Summary
In Winkowski, the appellant, Winkowski, attempted to get his ex-wife's attention by texting and calling her, honking his car's horn, knocking on her front door, and ringing her doorbell during one two-hour period.
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A21-1115
04-22-2022
Lisa Marie Winkowski, Respondent, v. J. Vincent Winkowski, Appellant.
Olmsted County District Court File No. 55-CV-21-3734
Considered and decided by Johnson, Presiding Judge; Reyes, Judge; and Cochran, Judge.
ORDER OPINION
Matthew E. Johnson, Judge
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. Lisa Marie Winkowski obtained a harassment restraining order against her former husband, J. Vincent Winkowski, based on evidence that, while his car was parked in her driveway for a two-hour period, he repeatedly called her cell phone, honked his car horn, knocked on her front door, and rang her doorbell. We conclude that the evidence is sufficient to prove that J. engaged in repeated incidents of intrusive or unwanted acts, words, or gestures. Therefore, we affirm.
2. Lisa and J. were married until their marriage was dissolved in 2016. They have two young children. In June 2021, Lisa and J. and their respective attorneys were engaged in a dispute about the interpretation of their court-ordered parenting-time schedule.
3. On Friday, June 25, 2021, at 2:45 p.m., Lisa picked up the children from her father's home and drove them to her own home in the city of Rochester. At 3:30 p.m., J. went to Lisa's father's home to pick up the children. While J. was parked outside Lisa's father's home, he texted Lisa to ask where the children were. Lisa responded that the children were with her.
4. J. then drove to Lisa's home and parked in her driveway. He sent Lisa another text message stating that he was there to pick up the children. She responded, using the Our Family Wizard (OFW) web-based software application, by stating that he did not have parenting time that weekend. J. replied that he had called the police. After that exchange of messages, J. remained in his car in the driveway for approximately 30 minutes without making any contact with Lisa. At 4:06 p.m., J. sent Lisa an OFW message in which he asked to speak to the children. At 4:10 p.m., Lisa facilitated a FaceTime call between J. and the children, which lasted three minutes. Then there was no interaction between J. and Lisa for approximately 20 minutes. At 4:35 p.m., J. called Lisa and again asked to speak with the children, and Lisa again facilitated a FaceTime call, which lasted two minutes. There again was no interaction between J. and Lisa for approximately 30 minutes. At 5:07 p.m., J. called Lisa using FaceTime, but she did not answer the call. J. called Lisa on FaceTime 28 more times over the next 30 minutes. Lisa did not answer any of the calls. J. then began to repeatedly honk his car horn. J. later got out of his car, knocked on Lisa's front door, and rang her doorbell continuously for six minutes. At approximately 5:30 p.m., Lisa called the police. J. drove away at approximately 5:40 p.m., before a police officer arrived.
5. On July 1, 2021, Lisa petitioned the district court for a harassment restraining order (HRO) against J. The following day, the district court issued a temporary HRO on an ex parte basis. J. requested an evidentiary hearing. The district court held an evidentiary hearing via a web-based video-conference application in August 2021. Both parties were represented by counsel. Lisa called her parents and two police officers as witnesses, and she testified on her own behalf. J. testified on his own behalf but did not call any other witness.
6. One week after the evidentiary hearing, the district court filed an order in which it granted Lisa's petition. The district court found that J. "made an uninvited visit to the Petitioner's residence and stayed 2 hours," "made harassing phone calls to the Petitioner," "sat in his vehicle outside Petitioner's home and honked the horn," and "repeatedly knocked on Petitioner's door and rang the doorbell." The district court concluded that J.'s conduct satisfied the statutory definition of harassment. The district court issued an HRO that prohibited J. from harassing or having contact with Lisa (except through OFW) and from being at or near her home. J. appeals.
7. J. argues that the district court erred by concluding that he engaged in harassment. Specifically, J. argues that he did not engage in "repeated incidents" of the type of conduct necessary for a finding of harassment.
8. A district court may issue a harassment restraining order if it finds "reasonable grounds to believe that [a person] has engaged in harassment." Minn. Stat. § 609.748, subd. 5(a)(3) (2020). For purposes of an HRO, the term "harassment" is defined by statute to mean, in primary part
[1] a single incident of physical or sexual assault . . . or [2] repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to 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) (emphasis and alterations added). As a general matter, this court applies an abuse-of-discretion standard of review to the issuance of an HRO. Kush v. Mathison, 683 N.W.2d 841, 843 (Minn.Ct.App. 2004), rev. denied (Minn. Sept. 29, 2004). In doing so, we apply a clear-error standard of review to the district court's findings of fact. Id. at 843-44 (citing Minn. R. Civ. P. 52.01). In addition, we apply a de novo standard of review to the district court's interpretation of the HRO statute. Peterson v. Johnson, 755 N.W.2d 758, 761 (Minn.App. 2008).
9. In this case, the district court relied on the second part of the statutory definition of harassment. In a four-page memorandum, the district court compared the facts of this case with the facts of prior cases in precedential and non-precedential appellate opinions. The district court reasoned as follows:
Had Respondent only ominously sat in his car outside Petitioner's house for two hours; only honked his horn repeatedly; only come up to the house to repeatedly knock and ring; or only called Petitioner's phone two dozen times in twenty minutes, we would have a single incident case. But he did them all. In my judgment Respondent's multiple, distinct harassing actions, temporally separated and spread out over a two-hour period, constitute "repeated incidents." [AA20]
10. On appeal, J. contends that his conduct was only a single incident of intrusive or unwanted acts, words, or gestures. In response, Lisa contends that J.'s conduct consisted of repeated incidents of intrusive or unwanted acts, words, or gestures.
11. Neither the word "incident" nor the term "repeated incidents" nor the phrase "repeated incidents of intrusive or unwanted acts, words, or gestures" is defined by the relevant statute. See Minn. Stat. § 609.748, subd. 1. The relevant precedential caselaw provides only limited guidance as to whether the conduct of an alleged harasser consists of repeated incidents or a single incident. In Beach v. Jeschke, 649 N.W.2d 502 (Minn.App. 2002), the district court issued an HRO based on evidence that the appellant made an oral statement to the respondent consisting of two sentences. Id. at 502. This court concluded that "the two-sentence statement, uttered on one occasion, does not meet the requirement of 'repeated incidents' necessary to constitute verbal harassment" under the statute, and we reversed the issuance of the HRO. Id. at 503. In Kush, the district court issued an HRO based on evidence that the appellant made two hostile, profanity-laced statements on two occasions separated by 22 months. 683 N.W.2d at 843. On appeal, the appellant argued that the two incidents were not "repeated incidents" because of the long interval between them. Id. at 844. This court rejected that argument and affirmed. Id. at 844-46. The Beach and Kush opinions are of limited assistance in the present case because their fact patterns are at the extremes: two statements spoken in quick succession, and two statements spoken 22 months apart.
12. This court has issued three non-precedential opinions concerning the harassment statute's repeated-incidents clause. In Peterson v. Meyer, No. A18-1185, 2019 WL 2168770, (Minn.App. May 20, 2019), rev. denied (Minn. Aug. 6, 2019), the district court issued an HRO based on evidence that the appellant sent six hostile text messages to the respondent during a one-hour period on one day and sent another long text message the next day. Id. at *1-2. On appeal, the appellant argued that the text message sent on the second day did not satisfy other requirements of the statute and that the six text messages sent on the first day did not constitute repeated incidents. Id. at *3. This court rejected the argument, reasoning that the last text message repeated the earlier messages and that, collectively, the text messages constituted repeated incidents. Id. at *4. In Bjerke v. Flomo, No. A19-0094, 2019 WL 4927070 (Minn.App. Oct. 7, 2019), the respondent yelled at the appellant while inside her car, later called her by telephone more than 50 times, and sent multiple text messages during that same day and the following day. Id. at *1. The district court did not issue an HRO on the ground that the respondent had not engaged in repeated incidents of intrusive or unwanted acts, words, or gestures. Id. at *2. This court reversed and remanded, reasoning that the incident in the car as well as the respondent's calling and texting constituted repeated incidents. Id. at *2-3. In Rickmyer v. Woodall, No. A20-0312, 2021 WL 317701 (Minn.App. Feb. 1, 2021), the respondent photographed and video-recorded the appellant and, minutes later, made threatening statements toward the appellant. Id. at *1. The district court did not issue an HRO on the ground that the respondent's conduct was "a single incident, . . . not repeated incidents." Id. This court affirmed, reasoning that the respondent's conduct occurred within a short time period. Id. at *2.
13. This body of caselaw reveals that the question whether a person has engaged in "repeated incidents of intrusive or unwanted acts, words, or gestures," as opposed to a single incident of such conduct, is a case-specific determination that depends on the facts and circumstances of the case. In particular, the relevant caselaw-precedential and non-precedential-reveals that the determination depends significantly on three factors: the relative timing of the allegedly repeated incidents, the location or locations in which the offensive conduct occurs or is perceived, and the means by which the alleged harasser engages in offensive conduct. With respect to timing, if the complained-of conduct occurs continuously without interruption during a short time period, the evidence tends to support a finding of a single incident. See Beach, 649 N.W.2d at 503; Rickmyer, 2021 WL 317701, at *2. But if the conduct occurs episodically, with time between manifestations of the offensive conduct, the evidence tends to support a finding of repeated incidents. See Kush, 683 N.W.2d at 844-45; Bjerke, 2019 WL 4927070, at *2-3; Peterson, 2019 WL 2168770, at *4. With respect to location, if the alleged harasser engages in the complained-of conduct in a single location, the evidence tends to support a finding of a single incident. See Beach, 649 N.W.2d at 503; Rickmyer, 2021 WL 317701, at *2. But if the conduct occurs or is perceived in multiple locations, the evidence tends to support a finding of repeated incidents. See Kush, 683 N.W.2d at 844-45; Bjerke, 2019 WL 4927070, at *2-3. With respect to means, if the alleged harasser engages in a single form of the complained-of conduct, the evidence tends to support a finding of a single incident. See Beach, 649 N.W.2d at 503; cf. Kush, 683 N.W.2d at 844-45; Peterson, 2019 WL 2168770, at *4. But if the alleged harasser engages in multiple forms of conduct-such as words, acts, and gestures-the evidence tends to support a finding of repeated incidents. See Bjerke, 2019 WL 4927070, at *2-3; cf. Rickmyer, 2021 WL 317701, at *2.
14. The facts of this case are-not surprisingly-unlike any one of the five cases discussed above. J.'s conduct occurred intermittently during a rather prolonged two-hour time period. At some points during that two-hour time period, he was intensively engaged in making contact with Lisa. But at other times, he paused his offensive conduct. See Kush, 683 N.W.2d at 844-45; Bjerke, 2019 WL 4927070, at *2-3; Peterson, 2019 WL 2168770, at *4. J. engaged in offensive conduct in one general place: Lisa's residence. But he did so in two specific locations: his car while it was parked in Lisa's driveway and at Lisa's front door. See Kush, 683 N.W.2d at 844-45; Bjerke, 2019 WL 4927070, at *2-3. J.'s conduct consisted of multiple forms of intrusive or unwanted acts and gestures: placing unanswered telephone calls, honking his car horn, knocking on Lisa's front door, and pushing Lisa's doorbell button. See Bjerke, 2019 WL 4927070, at *2-3. Given the unique facts and circumstances of this case, we conclude that the district court did not err by concluding that J. engaged in "repeated incidents of intrusive or unwanted acts, words, or gestures" of the character required by the statute.
15. Thus, the district court did not abuse its discretion by concluding that J. engaged in harassment, by granting Lisa's petition, and by issuing the HRO.
IT IS HEREBY ORDERED:
1. The district court's order is affirmed.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.