Michael Selden Braun o/b/o T.A.B., petitioner, Respondent, Janet Gaetke o/b/o J.G., petitioner, Respondent, vs. William James Fink, Jr., Appellant.

Michael Selden Braun o/b/o T.A.B., petitioner, Respondent, Janet Gaetke o/b/o J.G., petitioner, Respondent, vs. William James Fink, Jr., Appellant. A05-958, Court of Appeals Unpublished, March 14, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-958

 

 

Michael Selden Braun o/b/o

T.A.B., petitioner,

Respondent,

 

Janet Gaetke o/b/o

J.G., petitioner,

Respondent,

 

vs.

 

William James Fink, Jr.,

Appellant.

 

 

Filed March 14, 2006

Affirmed in part, reversed in part

Lansing, Judge

 

Dakota County District Court

File Nos. C9-05-12339, C5-05-12340

 

Michael Selden Braun, 2306 Belfast Street West, Rosemount, MN 55068 (pro se respondent)

 

Janet Gaetke, 14600 Chrome Avenue, Rosemount, MN 55068 (pro se respondent)

 

Jonathan M. Peck, Bass & Peck, PLLC, 14101 Southcross Drive West, Suite 100, Burnsville, MN 55337 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            In this appeal of consolidated orders restraining William Fink from harassing Michael Braun and Janet Gaetke and their two daughters, Fink challenges the sufficiency of the evidence to establish that he engaged in harassment.  Because the record, although limited, is sufficient to support the harassment restraining order that prohibits any contact with the younger daughter, TB, we affirm that order.  But we reverse the other three restraining orders because the record is insufficient to establish that Fink harassed Braun, Gaetke, or their older daughter, JG.

F A C T S

            Michael Braun and Janet Gaetke filed separate petitions for harassment restraining orders against William Fink on behalf of their minor children, JG and TB.  Braun also checked the box on the form petition that requested an order restraining Fink from having any contact with him.  Fink requested a hearing, and the district court consolidated the files and scheduled a hearing.  Because Braun was unable to attend the hearing, the district court substituted Gaetke as the petitioner on behalf of TB.

            Gaetke testified in support of the sworn petition that stated that Fink had sexually assaulted TB.  She told the court that a criminal case was pending against Fink and that he had admitted the sexual assault.  Fink's attorney objected to Gaetke's further testimony that Fink had actually harassed TB, and the district court sustained the objection.  But later in the hearing, Fink's attorney stated on the record, "I will acknowledge . . . that my client is charged with criminal sexual conduct, statutory rape."  He further stated that Fink had admitted to having sexual intercourse with TB, but said that Fink intended to assert a mistake-of-age defense.  TB was not present at the hearing.

JG, who had reached the age of majority by the time of the hearing, testified in support of Gaetke's petition on her behalf.  JG said Fink had appeared at the grocery store where she is employed and "walked up and down the aisle" and "stared at me."

The district court granted the petitions and issued harassment restraining orders that prohibit Fink from having any contact with Braun, Gaetke, JG, and TB, and require Fink to stay away from their homes.  Fink appeals from the district court's orders, arguing that the evidence presented at the hearing did not provide reasonable grounds for the court to conclude that he harassed Braun, Gaetke, JG, or TB.

D E C I S I O N

            A district court may issue a harassment restraining order if it finds "reasonable grounds to believe that the respondent has engaged in harassment."  Minn. Stat. § 609.748, subd. 5(a)(3) (2004).  "Harassment" includes "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 . . . on the safety, security, or privacy of another."  Id., subd. 1(a)(1) (2004).  We review a district court's decision to issue a restraining order for an abuse of discretion.  Kush v. Mathison, 683 N.W.2d 841, 843 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004).  In determining whether the evidence is sufficient to meet the statutory requirements, we defer to the district court's factual findings.  Minn. R. Civ. P. 52.01; Kush, 683 N.W.2d at 843-44.

In the order prohibiting contact with TB, the district court found reasonable grounds to believe that Fink had harassed fourteen-year-old TB by physically or sexually assaulting her, by making uninvited visits, and by engaging in threatening behavior.  The district court based its findings on the testimony at the hearing and Fink's attorney's acknowledgments that the state had charged Fink with criminal sexual conduct and that Fink had admitted to having sex with TB.  The district court also relied on the no-contact order issued pending trial on the criminal-sexual-conduct charge. 

Fink argues that this evidence is insufficient to provide reasonable grounds for the court to believe that he harassed TB.  We disagree.  A single incident of sexual assault is enough to support a finding of harassment.  See Minn. Stat. § 609.748, subd. 1(a)(1) (defining harassment to include "single incident of physical or sexual assault").  The record is uncontradicted that sexual conduct occurred.  Although TB did not testify, the record is also undisputed that at age fourteen she is too young to provide consent.  In light of TB's age, the district court could reasonably find that the event had an adverse effect on her safety, security, or privacy.  See Kush, 683 N.W.2d at 845 (noting court may determine whether conduct is objectively harassing).  The district court had reasonable grounds to issue the harassment restraining order prohibiting Fink from having any contact with TB.

The district court also granted a harassment restraining order prohibiting contact with TB's sister, JG.  JG testified at the hearing that Fink had come to the grocery store and walked up and down the aisle and stared at her.  JG is employed in a grocery store that is part of a large chain, and Fink's appearance at the store may or may not have represented an incident of harassment.  But, even if we concluded that it did, it is the only incident to which JG testified at the hearing.  Braun's petition alluded to another incident at JG's school, but the transcript of the hearing provides no testimony or reference to this second incident.  Except for a sexual or physical assault, a single incident is insufficient to support the issuance of a harassment restraining order.  See, e.g., Beach v. Jeschke, 649 N.W.2d 502, 503 (holding single inappropriate act does not qualify as "repeated incidents" under Minn. Stat. § 609.748, subd. 1(a)(1)). 

The remaining harassment restraining orders prohibit contact with Gaetke and Braun.  Gaetke did not petition for an order on her own behalf, and no testimony supports the issuance of an order.  Although Braun checked the box on the petition requesting a harassment restraining order on his own behalf, no testimony was produced that would support an order for Braun. 

For these reasons, we reverse the three harassment restraining orders that prohibit contact with JG, Gaetke, and Braun.  We note, however, that the record does not contain a copy of the no-contact order issued in the criminal-sexual-conduct prosecution.  Our determination in this case is separate from, and has no affect on, the scope or validity of the no-contact order in the criminal case.  The criminal no-contact order remains in full effect consistent with the developments in that proceeding.

Affirmed in part, reversed in part.