This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-96-622

Catherine M. Asgian, petitioner,

Respondent,

vs.

Ralph J. Schnorr,

Appellant.

Filed October 1, 1996

Affirmed

Crippen, Judge

Hennepin County District Court

File No. HA96628

Charles Mayer Goldstein, Goldstein Law Office, 12450 Wayzata Boulevard, Suite 224, Minnetonka, MN 55305 (for Respondent)

Lea De Souza Speeter, Speeter, Johnson, Hamilton & Wurst, Suite 1910, One Financial Plaza, 120 South Sixth Street, Minneapolis, MN 55402 (for Appellant)

Alan D. Margoles, Margoles & Margoles, Suite 223, 790 Cleveland Avenue South, St. Paul, MN 55116 (for Appellant)

Considered and decided by Crippen, Presiding Judge, Parker, Judge, and Short, Judge.

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

CRIPPEN, Judge

Appellant questions the trial court's findings of fact that prompted the court to issue a harassment restraining order and asserts that the order violates his free speech rights. We affirm.

FACTS

The parties, who initially met in 1977, developed an amicable relationship that ended when appellant learned in 1990 that respondent had dated another man. Appellant, who lives in Minnesota, first left telephone messages for respondent, who lived in Tennessee, demanding an apology. After appellant abandoned the telephone calls, the parties had contact solely in the form of several letters appellant sent respondent each year, usually coinciding with her birthday and her holiday travel to Minnesota.

In December 1995, respondent decided to return to Minnesota permanently. Before leaving Tennessee, respondent received appellant's lengthy letter, which contained two parts that caused alarm. Along with repeated demands for an apology, accompanied by accusations of respondent's "prostitution," the letter stated twice that it was "inappropriate" or "not appropriate" for respondent to come to the Twin Cities. Among other demands for an apology, appellant stated and then discussed this view: "I suppose it is appropriate that you offer your body with your apology." He also expressed his hatred of respondent. This letter led respondent to fear seeing appellant and to file a harassment petition against him. After an evidentiary hearing, the trial court issued a two-year restraining order preventing appellant from contacting respondent.

D E C I S I O N

1. Harassment.

A trial court's findings of fact shall not be overturned on appeal unless they are clearly erroneous. Minn. R. Civ. P. 52.01. A 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).

Appellant questions the trial court's specific oral findings. In its findings, the trial court characterized the letter's passage that it is inappropriate for respondent to come to Minnesota as indicating that appellant would not permit respondent to come, and it stated that the "offering her body" sentence was reminiscent of some sort of pagan ritual. Appellant reads the trial court's characterization literally. The court was openly trying to elaborate on appellant's unique choice of words. Its characterizations are well within the parameters of what is understood by appellant's statements, considering their vagueness and very personal nature, the characteristic of the statements that prompted respondent's fear. There is no evidence that the trial court gave appellant's words undue meaning.

In discussing the trial court's oral observations, appellant questions the court's ultimate finding that the letter constituted harassment. A trial court may issue a restraining order if it "finds reasonable grounds to believe that the respondent has engaged in harassment." Minn. Stat. § 609.748, subd. 4 (1994). The statute defines "harassment" in terms of two tests. Under the first test, the conduct must be either "repeated, intrusive, or unwanted." Id., subd. 1(a)(1). Under the second test, the conduct must be "intended to adversely affect the safety, security, or privacy" of the complainant. Id. The conduct must satisfy both tests to constitute harassment. Furthermore, the statute only requires a single word, act, or gesture to constitute harassment. Davidson v. Webb, 535 N.W.2d 822, 824 (Minn. App. 1995). Therefore, a court may issue a restraining order solely upon a finding that a party, using unwanted words, intended to affect the complainant's privacy adversely. The trial court's comments make it evident that it premised its harassment findings on particular parts of the letter that were unwanted and intended to invade respondent's privacy.

Appellant contends that his words, when read in context, are merely part of a mournful or chatty discussion. But these parts are still intrusive. The trial court did not clearly err in finding that respondent did not want these messages and that appellant intended the letters effectively to invade her privacy with respect to her wishes to come to Minnesota and to refrain from personal contact with him despite his demands for an apology.[1]

Appellant also argues that the harassment must be ongoing before a court may issue a restraining order. He also suggests that the conduct must involve some threat or prior occasion of harm, it must involve contact that occurs in Minnesota, and even if the conduct is "obnoxious," it must be public and profane. The statute neither requires a threat nor incorporates the specific characteristics of conduct that appellant wants to treat as part of the law. Rather, the statute only requires satisfaction of the two tests set forth in the definition of harassment. Thus, the trial court did not err in failing to employ appellant's alternative theories of harassment.

Appellant next states that the trial court's most "egregious" error is its finding of harassment despite respondent's testimony on cross-examination, affirming a leading question, that she only was worried that he might start harassing her and that she had not been harassed yet. The trial court's finding was well within the parameters of its discretion despite this testimony, particularly taking into account that the testimony conflicts with both respondent's other testimony and the words of the letter that prompted her to fear him, that this admission came in the context of cross-examination concerning harassment in Minnesota, and that the question inappropriately called for a legal conclusion from a lay witness.

Appellant also contends that the order is inappropriate in light of the letter's vagueness. But it was the vagueness of the comments themselves that prompted the trial court to reason that they were likely an intentional invasion of privacy such as to constitute harassment. The trial court's bounds of discretion and the intentional use of vague language of the kind employed by appellant permit the trial court's construction of facts that support its finding of harassment. Thus, we do not find the trial court's findings clearly erroneous.

Appellant contends on appeal that the trial court also erred in stating its conclusion of law based on the findings it made. This argument does no more than to beg the question whether the court's ultimate findings were findings of fact or conclusions of law. In our view, all of appellant's arguments go to whether the evidence sustains the finding of harassment. Where a trial court considers such mixed questions of law and fact, the appellate court may correct erroneous applications of the law, and it reviews the findings of "ultimate" facts under an abuse of discretion standard. Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn. 1990). Because the record provides sufficient evidence to support a finding of harassment, the trial court did not abuse its discretion.

2. Freedom of speech.

Whether the trial court's order violated appellant's constitutional free speech rights is a question of law subject to de novo review. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

Appellant argues that a court cannot issue a restraining order absent fighting words. But the concept of fighting words pertains to speech that constitutes criminal conduct based on its content alone. See Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S. Ct. 766, 769 (1942); City of Little Falls v. Witucki, 295 N.W.2d 243, 245-46 (Minn. 1980). A different standard applies to a restraining order, which is a time, place, and manner restriction.

A time, place, and manner restriction does not violate the Constitution if the restriction is content-neutral, is narrowly tailored to serve a significant governmental interest, and leaves open ample alternative channels of communication. Welsh v. Johnson, 508 N.W.2d 212, 215 (Minn. App. 1993) (upholding restraining order prohibiting otherwise protected speech as a reasonable time, place, or manner restriction). In this case, the order is content-neutral because it prohibits all communication with respondent and serves purposes unrelated to the content of the expression. Id. at 215. The order serves a significant government interest because "the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society." Id. (quoting Frisby v. Schultz, 487 U.S. 474, 484, 108 S. Ct. 2495, 2502 (1988) (citation omitted)). The order also is narrowly tailored and leaves open ample alternative channels of communication because it only restricts appellant's speech communicated to respondent, an unwilling recipient. See Frisby v. Schultz, 487 U.S. 474, 485, 108 S. Ct. 2495, 2503 (1988) ("There is simply no right to force speech into the home of an unwilling listener."). Furthermore, a person's free speech rights do not include the right to mail unwanted material to another. Rowan v. United States Post Office Dep't, 397 U.S. 728, 738, 90 S. Ct. 1484, 1491 (1970) (upholding statute prohibiting the delivery of mail from certain senders upon addressee's request, regardless of the validity of the ideas communicated). Thus, the restraining order meets the standard for a reasonable time, place, and manner restriction on appellant's free speech rights.

Appellant further argues that the restraining order is an unlawful prior restraint because neither a request for control nor a prior violation of a court order preceded the order. But there is no impermissible prior restraint where the regulation is a content-neutral time, place, and manner restriction. State by Humphrey v. Casino Mktg. Group, Inc., 491 N.W.2d 882, 886-87 (Minn. 1992) (holding that statute prohibiting automatic dialing telephone calls is not an impermissible prior restraint), cert. denied, 507 U.S. 1006 (1993); accord Van Bergen v. Minnesota, 59 F.3d 1541, 1553-56 (8th Cir. 1995) (same). Appellant relies on Robbinsdale Clinic v. Pro-life Action Ministries, 515 N.W.2d 88 (Minn. App. 1994), review denied (Minn. Jun. 15, 1994), but Robbinsdale concerned a contempt motion brought by a third party on behalf of a victim who never objected to the allegedly harassing speech. Id. at 91-92. The court found that the speech restriction was not narrowly tailored because the person who had been harassed did not request the relief sought. Id. at 92. In this case, the person who received appellant's communication petitioned the trial court for the restraining order, thereby expressing her unwillingness to receive the communication before the state prohibited the communication by issuing the restraining order. Thus, the restraining order is not an impermissible prior restraint because it is a valid time, place, and manner restriction on appellant's right to free speech.

Finally, we decline respondent's request for attorney fees and costs on appeal.

Affirmed.

[ ]1A recent decision by the Minnesota Supreme Court construed Minnesota's stalking statute to require specific intent. State v. Orsello, ___ N.W.2d ___ (Minn. Sept. 12, 1996). The trial court specifically found that appellant intended to invade respondent's privacy, thereby satisfying any questions of specific intent in this case.