Linde Sayen, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0381

Linde Sayen,
Respondent,

vs.

Michael Sayen,
Appellant.

Filed December 16, 2019
Affirmed
Hooten, Judge

Washington County District Court
File No. 82-CV-18-5082

Samantha J. Graf, Forest Lake, Minnesota (for respondent)

Michael S. Sayen, Forest Lake, Minnesota (pro se appellant)

Considered and decided by Hooten, Presiding Judge; Smith, Tracy M., Judge; and
Kirk, Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
This appeal follows an order den ying a request for hearin g on a harassment
restraining order (HRO) and the granting of an HRO that prevents appellant father from

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

2
contacting respondent mother and the couple’s then six-year-old child outside of approved
therapy sessions. Father argues that the dist rict court abused its discretion when it issued
an HRO that is too vague and effectively terminates his parental rights for the duration of
the HRO. Father also argues that the district court abused its discretion when it issued an
order denying father’s motion to “change” the HRO and “canceled” an evidentiary hearing
on his amended motion to “change” the HRO. We affirm.
FACTS
On October 8, 2018, appellant Michael Sayen (father), paced outside of the home
of respondent Linde Sayen (mother) in order to accost their child as she waited for the
school bus. He approached the child, in violation of the custody arrangement established
after father and mother’s divorce, hugged her, and told her he loved her. Mother called the
police who promised to increase their patrols of the area . That night, father messaged
mother, “you have been irresponsible with my child, I am taking her back.” Father’s
messages to mother escalated over the next few days, including the statement, “Nobody
can take my child from me, especially you. Any state law that says tha t they can is an
unlawful order that does not need to be obeyed. This is my right, both by the Declaration
of Independence and protected by God.”
On October 26, 2018, mother filed a petition with the district court for an ex parte
HRO under Minn. Stat. § 609.748 (2018). In her petition, mother alleged that father
stalked, made uninvited visits, and threatened her and their child. The district court granted
mother’s petition (October HRO ) and prohibited father from: (1) having any direct or

3
indirect contact with mother; (2) being within 20 yards of mother’s home; and (3) limiting
his contact with the child to joint therapy sessions described in the custody agreement.
Father and mother both requested a hearing after father was served with the ex parte
HRO. The request was granted and the hearing was held on November 15, 2018. Mother
appeared, but father did not. The district court granted an HRO prohibiting father from
being within 20 yards of the child’s school and added a provision to the HRO that if father
was “visibly present” to mother or the child, regardless of how many yards actually
separated the parties, father would be in violation of the HRO (November HRO). The
HRO did not provide that father was permitted limited contact with the child in joint
therapy as the October HRO had. On the same day as the hearing, father filed a letter with
the district court stating that he did not appear because he mistakenly believed that the
hearing was scheduled for the next day.
At a family court hearing on November 26, 2018, mother and father informed the
district court that an agreeme nt to modify the November HRO had been made so as to
allow father to attend therapy sessions with the child but not be in violation of the order.
Following this hearing, the district court instructed m other to submit a proposed order to
modify the November HRO and father could file a motion to address an y perceived
discrepancies between the proposed order and the agreement.
Nevertheless, on November 29, 2018, father filed a motion to “change” the HRO.
However, father did not seek to modify the terms of the HRO, but rather requested a retrial
or vacation of the HRO. Father repeated that his absence from the November 15, 2018
hearing was an accident and he did not believe that the HRO was in the child’s best interest.

4
In December of 2018 , the parties filed a signed stipulation to modify the HRO to
allow father to attend therapy/parental coaching with the child without incurring a
violation. The district court noted that b ecause of this stipulation, it did not rule on the
father’s first motion to “change” the HRO.
On January 17, 2019, father filed a second motion to “change” the HRO. The
motion was on a copy of the same m otion father filed on November 29, 2018, stamped
with a “Filed in District Court on November 29, 2018” on the cover, but with an “amended”
handwritten above the caption. Father’s second motion to “change” the HRO requested
the same relief as the first motion: a retrial or a vacation of the November HRO.
A hearing was set for February 15, 2019 on father’s amended motion. Mother
objected to the scheduling of the hearing arguing that father did not allege sufficient
grounds for the court to vacate the November HRO. The district court canceled the hearing
and noted that the “hearing was set in error ” after it “had directed that no hearing be
scheduled” to vacate the November HRO in light of the December stipulation . The next
day, the district court filed an order denying father’s amended motion. In doing so, the
district court instructed father that all future correspondence with the district court had to
be in the form of a motion accompanied by appropriate fees.
Father protested the district court’s decision to cancel the hearing in light of the
stipulation and appealed to this court. We agreed with father and issued an order holding
that father’s stipulation was a knowing waiver of neither of his right to appeal nor his right
to seek vacation of the November HRO and he could proceed in an appeal on the merits of

5
the HRO. Sayen v. Sayen, A19-0381 (Minn. App. Apr. 9, 2019). This appeal on the merits
follows.
D E C I S I O N
Father appeals from the entry of the district court’s November HRO against him and
from the district court’s February o rder denying his amended motion to “change” the
November HRO. Father argues that the district court abused its discretion when it issued
the November HRO by : (1) not allowing him any contact with the child , effectively
terminating his parental rights for the duration of the HRO, and (2) adding a provision that
is too vague and can be misinterpreted. Father also argues that the district court abused its
discretion when it issued the February order denying father’s amended motion, and
“canceled” a scheduled hearing on the January motion.
“While an appellant acting pro se is usually accorded some leeway in attempting to
comply with court rules, he is still not re lieved of the burden of, at least, adequately
communicating to the court what it is he wants accomplished and by whom.” Carpenter
v. Woodvale, Inc. , 400 N.W.2d 727, 729 (Minn. 1987); see Gruenhagen v. Larson , 246
N.W.2d 565, 569 (Minn. 1976) (stating that , generally, a court will not modify ordinary
rules and procedures because a pro se party lacks the skills and knowledge of an attorney);
Fitzgerald v. Fitzgerald, 629 N.W.2d 115, 119 (Minn. App. 2001) (stating that “[a]lthough
some accommodations may be m ade for pro se litigants, this court has repeatedly
emphasized that pro se litigants are generally held to the same standards as attorneys and
must comply with court rules”).

6
“An assignment of error based on mere assertion and not supported by any argument
or authority . . . is waived unless prejudicial error is obvious on mere inspection. Schoepke
v. Alexander Smith & Sons Carpet Co., 187 N.W.2d 133, 135 (Minn. 1971); see also State
v. Andersen, 871 N.W.2d 910, 915 (Minn. 2015) (applying Schoepke). We hold that father
has failed to support his assertions that the district court abused its discretion with any
applicable legal authority and therefore his assignments of error are waived . However,
even if we were to address his arguments on the merits , we would hold that the district
court’s actions do not constitute an abuse of discretion.
1. The district court did not abuse its discretion when it entered the November
HRO.

Just as a victim of harassment may seek a restraining order from the district court,
“[t]he parent . . . of a minor who is a victim of harassment may seek a restraining order
from the district court on behalf of the minor.” Minn. Stat. § 609.748, subd. 2 (2018). The
district court may issue a restraining order if it has “reasonable grounds to believe that the
respondent has engaged in harassment.” Minn. Stat. § 609.748, subd. 5(b)(3) (2018). We
review a district court’s decision on whether to grant an HRO for an abuse of discretion.
Kush v. Mathison, 683 N.W.2d 841, 843 (Minn. App. 200 4), review denied (Minn. Sept.
29, 2004).
Harassment is a broad term and includes “marching, standing, or patrolling by one
or more persons directed solely at a particular residential building in a manner that
adversely affects the safety, security, or p rivacy of an occupant of the building,” Minn.
Stat. § 609.748, subd. 1(c)(1) (2018), as well as “a pattern of attending public events after

7
being notified that the actor’s presence at the event is haras sing to another.” Minn. Stat.
§ 609.748, subd. 1(a)(3).
The district court issued the ex parte October HRO based on a list of approximately
50 incidences of father’s unwanted contact, attendance at public events, and patrolling-like
behaviors. The district court held that these behaviors constituted rea sonable grounds to
support a finding that father harassed mother and their child. At the subsequent heari ng,
mother affirmed that the incidences listed were true and correct. Father failed to attend the
hearing despite notice that failure to make an appe arance may result in a default order.
Accordingly, the district court entered the November HRO to prohibit father from having
contact with mother and their child for two years.
A. Father’s parental rights were not effectively terminated by the November HRO.
Father does not dispute that he has the right to visit with the child at therapy. But,
he argues that the district court abus ed its discretion when it issued the November HRO
because it prevented him from having “maximum time” with the child . Father base s his
assertion on Minn. Stat. § 260C.301 (2018) (termination of parental rights) and Minn. Stat.
§ 518.17, subd. 1(10) (2018) (listing maximizing parenting time with both parents as a
factor in determining the best interests of the child). He states that absent a “high level of
evidence that a child is in direct danger, ” the child should have the “maximum time ”
possible with father and anything less is a termination of his parental rights.
Contrary to father’s assertion, an HRO that limits contact is not the same thing as a
termination of parental rights. This is especially true as father maintains the right to see

8
the child at the stipulated therapy sessions and the term of the HRO is only two years.
Therefore, the statutes to which father cites simply are not applicable.
As the district court had ample evidence in the record to support a finding that
father’s escalating stalking, threatening, and patrolling behaviors constituted reasonable
grounds for harassment, we hold that the district court did not abuse its discretion when it
granted the November HRO.
B. The November HRO was not unconstitutionally vague.
“It is a basic principle of due process that an enactment is void for vagueness if its
prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108, 92
S. Ct. 2294, 2298 (1972). An order is unconstitutionally vague if persons of “common
intelligence must necessarily guess at its meaning and differ as to its application.”
Connally v. Gen. Constr. Co. , 269 U.S. 385, 391, 46 S. Ct. 126, 127 (1926). An order is
not unconstitutionally vague when a reasonable person could not “inadvertently violate the
[order] because of an inability to determine what type of conduct is prohibited.” Dunham
v. Roer, 708 N.W.2d 552, 568 (Minn. App. 2006), review denied (Minn. Mar. 28, 2006).
The November HRO included four provisions stating: (1) father is not allowed to
harass mother and child; (2) father is not allowed any direct or indirect contact with mother
and the child; (3) father is not allowed within 20 yards of the home of mother and the child,
(4) and father is not allowed within 20 yards of the child’s school. The language at issue
comes from a hand written addendum to the second provision stating that if father “is
visibly present to petitioner and/or child, it shall be considered a violation.”

9
Father argues that this provision is impermissibly vague because the “visibly
present” language subjects father to the threat of violating the HRO by simply being “out
in town, grocery store and any other normal place in town where [father and mother] both
live.” The only relief, father argues, is a new trial. Mother contends that the “visibly
present” language was included due to father’s penchant for prowling outside of mother’s
home and following her to other public places even after the ex parte October HRO went
into effect. Despite father’s behavior, mother claims police were hesitant to enforce the
HRO without some form of distance provision. To account for this reluctance, and to avoid
father gaming a stated distance parameter (e.g., standing 21 yards away from the child
when the HRO prevents him from entering within 20 yards of the child), the district court
approved the “visibly present” provision to clarify the order for the police.
The inclusion of a “visibly present” provision is unusual. A plain reading of the
term would suggest father cannot be visible to mother or child —essentially setting the
prescribed distance father must maintain from mother as the distance an eye can reasonably
see. The district court noted that “visibly present” did not include visible with “telescopes
or binoculars.” Father suggests the “visibly present” language is vague and subjects him
to significant risk of unintentional violations. And yet, th e potential for unintentional
violations exists anytime there is a distance term in an HRO. The two parties could be
inadvertently walking down two adjacent aisles of a grocery store, or their cars could pass
in an intersection. This alone is not sufficient for a party to argue the HRO is invalid.
In light of father’s patrolling behavior outside of mother’s home, a reasonable
person would understand that being in the visible presence of mother or the child, which

10
would include planting oneself in the immediate area of the school bus stop just beyond
mother’s home, is not permitted conduct. Furthermore, this provision does not prevent
father from seeing and interacting with child at the stipulated the rapy sessions. It merely
conveys to father that any attempts to circumvent the HRO are not permissible.
We hold that , in these circumstances, the provision, while unusual, is not
unconstitutionally vague as a person of common intelligence would likely not guess the
meaning of ‘visibly present’ to mean anything other than visible to mother and/or child.
2. The district court did not abuse its discretion when it denied father’s
amended motion to “change” the November HRO.

An HRO proceeding is not a typical civil matter, but a special proceeding that
“confers a right upon an individual ” and authorizes a special application to a court to
enforce it.” Fiduciary Found., LLC ex rel Rothfusz v. Brown, 834 N.W.2d 756, 761 (Minn.
App. 2013), review denied (Minn. Sept. 17, 2013). Though special, proceedings involving
the issuance of an HRO are civil in nature. Dunham, 708 N.W.2d at 568. They are subject
to the rules of civil procedure. See Minn. R. Civ. P. 1 (stating that the rules of civil
procedure generally apply in “all suits of a civil nature”); see also Kush, 683 N.W.2d at
843–44 (applying the Minnesota Rules of Civil Procedure to an HRO proceeding). We
“review a district court’s decision on a motion to vacate an order or judgment for an abuse
of discretion.” In re Welfare of Children of M.L.A., 730 N.W.2d 54, 60 (Minn. App. 2007).

11
Father is not entitled to a new trial under Minn. R. Civ. P. 59.01(c).
Father contends that it was an abuse of discretion by the district court to deny his
January motion to “change” the November HRO as he was entitled to a “new trial” under
Minn. R. Civ. P. 59.01(c).
The district court granted both parties’ request for a hearing on the October HRO
and set a hearing date for November 15, 2018. Father failed to attend that hearing because
“he works nights,” was at a free legal clinic at the court of appeal s researching a separate
issue, and mixed up the day on which his hearing was held. When father requested a second
hearing without providing a legal basis for his entitlement to a retrial , the district court
denied his request. Father now claims he is entitled to a new trial under Minn. R. Civ. P.
59.01(c).
Generally, HRO proceedings are special proceedings. Fiduciary Found., LLC ex
rel. Rothfusz , 834 N.W.2d at 761. Unless the statute authorizing a particular special
proceeding states otherwise, if a special proceeding does not include a trial, a motion for a
new trial is not authorized in that special proceeding. Schlitz v. City of Duluth, 449 N.W.2d
439, 441 (Minn. 1990); see Parson v. Argue , 344 N.W.2d 431 , 431 (Minn. App. 1984)
(noting that if there was no trial, a motion for a new trial is an “anomaly”). Minn. Stat. §
609.748, which autho rizes HROs and their related proceedings, does not include any
reference to a “trial” and does not authorize a “motion for a new trial.” Therefore, in a
proceeding related to an HRO, a motion for a new trial under Minn. R. Civ. P. 59.01(c) is
not an authorized form a relief. Accordingly, the district court did not err when it denied
father’s request.

12
Even if Minn. R. Civ. P. 59.01 applied, Minn. R. Civ. P. 59.01(c) provides that a
district court may grant a new trial on account of an “ [a]ccident or surpr ise which could
not have been prevented by ordinary prudence.” Minn. R. Civ. P. 59.01(c).
Father missed the hearing because he marked his calendar incorrectly . Had father
exercised ordinary prudence, he would have marked the hearing on the correct day. There
was nothing inevitable or unpreventable about father’s absence at the hearing. Father
presents no other grounds by which the district court abused its discretion when it denied
father’s amended motion.
As Minn. R. Civ. P. 59.01 does not apply to the November HRO hearing, and even
if it did, father’s absence could have been prevented by ordinary prudence, the district court
did not abuse its discretion when it denied father’s amended request to modify the HRO
through a “new trial.”
3. The district court did not abuse its discretion when it canceled a hearing on
father’s amended motion to “change” the HRO.

Though difficult to follow, father apparently argues that the district court abused its
discretion when it canceled a scheduled hearing on his amended motion to modify the HRO
as the cancelation was a “clerical mistake” under Minn. R. Civ. P. 60.01.
Minn. R. Civ. P. 60.01 allows a district court to correct an error or oversight in a
proceeding at any time on its own initiative. See Minn. R. Civ. P. 60.01. The district court
scheduled a hearing on the amended motion to “change” even though the district court
previously stated that father had his opportunity and no such hearing should be scheduled.
In recognizing that the hearing was scheduled in error, the district court struck the hearing

13
from the calendar. This action is permitted under Minn. R. Civ. P. 60.01. Furthermore,
the relief sought by father, a “re-trial or vacation of the HRO ,” is not an authorized form
of relief under Minn. Stat. § 609.748.
Although the district court was incorrect in its assertion that the rules of civil
procedure do not apply to HRO proceedings, as father failed to request a recognized form
of relief under Minn. Stat. § 609.748, and the district court is auth orized to correct errors
and oversights under Minn. R. Civ. P. 60.01, we hold that the district court did not abuse
its discretion when it struck the erroneously scheduled hearing on the amended motion to
modify the HRO from the district court’s calendar.
Minn. R. Civ. P. 60.02 provides that a party may seek relief from an order for
various reasons including mistake, new evidence, and fraud. Minn. R. Civ. P. 60.02 (a)–
(c). We decline to address any entitlement to relief under Minn. R. Civ. P. 60.02 as father
failed to ask for relief under this rule. See, e.g., Ganguli v. Univ. of Minn., 512 N.W.2d
918, 919 n.1 (Minn. App. 1994) ( noting that the court of appeals declines to address
allegations unsupported by legal analysis or citation).
Affirmed.