This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-03-60

 

 

Nancy Jo Lang, petitioner,

Respondent,

 

vs.

 

Mark Alan Dunlap,

Appellant.

 

 

Filed September 16, 2003

Reversed and remanded

Hudson, Judge

 

Cook County District Court

File No. FX0183

 

Nancy Jo Lang, 277 County Road 60, Grand Marais, MN 55604 (pro se respondent)

 

Patrick S. Dinneen, Johnson & Morris, LLP, Wells Fargo Bank Building, Suite 103, Silver Bay, MN 55614 (for appellant)

 

            Considered and decided by Randall, Presiding Judge; Hudson, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

Appellant argues that the record did not support the district court’s determination that appellant committed harassment, and that the findings are not adequate to allow the issuance of a harassment restraining order.  Although the record supports the trial court’s findings that appellant engaged in repeated incidents of intrusive or unwanted acts, words or gestures, because the findings did not address whether there was a substantial adverse effect on respondent, we reverse and remand.

FACTS

            The district court issued respondent Nancy Jo Lang a one-year ex parte order for protection against appellant Mark Alan Dunlap on May 24, 2001.  On June 11, 2002, respondent filed an application for extension of the order for protection.  A hearing was held June 19, 2002, at which appellant appeared without counsel.  The district court granted respondent’s request for the extension of the order for protection.  Subsequently, the court granted appellant’s motion for reconsideration and a hearing was held September 12, 2002.  The district court treated the hearing for extension of the order for protection as a new harassment proceeding because the previous order for protection had ended.  Respondent testified that two days after the order for protection expired, appellant passed her several times in his vehicle, parked across the street, and approached respondent while she was standing talking to a friend.  Appellant said that he wanted to come to respondent’s daughter’s graduation to give respondent’s parents some money that he owed them.  Respondent testified that she told appellant that “it would be best if he mailed the [money] and that he was not welcome at my daughter’s graduation.”  She then testified, “[i]n all sincerity I don’t know if I said very specifically, no, I do not want you to have contact with me.”  She also explained:

I’m struggling to remember the exact words.  I do believe I told him, after I said yes it would be more appropriate for him to mail the letter, that he was not welcome at my daughter’s graduation and I believe I said leave me alone.  I don’t think I said I don’t want contact with you.  I believe it was leave me alone.

 

Appellant testified that respondent never said to him that she wanted no contact.  After eliciting testimony from both respondent and appellant and allowing appellant’s attorney to cross-examine respondent, the district court concluded:  “I will find credible the testimony that the contact occurred as [respondent] describes and not as [appellant] describes and that a no contact harassment order can be entered.”  The district court denied appellant’s motion to dismiss.  The court denied appellant’s motion for reconsideration and appellant brought this appeal.

D E C I S I O N

 

I

 

            Appellant argues that the record does not support the district court’s determination that appellant committed harassment.  An appellate court reviews harassment restraining orders under an abuse-of-discretion standard.  Witchell v. Witchell, 606 N.W.2d 730, 731 (Minn. App. 2000).  A district court’s findings of fact will not be set aside unless clearly erroneous, and due regard is given to the district court’s opportunity to judge the credibility of witnesses.  Minn. R. Civ. P. 52.01.  But this court will reverse a protective order issued under the act if it is not supported by sufficient evidence.  See Bjergum v. Bjergum, 392 N.W.2d 604, 606 (Minn. App. 1986).

Harassment is defined to include “repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect . . . on the safety, security, or privacy of another.”  Minn. Stat. § 609.748, subd. 1(a)(1) (2002).  But inappropriate or argumentative statements cannot be considered harassment.  Beach v. Jeschke, 649 N.W.2d 502, 503 (Minn. App. 2002) (holding that the statements related to a pending child-support matter made on one occasion that, “You two had better come up with the $80,000, or you’re both going to jail.  This is going to be fun,” did not constitute harassment).  A court may grant a harassment restraining order when “the court finds at the hearing that there are reasonable grounds to believe that the respondent has engaged in harassment.”  Minn. Stat. § 609.748, subd. 5(a)(3) (2002).  A district court must base its findings in support of a restraining order on testimony and any documents properly admitted.  Anderson v. Lake, 536 N.W.2d 909, 911-12 (Minn. App. 1995).

1.         Repeated incidents of intrusive or unwanted acts.

Here, there is no dispute that appellant contacted respondent twice after the order for protection expired on May 24, 2001.  The issue we must resolve is whether the contact was “unwanted,” and specifically whether respondent in fact told appellant that she wanted no contact with him.  Respondent testified that she believed that during the first contact she told appellant to leave her alone.  Appellant disagreed. 

The court made no written findings, but on the record the court stated:

Well, I’m going to indicate my understanding of the law is that when a person does not want contact and communicates that to the other person and contact again occurs, that’s harassment.  . . . [T]he Court’s got to make that determination whether or not that occurred.   . . . As the Court understands the law, harassment is unwanted contact, repeated unwanted contact.

 

At the conclusion of the hearing, the court then stated:  “I will find credible the testimony that the contact occurred as [respondent] describes and not as [appellant] describes and that a no contact harassment order can be entered.”

Although the findings are sparse, we believe they are minimally sufficient and that the district court correctly held that there were “repeated incidents of intrusive or unwanted acts, words or gestures.”

2.         Substantial or adverse effect.

But our analysis does not end there, because the acts at issue must also “have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another.”  Minn. Stat. § 609.748, subd. 1(a)(1).  The district court did not directly address this element, but made the broad finding that respondent’s testimony was believable and supported a finding of harassment.  There is nothing in the record, however, to indicate what effect appellant’s actions had on respondent; nor are there any findings to suggest that the court considered the effects of appellant’s actions on respondent’s safety, security or privacy.  Although we defer to the district court’s credibility findings, as a matter of law, we conclude that there is insufficient evidence on the record to show that appellant’s actions had a “substantial adverse effect on the safety, security or privacy” of respondent.  We therefore reverse and remand for the district court to make findings on this issue.

II

Appellant also argues that the district court’s questioning of appellant and respondent during the hearing, along with the fact that the court did not hear impeachment evidence through witnesses, denied appellant a full and fair hearing.  Although we need not reach this issue, we note that absent erroneous interpretation of the law, the question of whether to admit or exclude evidence and testimony is within the district court’s discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997) (quoting Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990)).  In Anderson, at a hearing for a harassment restraining order, the court questioned each of the parties and no witnesses were sworn.  536 N.W.2d at 910.  The court ordered a harassment restraining order.  Id.  On appeal, this court held “that the hearing required under Minn. Stat. § 609.748, subd. 5(a), includes the right to examine witnesses and that witnesses must testify under oath if the order is to be given effect for longer than 14 days.”  Id. at 911. 

            Unlike Anderson, both appellant and respondent were sworn under oath before they testified, the district court questioned both parties and then allowed appellant’s counsel to cross-examine respondent.  On this record, we hold that appellant had a fair hearing.

            Reversed and remanded.

 



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.