Marla K. Hanson, et al., Respondents (#C1-03-236), and Kirsten M. McGee, et al., Respondents (#C3-03-237), vs. James H. Browning, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-03-236 C3-03-237

 

Marla K. Hanson, et al.,

Respondents (#C1-03-236),

 

and

 

Kirsten M. McGee, et al.,

Respondents (#C3-03-237),

 

vs.

 

James H. Browning,

Appellant.

 

Filed September 2, 2003

Affirmed in part, reversed in part Hudson, Judge

 

Kittson County District Court

File No. C602194

 

Marla K. Hanson, P.O. Box 373, Hallock, Minnesota 56728 (pro se respondent)

 

Kirsten M. McGee, P.O. Box 953, Hallock, Minnesota 56728 (pro se respondent)

 

Robin L. Olson, Dewayne Johnston (pro hac vice), Olson Johnston Law Office, 405 Bruce Avenue, Suite 100A, Grand Forks, North Dakota 58201 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Willis, Judge; and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

Appellant James Browning challenges two restraining orders issued against him, claiming that the evidence is insufficient to show that his conduct was harassing or that he acted with the specific intent to adversely affect respondents Marla Hanson and Kirsten McGee.  We affirm in part and reverse in part. 

FACTS

 

            James Browning began working as pastor of the Community Covenant Church in Lake Bronson in September 2002.  Marla Hanson, the church treasurer, was given the task of helping Browning get settled in Lake Bronson.  Kirsten McGee is a church member and a masseuse whose services Browning used.   

            In December 2002 Hanson and McGee filed separate petitions for a harassment restraining order.  The district court issued temporary restraining orders and scheduled a consolidated hearing.  After the hearing, the court issued permanent harassment restraining orders, prohibiting Browning from having contact with Hanson and McGee and with their families.   

            At the hearing, Hanson testified that, shortly after she started working with Browning in September 2002, he indicated that he was interested in her romantically and wanted to marry her.  Browning called her or visited her at home or at work daily, touched her inappropriately, wrote her poems, and bought her gifts.  Initially, Hanson did not complain and, apparently, reciprocated Browning's feelings.  By the end of October, however, Hanson told Browning not to touch her or talk to her inappropriately.  Browning started crying and threatened to resign.  Allegedly to avoid hurting him, Hanson told Browning that she loved him.  Browning's inappropriate behavior subsequently intensified.  According to Hanson, "he just never left [me] alone."

            The first week in December, Hanson let Browning know that she was "withdrawing from him."  But because she believed she had hurt him, Hanson called Browning the next morning to see how he was doing.  Undeterred, Browning continued to visit the Hansons until December 11, when Hanson filed the petition at issue in this case.

            Kirsten McGee testified that over the course of five or six massages, Browning touched her inappropriately and said that he wanted her and could watch her all day.  Things escalated after each massage and McGee testified that she became increasingly uncomfortable.  During a massage in early November, McGee claims that Browning ejaculated and stained McGee's sheets.  McGee testified that she was adversely affected by this conduct, but she said nothing to Browning about it.  Although at his last massage McGee asked Browning to keep his arms on the table, she never told him that she was uncomfortable with any of his behavior.  Nor did she ask him not to come back.  On the contrary, McGee continued to schedule massages for Browning.  McGee admitted that Browning never called or visited her outside of work and that he had no interaction with her husband or children. 

            Browning testified that Hanson initiated the advances and came to him with her feelings for him.  He denied touching Hanson inappropriately or visiting her daily at home or at work.  He also stated that he was nervous about Hanson's behavior and tried distancing himself from her inconspicuously to avoid hurting her feelings.  Browning claimed that he visited the Hansons' home once every ten days, often by invitation or to pick up his children.  He also noted that he went to the car dealership where Hanson worked once or twice a week, usually at Hanson's request or to visit with other employees. 

In response to McGee's testimony, Browning denied behaving inappropriately during massages and claimed that he touched McGee only when she bumped into him in the narrow massage booth.  Browning appealed both restraining orders and this court consolidated the appeals.

D E C I S I O N

            This court uses an abuse-of-discretion standard to review a harassment restraining order issued under Minn. Stat. § 609.748 (2002).  Witchell v. Witchell, 606 N.W.2d 730, 731-32 (Minn. App. 2000).  We give due regard to the district court's opportunity to judge the credibility of witnesses and will not set aside findings of fact unless clearly erroneous.  Minn. R. Civ. P. 52.01; Davidson v. Webb, 535 N.W.2d 822, 824 (Minn. App. 1995).

            A district court may issue a harassment restraining order if it finds "reasonable grounds to believe that [a person] has engaged in harassment."  Minn. Stat. § 609.748, subd. 5(a)(3) (2002).  Harassment includes "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).

I

 

            Browning first argues that the district court abused its discretion by issuing temporary harassment restraining orders against him despite respondents' failure to establish an immediate and present danger of harassment.  See Minn. Stat. § 609.748, subd. 4(a) (2002) (stating that court may issue temporary restraining order in case alleging harassment under subdivision 1(a)(1) provided petition "further allege[s] an immediate and present danger of harassment").  The petitions did not allege an immediate and present danger of harassment.  But because the temporary restraining orders have lapsed, any challenge to their legality is moot and we do not address these aspects of Browning's arguments.  See In re Application of Minnegasco, 565 N.W.2d 706, 710 (Minn. 1997) (stating that "the general rule is that when, pending appeal, an event occurs that makes a decision on the merits unnecessary or an award of effective relief impossible, the appeal should  be dismissed as moot.").

II

Browning next argues that the district court abused its discretion by issuing permanent harassment restraining orders against him because the record does not establish that he acted with specific intent to harass.  But specific intent to harass is not necessarily required before a harassment restraining order may issue.  The statute requires only reasonable grounds to believe that a person has engaged in "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."  Minn. Stat. § 609.748, subd. 1(a)(1) (emphasis added).  Therefore, a lack of a specific intent to harass is not necessarily fatal to a harassment restraining order issued under Minn. Stat. § 609.748.

III

Browning last argues that the evidence is insufficient to support the district court's finding of harassing conduct.  We conclude that the evidence sufficiently supports the court's finding that Browning harassed Hanson.  But we conclude that the evidence is insufficient to support a finding that Browning harassed McGee.

a.  Restraining Order in Hanson's Favor

Browning argues that the acts Hanson alleges were unwanted were actually initiated by her or necessary to conduct the church's business.  Hanson argues that although some of her contact with Browning was self-initiated or necessary to conduct church business, a significant portion of it was unwanted and inappropriate.  Both her petition and her testimony allege inappropriate touching and numerous unwanted acts including daily visits and phone calls.

Browning essentially argues that Hanson testified falsely.  But given the district court's opportunity to judge the credibility of witnesses, this court cannot conclude that the district court clearly erred in accepting Hanson's testimony and discounting Browning's.  See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating appellate courts defer to district court credibility determinations).  The district court properly exercised its discretion in crediting Hanson's testimony, and its finding that Browning engaged in harassment is not clearly erroneous. 

b.  Restraining Order in McGee's Favor

Browning argues that the evidence does not support the court's finding that he harassed McGee.  Specifically, he argues that he visited McGee's business as a paying customer only and was never told not to come back.  He also argues that he stopped using McGee's services voluntarily and that he never had any contact with McGee's husband or children. 

Given that McGee never asked Browning to stop the unwanted behavior or not to come back, and that she continued to book appointments for Browning after the November incident she claims adversely affected her, we conclude that the district court abused its discretion in determining that Browning's conduct adversely affected McGee sufficiently to justify the issuance of a restraining order.  

            Affirmed in part, reversed in part.