several incidents of physical harm by appellant. Respondent testified that appellant grabbed insulation and shoved it into respondents chest. Respondents sister testified that she witnessed this incident. Respondent also testified that appellant tried to pull one of the parties children from respondents arms and threatened to kill respondent. Appellant admitted that he was arrested for this incident and pleaded guilty to disorderly conduct. Finally, respondent testified that The district court held a hearing on the petition on

appellant twice struck her in the face and gave her a bloody nose. All of these incidents were over ten years old. 2

Respondent also testified about more recent events. Respondent testified that in November 2007, appellant woke respondent by "slapp[ing]" respondents feet and yelling at her. This incident caused respondent to flee the parties residence to her sisters home. Respondents sister testified that respondent was hysterical following the incident. Respondent also testified that she had recently fled the parties residence, concerned for her safety, after appellant questioned her about a meeting that she had scheduled with her supervisor. Respondent testified that in the 30 days preceding the hearing, appellant screamed at her, called her names, tracked her down, and pinned her in corners. Respondent testified that appellant cannot control his behavior, was losing control with greater frequency, and was causing respondent to flee the parties residence. Respondents sister testified that she witnessed altercations between the parties and witnessed respondents demeanor after she had fled the parties residence. Respondents sister described

respondent as "hysterical," "frightful," and "shaking" after these incidents. Respondent testified that she was unable to flee on some occasions because appellant prevented her from leaving. Respondent testified that appellant prevents her from leaving the parties residence by hiding keys, standing by the door, and locking the door. testified that she fears being physically harmed by appellant. testified that she fears for respondents safety. Appellant also testified. Appellant denied abusing or physically harming Respondent

Respondents sister

respondent, striking respondent, causing harm to respondent when he "tapped" her feet, preventing respondent from leaving their residence, and intimidating respondent. 3

Appellant characterized the insulation incident as one in which he "poked" insulation into respondents lap and asserted that he attempted to pull the parties child from respondents arms because she had pulled the child out of his arms. Appellant admitted to arguing with respondent about her meeting with her supervisor, but stated that they had not argued often in the six months preceding the hearing. Appellant also testified that since respondent filed her petition, there were numerous situations in which he spoke to or was near respondent without incident. The district court granted respondents petition for an OFP at the hearing, restricting appellants contact with respondent for six months. On the record, the district court found that respondent is in fear of imminent bodily harm. The district court concluded that "[t]he reasonableness of [respondents fear] is a close call, from an objective sort of third-party view" but "[t]he [respondent] and her sister have convinced me that she is in fear of bodily harm" and there was enough credible testimony to find respondents fear is reasonable. The district court further concluded, "Within the last 90 days, the [appellant], by words and actions, has placed [respondent] in fear of immediate bodily harm by gestures, persistent questioning, aggressive conversation and controlling behavior [that] when coupled [with] an old history of threatening behavior constitutes domestic abuse." The district court denied respondents request for relief on behalf of her children. Appellant appealed, and this court heard arguments in March 2009.

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ISSUES I. II. Is this appeal moot? Did the district court abuse its discretion by granting respondents petition for an OFP against appellant? ANALYSIS I. Respondent argues that this appeal is moot because by the time this court heard arguments, the underlying OFP had expired. Respondent therefore contends that this court is unable to grant effective relief. Appellate courts "decide only actual controversies and avoid advisory opinions." In re McCaskill, 603 N.W.2d 326, 327 (Minn. 1999). A case is moot if there is no justiciable controversy for a court to decide. Kahn v. Griffin, 701 N.W.2d 815, 821 (Minn. 2005). A justiciable controversy "allows for specific relief by a decree or

judgment of a specific character as distinguished from an advisory opinion predicated on hypothetical facts." State ex rel. Sviggum v. Hanson, 732 N.W.2d 312, 321 (Minn. App. 2007) (citation omitted). When there is "no injury that a court can redress, the case must be dismissed for lack of justiciability," except in certain "narrowly-defined circumstances." Id. There are two exceptions to the mootness doctrine: (1) if an issue is capable of repetition yet evading review and (2) if collateral consequences may attach to the otherwise moot ruling. McCaskill, 603 N.W.2d at 327. Where real and substantial limitations will arise from a judgment, courts do not require actual evidence of such

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limitations and instead, presume that collateral consequences will attach. See, e.g., id. at 329-31 (holding that discharge from civil commitment before completion of appeal does not render appeal moot because of a civil commitments collateral consequences); Morrissey v. State, 286 Minn. 14, 16, 174 N.W.2d 131, 133 (1970) (holding that collateral consequences attach to a criminal conviction because of the "the stigma of conviction"). "A party may rebut this presumption of collateral consequences only by showing ,,there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged [judgment]." McCaskill, 603 N.W.2d at 329 (quoting Sibron v. New York, 392 U.S. 40, 57, 88 S. Ct. 1889, 1900 (1968)). Appellant argues that an OFP yields collateral consequences in a proceeding for (1) an extended or subsequent OFP, (2) marital dissolution, and (3) a custody determination. We agree. First, an OFP yields collateral consequences related to the extension of the OFP and the issuance of a subsequent OFP. A petition for an initial OFP "shall allege the existence of domestic abuse." Minn. Stat.

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