Lindsay Allyn Yates Plumer v. Joseph Mark Plumer, Jr.

• Court: Court of Appeals of Minnesota
• Decided: January 8, 2024
• Docket: a230575
• Status: Unpublished

Opinion

This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA IN COURT OF APPEALS A23-0575

Lindsay Allyn Yates Plumer, Respondent,

vs.

Joseph Mark Plumer, Jr., Appellant.

Filed January 8, 2024 Affirmed Gaïtas, Judge

Beltrami County District Court File No. 04-CV-23-195

Evelyn Brown, Evelyn Schneider Law Office, Bemidji, Minnesota (for respondent)

Joseph Plumer, Jr., Bemidji, Minnesota (self-represented appellant)

Considered and decided by Gaïtas, Presiding Judge; Smith, Tracy M., Judge; and

Wheelock, Judge.

NONPRECEDENTIAL OPINION

GAÏTAS, Judge

Appellant-husband Joseph Mark Plumer Jr. challenges the district court’s order

granting respondent-wife Lindsay Allyn Yates Plumer’s petition for a harassment

restraining order (HRO), arguing that the district court relied on the incorrect definition of

harassment and abused its discretion by granting the HRO. Because the district court did

not err in its application of the law, and we discern no abuse of discretion, we affirm. FACTS

Husband and wife are divorcing. They have orders for protection (OFPs) against

each other. Following a hearing on wife’s OFP petition, the district court determined that

“[t]he safety of [wife] and the child(ren) requires that parenting time (visitation) be

limited,” and imposed limits on husband’s parenting time.

During the divorce proceedings, wife also petitioned for an ex parte HRO. Her

petition alleged that husband had followed, monitored, or pursued her, and had interfered

with her schooling and employment. The district court denied wife’s petition for an ex

parte HRO and set the matter for a hearing. At the hearing, the evidence was as follows.

Wife testified that, after the OFP went into effect, husband “engaged in continued

acts of harassment or stalking,” which she stated caused her to be in “fear of harm.”

According to wife, husband looked in her car, drove by a restaurant where she was having

dinner, and drove through the parking lot of a store while she was shopping inside.

Wife testified that husband also sent messages to her family members. She testified

that husband shared screenshots of social-media posts from her private accounts with her

mother and grandmother. Although wife tried to prevent husband from viewing her social-

media posts by “block[ing]” him, she testified that he likely obtained the screenshots from

a mutual friend. Wife testified that husband continued sending messages to her mother and

grandmother even after they asked him to stop. Based on these continued contacts, wife’s

mother and grandmother obtained an HRO against husband.

Wife also testified that, on several occasions, husband contacted the university

where she was pursuing her master’s degree. She testified that he requested—and

2 received—a nonpublic schedule of her classes. Then, according to wife, husband emailed

numerous individuals at the university, including deans and the provost, accusing a

professor of having an inappropriate relationship with wife. Husband’s email threatened

to notify other students in the program and local news stations. Wife testified that when

she saw the email, she was “shocked,” “embarrassed,” “humiliated,” and “felt really scared

and invaded.” Eventually, wife testified, she withdrew from school because she suffered

“[h]umiliation around all of this, as well as an increase in [her] mental health disability

symptoms.”

Wife testified that husband’s actions also adversely affected her employment. She

testified that she suspected she was fired from a job due to husband’s interference.

Pursuing the HRO impacted wife’s schedule at her current job. And, according to wife,

her colleagues were “talking about” her situation.

Husband also testified at the hearing. He did not deny the conduct that wife alleged.

But he testified that his actions did not constitute harassment. He testified that he

forwarded social-media messages to wife’s mother and grandmother because he was “good

friends” with these family members and was concerned about his children. Husband also

acknowledged contacting wife’s university on “several occasions” and threatening to

contact other students and the media. According to husband, he did so out of concern for

his children and the university.

Following the hearing, the district court found that “[t]here are reasonable grounds

to believe that [husband] has engaged in harassment which has or is intended to have a

substantial adverse effect on [the] safety, security, or privacy of [wife]” because he:

3 (1) followed, monitored, or pursued her by following her and contacting her school;

(2) used social media to harass her by sending derogatory messages to her mother and

grandmother; and (3) interfered with her schooling, family, and friend relationships. The

district court granted the HRO—which prohibits husband from harassing wife, having

contact with wife, being within 1,000 feet of wife’s home, disparaging wife in social-media

posts, and contacting any university that wife attends—for a two-year period.

Husband appeals.

DECISION

Husband raises two issues on appeal. First, husband argues that the district court

relied on an incorrect definition of harassment in considering whether his conduct

constituted harassment. Second, husband contends that the evidence does not support the

district court’s finding that he harassed wife. Wife responds that neither of these issues is

properly before us because husband forfeited his challenges to the HRO by not moving the

district court for a new trial.

I. Husband did not forfeit his appellate issues by not moving for a new trial.

As a threshold issue, we consider wife’s assertion that husband forfeited his

appellate issues when he failed to move the district court for a new trial under the rules of

civil procedure. Because the law does not require an appellant to move for a new trial to

obtain appellate review of an HRO proceeding, we reject wife’s argument.

In arguing that husband’s failure to seek a new trial forfeited his appellate challenges

to the HRO, wife relies on “the general rule that matters such as trial procedure, evidentiary

rulings and jury instructions are subject to appellate review only if there has been a motion

4 for a new trial in which such matters have been assigned as error.” Sauter v. Wasemiller,

389 N.W.2d 200, 201 (Minn. 1986); see also Minn. R. Civ. P. 59.01(g) (authorizing a

district court to grant a new trial where the decision “is not justified by the evidence, or is

contrary to law”). However, HRO proceedings are special proceedings. Fiduciary Found.,

LLC ex rel. Rothfusz v. Brown, 834 N.W.2d 756, 761 (Minn. App. 2013) (“A proceeding

is special, within the ordinary meaning of the term special proceeding, when the law

confers a right, and authorizes a special application to a court to enforce it.” (quotations

omitted)), rev. denied (Minn. Sept. 17, 2013). In a special proceeding, a motion for a new

trial is not authorized unless the statute authorizing that special proceeding states otherwise,

or the special proceeding actually involves a trial. Schlitz v. City of Duluth, 449 N.W.2d

439, 441 (Minn. 1990); see also Parson v. Argue, 344 N.W.2d 431, 431 (Minn. App. 1984)

(reasoning that if a case never proceeds to trial, then “a motion for a new trial is an

anomaly” (quotation omitted)). The HRO statute does not provide for a trial or a new trial;

it provides for a “hearing.” Minn. Stat. § 609.748, subd. 3 (2022). Accordingly, under the

rules of civil procedure, husband had no authority to move for a new trial following the

district court’s HRO order. We therefore conclude that husband did not forfeit his

arguments on appeal by failing to pursue such relief below.

II. The district court properly applied the law.

Husband argues that the district court relied on the wrong definition of “harassment”

in determining that husband harassed wife. Because the record and the HRO statute do not

support husband’s argument, we disagree.

5 Minnesota Statutes section 609.748 (2022) authorizes “[a] person who is a victim

of harassment . . . [to] seek a restraining order from the district court.” Minn. Stat.

§ 609.748, subd. 2(a). Under this section, a court may issue an HRO if it finds “that there

are reasonable grounds to believe that the respondent has engaged in harassment.” Id.,

subd. 5(b)(3). The term “harassment” as used in this section is defined, in relevant part,

as:

a single incident of physical or sexual assault, a single incident of harassment . . . , a single incident of nonconsensual dissemination of private sexual images . . . , or 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[.]

Id., subd. 1(a)(1).

Husband contends that the district court applied the definition of harassment in

another statute, Minnesota Statutes section 609.749 (2022), which criminalizes certain

harassment offenses. Section 609.749, subdivision 2(c)(2), states that a person commits

harassment if the person “follows, monitors, or pursues another.” Husband argues that the

HRO itself—which is a form order containing various boxes that a district court can check

to identify the harassing conduct found—shows that the district court relied on the language

of the criminal statute, section 609.749, subdivision 2(c)(2), to find harassment. He points

out that the district court checked a box on that form order indicating that he “[f]ollowed,

monitored, or pursued” wife. And he notes that, because these terms are only included in

6 the criminal statute and are not included in section 609.748, the district court relied on the

wrong definition of harassment.

To address husband’s argument, we must consider whether the definition of

harassment in section 609.748, subdivision 1(a)(1), could include the conduct described in

section 609.749, subdivision 2(c)(2)—following, monitoring, or pursuing another. This

presents a question of statutory interpretation, which we review de novo. Peterson v.

Johnson, 755 N.W.2d 758, 761 (Minn. App. 2008). The goal of statutory interpretation is

to “ascertain and effectuate the intention of the legislature.” Christianson v. Henke, 831

N.W.2d 532, 536 (Minn. 2013) (quotations omitted). In discerning the legislature’s intent,

the “plain language of the statute is [the] best guide.” Rodriguez v. State Farm Mut. Auto.

Ins. Co., 931 N.W.2d 632, 634 (Minn. 2019). When the meaning of a statute is

unambiguous, the plain language controls. State v. Boecker, 893 N.W.2d 348, 351 (Minn.

2017).

We conclude that the acts of following, monitoring, or pursuing could constitute

harassment under the definition of that term in section 609.748, subdivision 1(a)(1). Under

that subdivision, 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.” Minn. Stat. § 609.748, subd.

1(a)(1). Given the broad language of the definition of harassment under section 609.748,

subdivision 1(a)(1), the acts of following, monitoring, or pursuing could be “repeated

incidents of intrusive or unwanted acts, words or gestures” that substantially impact “the

safety, security, or privacy of another.”

7 Because the plain language of section 609.748, subdivision 1(a)(1), could

encompass the acts of following, monitoring, or pursuing, we cannot conclude that the

district court relied on the wrong statutory definition of harassment. We therefore reject

husband’s legal challenge to the HRO in this matter.

III. Because the evidence supported the district court’s determination that there were reasonable grounds to believe that husband engaged in harassment, the district court did not abuse its discretion in issuing the HRO.

Husband argues that the evidence presented at the hearing was insufficient to

support the district court’s decision to issue the HRO. We disagree.

A district court may issue an HRO if it determines “that there are reasonable grounds

to believe that [a person] has engaged in harassment.” Minn. Stat. § 609.748, subd. 5(b)(3).

As noted, 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.” Id., subd. 1(a)(1). This includes conduct that “goes

beyond an acceptable expression of outrage and civilized conduct, and instead causes a

substantial adverse effect on another’s safety, security or privacy.” Kush v. Mathison, 683

N.W.2d 841, 846 (Minn. App. 2004), rev. denied (Minn. Sept. 29, 2004). “[S]ection

609.748 requires both objectively unreasonable conduct or intent on the part of the harasser

and an objectively reasonable belief on the part of the person subject to harassing conduct.”

Dunham v. Roer, 708 N.W.2d 552, 567 (Minn. App. 2006), rev. denied (Minn. Mar. 28,

2006).

8 We review a district court’s decision to issue an HRO for an abuse of discretion.

Peterson, 755 N.W.2d at 761. A district court abuses its discretion “if it makes findings of

fact that are not supported by the record, misapplies the law, or resolves the matter in a

manner that is contrary to logic and the facts on record.” Madden v. Madden, 923 N.W.2d

688, 696 (Minn. App. 2019). We give “due regard” to the “district court’s opportunity to

judge the credibility of witnesses.” Kush, 683 N.W.2d at 843-44. However, we will

reverse an HRO if it is not supported by sufficient evidence. Id. at 844.

The district court found that there were reasonable grounds to believe that husband

engaged in harassment that had, or was intended to have, a substantial adverse effect on

wife’s safety, security, or privacy. Because the evidence supports that finding, we discern

no abuse of discretion.

The evidence established that husband engaged in “repeated incidents of intrusive

or unwanted acts, words, or gestures.” See Minn. Stat. § 609.748, subd. 1(a)(1). Wife

testified—and husband did not deny—that husband followed wife on multiple occasions,

sent derogatory messages to wife’s mother and grandmother, contacted multiple

individuals at wife’s school alleging that wife was involved in an inappropriate

relationship, and threatened to go to the media with his accusations. And the evidence

established that husband’s conduct had a substantial adverse effect on wife’s safety,

security, and privacy. At the hearing, wife explained that husband’s conduct significantly

affected her mental health, her sense of safety and security, and her privacy. She testified

that husband’s conduct made her feel “traumatized,” “shocked,” “dehumanized,”

“embarrassed,” “humiliated,” “scared,” and “invaded.”

9 Husband contends that his conduct did not amount to harassment. Essentially, he

argues that the district court could have drawn different conclusions from the evidence

presented. However, on appeal, we do not reweigh the district court’s credibility

determinations. Gada v. Dedefo, 684 N.W.2d 512, 514 (Minn. App. 2004). In granting

wife’s HRO petition, the district court implicitly found wife’s testimony to be credible.

See Pechovnik v. Pechovnik, 765 N.W.2d 94, 99 (Minn. App. 2009) (observing that, in

issuing an OFP, the district court implicitly found one party to be more credible than

another). And we decline to reweigh the district court’s credibility determinations on

appeal. See id.

Wife’s testimony at the hearing, which the district court clearly credited, provided

the district court with a sufficient basis to conclude that there were reasonable grounds to

believe that husband engaged in harassment. Accordingly, the district court did not abuse

its discretion in issuing the HRO.

Affirmed.