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In re O'Neil

Court of Appeals of Minnesota

October 21, 2013

In the Matter of: Leah Maria O'Neil, petitioner, Respondent,
Marty Michael O'Neil, Appellant.


Wright County District Court File No. 86-FA-13-445.

Timothy A. O'Brien, O'Brien Law Firm, P.C., Minneapolis, Minnesota; and Paula Smoot Ogg, Ogg Law Office, Minneapolis, Minnesota (for appellant).

Stephen J. Berg, Johnson, Larson, Peterson & Halvorson, P.A., Buffalo, Minnesota (for respondent).

Considered and decided by Worke, Presiding Judge; Johnson, Chief Judge; and Toussaint, Judge.[*]

JOHNSON, Chief Judge.

Leah Maria O'Neil petitioned the district court for an order for protection from her estranged husband, Marty Michael O'Neil. The district court granted the petition and issued an order. Marty O'Neil argues that the evidence is insufficient to support the district court's finding of domestic abuse because the incidents on which the order is based are too remote in time. We conclude that the district court did not err by finding that Marty O'Neil committed domestic abuse, as that term is defined by statute and the applicable caselaw. Therefore, we affirm.


The parties were married in July 2010 and lived together in the city of Buffalo until Marty O'Neil moved out of the marital homestead in November 2012. Leah O'Neil petitioned for an order for protection (OFP) on January 24, 2013. In support of her petition, she alleged in a sworn statement that Marty O'Neil had physically and emotionally abused her, both before and during the marriage. She stated, "I live in constant fear that he will return and violently assault me as he has done many, many times before and during our marriage." As an example, she described an incident in May 2012 in which Marty O'Neil screamed at her and grabbed a pan of fish that she was frying because she was frying it too slowly. She testified that she feared he would assault her with the pan of hot oil, so she fled the house and called a co-worker to pick her up. She also stated that she prepared her last will and testament in December 2012 and gave it to a female friend for safekeeping. She further stated that she decided to seek protection from further abuse after seeking therapy and counseling. She alleged seven specific incidents of abuse that occurred between December 2009 and May 2012, and she stated that she suspected Marty O'Neil of entering her home (the marital homestead) on January 22, 2013 and taking personal property that he previously had requested.

The district court conducted an evidentiary hearing on January 30, 2013. Leah O'Neil testified that domestic abuse "was a way of life" and that the abuse was "ongoing." She provided specifics concerning some of the incidents alleged in the petition. For example, she testified that, on one occasion, Marty O'Neil shoved her, threw her down stairs, slammed her onto the concrete floor, and twisted her face and neck in front of his children as they yelled for him to stop. Leah O'Neil sought medical treatment for injuries she sustained in that incident. She testified generally that Marty O'Neil engaged in abusive conduct up until the time he moved out: "There were honeymoon phases" when it would stop, but there was "always a shove up against a wall or a warning or . . . a grab around the throat or some shoving." She also testified that she is so fearful of Marty O'Neil that she placed telephone numbers for law enforcement on her speed dial. She further testified that she believes he entered her home on January 22, 2013, and took two tool boxes, which he previously had requested.

In response, Marty O'Neil's father testified that Marty could not be responsible for the removal of the tool boxes because he spent the entire evening at his parents' home, where he had been living since November 2012. Marty O'Neil attended the hearing but did not testify. Marty O'Neil's attorney cross-examined Leah O'Neil as to whether she petitioned for an OFP in response to the divorce papers that Marty O'Neil had served on her 10 days earlier and whether she was seeking to obtain a financial advantage. Leah O'Neil denied the suggestion and stated that she only wants her husband "to stay away from [her]."

The district court granted the petition and issued a two-year OFP. The district court found that Marty O'Neil engaged in acts of domestic abuse when he "choked, hit, shoved, [and] slammed [Leah O'Neil] to the floor" and that Leah O'Neil "is reasonably in fear of physical harm." The district court rejected the argument that Leah O'Neil filed the petition for purposes of gaining an advantage in the dissolution action. The district court reasoned that the suspicion that Marty O'Neil had taken tool boxes from her home "wasn't necessarily proved" but nonetheless "triggered the immediate fear of potential bodily harm in the future."

Marty O'Neil ...

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