Opinion
A22-1374
04-06-2023
Luisa Petrona Branscum, Appellant, v. Justin Dakota Branscum, Respondent.
Carver County District Court File No. 10-CV-22-390
Considered and decided by Reyes, Presiding Judge; Segal, Chief Judge; and Worke, Judge.
ORDER OPINION
SUSAN L. SEGAL, CHIEF JUDGE
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. In May 2022, appellant-mother Luisa Petrona Branscum petitioned for a harassment restraining order (HRO) against respondent-father Justin Dakota Branscum. Mother petitioned for the HRO on behalf of both herself and J.R., the parties' minor child (the child). At the time the petition was filed, mother and father were in the process of dissolving their marriage and mother had previously petitioned for an HRO against father. The district court had dismissed the previous petition without prejudice in January 2022, seemingly pursuant to an agreement by the parties to enter into a no-contact order, and ordered: "The parties shall have no contact with one another except through Our Family Wizard (OFW) pertaining solely to the parties' minor child."
2. The May 2022 petition generally alleged that father had sent mother numerous harassing messages using social media, text messaging, and OFW-including 440 messages through OFW between February and April 2022-and that "on multiple occasions [father] was parked outside [mother's] apartment and even took a picture and texted it to [mother] so [she] knew he was outside." Mother indicated that this behavior made her feel "scared and paranoid." The petition also alleged that the child needed protection from father because the child was being "confused and substantially mentally harmed by [father's] feeding him false information." Finally, mother alleged that father insinuated that he "can have [her] legal [immigration] status taken away."
3. The district court issued an ex parte HRO granting temporary relief. The district court determined that there were reasonable grounds to believe that father had engaged in harassment and ordered that father have no contact with mother or the child and that father was prohibited from being within 100 feet of mother's residence and workplace.
4. Father subsequently requested a hearing on the petition for an HRO. Following a hearing, the district court issued an amended ex parte HRO. The amended ex parte HRO prohibited father from contacting mother, but not the child, and explicitly stated that "[t]he relief granted does not extend to [mother's] minor children." The district court further ordered that "parenting time for [father] shall resume immediately." The district court ultimately denied the petition, following another evidentiary hearing, and ordered the matter be dismissed. The only explanation for the district court's denial is that "the allegations are not proven."
5. A district court may issue an HRO if the court finds that there are reasonable grounds to believe that a person has engaged in harassment. Minn. Stat. § 609.748, subd. 5(b)(3) (2022). "Harassment" is defined, in relevant part, as "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." Id., subd. 1(a)(1) (2022).
6. This court reviews a district court's decision whether to grant an HRO for an abuse of discretion. Kush v. Mathison, 683 N.W.2d 841, 843 (Minn.App. 2004), rev. denied (Minn. Sept. 29, 2004). We review factual findings for clear error, giving due regard to the district court's credibility determinations. Id. at 843-44.
7. Mother, as the appellant, has the burden to demonstrate error by the district court. See Waters v. Fiebelkorn, 13 N.W.2d 461, 464-65 (Minn. 1944) (stating that, "on appeal error is never presumed. It must be made to appear affirmatively before there can be reversal . . . [and] the burden of showing error rests upon the one who relies upon it"); Loth v. Loth, 35 N.W.2d 542, 546 (Minn. 1949) (quoting Waters in a family-law appeal); Luthen v. Luthen, 596 N.W.2d 278, 283 (Minn.App. 1999) (applying Loth in a family-law appeal); see also Midway Ctr. Assocs. v. Midway Ctr., Inc., 237 N.W.2d 76, 78 (Minn. 1975) (citing Waters and Loth). Mother, however, failed to order transcripts from any of the hearings in this matter. See, e.g., Minn. R. Civ. App. P. 110.02, subd. 1 (imposing obligation on the appellant to order any transcripts the appellant deems necessary). "While the lack of a transcript does not automatically require dismissal of an entire appeal, lack of a transcript does limit the scope of appellate review to whether the district court's conclusions of law are supported by its findings of fact." In re Bender, 671 N.W.2d 602, 605 (Minn.App. 2003).
8. Mother argues that "[t]he district court's dismissal of [mother's] HRO [petition] flies in the face of logic and the evidence presented in the record." But we are missing the evidence-the transcript of testimony presented to the district court-needed to review mother's argument.
9. Mother in effect is asking this court to reverse the denial of the HRO based solely on the evidence in her sworn petition seeking the HRO. This, we cannot do. We must review the record of the testimony upon which the district court based its determination. Id.
10. We therefore have no choice but to affirm the district court's order dismissing the petition for an 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.