Elizabeth Annette Robyn Wolter, OBO A. R. W., Respondent,

This opinion is nonprecedential except as provided by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
A21-0828

Elizabeth Annette Robyn Wolter, OBO A. R. W.,
Respondent,

vs.

Nicholas John Wolter,
Appellant.

Filed March 7, 2022
Reversed
Slieter, Judge

Olmsted County District Court
File No. 55-CV-21-2823

Elizabeth A. Wolter, Dover, Minnesota (pro se respondent)

Thomas R. Braun, Lisa K. Stevens, Restovich
 Braun & Associates, Rochester, Minnesota
(for appellant)

Considered and decided by Florey, Pres iding Judge; Slieter, Judge; and Gaïtas,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
Appellant challenges the district court’s decision to issue a harassment restraining
order (HRO) against him in proceedings comme nced by respondent on behalf of the
parties’ minor daughter. Appellant argues that the district court abused its discretion by
admitting hearsay testimony and taking judicial notice of the parties’ dissolution court file,
2
and that the record does not support the distri ct court’s determination that he engaged in
harassment. Because the district court made no factual findings that the purported second
incident of harassment resulted from objec tively unreasonable conduct, and our review
precludes independent fact-finding, we reverse the issuance of the H R O . W e d o n o t
consider father’s evidentiary arguments.
FACTS
The following factual summary is predic ated upon evidence presented during the
HRO hearing. Respondent-mother Elizabeth Annette Robyn Wolter’s and appellant-father
Nicholas John Wolter’s marriag e was dissolved on January 3, 2020. On May 18, 2021,
mother petitioned for an HRO on behalf of the parties’ then 14-year-old daughter against
father. The district court 1 granted an ex parte HRO and father requested a contested
hearing.
The record reveals a tumultuous marriage and dissolution. Daughter last had
parenting time with father in 2019 and has made clear to her parents that she wants no
contact from father. Still, both parents can atte nd daughter’s extracurricular activities
pursuant to the parties’ stipulated findings of fact, conclusions of law, order for judgment
and judgment and decree (J&D) dissolving their ma rriage. The district court, in its order
granting the HRO following the contested hearing, identified two incidents of harassment
which formed the basis for granting the HRO.

1 This case was heard by a referee who recommended findings and an order to the district
court. Once the district court confirms the referee’s findings, the findings become the order
of the court, Minn. Stat. § 484.70, subd. 7(c) (2020), and we review the order like any other
district court order.
3
Softball Game Incident
In May 2021,2 father yelled to daughter, “Come on, . . . you’ve got this,” while she
was at-bat in the first game of a softball do uble-header. Father testified that daughter’s
reaction “was just still,” and he “didn’t kn ow what exactly happen e d. ” H e s a w “ t hr ee
coaches [take] her back” to th e dugout afterward. Daughter is diagnosed with general
anxiety disorder and has panic attacks.
Daughter’s coach testified that he “noticed that she was in some type of distress,”
“was a little pale,” and “looked to be staggering just a little bit.” It was “really apparent”
that daughter was experiencing “a panic attack where she was in some type of respiratory
distress.” The coaches tried to calm her down and asked her what was wrong, but daughter
“was silent” and she wanted to “come out of the game.” Before th e second game began,
daughter called mother, told her about the incident, and asked mother to come and get her.
Daughter later told mother that “she fe lt she couldn’t play” because “her dad was
there.” Mother asked whether father merely cheered for her, and daughter responded, “it
didn’t matter what he said.” She explained that father “was shouting out to her,” “she froze
in place,” and “her coaches . . . walk[ed] her to the dugout” where “she felt safe.”
Hardware Store Incident
In June 2021, after the ex parte HRO was issued but before the contested hearing,
mother received a telephone call from daughter who was at her place of employment.

2 Mother and father testified that this event occurred on May 20, 2021, however, the HRO
petition was filed on May 18, 2021. Based on the petition, the events from the softball
game occurred the same day that the petition was filed. The exact date the event occurred
is not material to the resolution to this case.
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Daughter told mother, “He’s here.” Her voice sounded “shaky” and “upset,” and she “was
stumbling over her words.” Mother asked da ughter “who she was talking about” and she
said, “It’s Nick,” her father, and he was “at Ace Hardware and he is standing there watching
me.” Mother testified that she was able to “calm” daughter “down” during the call.
HRO Hearing
Daughter did not testify during the heari ng and mother was allowed, over father’s
objection, to testify about stat ements daughter made to her following the two incidents.
During the hearing, the district court announce d that it would take judicial notice of the
parties’ family court file and specifically to ok notice of “orders” from “January 3, 2020,
on,” which included three orders: the January 3, 2020 J&D, the October 6, 2020 order, and
the December 16, 2020 amended order.
In its order granting the HRO, the district court found that “ [f]rom the testimony,
two incidents are the basis of the harassment restraining order.” First, father “called out to
[daughter] while she was batting. Second, Fa ther allegedly was ac ross the street from
[daughter]’s place of work.” Father appeals.
DECISION
Father argues that there was insufficien t evidence to prove that his conduct was
“objectively unreasonable” and “had a substantially adverse effect on [daughter]’s safety,
security, or privacy, or that [daughter] had an objectively reasonable belief of such an
effect.”
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We review the district court’s decision to grant an HRO for an abuse of discretion.
Peterson v. Johnson, 755 N.W.2d 758, 761 (Minn. App. 2008). In doing so, we review the
district court’s factual findings for clear error. Id.
[C]lear-error review does not permit an appellate court to
weigh the evidence as if trying the matter de novo. Neither
does it permit an appellate court to engage in fact-finding
anew, even if the court would find the facts to be different if it
determined them in the first instance. Nor should an appellate
court reconcile conflicting evidence. Consequently, an
appellate court need not go into an extended discussion of the
evidence to prove or demonstr ate the correctness of the
findings of the trial court.

In re Commitment of Kenney , 963 N.W.2d 214, 221-22 (Minn. 2021) (quotations and
citations omitted). We are limited to identif ying and correcting errors, and we may not
reweigh the evidence and find our own facts. See Sefkow v. Sefkow, 427 N.W.2d 203, 210
(Minn. 1988).
In our review, we also give the district court due regard for its opportunity to judge
witness credibility. Peterson, 755 N.W.2d at 761. Whether the facts found by the district
court satisfy the statutory definition of harassment is a ques tion of law that we review de
novo. See id. But “[c]redibility determinations are the province of the trier of fact.” Id. at
763. We may consider the district court’s implicit credibility findings of fact as well as its
explicit findings. See Pechovnik v. Pechovnik , 765 N.W.2d 94, 99 (Minn. App. 2009)
(considering implicit credibility findings on appeal from district court’s grant of an order
for protection).
Harassment, if not based on a single incident of physical or sexual assault, stalking,
or dissemination of private sexual images, is defined as “repeated incidents of intrusive or
6
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) (2020); Peterson, 755 N.W.2d at 766. Two or more instances of
harassing conduct constitute “repeated incidents.” Kush v. Mathison , 683 N.W.2d 841,
844 (Minn. App. 2004), rev. denied (Minn. Sept. 29, 2004).
Conduct is harassing if (1) it is objectively unreasonable conduct, and (2) either the
petitioner has an objectively reasonable belief th at the conduct has a substantial adverse
effect on the safety, security, or privacy of another, or the respondent subjectively intends
the conduct to have a substantial adverse e ffect on the safety, secu rity, or privacy of
another. Dunham v. Roer, 708 N.W.2d 552, 566-67 (Minn. App. 2006); see Minn. Stat.
§ 609.748, subd. 1(a)(1).
Before we begin our analysis, we note that the district court made multiple findings
of fact about each of the incidents of purpo rted harassment that merely summarized the
testimony without making credibility and weight determinations. This makes our review
of the record to determine whether a factual finding is clearly erroneous difficult.
When factual findings are required for a legal ruling, they must be affirmatively
stated as findings of the district court. Dean v. Pelton, 437 N.W.2d 762, 764 (Minn. App.
1989) (noting that statements prefaced with phrases such as “petitioner claims,” “according
to petitioner’s application,” and “responde nt asserts” are not proper findings); see In re
Civ. Commitment of Spicer, 853 N.W.2d 803, 810 (Minn. App. 2014) (applying Dean, 437
N.W.2d at 764). Although we may consider the district court’s implicit credibility findings
to the extent possible based on its decision to grant the HRO, see Pechovnik, 765 N.W.2d
7
at 99, we cannot conduct our own fact-finding. Kenney, 963 N.W.2d at 221-22; Sefkow,
427 N.W.2d at 210. When a critical element of harassment is not found by the district
court, issuance of the HRO is an abuse of discretion. See Peterson, 755 N.W.2d at 766.
We now analyze the two incidents of harassment found by the district court.
Softball Game Incident
Although the district court made no explicit findings as to what occurred during this
first incident, we can discern what occurred from the following findings summarizing the
testimony, together with the district court’s implicit credibility findings.
The district court summarized the testimony of daughter’s coach, following father
yelling to daughter as she was batting: “she a ppeared to be in distress, pale, and was
staggering,” which her coach “perceived [] as a panic attack. When he asked her what was
wrong, she did not respond and elected to sit out the rest of the game and stayed in the
dugout with her teammates.” The district court also found that daughter “had no reported
incidents of shutting down prior to Father calling out to her at the game.”
The record supports these findings and that this incident had a “substantial adverse
effect” on daughter and that father’s conduct was “objectively unreasonable,” based on the
district court’s findings that daughter wants no contact from father. Minn. Stat. § 609.748,
subd. 1(a)(1); Dunham, 708 N.W.2d at 566-67.
Hardware Store Incident
The district court summarized this second incident of purported harassment with the
following finding: “[a]ccording to Mother,” daughter called her from work and said, “He’s
here. It’s Nick [Father]. He is at ACE Hardware and he’s watching me.” The district court
8
also found that “Father denied ever standing outside of the child ’s workplace but did
acknowledge he lives close to the child’s workplace.” Because the district court did find
the second incident to support the HRO, we conclude that the district court made implicit
credibility findings that it be lieved mother’s testimony over father’s and that father
therefore was at the hardware store watching daughter. Pechovnik, 765 N.W.2d at 99.
However, although the district court f ound that daughter wants no contact from
father, the district court made no factual findings on whether father staring at daughter from
the hardware store was objectively unreasonable and the record is silent on this element.
Ultimately, we cannot find f acts and decline to do so. Kenney , 963 N.W.2d at 221-22;
Sefkow, 427 N.W.2d at 210.
From our review of the record and the di strict court’s scant factual findings, we
conclude there is insufficient evidence for the second incident of harassment. Thus, the
HRO is not properly based on the “repeated incidents” prong of Minn. Stat. § 609.748,
subd. 1(a)(1). Absent the statutory prerequisite s for the issuance of an HRO, the district
court abused its discretion, and therefore, we reverse the issuance of the HRO.
Reversed.