This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).







James Fenske, et al.,






Laura Fenske,




Filed May 16, 2000

Klaphake, Judge


Olmsted County District Court

File No. CX-99-1806



James & Diane Fenske, 4608 Third St. N.W., Rochester, MN 55902 (respondents pro se)


Lawrence Downing, Steven M. Dittrich, Lawrence Downing & Associates, 330 Norwest Center, 21 First Ave. S.W., Rochester, MN  55902 (for appellant)


            Considered and decided by Shumaker, Presiding Judge, Crippen, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


Laura Fenske appeals from a harassment restraining order and two amended orders finding that she harassed pro se respondents James and Diane Fenske, prohibiting her from calling or visiting respondents, and limiting her communication with respondents to written correspondence.  We affirm, because (1) appellant was given a hearing, as required by Minn. Stat. § 609.748, subd. 5(a) (1998); (2) the district court’s findings are sufficient to support issuance of a harassment restraining order and are supported by the record; and (3) the district court could use information it obtained from a mediator, as a court-appointed expert witness.


            This court reviews harassment restraining orders under an abuse of discretion standard.  See Anderson v. Lake, 536 N.W.2d 909, 911 (Minn. App. 1995) (case law construing domestic abuse act applies to harassment statute); Mechtel v. Mechtel, 528 N.W.2d 916, 920 (Minn. App. 1995) (detailing district court’s discretion to grant relief under domestic abuse act).


            Appellant first argues that she was not afforded due process.  Minn. Stat. § 609.748, subd. 5(a)(3) allows a district court to grant a harassment restraining order after a hearing.  The hearing required under this statute includes the right to present and cross examine witnesses under oath, produce documents, and have the case decided on the merits if the order is to be given effect for longer than 14 days.  Anderson, 536 N.W.2d at 911.

            Appellant acknowledges that a hearing was held in this case and that the parties were sworn.  At that hearing, respondents, who were not represented by an attorney, handed the district court an unsigned document that set out the bases for their allegations.

            Appellant argues that this document was inadmissible because it was not signed or given under oath.  She further argues that because she was not given a copy of the document in advance, she was not afforded an adequate opportunity to cross-examine respondents regarding its contents, nor given a reasonable opportunity to respond to its allegations.

            Respondents properly instituted these proceedings, however, by filing an affidavit and petition, as required by Minn. Stat. § 609.748 (1998).  At the hearing, respondents were questioned under oath by the court regarding their allegations.  Appellant, although represented by an attorney, did not object to respondents’ unsworn document at the time it was offered, request a continuance so that she could review the document and prepare a defense, or otherwise attempt to fully cross-examine respondents regarding their allegations.  She offered little evidence to rebut the statements made by respondents in the document.  Under these circumstances, we conclude that appellant was given adequate opportunity to be heard and present evidence to contradict that provided by respondents. 


            Appellant argues that the district court’s findings are not supported by the evidence and are insufficient to support the issuance of a harassment restraining order.  A district court may issue a harassment restraining order if it “finds * * * reasonable grounds to believe that the respondent has engaged in harassment.”  Minn. Stat. § 609.748, subd. 5(3) (1998); see Davidson v. Webb, 535 N.W.2d 822, 824 (Minn. App. 1995).  “Harassment” in this context includes

repeated, intrusive, or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target.


Minn. Stat. § 609.748, subd. 1(a)(1) (1998).

            Appellant first challenges the district court’s finding that she “engaged in harassment of [respondents] by repeated, intrusive and unwanted visits and did adversely affect [respondents’] privacy.”  She insists that her actions were reasonable and appropriately related to the interests of her children, of whom she shares joint physical and legal custody with respondent James Fenske.

            Although appellant alleges that many of her contacts were not uninvited, respondents allege otherwise and claim that they repeatedly warned appellant to not contact them at home and to contact them only by mail or through written correspondence carried by the children.  Giving due regard to the district court’s opportunity to judge the credibility of witnesses, we cannot conclude that the court clearly erred in finding appellant’s contacts were “uninvited.”  See Minn. R. Civ. P. 52.01.

            Appellant next argues that there is no evidence to support the finding that she intended to adversely affect respondents’ privacy and that her actions were solely motivated by the children’s best interests.  See Minn. Stat. § 609.748, subd. 1(a)(1) (requires intent to adversely affect another’s privacy).  Intent is shown by circumstantial evidence, and can be inferred from surrounding circumstances.  Sykes v. State, 578 N.W.2d 807, 811 (Minn. App. 1998), review denied (Minn. July 16, 1998).

            Appellant’s affidavit admits that she had 14 personal contacts with respondents over the past four years.  Although appellant claims she contacted respondents in each instance to discuss legitimate issues involving the children, respondents testified that during these contacts, appellant would criticize their parenting decisions and otherwise inform them that they did not “control” her.  Respondents’ petition states that her uninvited visits and unwanted phone calls have caused them “great mental stress” and have created a “threatening situation” for them “because of [appellant’s] unpredictable behavior.”  Again, given the court’s opportunity to assess witness credibility, we cannot conclude that the court’s findings are clearly erroneous or unsupported by the record.  See Minn. R. Civ. P. 52.01.


            Appellant argues that the district court improperly used information obtained from a mediator and incorporated the mediator’s recommendations into its second amended harassment restraining order.  Appellant argues that by adopting the mediator’s recommendations, the district court violated rules governing mediation.  See Minn. Stat. § 518.003, subd. 4 (mediation defined as “process in which an impartial third party facilitates an agreement between two or more parties in a proceeding”); Minn. R. Gen. Pract. 114.08(e)(7) (mediator’s notes and records are confidential and shall not be disclosed unless all parties and mediator agree to such disclosure).

            However, in connection with her motion for amended findings or a new hearing following issuance of the first harassment restraining order, appellant herself requested that the parties submit to mediation.  In its amended order, the district court, after reiterating its findings that appellant had harassed respondents by engaging in uninvited visits that invaded their privacy, ordered the parties to meet with the mediator “within 10 days to come to an agreement for contact between the parties for exchanging information about the children.”  The court further ordered that if no agreement is reached, the mediator “shall offer his recommendations for contact between James Fenske and Laura Fenske to the Court for the Court’s decision on the matter.”

            By letter, the mediator submitted to the court his recommendations regarding the types of contact to be allowed between the parties.  The court in its second amended harassment restraining order adopted those recommendations.  We do not believe that the court improperly used the mediator’s recommendations to support its findings regarding harassment; rather, the court, in an attempt to fashion an order that would allow some contact between the parties, used the mediator as an expert witness to recommend the appropriate type of contact.  See Minn. R. Evid. 706 (regarding authority of court to appoint expert witnesses).

            The district court’s harassment restraining orders are affirmed.