Todd Miller, Appellant, vs. Charles Tobin Roberts, et al., Respondents.

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-98-1616

Jerome B. Bovi, petitioner,

Appellant,

Cherri L. Bovi, petitioner,

Appellant,

vs.

Tamra Sue Parask,

Respondent.

Filed May 11, 1999

Affirmed

Willis, Judge

St. Louis County District Court

File No. F295600614

Jerome B. Bovi, P.O. Box 304, Ocilla, GA 31774 (pro se appellant)

Cherri L. Bovi, P.O. Box 304, Ocilla, GA 31774 (pro se appellant)

Larry Stauber, Jr., Kevin C. Cornwell, Stauber & Lien, 1011 E. Central Entrance, Duluth, MN 55811 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Lansing, Judge, and Willis, Judge.

 U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Pro se appellant Cherri L. Bovi (Bovi) challenges the district court's restraining order prohibiting her from making false or misleading reports about respondent Tamra Sue Parask and from having contact with Parask's children and Parask's employer or any potential employer. Bovi and her husband, Jerome B. Bovi, also challenge the court's award of attorney fees to Parask. We affirm.

 FACTS

On June 4, 1997, Parask moved for a restraining order against Bovi, who is now married to Parask's ex-husband, Jerome Bovi. Bovi also moved for a restraining order against Parask. The district court granted both motions, enjoining Parask from having contact with Bovi's children and prohibiting Bovi from making false or misleading reports about Parask to any person or law enforcement agency and from having contact with Parask's children and her employer or any potential employer.[1] Bovi challenges the restraining order issued against her, and both appellants challenge the court's award of $2,000 in attorney fees to Parask.

 D E C I S I O N

This court reviews appeals from harassment restraining orders under an abuse-of-discretion standard. See Anderson v. Lake, 536 N.W.2d 909, 911 (Minn. App. 1995) (explaining caselaw construing Minnesota Domestic Abuse Act is applicable to harassment statute, Minn. Stat. § 609.748); Mechtel v. Mechtel, 528 N.W.2d 916, 920 (Minn. App. 1995) (granting relief under Domestic Abuse Act is within district court's discretion).

I. Procedural Claims

Bovi argues there were several procedural violations regarding the service of Parask's motion for a restraining order. Because she did not raise these issues to the district court and the court did not address them, the issues are not properly before this court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (asserting that reviewing court must consider only those issues that were presented to and considered by district court).

Bovi also claims the district court erred in attaching an October 1996 restraining order to Jerome Bovi and Parask's marital-dissolution decree. But neither the dissolution decree nor the October 1996 restraining order is subject to this appeal, and we decline to address the issue. See id. (explaining court will not review issues not addressed by district court).

Bovi argues the district court erred in stating in the introduction to its findings that Parask requested that Bovi be held in contempt of court. Even if this statement is erroneous, the error would not be a ground for reversing the district court's issuance of the restraining order because Bovi has shown no prejudice. See Minn. R. Civ. P. 61 (providing no error is ground for "vacating, modifying, or otherwise disturbing" judgment or order unless refusal to do so would be inconsistent with substantial justice); see also Kallio v. Ford Motor Co., 407 N.W.2d 92, 98 (Minn. 1987) ("Although error may exist, unless the error is prejudicial, no grounds exist for reversal.").

II. Findings of Fact

This court will not reverse a district court's findings of fact unless they are clearly erroneous. Minn. R. Civ. P. 52.01.

Bovi challenges the district court's findings that (1) head-lice medicine for Parask's children cost $150, (2) Bovi's husband testified on Bovi's behalf, (3) Bovi told Parask's children they will live with her in the future, (4) every letter mailed by Bovi contained disparaging comments about Parask, and (5) Bovi's husband testified that Parask had never met Bovi. Even if these findings are erroneous, Bovi has shown no prejudice. We therefore conclude the alleged errors are not grounds for reversing the district court's issuance of the restraining order.

Bovi further argues that findings regarding the testimony of her ex-husband were erroneous because his testimony was false. But the record supports the district court's findings regarding that testimony, and we defer to the district court's credibility determinations. See Minn. R. Civ. P. 52.01 (providing district court is in best position to assess credibility of witnesses). Because the evidence reasonably supports the findings regarding the testimony of Bovi's ex-husband, we conclude the findings are not clearly erroneous. See Olson v. Blue Cross & Blue Shield, 269 N.W.2d 697, 700 (Minn. 1978) ("A finding is clearly erroneous if it is not reasonably supported by the evidence as a whole.").

Bovi also challenges the district court's finding that she regularly called the police and provided them with false information. But Bovi admits that she called the police department four times, and Parask testified that Bovi "repeatedly" called the police department with false accusations against Parask. This evidence reasonably supports the court's finding, and we therefore conclude that the finding is not clearly erroneous.

Bovi claims that the district court's findings regarding Parask's testimony are erroneous. The district court found that Parask said her children have been upset after visiting appellants, that the children said Bovi punished them for not eating, and that they had to sleep in their clothes because it was too cold in appellants' home. Because the record supports the findings, we conclude they are not clearly erroneous.

Bovi argues the district court's finding that she is obsessed with Parask is erroneous because it is based on falsified documents. Parask's affidavit states that Bovi contacted Parask's employer to complain about Parask. The record shows that Bovi wrote disparaging letters to her ex-husband regarding Parask and filed complaints with the police regarding Parask. Because this evidence reasonably supports the district court's finding, we conclude the finding is not clearly erroneous.

Bovi challenges other findings of fact as being irrelevant or false. The findings that are allegedly false or irrelevant to the case are immaterial to our decision and need not be reviewed. See Rosendahl v. Nelson, 408 N.W.2d 609, 612 (Minn. App. 1987) (explaining if error occurs with respect to factual finding that does not affect result of case, error is harmless and immaterial to decision on appeal), review denied (Minn. Sept. 18, 1987). Because the evidence reasonably supports the district court's findings, we conclude they are not clearly erroneous.

III. Duration of Restraining Order

Bovi argues that the district court erred in making the restraining order effective for two years, claiming the relief exceeds the statutory time limit on restraining orders when the two years are added to the time the temporary restraining order was in effect. See Minn. Stat. § 609.748, subd. 5 ("Relief granted by the restraining order must be for a fixed period of not more than two years."). But the statute sets a limit on the duration of the restraining order, not on the restraining order combined with any temporary orders. Because the restraining order does not exceed the two-year statutory limit, we conclude the district court did not err in setting the duration of the restraining order.

IV. Admission of Evidence

The decision whether to admit evidence rests within the broad discretion of the district court, and this court will not reverse the district court's ruling unless it is based on an error of law or is an abuse of discretion. Jennie-O Foods, Inc. v. Safe-Glo Prods. Corp., 582 N.W.2d 576, 580 (Minn. App. 1998), review denied (Minn. Oct. 20, 1998).

Bovi claims the district court erroneously admitted into evidence two letters she sent to her ex-husband and a card sent by her children to their father. Because Bovi did not object to the admission of these items at the district court hearing, she may not question their admissibility on appeal. See Estate of Hartz v. Nelson, 437 N.W.2d 749, 752 (Minn. App. 1989) (asserting that admissibility of evidence may not be questioned for first time on appeal), review denied (Minn. July 12, 1989).

Claiming she did not write the letters, Bovi argues the district court erred in admitting two additional letters that she allegedly sent to her ex-husband. But because Bovi objected to one of the letters at trial only on the ground of relevancy, she may not challenge its authenticity on appeal. See Thiele, 425 N.W.2d at 582 (providing court may review only those issues presented to and considered by district court). Bovi has shown no prejudice as a result of the alleged error in admitting the other letter, and we conclude that the district court did not abuse its discretion in admitting it into evidence.

Bovi claims that several witnesses lied and that the district court erred in admitting their testimony. This court does not assess witness credibility. Boschee v. Duevel, 530 N.W.2d 834, 842 (Minn. App. 1995) (explaining this court will not assess witness credibility), review denied (Minn. June 14, 1995); see also Minn. R. Civ. P. 52.01 (providing district court is in best position to assess credibility of witnesses). We conclude the district court did not abuse its discretion in admitting the testimony.

Bovi also claims the district court erred in allowing irrelevant testimony. Because Bovi did not object to the relevancy of the testimony of the wife of her ex-husband at the hearing, the issue is not properly before this court. See Thiele, 425 N.W.2d at 582 (asserting court reviews only issues presented to and considered by district court). As to the testimony of other witnesses, Bovi alleges no prejudice as a result of the testimony, and we conclude that the district court did not abuse its discretion in admitting the testimony.

Bovi argues the district court erred in admitting a tape recording of a telephone conversation she had with her ex-husband and a transcription of that recording, claiming that the transcript was "not typed or transcribed by an authorized or experienced person" and that she did not have access to the evidence before the hearing. But Bovi provides no authority for the proposition that, to be admissible, a transcript must be prepared by a person with particular qualifications. See State by Humphrey v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (stating that issue unsupported by legal analysis or authority is waived). Bovi did not move for a continuance after learning of the evidence, her counsel cross-examined the witness regarding the recorded conversation, and she does not allege that admission of the evidence prejudiced her. We therefore conclude the district court did not abuse its discretion in admitting the tape recording and transcript into evidence.

V. Fees and Costs

Appellants argue that the district court abused its discretion in ordering them to pay Parask's attorney fees, claiming they do not have the means to pay the fees, citing Minn. Stat. § 518.14, subd. 1(2) (providing district court shall award attorney fees in proceeding for marital dissolution provided party from whom fees are sought has means to pay them). This court will not reverse a district court's award of attorney fees absent an abuse of discretion. Minnesota Council of Dog Clubs v. City of Minneapolis, 540 N.W.2d 903, 904 (Minn. App. 1995), review denied (Minn. Jan. 25 1996). Although the district court awarded attorney fees to Parask, this was not a marital-dissolution proceeding, and Minn. Stat. § 518.14 does not apply. Even if the statute did apply, appellants made no showing in district court that they are unable to pay the fees. We therefore conclude the district court did not abuse its discretion in ordering appellants to pay Parask's attorney fees.

Appellants request their costs and fees on appeal for the alleged harassment by Parask and Parask's alleged destruction of appellants' medical records. But the record contains no evidence that Parask harassed appellants or that Parask destroyed medical records. In any event, appellants cite no appropriate authority, and we therefore deny their request.

For the foregoing reasons, we conclude the district court did not abuse its discretion in granting Parask's motion for a restraining order against Bovi.

Affirmed.

[ ]1 The record does not indicate under which statute the motions were granted. A restraining order may be issued under Minn. Stat. § 518B.01, subd. 6 (1998) for domestic abuse or Minn. Stat. § 609.748, subd. 5 (1998) for harassment. Because there is no allegation of domestic abuse and the requirements of the harassment statute are satisfied, we assume for purposes of this appeal that the district court issued the restraining order under section 609.748, subdivision 5.