Opinion
No. C7-02-733.
Filed April 1, 2003.
Appeal from the District Court, Ramsey County, File No. C701100820.
Carol Hatfield, (pro se respondent)
Dean Aaron Anderson, (pro se appellant)
Considered and decided by Kalitowski, Presiding Judge, Minge, Judge, and Hudson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
This most recent harassment restraining order dispute between appellant Dean Aaron Anderson and respondent Carol Elizabeth Hatfield is, unfortunately, highly, but for these parties, typically, contentious. On appeal from the district court's order finding that appellant committed harassing conduct, appellant assigns numerous errors to the district court. We affirm.
FACTS
Appellant and respondent divorced approximately twelve years ago. Since then respondent has secured numerous restraining orders against appellant. While two restraining orders are referenced in this case, namely, the 1999 restraining order and the 2002 restraining order, at issue is whether appellant committed acts sufficient to allow issuance of the 2002 restraining order, which provides:
1. [Appellant] shall have no contact, direct or indirect, with [respondent] * * * and shall not harass [her].
2. [Appellant] shall not enter and shall stay away from [respondent's] residence located at wherever she lives.
3. [Appellant] shall not enter and shall stay away from [respondent's] place of employment located at wherever she works.
The 2002 restraining order is based on two acts committed by appellant, both undisputed: a May 2001 note left on respondent's car, and a September 2001 driving incident where appellant followed respondent and her mother in their car for several miles. In May 2001 appellant left a note on respondent's car indicating that his father had passed away and that appellant wanted to "end old wounds heal them." He signed the note "you have my address XXOX." Respondent did not report this incident. On September 8, 2001, appellant, in his truck, followed respondent in her car for several miles. Respondent recognized appellant as the driver and the truck as belonging to him. Respondent's mother, Kathrine Hatfield, was traveling with respondent at the time in question. Respondent's mother testified that she observed appellant follow their car for several miles, and just before he turned, appellant waived at respondent and made an obscene hand gesture toward her (Hatfield). Respondent and her mother reported this incident to the Roseville Police Department.
As a result of these two incidents, on December 18, 2001, respondent completed an affidavit and petition for a new restraining order, and the district court issued a temporary order on her behalf. The district court scheduled a hearing on the new restraining order for December 27, 2001. Appellant requested and was granted a continuance. Appellant was then granted in forma pauperis status to obtain a transcript he had recently requested from a 1997 proceeding in Beltrami County. Two days later, the district court reversed appellant's in forma pauperis status after learning that appellant's request pertained to a family court matter, and appellant had not made the requisite showing to justify extending in forma pauperis status to obtain a transcript from another county. Appellant continued to pursue the Beltrami County transcripts, and the court eventually granted appellant in forma pauperis status to obtain a record of the proceeding.
Simultaneously, appellant filed a notice to remove/affidavit of prejudice, requesting removal of a particular judge from further proceedings in the harassment case. The judge's name, however, does not appear in the record until this notice of removal was filed. On February 19, 2002, the judge whom appellant sought to remove apparently signed the notice to remove / affidavit of prejudice but did not indicate whether the notice to remove was timely filed or whether prejudice was shown. Appellant did not file an affidavit alleging prejudice from the judge's involvement in the case. The judge subsequently co-signed several orders for the presiding referee, but did not, however, preside over any of the proceedings.
On March 1, 2002, appellant requested a third continuance related to his pursuit of the Beltrami County family law transcript. On March 4, 2002, the district court held a hearing on the December 18, 2001, restraining order petition. At this hearing, the district court denied appellant's third request for a continuance, and resolved the transcript issue by ruling that appellant's proffered evidence from the 1997 transcript was inadmissible under the rules of evidence and too remote with respect to either respondent's or her mother's credibility. The district court then heard testimony from respondent's mother, respondent, appellant, and appellant's alibi witness. The district court denied appellant's request to cross-examine respondent and her mother face-to-face, and explained that because an existing restraining order was in place, and because appellant was not represented by an attorney, appellant could conduct cross-examination through the court. In this fashion, appellant questioned respondent and her mother concerning the allegations in the petition.
The district court found that respondent had made an adequate showing of repetitive acts based on the May 2001 and September 2001 incidents, thus entitling her to a new restraining order. With respect to the May 2001 incident, the district court found that the note appellant left under respondent's windshield-wiper blade "was not a harassment-type note by its nature." The district court nevertheless found this to be harassing conduct because the contact occurred in violation of the 1999 restraining order. The district court explained that any contact is harassing where it violates a no-contact order.
With respect to the September 2001 incident, the district court found that harassing conduct occurred on September 8, 2001, despite appellant's alibi defense. The district court found that appellant's alibi was not credible. The district court denied appellant's request for a mutual restraining order on the basis that appellant had not filed the proper motion to obtain such an order. The district court advised appellant that he was free to seek a mutual restraining order by following the proper procedure.
This appeal followed.
DECISION I
Appellant contends that he was deprived of the right to a full hearing because the district court refused to grant a third continuance and did not allow him to fully cross-examine respondent and her mother. We disagree.
The district court must conduct a hearing before granting a restraining order. Minn. Stat. § 609.748, subds. 3, 5(a)(3) (2002). A "full hearing" includes "the right to present and cross-examine witnesses, to produce documents, and to have the case decided on the merits." El Nashaar v. El Nashaar, 529 N.W.2d 13, 14 (Minn.App. 1995).
The district court denied appellant's third request for a continuance so that he could obtain a transcript from Beltrami County because it found that the transcript contained inadmissible evidence, at least for appellant's stated purpose, which was to attack the character of both respondent and her mother, by using the contents of the transcript. Because appellant sought to use the contents of the transcript for impermissible purposes, we conclude that the district court did not abuse its discretion in denying a third continuance. See Minn.R.Civ.P. 404(a) (character evidence is inadmissible to prove conduct).
In addition, the district court extensively questioned both parties while under oath about each allegation made and gave each party the opportunity to respond accordingly. See, e.g., Anderson v. Lake, 536 N.W.2d 909, 911 (Minn.App. 1995) (holding no "full hearing" where court denied request to present witness testimony); Mechtel v. Mechtel, 528 N.W.2d 916, 920 (Minn.App. 1995) (holding no "full hearing" where court did not ask about allegations made or truth/falsity of allegations, and transcript only five pages long). While appellant claims he was not allowed to present evidence, the record shows otherwise. The transcript for the current hearing is 45 pages long — approximately 20 of those pages are of appellant's testimony. The district court accepted appellant's proffered police reports, letters, and summaries into evidence. Appellant presented an alibi witness to refute the September incident. We conclude that the district court afforded appellant a "full hearing," as appellant fully presented and argued his case.
Appellant's argument that the district court improperly limited cross-examination and created a "skewed outcome" is misguided. Because the object of direct and cross-examination of witness testimony "is to elicit facts to show the truth," testimony may be limited. See Anderson, 536 N.W.2d at 911 (stating cross-examination may be restricted if not eliciting facts to show truth). Here, the court limited appellant's questioning to the contents of the allegations in the petition, which it is permitted to do. We conclude that the district court acted properly when it limited appellant's cross-examination.
II
Appellant argues that the current order is based solely on violations of the previous 1999 order, and that because the 1999 order was void, there is no foundation for the current order. Because we find that the May 2001 and September 2001 acts are sufficient, in the aggregate, to form the basis of the 2002 restraining order, the validity of the 1999 restraining order is irrelevant. But even if the 1999 restraining order was void appellant's claim would fail. The statutory definition of "harassment" does not include violation of an existing restraining order, and subdivisions 4 (temporary order) and 5 (restraining order) do not require violation of an existing order before a new order may issue. See Minn. Stat. § 609.748, subds. 1, 4, 5 (2002). Thus, the two incidents forming the basis for the current 2002 restraining order must be analyzed for substance, i.e., whether they constitute harassment, not whether they were violations of a prior restraining order.
Appellant contends that the record does not support a finding of harassment that warrants issuance of the current restraining order. This court reviews issuance of a restraining order under an abuse-of-discretion standard. Witchell v. Witchell, 606 N.W.2d 730, 731-32 (Minn.App. 2000). We review the district court's findings supporting issuance of a restraining order for clear error. Id. at 732. The district court must make specific findings as to allegations of harassment before it may issue a restraining order. Mechtel, 528 N.W.2d at 920-21. "The findings of a referee, to the extent adopted by the court, shall be considered as the findings of the court." Minn.R.Civ.P. 52.01.
A district court may issue a restraining order where it finds "reasonable grounds to believe that the [actor] has engaged in harassment." Minn. Stat. § 609.748, subd. 5(a)(3) (2000). For purposes of restraining orders, harassment is defined by statute as:
[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 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.
Minn. Stat. § 609.748, subd. 1(a)(1) (2002). To constitute harassment, actions need not involve obscenity or vulgarity because the statutory definition encompasses a broader category of conduct than obscenity directed at another. Welsch v. Johnson, 508 N.W.2d 212, 216 (Minn.App. 1993) (finding harassing conduct where abortion-clinic picketer addressed clinic director by first name, called her on telephone to apologize for another's behavior, and stated "God loves you and so do I").
Here, the district court found that appellant engaged in two incidents of harassing conduct: (1) the May 2001 note left on respondent's car windshield while her car was parked in her driveway; and (2) the September 2001 driving incident where appellant followed respondent in her car for several miles, and directed hand gestures at respondent and her mother. Appellant admitted to leaving the May 2001 note on respondent's car, but denies he did so with intent to harass. The district court found that the note was not a "harassment-type" note, but nevertheless considered this incident as a basis for the current 2002 restraining order because placement of the note violated the 1999 no-contact order. The note references the appellant's desire to "end old wounds heal them — you have my address XXOX." Respondent testified that appellant put the note on her car while the car was parked in her driveway, meaning appellant had to enter respondent's property to put it there. It is undisputed that appellant lacked respondent's permission to enter her property.
Based on respondent's brief testimony and affidavit, the note was an "intrusive" and "unwanted" act, word or gesture that had a "substantial adverse effect or [was] intended to have a substantial adverse effect" on her "safety, security, or privacy * * * ." Minn. Stat. § 609.748, subd. 1(a)(1). Moreover, conduct need not be threatening or obscene to be harassing. Welsch, 508 N.W.2d at 216. Respondent testified:
[T]here is a long, long history of this and that there's no reason There's been no demonstration that there's a cease and desist here * * * . And I have no reason to believe that this behavior will not continue. I personally feel threatened every single day. I'm afraid to leave my house. I'm afraid I'm going to be followed.
This testimony demonstrates that to respondent, any contact by appellant is intrusive and unwanted. Further we note that there is a difference between "harassing" conduct and "harassment" that justifies issuance of a restraining order. In some situations, incidents of harassing conduct, such as the May 2001 incident here will not, standing alone, be sufficient to constitute harassment under section 609.748, subdivision 1(a)(1). Nevertheless, such incidents may still serve as predicate acts under the statute. We conclude that the district court was apparently focusing on appellant's stated subjective intent in leaving the note rather than the objective facts that appellant, without permission, entered respondent's property and put the note on respondent's car. Because the district court misapplied the definition of "harassment" in the statute, we must reject its finding that the May 2001 note was not a harassing note. Therefore, we hold that the note constituted harassing conduct, and when considered in the aggregate with the September 2001 incident, forms a sufficient basis warranting issuance of the 2002 restraining order.
Here, the May 2001 incident, the first incident in this most recent chapter of the parties' conflict, was not a "single incident of physical or sexual assault." Therefore, it could not, by itself constitute "harassment" under section 609.748, subdivision 1(a)(1).
Regarding the remainder of the "repeated intrusive or unwanted acts" required to form "harassment" under the statute, the district court found that appellant committed the September 2001 act. The September 2001 incident alone does not constitute harassment because it did not involve a physical or sexual assault. Kass v. Kass, 355 N.W.2d 335, 337 (Minn.App. 1984) (following former spouse while driving insufficient to support issuance of harassment restraining order). But when coupled with the May 2001 note, we hold that the two acts are sufficient to support issuance of the current restraining order.
Again, under the statutory definition, a "single unwanted incident of physical or sexual assault" may constitute the basis for a restraining order. Minn. Stat. § 609.748, subd. 1(a)(1).
In the alternative, appellant argues that the restraining order is overly broad. We disagree. In Dayton Hudson Corp. v. Johnson, 528 N.W.2d 260 (Minn.App. 1995), the court remarked that the harassment restraining order was overly broad where it prohibited the actor from contacting a department store or its employees, whom he had assaulted on prior occasions, either in person or by telephone, or coming within five feet of the downtown mall where the store was located. Id. at 263. But the order here does not encompass the breadth of the order this court found excessive in Dayton Hudson Corp.
As such, we affirm the district court's issuance of the 2002 restraining order.
III
Appellant complains that the district court erred by denying his request for a mutual restraining order. A mutual restraining order is appropriate where the district court has "reasonable grounds to believe that [the parties] have engaged in harassment." Minn. Stat. § 609.748, subd. 5(a)(3) (2000). While appellant claims that the Hatfields are conspiring against him and have been filing false police reports, etc., these claims are unsubstantiated in the record. Furthermore, the district court did not make the requisite finding of mutual harassment necessary to grant a mutual restraining order. We conclude that the district court acted within its discretion when it denied appellant's request for a mutual restraining order.
IV
Finally, appellant claims that the continued involvement of a judge he claimed to have removed was error. We disagree.
As a general rule, an appellant bears the burden of providing an adequate record. Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn.App. 1995). The record must be "sufficient to show the alleged errors and all matters necessary for consideration of the questions presented." Truesdale v. Friedman, 267 Minn. 402, 404, 127 N.W.2d 277, 279 (1964). Error is never presumed — appellant, as the party claiming error, has the burden of demonstrating it. White v. Minnesota Dep't of Natural Res., 567 N.W.2d 724, 734 (Minn.App. 1997), review denied (Minn. Oct. 31, 1997).
Initially, we note that the record does not indicate whether appellant's removal request was timely. But because appellant has not alleged prejudice from the judge's continued involvement in the case, he has failed to meet his burden of showing error. Moreover, the record demonstrates that the judge appellant claims to have removed did not preside over any of the hearings in the instant case. Rather, the judge played a more ministerial role and co-signed, along with other district court judges, the presiding referee's proposed orders. In any event, because the record shows that a different judge signed the amended 2002 restraining order, any potential prejudice was remedied.