Randall Tague and obo Minor, 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This opinion will be unpublished and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
A17-1805

Randall Tague and obo Minor, petitioner,
Respondent,

vs.

Bernard Menge,
Appellant.

Filed July 2, 2018
Affirmed
Larkin, Judge

Chisago County District Court
File No. 13-CV-17-405

Randall Tague, Wyoming, Minnesota (pro se respondent)

Daniel C harles Guerrero, Meshbesher & Spence, Ltd., Minneapolis, Minnesota (for
appellant)

Considered and decided by Bjorkman, Presiding Judge; Larkin, Judge; and Florey,
Judge.

U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges the district court’s issuance of a harassment-restraining order
(HRO) on behalf of respondent’s minor child, arguing that the HRO was not supported by

2
sufficient evidence. Appellant also argues that the district court erred by determining that
it did not have authority to modify the HRO. We affirm.
FACTS
On June 21, 2017, respondent Randall Tague petitioned for an HRO against
appellant Bernard Menge. Tague included a request for relief on behalf of his nine-year-
old child, K.T. Menge is K.T.’s grandfather and Tague’s former father-in-law. Tague’s
petition alleged that on June 14, Menge “came into the Forest Lake library at 12:15 to
remove [K.T.] from her court ordered ‘play attention’ session.” When Tague saw Menge
approach, Tague “stepped into the doorway, put [his] arm across the door, and asked him
to wait [until] the proper time.”
Tague alleged that Menge “said something about how it’s his daughter’s ([Tague’s
ex-wife’s]) parenting time,” “opened the door, pushed [Tague] against the door jam b, and
ordered [K.T.] to go with him.” Tague further alleged that he told Menge that Menge “had
no right to touch [him]” and to “back away” and that Menge responded by “lean[ing] harder
into [Tague’s] arm, pushing [him] harder into the door, and again ordered [K.T.] to go with
him.” K.T.’s “face had a look of confusion, fear, and sadness.” K.T. put her hand out, and
Menge grabbed her hand, “dr[agged] her out of the room, under [Tague’s] arm,” and
walked out of the library, threatening to “call the police on [Tague] and to take [ him] to
court.” Tague also alleged that “during a session on 6 -19 [Menge] took pictures without
[Tague’s] permission.”
Tague alleged that the incident “was the first time he saw [Menge] pull [K.T.] from
a session like that,” but that K.T.’s therapist told Tague that “this is the norm” and that

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Menge had “acted aggressively in the past, causing a scene at [K.T.’s] other therapist . . .
in front of [K.T.] and other children 3 years ago, and has been asked not to be present
there.” Tague alleged that K.T. is “autistic, her main issues being social cues” and that he
was “terrified [K.T.] will believe this type of bullying behavior is ok, and will do this kind
of stuff at school.” T ague further alleged that he believed that Menge would continue to
harass him “because it has gotten worse, and [Menge] believes himself justified.”
The district court denied Tague’s request for an ex parte HRO, finding that “[t]here
is not an immediate and present danger of harassment to justify temporary relief.” Upon
Tague’s request, the district court held a hearing on the HRO petition on July 10, 2017.
Tague appeared pro se at the hearing. Menge received notice of the hearing, but he did not
appear. Tague testified regarding the incident at the library as follows:
[Menge had] been taking [K.T.] out of her therapies up to a half
an hour early each day, and the therapie s are Court ordered.
And, I—he came one day and I stepped in the way of the door
and said listen she has another half hour —you know, this is
Court ordered, let the time go through. And, he opened the
door and pushed me against it, leaned through and ordered my
daughter to come with him. And, I told him, “Hey you have
no right to touch me, please stop.” And he again just continued
pushing me against the door, tried to p ush[] into the room.
And, started yelling louder for my daughter to come with him,
and finally she looking very terrified and very upset she did.
And he grabbed her by the hand and yanked her out of the little
room they were in, and drug her outside of the library.

Tague testified that K.T.’s reaction was “[s]hocked and scared” and that she started
crying in response to the incident. Tague testified that he attempted to visit K.T. during
therapy again the next day and that Menge “started taking photos” of him and was “very
intimidating.” Tague also testified that after he filed and served the HRO petition, he again

4
attempted to visit K.T. during therapy and Menge “hid[] in the stacks with his hat down
and his jacket up around his face ” and “glare[d] at [Tague] the whole time [Tague] was
there.”
The district court granted Tague’s request for an HRO for a period of two years.
On July 28, Menge requested a hearing regarding the HRO. On August 14, Menge
filed a motion to dismiss the HRO , arguing that he “was informed by the sheriff’s deputy
that this was dismissed on June 21st,” that the deputy told him that he would be contacted
by the court, and that he had been fulfilling a “court decree of taking [his] granddaughter
to school” at the time of the hearing and was unaware of it. Menge also contested the
allegations in the petition. The district court held a hearing on Menge’s motion to dismiss
on August 30 and denied Menge’s motion, finding that Menge failed to establish a basis
for dismissal.
On September 28, Menge moved to modify the HRO to remove K.T. as a protected
party. Menge argued that K.T. should not be subject to the HRO b ecause K.T.’s mother
lives with Menge and his wife, “[w]hen KT is with her mother during the week, and every
other weekend, she too resides with the Menges,” and “[a]s a result of the current HRO . . .
he has been forced from his own home” when K.T. visits her mother. Menge argued that
“[n]either KT nor her mother . . . want or need protection from [him].”
On October 18 , the district court held a hearing regarding Menge’s modification
request. The district court denied Menge’s motion to modify without allowing him to
present testimony or other evidence, reasoning that (1) the district court had held an HRO
hearing and taken testimony on July 10, 2017, (2) Menge failed to appear at the July

5
hearing, (3) Menge’s request to dismiss the HRO had been denied after a hearing at which
Menge appeared, and (4) “Minn. Stat. § 609.748 does not specifically allow f or
modifications of HROs under these circumstances.” Menge appeals.1
D E C I S I O N
I.
Menge contends that the district court erred by “includ[ing K.T.] in the HRO when
there was no evidence to support harassment” of K.T. Menge argues that because “K.T.
was not the subject of [the] alleged physical assault,” she should not have been included in
the HRO. Menge further argues that because “the incident at the library [was] not
objectively unreasonable and there was no all egation that [he] ‘harassed’ K.T. more than
once, nor evidence to show repeated instances of harassment, this Court should vacate the
HRO as it concerns K.T.”
The district court may grant an HRO if “the court finds . . . that there are reasonable
grounds to believe that the respondent has engaged in harassment.” Minn. Stat. § 609.748,
subd. 5(3) (Supp. 2017). Harassment includes “a single inciden t of physical or sexual
assault.” Id., subd. 1(a)(1) (2016). “The parent . . . of a minor who is a victim of harassment
may seek a restraining order from the district court on behalf of the minor.” Id., subd. 2
(2016).

1 Tague did not file a brief, and this court ordered the appeal to proceed under Minn. R.
Civ. App. P. 142.03 (providing that if a respondent fails to file a brief, the case shall be
determined on the merits).

6
“[T]he issuance of an HRO is reviewed for abuse of discretion.” Peterson v.
Johnson, 755 N.W. 2d 758, 761 (Minn. App. 2008). The district co urt’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.” Kush v. Mathison , 683 N.W.2d 841,
843-44 (Minn. App. 2004), review denied (Minn. Se pt. 29, 2004). “[T]his court will
reverse the issuance of a restraining order if it is not supported by sufficient evidence.” Id.
at 844.
The district court’s HRO indicates that its finding of harassment regarding K.T. was
based on a determination that Menge physically “assaulted” K.T. at the library on June 14,
2017. The district court described that incident as follows:
On June 14, 2017, [Menge] came into the Forest Lake Library
to remove [K.T.] from her court or dered “play attention”
session. [Tague] stepped into the doorway and asked [Menge]
to wait for the proper time. [Menge] said it was his daughter’s
([Tague’s] ex -wife’s) parenting time. [Menge] opened the
door, pushed [Tague] against the door jamb, and dire cted
[K.T.] to go with [Menge]. [Menge] leaned harder into
[Tague]’s arm, pushing [Tague] into the door, and again
ordered [K.T.] to go with [Menge]. [K.T.] put her hand out,
and [Menge] grabbed it and dragged her out of the room, and
then walked out of the library, threatening to call the police on
[Tague] and take him to Court.

To establish “harassment” by proof of a physical assault, “a petitioner must prove
that the respondent intentionally inflicted or attempted to inflict bodily harm upon another
person.” Peterson, 755 N.W.2d at 76 0. “Bodily harm” means “physical pain or injury,
illness, or any impairment of physical condition.” Minn. Stat. § 609.02, subd. 7 (2016).

7
The district court’s finding that “[K.T.] put her hand out, and [Menge] grabbed it
and dragged her out of the room” is supported by Tague’s testimony that Menge “grabbed
[K.T.] by the hand,” “yanked her out of the little room they were in, and dr[agged] her
outside of the library.” Admittedly, the record does not contain direct evidence, and the
district court did n ot make an express finding , that K.T. experienced bodily harm when
Menge dragged her out of the therapy room. However, the record circumstantially supports
the district court’s implicit finding that K.T. felt physical pain when Menge forcibly
dragged her out of the room. The record therefore supports the district court’s finding of
harassment by proof of a physical assault against K.T., and the district court did not abuse
its discretion in granting the HRO on behalf of K.T. See Pechovnik v. Pech ovnik, 765
N.W.2d 94, 100 (Minn. App. 2009) (affirming the grant of an order for protection, noting
the deferential abuse-of-discretion standard used to review the issuance of an order for
protection and reasoning that “[t] he evidence was sufficient for the di strict court to infer
appellant’s present intent to inflict fear of imminent physical harm, bodily injury or assault
based on the totality of the circumstances”).
II.
Menge contends that the district court “erred [by] refus[ing] to modify the HRO to
remove [K.T.],” arguing that “the district court abused its discretion in ruling that it was
without authority to modify an HRO.”
In its order denying Menge’s motion to modify, the district court stated that it denied
Menge’s motion because “two evidentiary he arings have already been held in this matter,
and Minn. Stat. § 609.748 does not specifically allow for modifications of HROs under

8
these circumstances.” Although Minn. Stat. § 609.748 (2016 & Supp. 2017) does not
expressly authorize modification of a n HRO under the circumstances here,2 HRO
proceedings are civil in nature. Dunham v. Roer, 708 N.W.2d 552, 568 (Minn. App. 2006),
review denied (Minn. Mar. 28, 2006). They are subject to the rules of civil procedure,
including Minn. R. Civ. P. 60.02(e), which allows the district court to grant relief from a
final judgment on a number of grounds, including that it is “no longer equitable that the
judgment should have prospective application.” See Minn. R. Civ. P. 1 (stating that the
rules of civil procedure ge nerally apply in “all suits of a civil nature”); Minn. R. Civ. P.
81.01(a) (stating that the rules of civil procedure do not apply to certain proceedings);
Minn. R. Civ. P. App. A. (excluding HRO proceedings from a list of proceedings to which
the rules of civil procedure do not apply); see also Kush, 683 N.W.2d at 843-44 (applying
Minn. R. Civ. P. 52.01 to HRO proceeding).
In denying Menge’s motion, the district court reasoned that it had previously held
two evidentiary hearings regarding the HRO. 3 Menge received notice of the first hearing,

2 Minn. Stat. § 609.748, subd. 5(d) (Supp. 2017), expressly authorizes a named respondent
to request that the district court vacate or modify an HRO if the court ordered relief for a
period of up to 50 years , the HRO has been in effect for at least five years , and the
respondent has not violated the HRO.
3 The district court’s order denying Menge’s motion to modify states that the district court
held “two evidentiary hearings” in this matter. At the hearing on Menge’s motion to
modify, the district court stated that there was “testimony at the seco nd hearing.” During
oral argument to this court, Menge’s counsel disputed whether the second hearing was an
evidentiary hearing. But Menge’s counsel was not present at the second hearing, and he
did not order a transcript of that hearing. As the appellant, Menge had the burden to order
the transcripts necessary for this appeal. See Minn. R. Civ. App. P. 110.02, subd. 1 (stating
that it is the appellant’s duty to order a transcript of those parts of the proceedings which
are deemed necessary for inclusio n in the record). In the absence of a transcript of the
second hearing, we accept the district court’s description of the hearing as an evidentiary

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but he did not attend. The district court held the second evidentiary hearing in response to
Menge’s motion to dismiss. Menge attended that hearing, and the district court denied his
motion to dismiss on the merits. One month later, Menge once again challenged the
HRO—this time in a motion to modify—but he did not assert a change in circumstances
as a basis for modification.
In sum, when the district court refused to modify the HRO, Menge had had two
opportunities to present evidence regarding the need for an HRO and the district court had
already considered and denied Menge’s motion to dismiss the HRO on the merits. Under
the circumstances, we cannot say that the district court ’s refusal to modify the HRO
constitutes reversible error, even if the district court erroneously reasoned that it was
without authority to modify the HRO. See Minn. R. Civ. P. 61 (“The court at every stage
of the proceeding must disregard any error or defect in the proceeding which does not affect
the substantial rights of the parties.”).
Affirmed.

hearing. See Duluth H erald & News Tribune v. Plymouth O ptical Co., 286 Minn. 495,
498, 176 N.W.2d 552, 555 (1970) (noting lack of a transcript precludes review of factual
questions); Waters v. Fiebelkorn , 216 Minn. 489, 495, 13 N.W.2d 46 1, 464-65 (1944) (
“[O]n appeal error is never presumed. It must be made to appear affirmatively before there
can be reversal . . . [and] the burden of showing error rests upon the one who relies upon
it.”).