Opinion
A21-0366
12-14-2021
Shelly Ann Kiley, Respondent, v. William Paul Kiley, Jr., Appellant.
Stearns County District Court File No. 73-CV-21-95
Considered and decided by Worke, Presiding Judge; Florey, Judge; and Smith, John, Judge. [*]
ORDER OPINION
JOHN SMITH, JUDGE.
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. Appellant William Paul Kiley, Jr. challenges the district court's issuance of a harassment restraining order (HRO) against him, arguing the court failed to make findings of harassment pursuant to Minnesota Statute section 609.748, subdivision 5(b) (2020) and issued the HRO without his requisite consent. We conclude the district court abused its discretion when it issued a stipulated HRO that did not accurately reflect the parties' agreement.
2. In early January 2021, the district court granted respondent Shelly Ann Kiley's ex parte HRO petition and appellant requested a harassment hearing. The district court determined there were reasonable grounds to believe appellant had harassed or intended to have a substantial adverse effect on the safety, security, or privacy of respondent. The one-year temporary HRO ordered appellant to have no direct or indirect contact with respondent and to stay away from her home and work.
3. Later that month, at a brief HRO hearing, respondent testified that she wanted the arguments between appellant, who is her ex-husband, and her current boyfriend to end because she was very stressed and concerned about it escalating. Respondent testified that she was not scared of appellant but that she did not want him on the same premises as her boyfriend. The district court clarified that respondent wanted appellant to stay off her property and not to call. The entirety of appellant's testimony at the hearing was: "I'm not around anyway. Restraining order, harassment order is null and void, not even needed because I am never around anyway. She's never asked me-I don't go around specifically because of this situation."
4. After hearing from both parties, the district court proposed "an option . . . just to issue a[n HRO with] no finding of harassment but [in which] the parties basically agree not to harass each other." Appellant replied "correct" and that he "would appreciate that" because he was not in contact with respondent's boyfriend. Respondent also accepted the proposed option. The district court explained that there were not any immediate issues, but that it sounded like "maybe if we had something in place everybody would feel more comfortable, basically, which is why we have that order. So, everybody can keep their space." Both parties agreed. The district court concluded that there would not be a finding of harassment and found "that the parties do agree to the issuance of a restraining harassment order between them."
5. In the order following the HRO hearing, the district court found that "[t]he [r]espondent denies the allegations of the [p]etition but has no objection to the issuance of a [r]estraining [o]rder. This court makes no findings of harassment." The conditions of the HRO following the hearing were identical to the temporary HRO.
6. The issuance of an HRO is ultimately reviewed for an abuse of discretion. Peterson v. Johnson, 755 N.W.2d 758, 761 (Minn.App. 2008). The district court's findings will not be set aside unless clearly erroneous. Haley v. Forcelle, 669 N.W.2d 48, 55 (Minn.App. 2003), rev. denied (Minn. Nov. 25, 2003). "A district court abuses its discretion when it makes findings unsupported by the evidence or when it improperly applies the law." Hemmingsen v. Hemmingsen, 767 N.W.2d 711, 716 (Minn.App. 2009), rev. granted (Minn. Sept. 29, 2009) and appeal dismissed (Minn. Feb. 1, 2010).
On appeal, appellant argues the district court did not have authority to issue an HRO without a finding of harassment. The court may issue a non-temporary HRO if three statutory requirements are met: (1) the petitioner filed a proper petition; (2) there was proper service on the respondent, including notice of the respondent's right to request a hearing; and (3) the district court finds at the hearing "that there are reasonable grounds to believe that the respondent has engaged in harassment." Minn. Stat. § 609.748, subd. 5(b). Minnesota Statute section 609.748 does not expressly provide a basis to issue an HRO based on the agreement or consent of the parties. We assume without deciding a finding of harassment is waived when parties stipulate to the issuance of an HRO.
7. When a judgment is based solely on the agreement and consent of the parties, the judgment is "not a judicial determination of the rights of the parties and does not purport to represent the judgment of the court, but merely records the pre-existing agreement of the parties." Hentschel v. Smith, 153 N.W.2d 199, 206 (Minn. 1967); see e.g., Shirk v. Shirk, 561 N.W.2d 519, 521-22 (Minn. 1997) (determining in dissolution cases stipulation is merged into the judgment and decree and cannot thereafter be the target of the attack). Stipulated rulings are binding on the parties, the district court, and the appellate court. Lappinen v. United Ore Co., 29 N.W.2d 8, 17 (Minn. 1947). Though a court may reject all or part of a stipulation, it generally cannot, "by judicial fiat, impose conditions on the parties to which they did not stipulate and thereby deprive the parties of their day in court." Toughill v. Toughill, 609 N.W.2d 634, 638 n. 1 (Minn.App. 2000) (quotations omitted). If a ruling is based solely on the agreement of the parties, then the judgment may be set aside for fraud, mistake, or the absence of real consent. Hollenkamp v. Peters, 410 N.W.2d 427, 429 (Minn.App. 1987).
8. In this case, the district court issued an HRO based solely on the parties' agreement and determined not to make a finding of harassment because of their agreement. Appellant argues that he only agreed that he and respondent would not harass each other. The parties agreed to both of the district court's characterizations of the order (i.e., "basically not to harass each other" and having "something in place [so] everybody would feel more comfortable"). With no further inquiry regarding the effect or conditions of the stipulated HRO, the district court determined there would be no finding of harassment and that the parties agreed "to the issuance of a restraining order between them."
Also, on appeal, appellant argues that he did not agree to an HRO and any agreement the parties may have reached at the hearing should be considered a settlement agreement and treated like a contract. Given respondent's notice of the HRO petition, the temporary order, and the hearing, we conclude the parties agreed to an HRO, but appellant's understanding of the conditions was reasonably mistaken.
9. In the written order, the district court determined appellant objected to the allegations in the petition but did not object to an HRO without a finding of harassment and ordered numerous restrictions upon appellant's conduct. Appellant did not consent to any of the following conditions: to having no direct or indirect contact with respondent; to staying away from her home and work; and to being prohibited from contacting respondent's place of employment.
10. The record of the parties' agreement does not reflect the district court's determinations at the hearing or the conditions of the written order. Because the district court cannot impose conditions to which the parties did not agree, we conclude the district court abused its discretion by imposing conditions on the parties to which they did not stipulate. Toughill, 609 N.W.2d at 638 n.1.
IT IS HEREBY ORDERED:
1. The district court's order is reversed.
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.
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.