Joseph Charles Adler, petitioner, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0502

Joseph Charles Adler, petitioner,
Respondent,

vs.

Jennifer Lynn Adler,
Appellant.

Filed October 30, 2017
Affirmed
Reilly, Judge

Anoka County District Court
File No. 02-CV-17-484

Joseph Charles Adler, East Bethel, Minnesota (pro se respondent)

John G. Westrick, Westrick & McDowall-Nix, PLLP, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Reilly, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge

Appellant Jennifer Lynn Adler challenges the district court’s grant of a harassment
restraining order (HRO) in favor of respondent Joseph Charles Adler, arguing that (1) the
record is insufficient to suppo rt the issuance of an HRO and (2) the HRO operates as an
infringement on her First Amendment right to free speech. We affirm.

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D E C I S I O N
I.
This appeal arises out of an order granting respondent’s petition for an HRO against
appellant under Minnesota Statutes section 609.748 (2016). We review a district court’s
decision to grant an HRO for an abuse of di scretion and will reverse if the HRO is not
supported by sufficient evidence or if the court improperly applied the law. Kush v.
Mathison, 683 N.W.2d 841, 843 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004).
“A district court’s findings of fact will not be set aside unless clearly erroneous, and due
regard is given to the district court’s opportunity to judge the credibility of witnesses.” Id.
at 843-44. “Findings of fact are clearly errone ous only if the reviewin g court is left with
the definite and firm conviction that a mistake has been made.” Fletcher v. St. Paul Pioneer
Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted). We review legal conclusions
de novo. Peterson v. Johnson, 755 N.W.2d 758, 761 (Minn. App. 2008).
A court may issue an HRO if it finds “tha t there are reasonable grounds to believe
that the [actor] has engaged in harassment. ” Minn. Stat. § 609. 748, subd. 5(b)(3).
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. . . .” Id., subd. 1(a)(1). A petitioner must prove
both (1) objectively unreasonable intent or conduct on the part of the harasser and (2) an
objectively reasonable belief on the part of the person subject to harassment of a substantial
adverse effect on the person’s sa fety, security, or privacy. Dunham v. Roer, 708 N.W.2d
552, 567 (Minn. App. 2006), review denied (Minn. Mar. 28, 2006).

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Respondent petitioned for an HRO alleging that appellant sent harassing and
intrusive text messages to him over a period of several months.1 Following an evidentiary
hearing, the district court granted the petiti on in respondent’s fa vor, determining that
appellant harassed respondent through a series of text messages sent on several different
occasions. The district cour t determined that the text messages constituted harassing
behavior, which was “designed to and did in fact have a substantial impact on Mr. Adler’s
privacy.” The order restrained appellant from harassing respondent and from having any
direct or indirect contact with him for a peri od of two years, except in certain parenting-
related matters.
Sufficient evidence in the record supports the district court’s order. The district
court reviewed each text message and determ ined that, while some of the messages
addressed parenting-time issues and were not harassing, “there are five that are nothing but
harassing” and had a “substantia l impact on Mr. Adler’s privacy.” By way of example,
appellant sent text messages to respondent that he was “a very selfish and needy man,” “a
pansy,” a “poor-minded f***,” and an “ignorant, desperate, selfish a**hole.” The district
court concluded that each of these text mess ages constituted harassing behavior and that
appellant’s behavior was “desi gned to and did in fact” subs tantially impact respondent’s
privacy.
Appellant concedes that her text messages were “rude, antagonistic, and petulant,”
but claims that she did not in tend to harass respondent. But the court did not find this

1 Appellant and respondent we re previously married but divorced in 2009. They have
children together.

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statement credible, and we defer to the district court’s opportunity to judge the credibility
of the witnesses. Kush, 683 N.W.2d at 843-44. The record amply supports the district
court’s determination that there was objec tively unreasonable conduct on the part of
appellant, and that respondent had an objectively reasonable belief of a substantial adverse
effect on his safety, security, or privacy. Dunham, 708 N.W.2d at 567. Because the district
court’s decision to grant an HRO in respondent’s favor is supported by sufficient evidence,
the district court properly applied the law, and we discern no abuse of discretion, we affirm.
II.
Appellant argues that the HRO violates he r First Amendment right to free speech.
Appellant failed to raise her constitutional challenge to the district court and we decline to
address it for the first time on appeal. See Thiele v. Stich , 425 N.W.2d 580, 582 (Minn.
1988) (declining to address issue not raised below); see also Minn. R. Civ. P. 5A (noting
that, in civil actions, appellant is required to give notice of constitutional challenge to
Attorney General to “afford the Attorney General an opportunity to intervene”); Dunham,
708 N.W.2d at 568 (observing that HRO matters are civil in nature, even though statute
governing issuance of HRO is located in chapter containing criminal statutes).
Accordingly, we decline to review the constitutionality of Minnesota Statutes section
609.748 because the issue was not properly raised in district court.
Affirmed.