Opinion
No. C4-02-799.
Filed May 6, 2003.
Appeal from the Dodge County District Court, File No. CX0290
Jessica Schewe, (pro se respondent)
Daniel William Doyle, (pro se appellant)
Considered and decided by Minge, Presiding Judge, Kalitowski, 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This opinion will be unpublished and may not be cited except as provided by Minn.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UNPUBLISHED OPINION
Appellant challenges a modified order for protection and a contempt of court order finding him in violation of an earlier order for protection. Because the earlier order was not violated, we reverse the finding of contempt; because it was not an abuse of discretion to modify the order to prohibit contact with respondent's family members, we affirm that portion of the order; and because the requirement that appellant notify the sheriff of Dodge County prior to entering the county is overly broad, we reverse that portion of the order.
FACTS
Appellant Daniel William Doyle lived with respondent Jessica Schewe and her minor child. Schewe ended the relationship, and she and the child moved out. Schewe also filed a petition for a harassment restraining order. The petition represented that Doyle had a set of keys to Schewe's car and refused to return them and was instead using them to get into her car and take her possessions from her car, was lurking outside Schewe's mother's house where Schewe was residing, was yelling at her, was placing unwanted telephone calls to Schewe, and was following her.
On February 12, 2002, the Dodge County District Court ordered Doyle to stay away from Schewe's residence, stay away from Schewe's place of employment, and to have no contact with Schewe or her son. The order was to remain in effect until February 11, 2004. Within ten days of the issuance of the order, Schewe sought an amendment. At a March 4, 2002, hearing on her request for an amendment, Schewe testified that Doyle had been calling her son's father at work, that Doyle had been calling her friends and relatives, and that Doyle's father and Doyle's brother were sending her son letters. At the conclusion of the March 4 hearing, the court amended the order to prohibit Doyle from having any third-party contact with Schewe and instructed Schewe that if Doyle's family continued to contact her, she would have to get a harassment restraining order against them. Less than a month later, Schewe filed an affidavit with the court alleging that Doyle was violating the harassment restraining order. A hearing was scheduled on an order to show cause why Doyle should not be held in contempt of court for violating the harassment order as amended.
On May 3, 2002, there was a hearing to determine whether Doyle was in contempt for violating the harassment restraining order. At the hearing, Schewe alleged that Doyle violated the order by calling her sister and by writing a letter to her stepfather. Schewe's sister, Stacy Hanson, testified that Doyle called her on March 27, 2002. Hanson testified that Doyle inquired about a mechanical problem with Hanson's car that Doyle had previously attempted to fix. Doyle then asked if he could visit with Hanson's three children. Hanson testified that Doyle did not ask her to relay any messages to Schewe. Doyle argued that he did not violate the prohibition on third-party contact because he did not ask anyone to give Schewe any messages. The court told Doyle that his contacting Hanson violated the restraining order.
At the conclusion of the hearing, the court found Doyle in contempt of court and sentenced him to 90 days in jail. The court stayed the sentence provided Doyle have no contact with Schewe's mother, father, sisters, or brothers for the duration of the harassment restraining order. The judge then included in Doyle's sentence the condition that Doyle must report to the Dodge County Sheriff any time Doyle was in Dodge County over the next year.
At the end of the hearing, Doyle said:
I don't feel it's fair in the first place. There is nothing in the restraining order that I have really done. It doesn't say that I can't call . . . as long as I'm not leaving messages.
The court responded, "Okay. But if it isn't clear enough, now, it is, okay, that you can't do it, period. Okay?"
Doyle challenges the order issued on May 3, 2002 finding him in contempt, prohibiting his contact with Schewe's family members, and requiring him to contact the sheriff's office before coming into Dodge County. Doyle also argues that he should have been allowed a public defender and that the district court judge was biased against him.
DECISION I.
Doyle challenges the May 3, 2002 order on the grounds that he was not in contempt because he did not violate the earlier order as amended. The harassment restraining order statute provides that a violation of a harassment restraining order "shall also constitute contempt of court." Minn. Stat. § 609.748, subd. 6(f) (2002).
We reverse the district court's finding of contempt. The earlier order prohibited third-party contact with Schewe. The ban on third-party contact prohibited appellant from trying to get messages to Schewe via her family members. See State v. Egge, 611 N.W.2d 573, 575 (Minn.App. 2000) (describing appellant's behavior as third-party contact where he "gave the agent S.B.'s phone number, directed [the agent] to call S.B. on his behalf, and knew the agent would call S.B."), review denied (Minn. Aug. 15, 2000). There was evidence at the May 3 hearing that Doyle was contacting Schewe's family. But there was no evidence that Doyle was trying to relay messages to Schewe through her family. Her sister even testified that Doyle did not ask her to give Schewe any message.
We note that the contempt order does not impose an immediate penalty. Rather the 90 days of jail is stayed on the condition that Doyle has no contact with specified members of Schewe's family. Although this is a purging condition that enables Doyle to avoid the consequences of the contempt finding if he fulfills that condition for the duration of the restraining order, it does not justify the finding of contempt. The earlier order did not prohibit the family contacts at issue here. We reverse that portion of the order finding Doyle in contempt because he contacted Schewe's family members.
II.
Doyle challenges the modifications of the harassment restraining order. It appears that in addition to serving as a purging condition ancillary to the contempt citation, the prohibition against Doyle contacting named members of Schewe's family was also a modification of the harassment restraining order. Finally, the order was modified to prohibit Doyle from entering Dodge County without notifying the sheriff.
This court reviews harassment restraining orders under an abuse of discretion standard. See Anderson v. Lake, 536 N.W.2d 909, 911 (Minn.App. 1995) (case law construing domestic abuse act applies to harassment statute); Mechtel v. Mechtel, 528 N.W.2d 916, 920 (Minn.App. 1995) (detailing district court's discretion to grant relief under domestic abuse act). A district court's findings of fact will not be set aside unless clearly erroneous, and due regard is given to the district court's opportunity to judge the credibility of witnesses. Minn.R.Civ.P. 52.01. The reviewing court acknowledges the opportunity of the district court to judge the credibility of witnesses. Davidson v. Webb, 535 N.W.2d 822, 824 (Minn.App. 1995).
If the district court finds that there are reasonable grounds to believe that a person has engaged in harassment, then it may issue a restraining order against that person. Minn. Stat. § 609.748, subd. 5 (2002); see Beach v. Jeschke, 649 N.W.2d 502, 503 (Minn.App. 2002). On review, however, this court must reverse a protective order issued under the act if it is not supported by sufficient evidence. Bjergum v. Bjergum, 392 N.W.2d 604, 606 (Minn.App. 1986).
"Harassment" in this context includes
repeated incidents of intrusive or unwanted acts, words, or gestures that * * * 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). A district court must base its findings in support of a restraining order on testimony and any documents properly admitted. Anderson, 536 N.W.2d at 911-12.
Prohibition on Appellant Contacting Respondent's Family
Doyle makes several comments in his brief as to the original order. We do not consider those comments in this appeal because Doyle did not appeal from that order or the amendment thereto. In any event, the trial court did not abuse its discretion in finding that there was sufficient evidence for a harassment restraining order.
The record from the series of hearings establishes that Doyle was harassing Schewe. Members of Doyle's family contacted Schewe. Finally, Doyle contacted members of Schewe's family. Although Doyle testified that Schewe had called him, gone to dinner with him, and asked him to accompany her on one of her errands, the trial court has the opportunity to judge the credibility of witnesses, the discretion to decide whom to believe, and to fashion an appropriate order for protection. See Minn.R.Civ.P. 52.01.
The court determined it did not have jurisdiction over Doyle's family members. As long as Doyle was not causing them to contact Schewe, their contacts were not proscribed by the outstanding orders. Schewe would have to seek a restraining order against them.
However, the contact that Doyle had with Schewe's family members is a different situation. Even if the contacts did not support the contempt citation, given the prior pattern of Doyle's harassment, the court had reason to conclude that Schewe would be deeply disturbed by such indirect contact and that Doyle should simply cease contact with the other family members. If those family members do not want such a limit placed on Doyle's contacting them, they can object. We construe the May 3 order of the district court as modifying the order for protection to prohibit contact with the 12 specified family members and determine this modified order was not an abuse of the district court's discretion.
Restrictions on Entering Dodge County
The district court modified the restraining order to prohibit Doyle from entering Dodge County without notifying the county sheriff. Doyle argues that the restriction is overly broad.
The harassment statute does not list guidelines for determining whether an order is overly broad. But prior case law suggests that the court must weigh the interests of the victim against the burden on the restrained party. See, e.g., Davidson, 535 N.W.2d at 824 (finding that "harassing conduct was likely to reoccur in the future" and that restrained party could conduct his business from his office, rather than at site where victim's business was located); Welsh v. Johnson, 508 N.W.2d 212, 215 (Minn.App. 1993) (balancing "well-being, tranquility, and privacy of the [victim's] home" against restrained party's rights to express his views).
The record in this case is devoid of any reason as to why protecting Schewe's interests requires imposing the burden on Doyle of notifying the sheriff every time he enters the county. Doyle has already been prohibited from contacting Schewe and her family, and that seems to adequately protect her interests. If more is needed, a certain distance around her home and place of work should be adequate. If Doyle shadows Schewe or consistently shows up in public venues she frequents, the contempt power is available. However, telling Doyle to "get out of Dodge" is simply too broad of a prohibition for this court to uphold. We therefore reverse that portion of the order.
III.
Doyle also argues that he does not understand why he had been given a public defender in an earlier case but was denied a public defender in this case. We review the district court's denial of a public defender for abuse of discretion. In re Stuart v. Schleicher, 646 N.W.2d 520, 523 (Minn. 2002).
A criminal defendant is entitled to a public defender if that defendant is financially unable to obtain counsel. Minn.R.Crim.P. 5.02, subd. 1. A defendant is "financially unable to obtain counsel" if:
(1) The defendant, or any dependent of the defendant who resides in the same household as the defendant, receives means-tested governmental benefits; or
(2) The defendant, through any combination of liquid assets and current income, would be unable to pay the reasonable costs charged by private counsel in that judicial district for a defense of a case of the nature at issue; or
(3) The defendant can demonstrate that due to insufficient funds or other assets: two members of a defense attorney referral list maintained by the court have refused to defend the case or, if no referral list is maintained, that two private attorneys in that judicial district have refused to defend the case.
Minn.R.Crim.P. 5.02, subd. 3.
Here there is a threshold issue as to whether Doyle has any entitlement to a public defender since it does not appear that he is a criminal defendant. Even if Doyle was otherwise entitled to a public defender, he acknowledged that he does not receive means-tested governmental benefits and that his case had not been refused by two attorneys because he cannot afford their fees. Thus, to be financially eligible for a public defender, Doyle would have had to show that he was unable to pay the reasonable costs charged by private counsel. Minn.R.Crim.P. 5.02, subd. 3; Stuart, 646 N.W.2d at 526 (placing the burden of proof on applicant to demonstrate that he or she is financially eligible for a public defender).
Doyle listed his financial information on his application for a public defender. But there is no information in the record on how much it would cost Doyle to obtain private counsel for his case. The burden was on Doyle to provide that information. Because Doyle did not meet his burden, the district court did not abuse its discretion.
IV.
Doyle argues that the district court judge was biased against him because the judge interrupted Doyle at several points in the proceedings. This argument is not persuasive. The district court judge interrupted Doyle to keep Doyle on point and keep the proceeding on track. Such interruptions are well within the province of a district court judge and are not indicative of bias. See McClelland v. McClelland, 359 N.W.2d 7, 11 (Minn. 1984).