This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-96-2400

Mary Knapp,

for herself and o/b/o A.K. and E.K., petitioner,

Appellant,

vs.

Joseph Knapp,

Respondent.

Filed March 18, 1997

Affirmed

Harten, Judge

Hennepin County District Court

File No. 223535

Wright S. Walling, Gary A. Debele, Walling & Berg, P.A., 121 South Eighth Street, Ste. 1550, Minneapolis, MN 55402-2815 (for Appellant)

Gary A. Weissman, Weissman Law Office, 701 Fourth Avenue South, Ste. 500, Minneapolis, MN 55415 (for Respondent)

Considered and decided by Amundson, Presiding Judge, Short, Judge, and Harten, Judge.

U N P U B L I S H E D O P I N I O N

HARTEN, Judge

Appellant challenges the district court's denial of an order for protection. We affirm.

FACTS

This appeal is from a district court order denying an order for protection (OFP) pursuant to the Domestic Abuse Act, Minn. Stat. § 518B.01 (1996). On July 15, 1996, appellant, Mary Knapp (wife), petitioned for an OFP against respondent, Joseph Knapp (husband), on behalf of herself and the parties' children. Wife's petition alleged that (1) on June 10, 1996, husband physically abused the parties' son by spanking him and causing bruises, (2) husband had previously physically disciplined the child on several occasions, (3) on June 30, 1996, wife prohibited husband from spanking the child, and (4) husband had thrown a glass at wife several years earlier.

On July 15, 1996, a Hennepin County family court judge set a domestic abuse hearing and issued an ex-parte temporary OFP. After an evidentiary hearing on July 24, a family court referee issued an OFP. Husband sought district court review. On review, the district court judge granted husband's request to consider additional evidence. Following review, the district court concluded that the record did not support a finding of domestic abuse, vacated the OFP, and dismissed the action.

D E C I S I O N

The decision to grant relief under the Domestic Abuse Act is within the district court's discretion. Mechtel v. Mechtel, 528 N.W.2d 916, 920 (Minn. App. 1995); see Minn. Stat. § 518B.01, subd. 6(a) (1996) (court "may provide relief"). The district court found that the record did not support a finding of domestic abuse. See Minn. Stat. § 518.01, subd. 2(a) (1996) (defining domestic abuse). The district court's factual findings should not be set aside on appeal unless they are clearly erroneous. Minn. R. Civ. P. 52.01. We view the evidence in the light most favorable to the findings. Erickson v. Turnquist, 247 Minn. 529, 531, 77 N.W.2d 740, 742 (1956).

Noting that rule 53.05(2) of the rules of civil procedure requires that a district court accept a referee's findings unless clearly erroneous, wife argues that the district court erred by not reviewing the referee's findings under a clearly erroneous standard. The supreme court acknowledged that rule 53.05(2) requires that the district court accept a referee's findings "unless clearly erroneous," but held that applying the clearly erroneous standard to the referee's findings in the family law setting would "conflict with the intended statutory role and duties of family court referee." Peterson v. Peterson, 308 Minn. 297, 303-06; 242 N.W.2d 88, 92-94 (1976). The supreme court concluded that

recommended findings and orders of a family court referee in custody matters are advisory only and possess no more than prima facie validity. The family court judge has the duty and retains the ultimate responsibility to make an informed and independent decision on the custody motion. Consistent with such duty and responsibility, the family court judge has, as Rule 53.05(2) further provides, full authority to adopt the referee's recommended findings and order, modify them, reject them in whole or in part, recommit to the referee with instructions, or receive further evidence.

Id. at 304, 242 N.W.2d at 93. Peterson was extended to family court matters other than custody in Berg v. Berg, 309 Minn. 281, 285, 244 N.W.2d 149, 151 (1976). We conclude that the district court did not err by reviewing the evidence de novo and making independent findings. See Thompson v. Thompson, 385 N.W.2d 55, 57 (Minn. App. 1986) (rulings by family court referees are entitled to an independent review by family court judge).

Wife argues that the district court inappropriately considered the impact of the domestic abuse proceeding on the parties' pending marriage dissolution proceeding. The district court did mention the dissolution action in its findings, but only in passing. More significantly, the district court's reference to "inconsistencies and untrue statements" in the record indicates that its findings of fact were based on its credibility determinations and weighing of the evidence. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (appellate courts defer to the district courts' credibility determinations). Viewing the evidence in a light most favorable to the district court's findings, and giving deference to the district court's credibility determinations, we conclude that the district court's dispositive finding that domestic abuse did not occur is not clearly erroneous.

We deny husband's motion to consider documents outside the record. See Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (appellate court may not base decision on matters outside the record). We also decline husband's request for attorney fees incurred on appeal.

Affirmed.