This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1709

 

 

Wendy Francis, petitioner,

Respondent,

 

vs.

 

Cindy Lawson, et al.,

Appellants.

 

Filed July 25, 2006

Reversed

Lansing, Judge

 

Rice County District Court

File No. C3-05-1021

 

Wendy Francis, 6425 – 255th Street East, Faribault, MN 55021(pro se respondent)

 

Jeffrey M. Johnson, Schurhammer & Johnson, P.A., 315 Central Avenue, Faribault, MN 55021 (for appellants)

 

            Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            In this appeal from a harassment restraining order issued against Cindy and Richard Lawson and their minor children, the Lawsons argue that the order lacks a factual and legal basis.  Because the district court’s findings do not establish repeated incidents of harassing behavior by any member of the Lawson family, we reverse.

F A C T S

            Wendy Francis petitioned the district court for a harassment restraining order against her neighbors, Cindy and Richard Lawson, and their five children.  In her petition and supporting affidavit, Francis alleged that the Lawson family had harassed her in numerous ways during the preceding five years.  She stated that Cindy Lawson had threatened her, that the family had placed a picture of her on a box and shot at it with a BB gun, that one son had pointed the BB gun at her, that family members had shot at one of her chickens and her car, and that they had stolen some of her tools.  At the hearing on the petition, Francis further testified that the Lawsons had stabbed one of her hogs, that Richard Lawson used the BB gun to shoot and wound her cat after his son had tried and missed, and that the Lawsons’ dog had come onto her property and killed some of her chickens and rabbits.  She testified that she called the police more than sixty-eight times to report the Lawsons’ conduct.

            Although the Lawsons acknowledged that the family owns a BB gun, they denied all of the incidents that Francis alleged and told the court that Francis had fabricated the stories because the Lawsons were the first neighbors to live nearby and she was upset by their presence.  Cindy and Richard Lawson testified that only two children currently reside with them, that neither of the twin sons whom Francis accused of shooting at her cat was home at the time she claims the incident occurred, and that, on the evening their dog was in her yard, they had returned home and found that the leash restraining their dog in their backyard had been cut.

            The district court granted the petition, issued a restraining order against Cindy and Richard Lawson, and any minor children residing with them, and ordered them to stay away from Francis’s home.  The court based its order on findings that Francis saw one of the Lawsons shoot her cat with a BB gun, that the Lawsons admitted they own a BB gun, and that the Lawsons’ dog trespassed on Francis’s property.  The Lawsons appeal, arguing that the record does not meet the legal requirements of harassing behavior and that the evidence is insufficient to support the order.

D E C I S I O N

            A district 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. 5(a)(3) (2004).  “Harassment” includes “a single incident of physical or sexual assault or repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target.”  Id., subd. 1(a)(1) (2004).  We defer to the district court’s findings of fact unless they are clearly erroneous and review the decision to issue a restraining order under an abuse-of-discretion standard.  Minn. R. Civ. P. 52.01; Kush v. Mathison, 683 N.W.2d 841, 843 (Minn.App. 2004), review denied (Minn. Sept. 29, 2004).

The district court’s findings do not support the issuance of a harassment restraining order.  The court made only two factual findings of purportedly harassing conduct, which indicates that it rejected the remaining allegations in Francis’s testimony and petition.  See Kush, 683 N.W.2d at 843-44 (noting deference to district court on issues of credibility).  These findings, however, relate to separate individuals and do not amount to repeated incidents of harassment for the individuals involved.

The district court could properly attribute the behavior of the Lawsons’ dog to the Lawsons because indirect actions may still constitute harassing behavior.  See State v. Egge, 611 N.W.2d 573, 575 (Minn. App. 2000) (finding violation of harassment restraining order when respondent initiated contact with petitioner through third party), review denied (Minn. Aug. 15, 2000).  But the district court’s finding states only that the dog came onto Francis’s property.  Although this act can fairly be construed as intrusive or unwanted, the court made no findings that the dog did anything on the property that would constitute damage or harassment.  Francis claimed that the dog killed some of her chickens, but the court made no finding that this conduct occurred.  Because the district court appears to have discredited much of Francis’s testimony, its failure to refer to the chickens suggests that it rejected Francis’s testimony on this point.  Without more, the dog’s presence on the property likely did not have a substantially adverse effect on Francis’s safety, security, or privacy.  See Kush, 683 N.W.2d at 845 (stating that whether conduct constitutes harassment may be judged from objective standard when considering effect on victim and from subjective standard when determining harasser’s intent).

Even if the dog’s trespass were an incident of harassing behavior, this incident would amount to only a single incident of harassment by Cindy Lawson.  The court made no other findings that involve her, and a single incident of harassing behavior is insufficient to support a harassment restraining order.  See Roer v. Dunham, 682 N.W.2d 179, 182 (Minn. App. 2004) (holding that district court’s findings, which identified only one incident of harassment, were insufficient to support harassment restraining order).

The district court also made a finding that “[p]etitioner saw m defendant sho[o]t her cat with a BB pistol.”  We are unable to discern whether the shorthand use of “m” represents “male” or “minor.”  The abbreviated reference most reasonably denotes “male” because Francis specifically testified that after the son shot at the cat, Richard Lawson actually shot the cat.  Also, the court wrote out “minor” in another place in its order, and the son that Francis claims shot at the cat is not a minor.  But we find that, under either interpretation, the findings do not support the harassment restraining order.

Shooting a cat with a BB gun in front of its owner is an act that would objectively have a substantial adverse effect on a person’s safety, security, or privacy.  See Kush, 683 N.W.2d at 845 (noting that court may determine whether conduct is objectively harassing).  In light of the ambiguity in the order and, when paired with the dog’s trespass without findings of any other events, however, these incidents are too speculative and attenuated to support a harassment restraining order against Richard Lawson.  Francis found the Lawsons’ dog on her property in October 2000, and the cat incident occurred in May 2005.

The court’s findings also do not support a harassment restraining order against the Lawsons’ minor children.  The court’s findings do not relate to any of the Lawson’s children, and the only Lawson child Francis specifically referred to in her testimony was not a minor at the time of the hearing.  Even if we construe the “m” in the district court’s finding to mean minor, the findings do not support the district court’s order because it constitutes only one incident of harassing behavior involving the son.  Furthermore, Francis asserts that the act was by one of the Lawson’s twin sons; neither of the twins is a minor.

            Reversed.