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Undermining Attorney Pro Se's Right to Electronic Commerce, State and Federal Constitutional Guarantees
U N P U B L I S H E D O P I N I O N
ROSS, Judge
These consolidated appeals arise from a contentious dissolution proceeding and
the issuance of a harassment restraining order. Our best construction of the appellate
pleadings leads us to understand that Lea Banken asks us to review the parenting-time
2
aspects of an interim district court order issued after the trial and the final judgment. She
also asks us to review the court’s property division in the final judgment, a September
2010 temporary order prohibiting her from engaging in certain internet activity, a
contempt order finding her in constructive civil contempt of court for failing to comply
with the September 2010 order, and the grant of respondent Jeremy Banken’s petition for
a harassment restraining order against her. To the extent that the order finding Lea in
contempt of court is based on her conduct that does not violate the September 2010
temporary order to which she stipulated, we reverse the district court in part. Because the
record supports the district court’s findings of fact on her other challenges, and because
Lea has not shown that the district court otherwise misapplied the law or abused its
discretion, we affirm in part.
FACTS
Lea and Jeremy Banken married in 2004. They had a daughter, M.T.B., and a son,
I.Q.B. Jeremy petitioned for marriage dissolution in 2009 while Lea was pregnant with
their third child.
In September 2010, Jeremy moved the district court to order temporary relief
directing Lea to remove an internet posting from her Facebook page and other postings
that included personal information about Jeremy and the children. He also sought to
prohibit Lea from engaging in similar online activity in the future. The district court
granted Jeremy’s motion based on a stipulation by the parties.
The dissolution action proceeded to trial in May 2011. The district court heard
testimony from Lea, Jeremy, the children’s therapist, Lea’s therapist, the parties’ custody
3
evaluator, a neighbor, the guardian ad litem, and a property evaluator. Among the many
matters addressed at trial was a recent event involving the couple’s son mutilating a dog
with a gardening tool (either cutting off its tail or severing its spine—both descriptions
were given but no finding clarifies what really happened) while in Lea’s care. At the
close of trial, the district court judge stated that he was placing the current parenting plan
on “lockdown” and would draft an interim order specifying parenting time.
A week after the trial, the district court filed an interim order that suspended all of
Lea’s previously ordered parenting time and allowed her only supervised parenting time.
The order directed Lea to complete a psychological evaluation conducted by
professionals selected by social services and required an update in July 2011 addressing
Lea’s contact with the children, Lea’s psychological evaluation, the children’s and Lea’s
therapy sessions, and a plan for expanding or contracting Lea’s parenting time. Social
services submitted the July report on schedule, and, based on it, the district court entered
a second interim order that continued the May order’s requirements and scheduled a
review hearing in September.
Jeremy moved the district court to hold Lea in contempt of the September 2010
temporary order that had restricted her online conduct. Lea admitted to having violated
the order. As a result, the district court issued a conditional contempt order on August 5,
2011, finding Lea in constructive civil contempt. The conditional contempt order allowed
Lea to purge the contempt determination in part by removing all online postings that
contained her commentary or opinion regarding the dissolution. That same day, the
district court issued its final judgment and decree on the dissolution action. The decree
4
continued the supervised parenting time for Lea as stated in the May and July interim
orders. It also divided the parties’ marital property and incorporated the September 2010
temporary order and the conditional contempt order.
In September 2011, social services submitted another report on parenting-time
issues. The report stated that social services had been unable to schedule parenting time
with Lea because of its concern over the children’s safety. The report offered conditions
for resuming Lea’s parenting time, including that she complete a psychological
examination and sign an agreement with the parenting-time supervisor. The district court
conducted a parenting-time review hearing that same month as required by the decree.
The district court entered an amended final judgment and decree after the
September review hearing. It imposed conditions for Lea to resume parenting time. It
also incorporated the September 2010 temporary order and the conditional contempt
order. Jeremy later submitted an affidavit requesting entry of judgment against Lea
because she continued to post entries on her blog that violated the September 2010
temporary order and the conditional contempt order. The district court granted Jeremy’s
request for judgment in November 2011.
Lea moved the district court for amended findings, conclusions, and judgment and
a new trial. The district court denied her motions. Three months later, Jeremy
successfully petitioned for a harassment restraining order against Lea.
These appeals follow.
5
D E C I S I O N
I
Lea Banken argues that the district court unlawfully restricted her parenting time
and then imposed improper conditions on the resumption of parenting time. The district
court has broad discretion in deciding parenting-time questions based on the best interests
of the children and will not be reversed absent an abuse of discretion. Olson v. Olson, 534
N.W.2d 547, 550 (Minn. 1995).
Undermining Attorney Pro Se's Right to Electronic Commerce, State and Federal Constitutional Guarantees
Mon. 18Feb2013
Affidavit of Sharon Anderson Candidate www.sharon4mnag.blogspot.com
AMICUS CURIE FREE SPEECH www.lawlessamerica.com
LEGAL N,OTICE TO MINNESOTA
GOVERNMENT,OFFICIALS IN THE EXECUTIVE AND LEGISLATIVE BRANCH'S.
ISSUES OF JUDICIAL CORRUPTION MUST INDICT_ DENYING
THE
CITIZENERY PUBLISHED OPINIONS TO
RESOLVE Due Process, Jury Trials, Grand
Jury, Must MN Appellate Judges Schellhas,Rodenberg,Ross acting in Concort with Trial Judge Perkins
Judge Heidi S. Schellhas Judge Richard C. Perkins
Carver County
Carver County Courthouse
Phone: (952) 361-1420
Carver County
Phone: (952) 361-1420
Appointed/Elected:
Court of Appeals
J
udge 
Kevin G. Ross
A. The harassment restraining order is not an unconstitutional
prior restraint.
B. Lea is not entitled to have a jury consider her evidence before
the court issues a harassment rest
C. The district court did not abuse its discretion by issuing the
harassment restraining order.raining order.
WE THE PUBLIC DEMAND THE 14TH
AMEND OF EQUAL TREATMENT. ATTORNEY PRO SE' ACCESS TO SEATS OF GOVERNMENT AND
SOCIAL MEDIA.
lawlessamericauploaded and liked
1 day ago
5. A11-2156,
A12-0771 Note to Bill Windsor
In re the Marriage of: Jeremy Quinton Banken, petitioner, Respondent, vs. Lea Jean
Banken, Appellant.
Affirmed in part and reversed in part. Judge Kevin G. Ross.
Carver County District Court, Hon. Richard C. Perkins.
In re the Marriage of: Jeremy Quinton Banken, petitioner, Respondent, vs. Lea Jean
Banken, Appellant.
Affirmed in part and reversed in part. Judge Kevin G. Ross.
Carver County District Court, Hon. Richard C. Perkins.
This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
Unpublished opinions of the Court
of Appeals are not precedential. Unpublished opinions
must not be cited unless the party citing the unpublished opinion provides a full and correct copy
to all other counsel at least 48 hours before its use in any pretrial conference, hearing, or trial. If
cited in a brief or memorandum of law, a copy of the unpublished opinion must be provided to all
other counsel at the time the brief or memorandum is served, and other counsel may respond.
STATE OF MINNESOTA
IN COURT OF APPEALS
A11-2156
A12-0771
In re the Marriage of:
Jeremy Quinton Banken, petitioner,
Respondent,
vs.
Lea Jean Banken,
Appellant.
Filed February 11, 2013
Affirmed in part and reversed in part
Ross, Judge
Carver County District Court
File Nos. 10-FA-09-413; 10-FA-09-452
Christopher M. Banas, Banas Family Law, P.A., Lilydale, Minnesota (for respondent)
must not be cited unless the party citing the unpublished opinion provides a full and correct copy
to all other counsel at least 48 hours before its use in any pretrial conference, hearing, or trial. If
cited in a brief or memorandum of law, a copy of the unpublished opinion must be provided to all
other counsel at the time the brief or memorandum is served, and other counsel may respond.
STATE OF MINNESOTA
IN COURT OF APPEALS
A11-2156
A12-0771
In re the Marriage of:
Jeremy Quinton Banken, petitioner,
Respondent,
vs.
Lea Jean Banken,
Appellant.
Filed February 11, 2013
Affirmed in part and reversed in part
Ross, Judge
Carver County District Court
File Nos. 10-FA-09-413; 10-FA-09-452
Christopher M. Banas, Banas Family Law, P.A., Lilydale, Minnesota (for respondent)
Christopher Banas - Banas Family Law, P.A.
 |
bio_christopher Twin Cities divoce attorney Christopher M. Banas concentrates his practice in all areas of family law, including a growing focus on the ... |
Lea J. Banken, Waconia, Minnesota
(pro se appellant)
3:20Congressional Testimony:
Lea Banken to Bill Wi...
3:20Congressional Testimony:
Lea Banken to Bill Wi...
Considered and decided by Schellhas, Presiding Judge;
Ross, Judge; and
Rodenberg, Judge.
Rodenberg, Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
These consolidated appeals arise from a contentious dissolution proceeding and
the issuance of a harassment restraining order. Our best construction of the appellate
pleadings leads us to understand that Lea Banken asks us to review the parenting-time
2
aspects of an interim district court order issued after the trial and the final judgment. She
also asks us to review the court’s property division in the final judgment, a September
2010 temporary order prohibiting her from engaging in certain internet activity, a
contempt order finding her in constructive civil contempt of court for failing to comply
with the September 2010 order, and the grant of respondent Jeremy Banken’s petition for
a harassment restraining order against her. To the extent that the order finding Lea in
contempt of court is based on her conduct that does not violate the September 2010
temporary order to which she stipulated, we reverse the district court in part. Because the
record supports the district court’s findings of fact on her other challenges, and because
Lea has not shown that the district court otherwise misapplied the law or abused its
discretion, we affirm in part.
FACTS
Lea and Jeremy Banken married in 2004. They had a daughter, M.T.B., and a son,
I.Q.B. Jeremy petitioned for marriage dissolution in 2009 while Lea was pregnant with
their third child.
In September 2010, Jeremy moved the district court to order temporary relief
directing Lea to remove an internet posting from her Facebook page and other postings
that included personal information about Jeremy and the children. He also sought to
prohibit Lea from engaging in similar online activity in the future. The district court
granted Jeremy’s motion based on a stipulation by the parties.
The dissolution action proceeded to trial in May 2011. The district court heard
testimony from Lea, Jeremy, the children’s therapist, Lea’s therapist, the parties’ custody
3
evaluator, a neighbor, the guardian ad litem, and a property evaluator. Among the many
matters addressed at trial was a recent event involving the couple’s son mutilating a dog
with a gardening tool (either cutting off its tail or severing its spine—both descriptions
were given but no finding clarifies what really happened) while in Lea’s care. At the
close of trial, the district court judge stated that he was placing the current parenting plan
on “lockdown” and would draft an interim order specifying parenting time.
A week after the trial, the district court filed an interim order that suspended all of
Lea’s previously ordered parenting time and allowed her only supervised parenting time.
The order directed Lea to complete a psychological evaluation conducted by
professionals selected by social services and required an update in July 2011 addressing
Lea’s contact with the children, Lea’s psychological evaluation, the children’s and Lea’s
therapy sessions, and a plan for expanding or contracting Lea’s parenting time. Social
services submitted the July report on schedule, and, based on it, the district court entered
a second interim order that continued the May order’s requirements and scheduled a
review hearing in September.
Jeremy moved the district court to hold Lea in contempt of the September 2010
temporary order that had restricted her online conduct. Lea admitted to having violated
the order. As a result, the district court issued a conditional contempt order on August 5,
2011, finding Lea in constructive civil contempt. The conditional contempt order allowed
Lea to purge the contempt determination in part by removing all online postings that
contained her commentary or opinion regarding the dissolution. That same day, the
district court issued its final judgment and decree on the dissolution action. The decree
4
continued the supervised parenting time for Lea as stated in the May and July interim
orders. It also divided the parties’ marital property and incorporated the September 2010
temporary order and the conditional contempt order.
In September 2011, social services submitted another report on parenting-time
issues. The report stated that social services had been unable to schedule parenting time
with Lea because of its concern over the children’s safety. The report offered conditions
for resuming Lea’s parenting time, including that she complete a psychological
examination and sign an agreement with the parenting-time supervisor. The district court
conducted a parenting-time review hearing that same month as required by the decree.
The district court entered an amended final judgment and decree after the
September review hearing. It imposed conditions for Lea to resume parenting time. It
also incorporated the September 2010 temporary order and the conditional contempt
order. Jeremy later submitted an affidavit requesting entry of judgment against Lea
because she continued to post entries on her blog that violated the September 2010
temporary order and the conditional contempt order. The district court granted Jeremy’s
request for judgment in November 2011.
Lea moved the district court for amended findings, conclusions, and judgment and
a new trial. The district court denied her motions. Three months later, Jeremy
successfully petitioned for a harassment restraining order against Lea.
These appeals follow.
5
D E C I S I O N
I
Lea Banken argues that the district court unlawfully restricted her parenting time
and then imposed improper conditions on the resumption of parenting time. The district
court has broad discretion in deciding parenting-time questions based on the best interests
of the children and will not be reversed absent an abuse of discretion. Olson v. Olson, 534
N.W.2d 547, 550 (Minn. 1995).
syllabus - Minnesota Lawyer
Jun 8,
2010 – Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995). A district court
abuses that discretion by making findings unsupported by the evidence or
...
A district court abuses its discretion by making
findings
unsupported by the evidence or improperly applying the law. Hagen v. Schirmers, 783
N.W.2d 212, 215 (Minn. App. 2010).
unsupported by the evidence or improperly applying the law. Hagen v. Schirmers, 783
N.W.2d 212, 215 (Minn. App. 2010).
IN RE MARRIAGE OF BANKEN v. BANKEN - February 11, 2013.
7 days ago
– Hagen v. Schirmers, 783 N.W.2d 212, 215 (Minn. App. 2010). A district
court's findings of fact on which a parenting-time decision is based will
...
A district court’s findings of fact on which
a
parenting-time decision is based will be upheld unless they are clearly erroneous. Griffin
v. Van Griffin, 267 N.W.2d 733, 735 (Minn. 1978).
A. The district court did not unlawfully restrict Lea’s parenting time.
1. Minnesota Statutes section 518.131, subdivision 2(a) (2012).
Lea contends that the district court’s final judgment violated Minnesota Statutes
section 518.131, subdivision 2(a), by impermissibly restricting her parenting time. But
section 518.131 applies only to temporary orders, not to final judgments. See Minn. Stat.
§ 518.131, subd. 9(a) (2010) (stating that temporary orders shall not prejudice rights
litigated in subsequent proceedings). We are not persuaded by Lea’s challenge to that
portion of the final judgment that incorporates the terms of the May interim order. A
temporary order may deny parenting time to a parent if “the court finds that parenting
time is likely to cause physical or emotional harm to the child.” Id., subd. 2(a). Although
the May 2011 interim order lacks this express finding, the failure to make statutory
6
findings is not grounds for reversal if the record as a whole would support the finding.
Gregory v. Gregory, 408 N.W.2d 695, 698 (Minn. App. 1987). So we turn to the question
of whether the record would support a finding of likely harm.
We have no difficulty concluding that the record would support the requisite
finding that unrestricted parenting time with Lea is likely to cause emotional harm to the
children. The district court heard Lea, Jeremy, and the children’s therapist testify that the
couple’s young son had recently mutilated a dog while in Lea’s care. The therapist
testified without dispute that the son openly described the mutilation and then
immediately blurted this spontaneous account revealing Lea’s disturbing attempted
emotional manipulation of the child: “Mommy said it is not my fault. She said that daddy
made me do it, but he didn’t, daddy didn’t make me do it.” The therapist concluded, with
self-evident reasonableness, that Lea’s parenting time should be supervised immediately,
and she made a child-protection report of the encounter. Because the record is sufficient
to support the interim order, the district court did not abuse its discretion in ordering that
Lea’s parenting time be supervised.
2. Minnesota Statutes section 518.175, subdivision 1(a) (2012).
Lea also contends that the final judgment and decree violates the portion of
Minnesota Statutes section 518.175, subdivision 1(a), requiring the district court to grant
parenting time that enables a parent and child to maintain a relationship in the best
interests of the child. But if the district court finds that parenting time is likely to
endanger a child’s physical or emotional health or development, the district court “shall
restrict parenting time with that parent as to time, place, duration, or supervision and may
7
deny parenting time entirely.” Id. (emphasis added). The district court found that
“troubling behavior has occurred that makes clear that the children, at least the older two,
are in serious need of therapy/counseling,” that “the adjustment of the children to the
dissolution of this marriage is troublesome,” and that Lea refused to allow the children to
see their therapist after the trial. These findings are supported by evidence in the record.
For example, the district court learned that Lea had been observed making statements
critical of the court’s parenting-time restrictions. It also learned that Lea admitted that she
had been in contact with mothers who had fled the United States with their children in
violation of court orders. It found that Lea continues to falsely accuse Jeremy of child
abuse. The district court heard that she has falsely accused him also of using and
transporting drugs, hiring prostitutes, living with another woman, embezzling money,
molesting his children, and sleeping with and abusing animals. In addition, the concerns
arising from the dog-mutilation incident, among others in the record that we need not
elaborate on here, satisfy us that the district court did not clearly err by implicitly finding
that Lea’s parenting time was likely to endanger the emotional health of the children.
Lea also contends that the district court failed to afford her a hearing required by
the statute before restricting her parenting time. We reject this argument as it lacks
factual merit. Lea was afforded a hearing; before the district court entered the final
judgment, Lea participated in a four-day trial that encompassed parenting-time issues,
and she participated in a parenting-time review hearing in September 2011. Given the
extent of the process afforded for parenting-time questions during and after trial, the
claimed procedural shortcoming is, at most, harmless. See Kallio v. Ford Motor Co., 407
8
N.W.2d 92, 98 (Minn. 1987) (stating that, to obtain a reversal, an appellant must show
error by the district court and prejudice arising from that error); Minn. R. Civ. P. 61
(requiring harmless error to be ignored).
B. The conditions imposed are not unlawful.
Lea next contends that the conditions imposed by the district court for her to
resume parenting time are excessive and contrary to statute. She challenges, in particular,
the requirement that she obtain a psychological evaluation from someone other than her
treating psychiatrist and sign an agreement with the parenting-time supervisor. We
recognize that the prerequisites here are not customary and may seem onerous. In other
circumstances, they might be excessive. But we have observed that the district court has
extensive discretion when deciding issues relating to parenting time, Olson, 534 N.W.2d
at 550, and the ultimate question in all parenting-time disputes is what is in the best
interests of the children, Clark v. Clark, 346 N.W.2d 383, 385 (Minn. App. 1984), review
denied (Minn. June 12, 1984). A complete, contingent, or temporary denial of parenting
time is warranted when a child’s emotional health is endangered. See D.A.H. v. G.A.H.,
371 N.W.2d 1, 4 (Minn. App. 1985), review denied (Minn. Sept. 19, 1985). Most
persuasive here is the well-supported matter of endangerment and likely harm to the
children, triggering the district court’s prophylactic safeguards. We add that the unusual
decision to require Lea to provide input from a psychological professional other than her
own therapist arises from the unusual, factually baseless report by Lea’s treating
psychologist asserting that Jeremy had manipulated the court system. Lea is correct in
implying that the district court’s authority is not limitless, but the extremes in this case
9
respond proportionately to extreme behavior. And the district court’s conditions are not
inconsistent with prior decisions. See, e.g., D.A.H., 371 N.W.2d at 4 (requiring father to
undergo intensive psychotherapy before resuming parenting time). Lea’s additional
contention that she cannot afford to comply with the conditions is refuted by her own
testimony at trial, which indicated that she is capable of working full time. We conclude
that the district court did not abuse its discretion by imposing its parenting-time
preconditions on Lea.
II
Lea challenges the district court’s division of marital property. Upon the
dissolution of a marriage, the district court must make a just and equitable, but not
necessarily equal, division of the marital property between the former spouses. Minn.
Stat. § 518.58, subd. 1 (2010); White v. White, 521 N.W.2d 874, 878 (Minn. App. 1994).
The district court bases its property-division findings “on all relevant factors,” including
those listed in Minnesota Statutes section 518.58, subdivision 1. A district court has
broad discretion in evaluating and dividing property and will not be overturned except for
an abuse of discretion. Antone v. Antone, 645 N.W.2d 96, 100 (Minn. 2002).
Lea argues that the district court’s division of property was an unjust abuse of
discretion because it awarded her “none” of the money, property, assets, or equity in the
homestead after applying “offsets.” The district court awarded Lea one-half of the marital
interest in Jeremy’s business, Jeremy’s 401K, and the equity in the marital homestead,
totaling $72,238.50. We notice one inconsistency in the district court’s findings regarding
Lea’s equity interest in the marital homestead: to the extent Lea argues that she was not
10
awarded any cash to cover her interest in the marital homestead, the property evaluator
determined that interest to be $273.50—an amount we deem de minimis in the context of
the overall property division. See Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App.
1985) (refusing to remand for a de minimis error). The district court reduced Lea’s share
by an amount that corresponded to Jeremy’s payments of Lea’s share of the marital debt,
Lea’s liquidating of retirement accounts and marital property during the dissolution
without Jeremy’s or the court’s permission, Jeremy’s one-half interest in Lea’s vehicle,
Jeremy’s payment of some of Lea’s attorney fees, Jeremy’s incurring of attorney fees to
secure the contempt order, and Lea’s owing of fees for the parties’ custody evaluator and
parenting consultant. This reduction comports with the law. See Minn. Stat. § 518.58,
subd. 1a (allowing district court to compensate a party if one party disposes of marital
assets without consent and may impute the entire value of an asset and a fair return on it
to the party who disposed of it); Dahlberg v. Dahlberg, 358 N.W.2d 76, 80 (Minn. App.
1984) (noting that debts are divided in the same manner as assets). Although the district
court concluded that, in effect, “[Jeremy] has ‘overpaid’ [Lea] $19,668.08,” it declined to
require Lea to repay this amount. The record suggests therefore that Lea received more,
not less, than an equal share of the marital property.
Lea also argues that the district court failed to compensate her for her
contributions as homemaker. The statute requires only that the district court “consider . . .
the contribution of a spouse as a homemaker.” Minn. Stat. § 518.58, subd. 1. And here,
the district court did just that. It found that Lea was the primary caretaker of the children,
and it allocated to her cash interests in Jeremy’s business and 401K, and it gave her
11
equity in the marital homestead, declining to require her to repay the roughly $20,000
overpayment. This more-than-equal allocation accounted for her homemaker
contribution.
Lea next argues that the district court ignored the statute’s requirement that it
consider the income of each party when dividing marital property. The district court’s
order belies this assertion. It found that Jeremy is employed as president and owner of his
landscape corporation and it stated his income for 2010. The district court also found that
Lea was unemployed for the majority of the dissolution proceedings, had obtained parttime
employment for $13 hourly, is capable of full-time employment, and, at some point
during the marriage, had earned over $100,000 annually. Cognizant of the financial
circumstances, including “the disparity of earnings, earning power, likelihood [that
Jeremy] will end up paying most of marital debt even if allocated equally between the
parties,” the district court noted its authority to fashion an equitable division of property
under section 518.58 and it did so, choosing not to require Lea to repay the nearly
$20,000 overpayment.
Finally, Lea suggests that the property division resulted from the district court’s
frustration with her refusal to discontinue her online activity. She fails to support that
speculation with any factual support or convincing argument. See Schoepke v. Alexander
v. Smith & Sons Carpet Co., 290 Minn. 518, 519–20, 187 N.W.2d 133, 135 (1971) (“An
assignment of error based on mere assertion and not supported by any argument or
authorities in appellant’s brief is waived and will not be considered on appeal unless
12
prejudicial error is obvious on mere inspection.”). We hold that the district court neither
misapplied the law nor abused its discretion when dividing the marital property.
III
Lea challenges the district court’s restrictions on her online activity. Lea first
appears to argue that the September 2010 temporary order unconstitutionally limited her
free speech rights protected by the First Amendment. But a legal right, even a
constitutional right, generally may be waived. State ex rel. Johnson v. Indep. Sch. Dist.
No. 810, Wabash Cnty., 260 Minn. 237, 246, 109 N.W.2d 596, 602 (1961). The district
court based its September 2010 temporary order restricting Lea’s speech on its “review of
[the] submissions and exhibits by [Jeremy], and the other files, pleadings, and arguments
of counsel, and based on the stipulation of the parties.” A “stipulation” is a voluntary
agreement between parties. See Black’s Law Dictionary 1550 (9th ed. 2009). The district
court file does not include a transcript of the hearing or a document constituting the
parties’ stipulation, but we do not presume an error in the absence of an adequate record.
Custom Farm Servs., Inc. v. Collins, 306 Minn. 571, 572, 238 N.W.2d 608, 609 (1976).
Nor can we address any assertion that Lea did not waive her free speech rights as set out
in the stipulated order. See Valspar Refinish, Inc. v. Gaylord’s, Inc., 764 N.W.2d 359,
367 (Minn. 2009) (holding that whether a party waives a right is a factual question);
Duluth Herald & News Tribune v. Plymouth Optical Co., 286 Minn. 495, 498, 176
N.W.2d 552, 555 (1970) (holding that lack of a transcript preludes review of factual
questions). Lea was represented by counsel at the hearing. By stipulating, presumably on
the guidance of her legal counsel, to the terms of the September 2010 temporary order,
13
Lea voluntarily relinquished the rights restricted by the order, including free-speech
rights.
Lea also challenges the final order holding her in contempt of the September 2010
order. The argument has merit. The district court’s conditional contempt order allowed
Lea to purge herself of the contempt finding by removing all online content that “contains
any commentary or opinion regarding this pending dissolution action and [Jeremy] or the
minor children of these parties.” But the September order to which Lea had stipulated did
not include such a broad restriction on her right to comment. Although Lea characterizes
this as an unconstitutional prior restraint, we need not decide the question on
constitutional grounds because the district court’s contempt order impermissibly goes
beyond the substantive order that it seeks to enforce. To the extent that the district court’s
contempt order requires Lea to refrain from expressing her opinion about the dissolution
action—a restriction that is beyond the scope of the underlying stipulated September
2010 order—we reverse the requirement as beyond the court’s discretion.
IV
Lea raises a number of challenges to the district court’s issuance of the harassment
restraining order (HRO) against her. A victim of repeated incidents of intrusive or
unwanted acts, words, or gestures that have a substantial adverse effect on his safety,
security, or privacy may obtain an HRO. Minn. Stat. § 609.748, subd. 1(a), subd. 2
(2010). We review a district court’s issuance of an HRO for an abuse of discretion. Kush
v. Mathison, 683 N.W.2d 841, 843 (Minn. App. 2004), review denied (Minn. Sept. 29,
2004). We will set aside a district court’s findings in support of the order only if they are
14
clearly erroneous, and we give due regard to the district court’s credibility
determinations. Id. at 843–44.
A. The harassment restraining order is not an unconstitutional prior
restraint.
Lea first appears to raise a constitutional challenge to the HRO statute arguing that
the order is an invalid prior restraint on her speech. We have previously upheld the
constitutionality of the statute. In Dunham v. Roer, we noted that the state has an interest
in protecting individuals against repeated and substantial intrusions. 708 N.W.2d 552,
565–67 (Minn. App. 2006), review denied (Minn. Mar. 28, 2006). We held that the
statute does not violate the First Amendment because it is narrowly tailored to ban only
unprotected words or conduct. Id. at 565. That holding is sufficient to address Lea’s
limited argument challenging the statute on constitutional grounds.
B. Lea is not entitled to have a jury consider her evidence before the court
issues a harassment restraining order.
Lea argues that the district court erred by issuing the HRO without impaneling a
jury to consider her evidence. A criminal defendant has a federal and state constitutional
right to a jury trial. U.S. Const. amend. VI; Minn. Const. art. I, § 6. The constitutional
right to a jury trial attaches in criminal proceedings if a defendant faces more than six
months’ incarceration. See Lewis v. United States, 518 U.S. 322, 326, 116 S. Ct. 2163,
2166–67 (1996); State v. Dumas, 587 N.W.2d 299, 301 (Minn. App. 1998), review
denied (Minn. Feb. 24, 1999). The issuance of an HRO is itself not a criminal proceeding,
and an individual who is subject to the order cannot become subject to criminal charges
unless she violates the order. Minn. Stat. § 609.748, subd. 6 (2012).
15
Lea also had no right to a civil jury before the district court issued the HRO
because the statute does not require a jury, the rules do not require a jury, and the federal
and state constitutions do not require a jury. The statute itself does not mention a jury and
expressly directs the district court to make the requisite findings. Minn. Stat. § 609.748,
subd. 5(a)(3) (2012) (authorizing “the court” to issue a restraining order if “the court
finds at the hearing that there are reasonable grounds to believe that the respondent has
engaged in harassment” (emphasis added)). The Rules of Civil Procedure state that “the
issues of fact shall be tried by a jury” specifically “[i]n actions for the recovery of money
only, or of specific real or personal property.” Minn. R. Civ. P. 38.01. No money or
property is at stake in an order issued under section 609.748, so the rule does not cover
the action. The federal Constitution also does not apply; it states that in “[s]uits at
common law” involving controversy of more than twenty dollars in value, “the right of
trial by jury shall be preserved.” U.S. Const. Am. 7. But the Seventh Amendment refers
explicitly to “any Court of the United States,” id., and it has been long held not to be
binding on state courts. Pearson v. Yewdall, 95 U.S. 294, 296 (1877) (“We have held
over and over again that art. 7 of the amendments to the Constitution of the United States
relating to trials by jury applies only to the courts of the United States.”); Genzel v.
Halvorson, 248 Minn. 527, 531, 80 N.W.2d 854, 857–58 (1957) (“[The Seventh
Amendment] is not binding upon the states.”).
This leaves only the state constitution. Article I, section 4 of the state constitution
provides that “[t]he right of trial by jury shall remain inviolate, and shall extend to all
cases at law without regard to the amount in controversy.” But the article preserves the
16
civil-jury trial right only “as it existed in the Territory of Minnesota when our
constitution was adopted in 1857.” Abraham v. Cnty. of Hennepin, 639 N.W.2d 342, 348
(Minn. 2002). This means that “a party is not entitled to a jury trial if that same type of
action did not entitle a party to a jury trial at the time the Minnesota Constitution was
adopted.” Olson v. Synergistic Techs. Bus. Sys. Inc., 628 N.W.2d 142, 149 (Minn. 2001).
HROs of the sort authorized by section 609.748, or its kin, orders for protection (OFP)
authorized by section 518B.01, did not become statutory remedies until 1990 and 1979,
respectively. 1990 Minn. Laws ch. 461, § 5 at 972–74 (HRO); 1979 Minn. Laws ch. 214,
§ 1 at 414–17 (OFP). These actions were created long after the state’s 1857 constitution,
but that does not end the inquiry because the label of the legal action is not the point of
comparison. Olson, 628 N.W.2d at 149. The question instead is whether the “nature” and
“character” of the controversy is of the same sort as one for which the right to a jury trial
existed in 1857. Id. at 149–50. That is, we ask whether the action is one that historically
sounds in law (jury trial) or in equity (bench trial). See id. at 149–153; Abraham, 639
N.W.2d at 349 (“A thread runs through our line of decisions . . . that has consistently
acknowledged the distinction between actions at law, for which the constitution
guarantees a right to jury trial, and actions in equity, for which there is no constitutional
right to jury trial.”); see also United Prairie Bank-Mountain Lake v. Haugen Nutrition &
Equip., LLC, 813 N.W.2d 49, 54 (Minn. 2012) (observing that determining the nature and
character of the controversy requires a look at the claim’s substance and the relief
sought).
17
An order restraining harassment, like an order avoiding domestic abuse by
restricting contact, is injunctive in nature. We have previously observed that the
Minnesota Domestic Abuse Act is sufficiently similar to the statute authorizing HROs so
that we could recognize caselaw construing the former as applying to the latter. Anderson
v. Lake, 536 N.W.2d 909, 911 (Minn. App. 1995). The relief sought in an order for
protection, which is granted between family or household members in cases of domestic
abuse, is injunctive in nature. See Minn. Stat. 518B.01, subd. 6 (2012) (allowing a court
to grant relief in various forms, including exclusion from the petitioner’s residence and a
reasonable area surrounding the residence and restricting contact with the petitioner).
And before the enactment of the HRO statute, but without mentioning the relief available
by the order-for-protection statute, we upheld a district court’s grant of injunctive relief
enjoining an ex-husband from engaging in harassing conduct against his ex-wife because
of the district court’s “inherent power to grant equitable relief in a marriage dissolution
proceeding.” See Sward v. Sward, 410 N.W.2d 442, 445 (Minn. App. 1987), review
granted (Minn. Sept. 30, 1987) and appeal dismissed (Minn. Dec. 2, 1987). Arising from
the common law, our earliest family-law cases sound in equity. See, e.g., Baier v. Baier,
91 Minn. 165, 170, 97 N.W. 671, 673 (1903) (holding that a wife living apart from her
husband may maintain an equitable action against him for support); True v. True, 6 Minn.
458, 467 (1861) (noting that child-custody determinations are within the “special
province of a court of equity”). More recently, our supreme court reminded us that “the
jurisdiction of the district court in divorce actions is equitable.” Johnston v. Johnston, 280
Minn. 81, 86, 158 N.W.2d 249, 254 (1968); see also DeLa Rosa v. DeLa Rosa, 309
18
N.W.2d 755, 757–58 (Minn. 1981) (stating that district courts are guided by equitable
principles in determining the rights and liabilities of parties in a dissolution proceeding).
Based on its historically injunctive, equitable nature, we hold that the petition for
the HRO, particularly in this case, creates no constitutional right to a civil jury. For all of
these reasons, the district court did not abuse its discretion by issuing the HRO without
first affording Lea a jury trial.
C. The district court did not abuse its discretion by issuing the
harassment restraining order.
A district court may grant an HRO if it finds that reasonable grounds exist to
believe that the respondent has engaged in harassment. Minn. Stat. § 609.748, subd.
5(a)(3) (2012). The statute defines “harassment” to include “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.” Id., subd. 1(a)(1). The district court had sufficient evidence to find that Lea had
harassed Jeremy. It knew that Lea repeatedly posted false statements on the internet
alleging that Jeremy had sexually assaulted the children, engaged in acts of animal
cruelty, used and sold controlled substances, embezzled funds or bribed officials, and
testified falsely. Lea admitted to authoring and posting the articles on her blog that
contained the allegations, as well as posting the blog’s link on her Facebook page (with
more than 1000 “friends”) and on her Twitter account (with more than 250 “followers”).
Jeremy testified that he received calls at home and at work from individuals inquiring
about the allegations, embarrassing, angering, and humiliating him. Based on this, the
19
district court found that Lea’s false statements served “only to harass [Jeremy] and
attempt to adversely affect his business, invade his privacy, and create ill will and malice
toward him”; they did nothing to inform the public on any matter of public concern. And
the district court discredited Lea’s claim that she intended only to initiate judicial and
legislative reform. The district court acted well within its discretion and on sound
evidence when it issued the HRO against Lea.
Lea appears to argue that the HRO is inappropriate because Jeremy has an
adequate remedy through a defamation action. Lea is probably correct to the extent she
suggests that her conduct may also support a claim by Jeremy in a civil action to redress
Lea’s previous false statements. But the legislature has provided for the issuance of
HROs to prevent future harassment, without excluding harassment that is also
defamatory. The paths are not mutually exclusive.
Affirmed in part and reversed in part.
parenting-time decision is based will be upheld unless they are clearly erroneous. Griffin
v. Van Griffin, 267 N.W.2d 733, 735 (Minn. 1978).
A. The district court did not unlawfully restrict Lea’s parenting time.
1. Minnesota Statutes section 518.131, subdivision 2(a) (2012).
Lea contends that the district court’s final judgment violated Minnesota Statutes
section 518.131, subdivision 2(a), by impermissibly restricting her parenting time. But
section 518.131 applies only to temporary orders, not to final judgments. See Minn. Stat.
§ 518.131, subd. 9(a) (2010) (stating that temporary orders shall not prejudice rights
litigated in subsequent proceedings). We are not persuaded by Lea’s challenge to that
portion of the final judgment that incorporates the terms of the May interim order. A
temporary order may deny parenting time to a parent if “the court finds that parenting
time is likely to cause physical or emotional harm to the child.” Id., subd. 2(a). Although
the May 2011 interim order lacks this express finding, the failure to make statutory
6
findings is not grounds for reversal if the record as a whole would support the finding.
Gregory v. Gregory, 408 N.W.2d 695, 698 (Minn. App. 1987). So we turn to the question
of whether the record would support a finding of likely harm.
We have no difficulty concluding that the record would support the requisite
finding that unrestricted parenting time with Lea is likely to cause emotional harm to the
children. The district court heard Lea, Jeremy, and the children’s therapist testify that the
couple’s young son had recently mutilated a dog while in Lea’s care. The therapist
testified without dispute that the son openly described the mutilation and then
immediately blurted this spontaneous account revealing Lea’s disturbing attempted
emotional manipulation of the child: “Mommy said it is not my fault. She said that daddy
made me do it, but he didn’t, daddy didn’t make me do it.” The therapist concluded, with
self-evident reasonableness, that Lea’s parenting time should be supervised immediately,
and she made a child-protection report of the encounter. Because the record is sufficient
to support the interim order, the district court did not abuse its discretion in ordering that
Lea’s parenting time be supervised.
2. Minnesota Statutes section 518.175, subdivision 1(a) (2012).
Lea also contends that the final judgment and decree violates the portion of
Minnesota Statutes section 518.175, subdivision 1(a), requiring the district court to grant
parenting time that enables a parent and child to maintain a relationship in the best
interests of the child. But if the district court finds that parenting time is likely to
endanger a child’s physical or emotional health or development, the district court “shall
restrict parenting time with that parent as to time, place, duration, or supervision and may
7
deny parenting time entirely.” Id. (emphasis added). The district court found that
“troubling behavior has occurred that makes clear that the children, at least the older two,
are in serious need of therapy/counseling,” that “the adjustment of the children to the
dissolution of this marriage is troublesome,” and that Lea refused to allow the children to
see their therapist after the trial. These findings are supported by evidence in the record.
For example, the district court learned that Lea had been observed making statements
critical of the court’s parenting-time restrictions. It also learned that Lea admitted that she
had been in contact with mothers who had fled the United States with their children in
violation of court orders. It found that Lea continues to falsely accuse Jeremy of child
abuse. The district court heard that she has falsely accused him also of using and
transporting drugs, hiring prostitutes, living with another woman, embezzling money,
molesting his children, and sleeping with and abusing animals. In addition, the concerns
arising from the dog-mutilation incident, among others in the record that we need not
elaborate on here, satisfy us that the district court did not clearly err by implicitly finding
that Lea’s parenting time was likely to endanger the emotional health of the children.
Lea also contends that the district court failed to afford her a hearing required by
the statute before restricting her parenting time. We reject this argument as it lacks
factual merit. Lea was afforded a hearing; before the district court entered the final
judgment, Lea participated in a four-day trial that encompassed parenting-time issues,
and she participated in a parenting-time review hearing in September 2011. Given the
extent of the process afforded for parenting-time questions during and after trial, the
claimed procedural shortcoming is, at most, harmless. See Kallio v. Ford Motor Co., 407
8
N.W.2d 92, 98 (Minn. 1987) (stating that, to obtain a reversal, an appellant must show
error by the district court and prejudice arising from that error); Minn. R. Civ. P. 61
(requiring harmless error to be ignored).
B. The conditions imposed are not unlawful.
Lea next contends that the conditions imposed by the district court for her to
resume parenting time are excessive and contrary to statute. She challenges, in particular,
the requirement that she obtain a psychological evaluation from someone other than her
treating psychiatrist and sign an agreement with the parenting-time supervisor. We
recognize that the prerequisites here are not customary and may seem onerous. In other
circumstances, they might be excessive. But we have observed that the district court has
extensive discretion when deciding issues relating to parenting time, Olson, 534 N.W.2d
at 550, and the ultimate question in all parenting-time disputes is what is in the best
interests of the children, Clark v. Clark, 346 N.W.2d 383, 385 (Minn. App. 1984), review
denied (Minn. June 12, 1984). A complete, contingent, or temporary denial of parenting
time is warranted when a child’s emotional health is endangered. See D.A.H. v. G.A.H.,
371 N.W.2d 1, 4 (Minn. App. 1985), review denied (Minn. Sept. 19, 1985). Most
persuasive here is the well-supported matter of endangerment and likely harm to the
children, triggering the district court’s prophylactic safeguards. We add that the unusual
decision to require Lea to provide input from a psychological professional other than her
own therapist arises from the unusual, factually baseless report by Lea’s treating
psychologist asserting that Jeremy had manipulated the court system. Lea is correct in
implying that the district court’s authority is not limitless, but the extremes in this case
9
respond proportionately to extreme behavior. And the district court’s conditions are not
inconsistent with prior decisions. See, e.g., D.A.H., 371 N.W.2d at 4 (requiring father to
undergo intensive psychotherapy before resuming parenting time). Lea’s additional
contention that she cannot afford to comply with the conditions is refuted by her own
testimony at trial, which indicated that she is capable of working full time. We conclude
that the district court did not abuse its discretion by imposing its parenting-time
preconditions on Lea.
II
Lea challenges the district court’s division of marital property. Upon the
dissolution of a marriage, the district court must make a just and equitable, but not
necessarily equal, division of the marital property between the former spouses. Minn.
Stat. § 518.58, subd. 1 (2010); White v. White, 521 N.W.2d 874, 878 (Minn. App. 1994).
The district court bases its property-division findings “on all relevant factors,” including
those listed in Minnesota Statutes section 518.58, subdivision 1. A district court has
broad discretion in evaluating and dividing property and will not be overturned except for
an abuse of discretion. Antone v. Antone, 645 N.W.2d 96, 100 (Minn. 2002).
Lea argues that the district court’s division of property was an unjust abuse of
discretion because it awarded her “none” of the money, property, assets, or equity in the
homestead after applying “offsets.” The district court awarded Lea one-half of the marital
interest in Jeremy’s business, Jeremy’s 401K, and the equity in the marital homestead,
totaling $72,238.50. We notice one inconsistency in the district court’s findings regarding
Lea’s equity interest in the marital homestead: to the extent Lea argues that she was not
10
awarded any cash to cover her interest in the marital homestead, the property evaluator
determined that interest to be $273.50—an amount we deem de minimis in the context of
the overall property division. See Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App.
1985) (refusing to remand for a de minimis error). The district court reduced Lea’s share
by an amount that corresponded to Jeremy’s payments of Lea’s share of the marital debt,
Lea’s liquidating of retirement accounts and marital property during the dissolution
without Jeremy’s or the court’s permission, Jeremy’s one-half interest in Lea’s vehicle,
Jeremy’s payment of some of Lea’s attorney fees, Jeremy’s incurring of attorney fees to
secure the contempt order, and Lea’s owing of fees for the parties’ custody evaluator and
parenting consultant. This reduction comports with the law. See Minn. Stat. § 518.58,
subd. 1a (allowing district court to compensate a party if one party disposes of marital
assets without consent and may impute the entire value of an asset and a fair return on it
to the party who disposed of it); Dahlberg v. Dahlberg, 358 N.W.2d 76, 80 (Minn. App.
1984) (noting that debts are divided in the same manner as assets). Although the district
court concluded that, in effect, “[Jeremy] has ‘overpaid’ [Lea] $19,668.08,” it declined to
require Lea to repay this amount. The record suggests therefore that Lea received more,
not less, than an equal share of the marital property.
Lea also argues that the district court failed to compensate her for her
contributions as homemaker. The statute requires only that the district court “consider . . .
the contribution of a spouse as a homemaker.” Minn. Stat. § 518.58, subd. 1. And here,
the district court did just that. It found that Lea was the primary caretaker of the children,
and it allocated to her cash interests in Jeremy’s business and 401K, and it gave her
11
equity in the marital homestead, declining to require her to repay the roughly $20,000
overpayment. This more-than-equal allocation accounted for her homemaker
contribution.
Lea next argues that the district court ignored the statute’s requirement that it
consider the income of each party when dividing marital property. The district court’s
order belies this assertion. It found that Jeremy is employed as president and owner of his
landscape corporation and it stated his income for 2010. The district court also found that
Lea was unemployed for the majority of the dissolution proceedings, had obtained parttime
employment for $13 hourly, is capable of full-time employment, and, at some point
during the marriage, had earned over $100,000 annually. Cognizant of the financial
circumstances, including “the disparity of earnings, earning power, likelihood [that
Jeremy] will end up paying most of marital debt even if allocated equally between the
parties,” the district court noted its authority to fashion an equitable division of property
under section 518.58 and it did so, choosing not to require Lea to repay the nearly
$20,000 overpayment.
Finally, Lea suggests that the property division resulted from the district court’s
frustration with her refusal to discontinue her online activity. She fails to support that
speculation with any factual support or convincing argument. See Schoepke v. Alexander
v. Smith & Sons Carpet Co., 290 Minn. 518, 519–20, 187 N.W.2d 133, 135 (1971) (“An
assignment of error based on mere assertion and not supported by any argument or
authorities in appellant’s brief is waived and will not be considered on appeal unless
12
prejudicial error is obvious on mere inspection.”). We hold that the district court neither
misapplied the law nor abused its discretion when dividing the marital property.
III
Lea challenges the district court’s restrictions on her online activity. Lea first
appears to argue that the September 2010 temporary order unconstitutionally limited her
free speech rights protected by the First Amendment. But a legal right, even a
constitutional right, generally may be waived. State ex rel. Johnson v. Indep. Sch. Dist.
No. 810, Wabash Cnty., 260 Minn. 237, 246, 109 N.W.2d 596, 602 (1961). The district
court based its September 2010 temporary order restricting Lea’s speech on its “review of
[the] submissions and exhibits by [Jeremy], and the other files, pleadings, and arguments
of counsel, and based on the stipulation of the parties.” A “stipulation” is a voluntary
agreement between parties. See Black’s Law Dictionary 1550 (9th ed. 2009). The district
court file does not include a transcript of the hearing or a document constituting the
parties’ stipulation, but we do not presume an error in the absence of an adequate record.
Custom Farm Servs., Inc. v. Collins, 306 Minn. 571, 572, 238 N.W.2d 608, 609 (1976).
Nor can we address any assertion that Lea did not waive her free speech rights as set out
in the stipulated order. See Valspar Refinish, Inc. v. Gaylord’s, Inc., 764 N.W.2d 359,
367 (Minn. 2009) (holding that whether a party waives a right is a factual question);
Duluth Herald & News Tribune v. Plymouth Optical Co., 286 Minn. 495, 498, 176
N.W.2d 552, 555 (1970) (holding that lack of a transcript preludes review of factual
questions). Lea was represented by counsel at the hearing. By stipulating, presumably on
the guidance of her legal counsel, to the terms of the September 2010 temporary order,
13
Lea voluntarily relinquished the rights restricted by the order, including free-speech
rights.
Lea also challenges the final order holding her in contempt of the September 2010
order. The argument has merit. The district court’s conditional contempt order allowed
Lea to purge herself of the contempt finding by removing all online content that “contains
any commentary or opinion regarding this pending dissolution action and [Jeremy] or the
minor children of these parties.” But the September order to which Lea had stipulated did
not include such a broad restriction on her right to comment. Although Lea characterizes
this as an unconstitutional prior restraint, we need not decide the question on
constitutional grounds because the district court’s contempt order impermissibly goes
beyond the substantive order that it seeks to enforce. To the extent that the district court’s
contempt order requires Lea to refrain from expressing her opinion about the dissolution
action—a restriction that is beyond the scope of the underlying stipulated September
2010 order—we reverse the requirement as beyond the court’s discretion.
IV
Lea raises a number of challenges to the district court’s issuance of the harassment
restraining order (HRO) against her. A victim of repeated incidents of intrusive or
unwanted acts, words, or gestures that have a substantial adverse effect on his safety,
security, or privacy may obtain an HRO. Minn. Stat. § 609.748, subd. 1(a), subd. 2
(2010). We review a district court’s issuance of an HRO for an abuse of discretion. Kush
v. Mathison, 683 N.W.2d 841, 843 (Minn. App. 2004), review denied (Minn. Sept. 29,
2004). We will set aside a district court’s findings in support of the order only if they are
14
clearly erroneous, and we give due regard to the district court’s credibility
determinations. Id. at 843–44.
A. The harassment restraining order is not an unconstitutional prior
restraint.
Lea first appears to raise a constitutional challenge to the HRO statute arguing that
the order is an invalid prior restraint on her speech. We have previously upheld the
constitutionality of the statute. In Dunham v. Roer, we noted that the state has an interest
in protecting individuals against repeated and substantial intrusions. 708 N.W.2d 552,
565–67 (Minn. App. 2006), review denied (Minn. Mar. 28, 2006). We held that the
statute does not violate the First Amendment because it is narrowly tailored to ban only
unprotected words or conduct. Id. at 565. That holding is sufficient to address Lea’s
limited argument challenging the statute on constitutional grounds.
B. Lea is not entitled to have a jury consider her evidence before the court
issues a harassment restraining order.
Lea argues that the district court erred by issuing the HRO without impaneling a
jury to consider her evidence. A criminal defendant has a federal and state constitutional
right to a jury trial. U.S. Const. amend. VI; Minn. Const. art. I, § 6. The constitutional
right to a jury trial attaches in criminal proceedings if a defendant faces more than six
months’ incarceration. See Lewis v. United States, 518 U.S. 322, 326, 116 S. Ct. 2163,
2166–67 (1996); State v. Dumas, 587 N.W.2d 299, 301 (Minn. App. 1998), review
denied (Minn. Feb. 24, 1999). The issuance of an HRO is itself not a criminal proceeding,
and an individual who is subject to the order cannot become subject to criminal charges
unless she violates the order. Minn. Stat. § 609.748, subd. 6 (2012).
15
Lea also had no right to a civil jury before the district court issued the HRO
because the statute does not require a jury, the rules do not require a jury, and the federal
and state constitutions do not require a jury. The statute itself does not mention a jury and
expressly directs the district court to make the requisite findings. Minn. Stat. § 609.748,
subd. 5(a)(3) (2012) (authorizing “the court” to issue a restraining order if “the court
finds at the hearing that there are reasonable grounds to believe that the respondent has
engaged in harassment” (emphasis added)). The Rules of Civil Procedure state that “the
issues of fact shall be tried by a jury” specifically “[i]n actions for the recovery of money
only, or of specific real or personal property.” Minn. R. Civ. P. 38.01. No money or
property is at stake in an order issued under section 609.748, so the rule does not cover
the action. The federal Constitution also does not apply; it states that in “[s]uits at
common law” involving controversy of more than twenty dollars in value, “the right of
trial by jury shall be preserved.” U.S. Const. Am. 7. But the Seventh Amendment refers
explicitly to “any Court of the United States,” id., and it has been long held not to be
binding on state courts. Pearson v. Yewdall, 95 U.S. 294, 296 (1877) (“We have held
over and over again that art. 7 of the amendments to the Constitution of the United States
relating to trials by jury applies only to the courts of the United States.”); Genzel v.
Halvorson, 248 Minn. 527, 531, 80 N.W.2d 854, 857–58 (1957) (“[The Seventh
Amendment] is not binding upon the states.”).
This leaves only the state constitution. Article I, section 4 of the state constitution
provides that “[t]he right of trial by jury shall remain inviolate, and shall extend to all
cases at law without regard to the amount in controversy.” But the article preserves the
16
civil-jury trial right only “as it existed in the Territory of Minnesota when our
constitution was adopted in 1857.” Abraham v. Cnty. of Hennepin, 639 N.W.2d 342, 348
(Minn. 2002). This means that “a party is not entitled to a jury trial if that same type of
action did not entitle a party to a jury trial at the time the Minnesota Constitution was
adopted.” Olson v. Synergistic Techs. Bus. Sys. Inc., 628 N.W.2d 142, 149 (Minn. 2001).
HROs of the sort authorized by section 609.748, or its kin, orders for protection (OFP)
authorized by section 518B.01, did not become statutory remedies until 1990 and 1979,
respectively. 1990 Minn. Laws ch. 461, § 5 at 972–74 (HRO); 1979 Minn. Laws ch. 214,
§ 1 at 414–17 (OFP). These actions were created long after the state’s 1857 constitution,
but that does not end the inquiry because the label of the legal action is not the point of
comparison. Olson, 628 N.W.2d at 149. The question instead is whether the “nature” and
“character” of the controversy is of the same sort as one for which the right to a jury trial
existed in 1857. Id. at 149–50. That is, we ask whether the action is one that historically
sounds in law (jury trial) or in equity (bench trial). See id. at 149–153; Abraham, 639
N.W.2d at 349 (“A thread runs through our line of decisions . . . that has consistently
acknowledged the distinction between actions at law, for which the constitution
guarantees a right to jury trial, and actions in equity, for which there is no constitutional
right to jury trial.”); see also United Prairie Bank-Mountain Lake v. Haugen Nutrition &
Equip., LLC, 813 N.W.2d 49, 54 (Minn. 2012) (observing that determining the nature and
character of the controversy requires a look at the claim’s substance and the relief
sought).
17
An order restraining harassment, like an order avoiding domestic abuse by
restricting contact, is injunctive in nature. We have previously observed that the
Minnesota Domestic Abuse Act is sufficiently similar to the statute authorizing HROs so
that we could recognize caselaw construing the former as applying to the latter. Anderson
v. Lake, 536 N.W.2d 909, 911 (Minn. App. 1995). The relief sought in an order for
protection, which is granted between family or household members in cases of domestic
abuse, is injunctive in nature. See Minn. Stat. 518B.01, subd. 6 (2012) (allowing a court
to grant relief in various forms, including exclusion from the petitioner’s residence and a
reasonable area surrounding the residence and restricting contact with the petitioner).
And before the enactment of the HRO statute, but without mentioning the relief available
by the order-for-protection statute, we upheld a district court’s grant of injunctive relief
enjoining an ex-husband from engaging in harassing conduct against his ex-wife because
of the district court’s “inherent power to grant equitable relief in a marriage dissolution
proceeding.” See Sward v. Sward, 410 N.W.2d 442, 445 (Minn. App. 1987), review
granted (Minn. Sept. 30, 1987) and appeal dismissed (Minn. Dec. 2, 1987). Arising from
the common law, our earliest family-law cases sound in equity. See, e.g., Baier v. Baier,
91 Minn. 165, 170, 97 N.W. 671, 673 (1903) (holding that a wife living apart from her
husband may maintain an equitable action against him for support); True v. True, 6 Minn.
458, 467 (1861) (noting that child-custody determinations are within the “special
province of a court of equity”). More recently, our supreme court reminded us that “the
jurisdiction of the district court in divorce actions is equitable.” Johnston v. Johnston, 280
Minn. 81, 86, 158 N.W.2d 249, 254 (1968); see also DeLa Rosa v. DeLa Rosa, 309
18
N.W.2d 755, 757–58 (Minn. 1981) (stating that district courts are guided by equitable
principles in determining the rights and liabilities of parties in a dissolution proceeding).
Based on its historically injunctive, equitable nature, we hold that the petition for
the HRO, particularly in this case, creates no constitutional right to a civil jury. For all of
these reasons, the district court did not abuse its discretion by issuing the HRO without
first affording Lea a jury trial.
C. The district court did not abuse its discretion by issuing the
harassment restraining order.
A district court may grant an HRO if it finds that reasonable grounds exist to
believe that the respondent has engaged in harassment. Minn. Stat. § 609.748, subd.
5(a)(3) (2012). The statute defines “harassment” to include “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.” Id., subd. 1(a)(1). The district court had sufficient evidence to find that Lea had
harassed Jeremy. It knew that Lea repeatedly posted false statements on the internet
alleging that Jeremy had sexually assaulted the children, engaged in acts of animal
cruelty, used and sold controlled substances, embezzled funds or bribed officials, and
testified falsely. Lea admitted to authoring and posting the articles on her blog that
contained the allegations, as well as posting the blog’s link on her Facebook page (with
more than 1000 “friends”) and on her Twitter account (with more than 250 “followers”).
Jeremy testified that he received calls at home and at work from individuals inquiring
about the allegations, embarrassing, angering, and humiliating him. Based on this, the
19
district court found that Lea’s false statements served “only to harass [Jeremy] and
attempt to adversely affect his business, invade his privacy, and create ill will and malice
toward him”; they did nothing to inform the public on any matter of public concern. And
the district court discredited Lea’s claim that she intended only to initiate judicial and
legislative reform. The district court acted well within its discretion and on sound
evidence when it issued the HRO against Lea.
Lea appears to argue that the HRO is inappropriate because Jeremy has an
adequate remedy through a defamation action. Lea is probably correct to the extent she
suggests that her conduct may also support a claim by Jeremy in a civil action to redress
Lea’s previous false statements. But the legislature has provided for the issuance of
HROs to prevent future harassment, without excluding harassment that is also
defamatory. The paths are not mutually exclusive.
Affirmed in part and reversed in part.
DISCLAIMER:
AFFIANT SHARON ANDERSON CURRENT CANDIDATE4MNAG
Issues:
Lawyers_Judges creating Heinous AntiTrust, denial of
E-Commerce to Blogger Lea Banken via Unpublished Opinions
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IN RE MARRIAGE OF BANKEN v. BANKEN
Court of
Appeals of Minnesota.
February 11, 2013.
Court of Appeals of Minnesota.
February 11, 2013.
I
Lea
Banken argues that the district court unlawfully restricted her parenting time
and then imposed improper conditions on the resumption of parenting time. The
district court has broad discretion in deciding parenting-time questions based
on the best interests of the children and will not be reversed absent an abuse
of discretion. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995). A district
court abuses its discretion by making findings unsupported by the evidence or
improperly applying the law. Hagen v. Schirmers, 783 N.W.2d 212, 215 (Minn. App. 2010). A district
court's findings of fact on which a parenting-time decision is based will be
upheld unless they are clearly erroneous. Griffin v. Van Griffin,
267 N.W.2d 733, 735 (Minn.
1978).
A. The
district court did not unlawfully restrict Lea's parenting
time.
1.
Minnesota Statutes section 518.131, subdivision 2(a)
(2012).
Lea
contends that the district court's final judgment violated Minnesota Statutes
section 518.131, subdivision 2(a), by impermissibly restricting her parenting
time. But section 518.131 applies only to temporary orders, not to final
judgments. See Minn. Stat. § 518.131, subd. 9(a) (2010) (stating that
temporary orders shall not prejudice rights litigated in subsequent
proceedings). We are not persuaded by Lea's challenge to that portion of the
final judgment that incorporates the terms of the May interim order. A temporary
order may deny parenting time to a parent if "the court finds that parenting
time is likely to cause physical or emotional harm to the child." Id.,
subd. 2(a). Although the May 2011 interim order lacks this express finding, the
failure to make statutory findings is not grounds for reversal if the record as
a whole would support the finding. Gregory v. Gregory, 408 N.W.2d 695, 698 (Minn. App. 1987). So we turn
to the question of whether the record would support a finding of likely
harm.
We have
no difficulty concluding that the record would support the requisite finding
that unrestricted parenting time with Lea is likely to cause emotional harm to
the children. The district court heard Lea, Jeremy, and the children's therapist
testify that the couple's young son had recently mutilated a dog while in Lea's
care. The therapist testified without dispute that the son openly described the
mutilation and then immediately blurted this spontaneous account revealing Lea's
disturbing attempted emotional manipulation of the child: "Mommy said it is not
my fault. She said that daddy made me do it, but he didn't, daddy didn't make me
do it." The therapist concluded, with self-evident reasonableness, that Lea's
parenting time should be supervised immediately, and she made a child-protection
report of the encounter. Because the record is sufficient to support the interim
order, the district court did not abuse its discretion in ordering that Lea's
parenting time be supervised.
2.
Minnesota Statutes section 518.175, subdivision 1(a)
(2012).
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Opinions must be Published4PublicSafety_Citizens
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