This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0534
Mark Michael Dwyer, petitioner,
Respondent,
vs.
Tamara Jo Molde,
Appellant.
Filed December 7, 2015
Affirmed as modified
Hooten, Judge
Dakota County District Court
File No. 19-C5-06-008380
Mark Michael Dwyer, Minneapolis, Minnesota (pro se respondent)
Samuel J. Edmunds, Sieben Edmunds PLLC, Mendota Heights, Minnesota (for appellant)
Considered and decided by Hooten, Presiding Judge; Cleary, Chief Judge; and
Halbrooks, Judge.
UNPUBLISHED OPINION
HOOTEN, Judge
Appellant seeks review of the district court’s grant to respondent, by default, of a
50-year harassment restraining order (HRO) against appellant. Appellant argues that the
district court (1) lacked a factual basis for granting the HRO, (2) failed to make findings
sufficient to support a 50-year HRO, and (3) should not have granted an HRO longer in
duration than respondent requested. Because the district court’s factual findings are
sufficient to support the issuance of an HRO, we affirm the grant of the HRO. But
because the district court granted a 50-year HRO by default when the respondent initially
sought a three-year HRO, we modify the duration of the HRO to reflect the relief
requested by respondent.
FACTS
Appellant Tamara Molde and respondent Mark Dwyer have one minor child, and a
history of more than decade’s worth of litigation regarding their child. As is relevant
here, Molde accused Dwyer of abusing their child before the child was three years old.
By order filed August 2, 2005, the district court found that Molde’s accusations of abuse
were unsubstantiated and endangered the child. The order awarded Dwyer temporary
sole legal and physical custody of the child, and required Molde to “refrain from making
any further allegations or suggestions of child abuse against [Dwyer] to anyone,
including the minor child.” In 2006, Dwyer petitioned the district court for an HRO
against Molde under Minn. Stat. § 609.748 (2004). In that case, the district court found
that Molde had violated the August 2005 order by continuing to allege that Dwyer had
abused the child. The district court granted Dwyer a two-year HRO that restrained
Molde from entering Dwyer’s neighborhood and restricted Molde’s contact with the
child, and the child’s school, friends, and neighbors.
In 2008, Dwyer successfully petitioned the district court to extend the existing
HRO. In 2009, Dwyer alleged multiple HRO violations by Molde and again asked the
district court to extend and modify the HRO. The district court granted Dwyer’s request,
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extending the HRO to January 2015. Later, the district court amended the HRO to
modify the contact restrictions between Molde and Dwyer, and between Molde and the
child. The memorandum attached to the district court’s order noted that, since 2005,
Molde had “nine separate[] criminally charged violations” of prior HROs, and that this
course of conduct on her part harmed the child.
In January 2015, Dwyer moved the district court to extend the existing HRO to
2018, and to modify the provisions governing contact between Molde and the child. To
support this request, Dwyer submitted an affidavit, a letter from the child’s psychologist,
and two e-mail exchanges between the parties. At the hearing on his motion, Dwyer was
pro se. Molde was initially represented by counsel but she discharged her attorney at the
beginning of the hearing, and requested a continuance. Even though the district court
denied Molde’s request for a continuance, she stated that she would leave the hearing.
The district court then explained that if Molde left, Dwyer’s request would be granted by
default.
Molde departed and the hearing continued. Dwyer produced several documents
not included with his motion papers and made factual assertions beyond those included in
his affidavit. Also, the district court asked: “Was there a request to have the order remain
in effect for 50 years? I think when there is a violation that is something that we can do
. . . . But does that remain your request?” Dwyer responded, saying, “I’m fine with . .
. that kind of extended, multiple year arrangement. . . . I’d like that indefinite protection,
yeah.” The district court then modified the HRO’s contact provisions, reaffirmed other
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terms and conditions of previous orders, and granted an HRO for 50 years—until January
30, 2065. Molde appeals.
DECISION
I.
Molde argues that the record generated in district court contained no evidence
because, at the hearing, the district court did not take sworn testimony and failed to
properly admit documents into evidence. Thus, Molde concludes, the district court
should not have granted an HRO because the record lacks an evidentiary basis for an
HRO.
Appellate courts review a district court’s decision regarding whether to grant an
HRO for an abuse of discretion. Witchell v. Witchell, 606 N.W.2d 730, 731 (Minn. App.
2000). We will not set aside a district court’s factual findings unless they are clearly
erroneous, and we give due regard to the district court’s evaluation of credibility. Kush v.
Mathison, 683 N.W.2d 841, 843–44 (Minn. App. 2004), review denied (Minn. Sept. 29,
2004). To grant an HRO, the district court must find, as the result of a hearing, “that
there are reasonable grounds to believe that the [actor] has engaged in harassment.”
Minn. Stat. § 609.748, subd. 5(b)(3) (2014). 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) (2014). A district court may grant an HRO for a period of up to 50 years “[i]f the
court finds that the petitioner has had two or more previous restraining orders in effect
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against the same [actor] or the [actor] has violated a prior or existing restraining order on
two or more occasions.” Minn. Stat. § 609.748, subd. 5(b) (2014). Absent these
findings, the HRO must be for a fixed period of not more than two years. Id.
The district court stated that its order was based on “the [a]ffidavit and [m]otion
and evidence presented at the [m]otion hearing.” Because Dwyer’s affidavit and motion
were submitted under oath, the district court was entitled to consider the facts alleged
therein when addressing whether reasonable grounds existed to believe that Molde had
engaged in harassment. On appeal, appellate courts view evidence presented by affidavit
in the light most favorable to the prevailing party. Straus v. Straus, 254 Minn. 234, 235,
94 N.W.2d 679, 680 (1959). Dwyer’s affidavit and motion allege that Molde violated the
existing HRO by impermissibly making contact with the child. The letter from the
child’s psychologist included as an exhibit to Dwyer’s motion states that Molde tried to
contact the child by e-mail, and went to the house of the child’s grandmother when
Molde knew the child was present, each of which are also violations of the HRO. The
psychologist also expressed concern about the tenor of Molde’s e-mail communication to
the child, recommending that her communication with the child be strictly limited to in-
person visits within certain parameters.
Dwyer’s affidavit and motion also included e-mail messages between Molde and
Dwyer, in which Molde is hostile to Dwyer. The HRO in effect at the time of these
exchanges prohibited Molde from contacting Dwyer, with one exception: she could use
e-mail or U.S. mail to communicate with Dwyer to schedule visits with the child. In one
e-mail exchange, Molde and Dwyer discussed a visit between Molde and the child, but
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the exchange also included Molde’s referring to Dwyer with an expletive, and her stating
that she would start attending all of the child’s functions. During the motion hearing, the
district court expressed concern about these e-mails:
[T]he Court is troubled by the continuing—the
threatening nature of Ms. Molde’s e-mails to you . . . .
....
I think what was most troubling to the Court in
reviewing her e-mails is her threats to invade your
neighborhood and your life and the schools, and we had so
many problems with that years ago.
The allegations in Dwyer’s motion, affidavit and supporting papers are sufficient
to provide “reasonable grounds to believe that [Molde] has engaged in harassment” under
Minn. Stat. § 609.748, subds. 1(a)(1), 5(b)(3) (2014). Therefore, the district court’s
determinations on this point are supported by the record.
Molde argues that the record before the district court contained no evidence
because the district court did not swear in witnesses and did not properly admit evidence
during the hearing. But even if Molde is correct and no testimonial evidence and no
documentary evidence was properly received at the hearing, Dwyer’s affidavit, motion,
and supporting papers describe multiple actions by Molde that would constitute
harassment under the statute. Thus, even if no evidence was properly received at the
hearing, there is still sufficient evidence in the record to support the grant of an HRO.
II.
Molde argues that because the district court made no findings of fact, it had no
basis to grant a 50-year HRO. Where appropriate, an appellate court can infer findings
that are not explicit. See Pechovnik v. Pechovnik, 765 N.W.2d 94, 99 (Minn. App. 2009)
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(inferring, in the context of an appeal in a domestic abuse proceeding, an implicit finding
regarding witness credibility). Here, as noted, the district court based its order on
Dwyer’s affidavit and motion, and on the hearing. Because the affidavit and motion
contained evidence that Molde violated an existing HRO at least twice—by making
prohibited contact with the child twice, and by engaging in prohibited communication
with Dwyer—those documents support a determination that Molde violated an existing
HRO on multiple occasions. Thus, these aspects of the record satisfy the requirements of
section 609.748, subd. 5(b), and the district court, therefore, did not abuse its discretion in
finding this evidence sufficient to support an HRO with a duration exceeding two years.
Further, this court may also infer that the district court took notice of the history of
the parties’ conflict, even though it was not part of the record at the hearing. Minn. R.
Evid. 201 (addressing judicial notice); Matter of Zemple, 489 N.W.2d 818, 820 (Minn.
App. 1992) (holding that the district court did not abuse its discretion in taking judicial
notice of findings made in previously adjudicated proceedings). The district court judge
who granted the current HRO also presided over most of the parties’ prior decade’s worth
of litigation. In denying Molde’s request to continue the January 2015 hearing, the judge
noted, “[M]y goodness, we’ll grow old together on this case. I think we first had it—was
it 2003[?], and we’ve gone round and round and round.” This judge was well acquainted
with the entire district court record when she based her most recent decision on factual
allegations in Dwyer’s affidavit and motion: The district court could have based its
decision on Molde’s multiple violations of prior HROs, which would satisfy the
requirements of section 609.748, subd. 5(b). Alternatively, though it did not make an
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explicit finding to this effect, the district court could have considered the entire file and
found that Dwyer had two or more prior HROs in effect against Molde. Either
determination would meet the statutory requirement for granting an HRO with a duration
exceeding two years.
When addressing whether to remand for missing findings of fact, appellate courts
may consider the file, the record, and the findings the district court did make, and decline
to remand if the appellate court concludes that any remand would be purely one of form
in which the district court would only make the missing findings without altering its
resolution of the case. See Grein v. Grein, 364 N.W.2d 383, 387 (Minn. 1985) (refusing
to remand a custody dispute for missing findings of fact when doing so would not alter
the result). This record makes it abundantly clear that the district court was fully aware
that the parties have been litigating these and related matters for more than a decade, and
that there are at least two independently sufficient bases in the record for an HRO with a
duration exceeding two years. On this record, we conclude that if we were to remand this
case, the district court would simply make the missing findings and that there is no
prospect the district court will alter its decision to grant an HRO. Therefore, we decline
to remand this case based on a lack of findings.
III.
Regarding the HRO hearing, Molde argues that the district court is obliged to
make its findings based on sworn testimony and properly admitted documents, and that
this obligation should have precluded the district court from proceeding by default.
Molde is incorrect. In certain circumstances, the statute does not require a hearing. See
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Minn. Stat. § 609.748, subd. 3 (stating that “[n]othing in this section shall be construed as
requiring a hearing on a matter that has no merit”). Further, this record contains sworn
statements and documentary evidence in the form of Dwyer’s affidavit, motion, and
supporting papers, and we have already ruled that they are sufficient to support the grant
of an HRO. And Molde cites no authority for the idea that a party’s voluntary absence
from a properly-noticed HRO hearing should not result in default. Indeed, the district
court was not required to continue the HRO hearing after Molde discharged her attorney
at the beginning of that hearing. See Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn.
1977) (reviewing district court’s refusal to grant a continuance for clear abuse of
discretion). Further, here, the district court noted Dwyer’s objection to Molde’s request
for a continuance, commented on the decade-long duration of the parties’ HRO-related
disputes, stated that the hearing would, in fact, proceed, and told Molde that her choice to
leave the hearing would result in default. Molde still opted to leave the proceeding. As a
result, Molde functionally admitted all of Dwyer’s properly pleaded allegations. State by
Humphrey v. Ri-Mel, Inc., 417 N.W.2d 102, 110 (Minn. App. 1987), review denied
(Minn. Feb. 17, 1988). On this record, Molde has not shown any error or abuse of
discretion by the district court in proceeding at the HRO hearing by default.
IV.
Molde argues that the district court erred in granting relief exceeding that
requested by Dwyer in his papers. Under the HRO statute, if the district court makes the
required findings, the “relief granted by the restraining order may be for a period of up to
50 years.” Minn. Stat. § 609.748, subd. 5 (2014) (emphasis added); see Minn. Stat.
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§ 645.44, subd. 15 (2014) (stating that “‘[m]ay’ is permissive”). Generally, however,
default proceedings are subject to the Minnesota Rules of Civil Procedure. Minn. R. Civ.
P. 54.03. “The interpretation of the rules of civil procedure . . . is a question of law that
[appellate courts] review de novo.” TC/Am. Monorail, Inc. v. Custom Conveyor Corp.,
840 N.W.2d 414, 417–18 (Minn. 2013).
Under the rules, if a district court grants a default judgment, the relief “shall not be
different in kind from or exceed in amount that prayed for in the demand for judgment.”
Minn. R. Civ. P. 54.03. In a typical civil matter, even if the evidence would support
greater relief, generally relief is “limited in kind and degree to what is specifically
demanded in the complaint.” Thorp Loan & Thrift Co. v. Morse, 451 N.W.2d 361, 363
(Minn. App. 1990), review denied (Minn. Apr. 13, 1990). This is because “[t]he
defendant by his default submits, without contest on his part, to the court, only the claim
of the plaintiff for the relief prayed in the complaint. But if a different or greater relief
were demanded, he might appear and contest it as unjust . . . .” Id. at 364 (quotation
omitted).
An HRO proceeding is not a typical civil matter, but a special proceeding.
Fiduciary Found., LLC v. Brown, 834 N.W.2d 756, 761 (Minn. App. 2013), review
denied (Minn. Sept. 17, 2013). Despite this fact, we assume, for purposes of this appeal,
that the general rules regarding default proceedings apply. Molde chose to leave the
courtroom after being advised that her decision would result in Dwyer’s request being
granted by default. Dwyer’s papers requested a three-year extension of the then existing
HRO, which was scheduled to end in January 2015. Discussion of a possible 50-year
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HRO occurred at the hearing after Molde’s departure, and she had no notice that a 50-
year HRO was a possible result in this case. Therefore, we conclude that the district
court should not have granted Dwyer an HRO of a duration exceeding what he initially
requested. We therefore modify the HRO to reflect the three-year period that Dwyer did,
in fact, request. See Thorp Loan & Thrift Co., 451 N.W.2d at 363–64 (stating that where
the district court granted relief in a default judgment in excess of what was demanded,
appellant was entitled to have error corrected on appeal). The HRO will remain in effect
until February 1, 2018, instead of January 30, 2065.1
Affirmed as modified.
1
Our modification of the amended HRO is based solely upon the district court’s sua
sponte grant of a 50-year HRO in a default hearing. In modifying the HRO to limit it to
the three years’ duration Dwyer requested, we are not addressing whether the
circumstances of this case justify the 50-year HRO awarded by the district court, nor are
we precluding the grant of a 50-year HRO, if shown to be appropriate.
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