This opinion is nonprecedential except as provided by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
                                    A23-0780

                                  Allison Marie Wolf,
                                      Respondent,

                                           vs.

                                John Roman Schmainda,
                                      Appellant.

                                Filed January 16, 2024
                                       Reversed
                                     Gaïtas, Judge

                            Kandiyohi County District Court
                               File No. 34-CV-23-201

Allison Marie Wolf, Willmar, Minnesota (self-represented respondent)

Lori L. Athmann, Jovanovich, Dege & Athmann, PA, St. Cloud, Minnesota (for appellant)

       Considered and decided by Gaïtas, Presiding Judge; Segal, Chief Judge; and Cleary,

Judge. ∗

                          NONPRECEDENTIAL OPINION

GAÏTAS, Judge

       Appellant John Roman Schmainda challenges the district court’s grant, after an

evidentiary hearing, of respondent Allison Marie Wolf’s petition for a harassment

restraining order (HRO). Schmainda argues that the district court abused its discretion by


∗
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
issuing the HRO because the evidence did not establish reasonable grounds to believe that

he had harassed Wolf and his conduct had or was intended to have a substantial adverse

effect on Wolf’s safety, security, or privacy. He also contends that the district court erred

by addressing his parenting time in the HRO without considering the best interests of the

parties’ joint child. Because the record does not support the district court’s finding that

Schmainda engaged in harassment, we reverse.

                                          FACTS

       Wolf and Schmainda were involved in a 20-year intimate relationship that ended in

March 2023. Although they never married, they share a 15-year-old child and own a home

together.

       In May 2023, Wolf petitioned for an ex parte HRO alleging that Schmainda was

harassing her. The district court issued an ex parte HRO.

       Schmainda requested an evidentiary hearing. The evidence presented at the hearing

was as follows.

       Wolf testified that, when the couple separated, she moved to a friend’s home with

their child. Following the separation, Wolf and Schmainda agreed to communicate solely

in writing, using texts and emails. But according to Wolf, Schmainda sent her “constant

text messages.” And in those messages, he threatened to change the locks to their home

and throw away her belongings. When the texts did not stop, Wolf blocked Schmainda on

her phone. At that point, she testified, he began emailing her. She also heard from her

friends that Schmainda had reestablished his social media accounts. According to Wolf,




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she received a notification on her phone that Schmainda had “added” her to one social

media account. She “automatically blocked” the social media accounts.

       Wolf recounted an incident with Schmainda at their home when she went to pick up

her belongings after moving out. She testified that Schmainda “threaten[ed] to bust [her]

car windows out and [she] called his bluff and ended up in a situation where he was shutting

the garage door, and [she] kind of got trapped under there.” During the incident, she called

the police. According to Wolf, Schmainda “was able to change the locks and open things

back up right before the police got there.”

       In support of her HRO petition, Wolf introduced several exhibits. Two of those

exhibits were photographs of text messages allegedly exchanged between Schmainda and

the couple’s child. In one such exhibit, the photograph showed a text from the child to

Schmainda, stating, “I love you so much but I need you to own up to what you have been

doing to mom. You need to stop manipulating us dad, please . . . .” The second such

exhibit showed a message from Schmainda to the child, stating, “Mom is sick mentally and

physical[ly] with genetic things that don’t just go away unless she has been lying this whole

time to you and I about what’s really going [o]n with her.” Wolf also introduced a

photograph of her email inbox, which showed multiple unread emails from Schmainda but

did not reveal the content of those emails. She acknowledged that she had no other physical

evidence of harassing texts or emails.

       Schmainda presented the testimony of the police officer who had responded to the

incident at the house. The officer testified that Wolf was in the home collecting her

belongings when he arrived. Thus, he observed no evidence to support Wolf’s claim that


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Schmainda had locked her out of the house. The officer testified that “tension[s] seemed

high [and] [i]t seemed like some sort of verbal altercation had gone on.” Wolf showed him

a video that she made on her phone. She told the officer that the video showed how

Schmainda had tried to “crush her legs” under the garage door. But according to the officer,

the video did not show a moving garage door or anything concerning. In the officer’s view,

“the situation was more civil than criminal.” The officer testified that, in his experience,

in “situation[s] where tensions are high” it is generally safest if one party leaves the home;

he advised Wolf of that fact but assured her that she was not required to leave the home.

       Schmainda also testified at the hearing. He denied locking Wolf out of the house,

explaining that he did not change the locks until after Wolf had completely moved out.

Schmainda also denied harassing Wolf by text or email. He introduced exhibits that he

claimed showed the entirety of his communications with Wolf. Those exhibits consisted

of text messages and emails between Schmainda and Wolf—often initiated by Wolf—

concerning the division of belongings, when Wolf would pick up her belongings, and

parenting time. The messages that were allegedly from Schmainda did not contain any

threats, disparaging remarks, or abusive language.

       Following the hearing, the district court issued an HRO.           It determined that

Schmainda harassed Wolf and that the harassment had or was intended to have a substantial

adverse effect on Wolf’s safety, security, or privacy.        The district court based this

determination on the following factual findings: (1) Schmainda “sent harassing text

messages and email[s] to [Wolf],” (2) Schmainda “changed the locks to the home to ensure

[Wolf] was locked out,” (3) “[l]aw enforcement was called to the home and advised the


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parties to separate for safety reasons,” and (4) Schmainda “harassed [Wolf] by sending

their [child] a text message stating, ‘Mom is sick mentally and physical[ly] with genetic

things that don’t just go away unless she has been lying this whole time to you and I about

what’s really going in with her’” to “undermine the mother-[child] relationship.”

       The HRO directs Schmainda not to not harass Wolf, to have no contact with Wolf,

and to remain over 200 feet away from Wolf’s residence and workplace. Additionally, the

HRO states,

              The minor [child] of [Wolf] and [Schmainda] is 15 years old.
              [Schmainda] does not need to contact [Wolf] regarding
              parenting time with the child. Time between the child and
              [Schmainda] can be arranged directly through the child who
              can either agree or deny spending time with [Schmainda] at 15
              years old.

       Schmainda appeals.

                                        DECISION

       Minnesota Statutes section 609.748 (2022) governs HROs, which provide a legal

avenue for victims of harassment to petition the court for relief.           Section 609.748

subdivision 1(a)(1), defines harassment, in relevant part, as “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.” To constitute harassment, a

person’s behavior must go “beyond an acceptable expression of outrage and civilized

conduct.” Kush v. Mathison, 

 (Minn. App. 2004), rev. denied (Minn.

Sept. 29, 2004). Statements that are simply “inappropriate or argumentative” do not satisfy



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this standard. 

; see also Beach v. Jeschke, 

 (Minn. App.

2002) (“We note that comments that are merely inappropriate and argumentative are

insufficient to rise to the level of harassment.”).

       In order to issue an HRO, a district court must “find that there are reasonable, rather

than merely subjective, grounds to believe that the accused engaged in harassment.”

Dunham v. Roer, 

 (Minn. App. 2006), rev. denied (Minn. Mar. 28,

2006). A petitioner must prove both “objectively unreasonable conduct or intent on the

part of the harasser” and “an objectively reasonable belief on the part of the person subject

to harassing conduct.” Peterson v. Johnson, 

 (Minn. App. 2008)

(quotation omitted); see also Kush, 

 (stating that the intent of the

harasser may be determined using a subjective standard). A district court may issue an

HRO if it finds, based on the “testimony and documents properly admitted,” Harris on

behalf of Banks v. Gellerman, 

, 610 (Minn. App. 2021) (quotation

omitted), that there are “reasonable grounds to believe that the respondent has engaged in

harassment,” Beach, 

. See 

, subd. 5(b)(3).

       Appellate courts review a district court’s decision to grant an HRO for an abuse of

discretion. Peterson, 

. A district court abuses its discretion “if it makes

findings of fact that are not supported by the record, misapplies the law, or resolves the

matter in a manner that is contrary to logic and the facts on record.” Madden v. Madden,

 (Minn. App. 2019). “A district court’s findings of fact will not be

set aside unless clearly erroneous,” and we give “due regard” to the district court’s

“opportunity to judge the credibility of witnesses.” Kush, 

; see also


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Peterson, 

 (“Credibility determinations are the province of the trier of

fact.”). However, we will reverse “the issuance of a restraining order if it is not supported

by sufficient evidence.” Kush, 

.

       Schmainda argues that the district court abused its discretion in determining that his

conduct constituted harassment. He challenges three of the district court’s four grounds

for this determination.

       First, Schmainda challenges the district court’s finding that he “sent harassing text

messages and email[s] to [Wolf].” He contends that the evidence he presented at the

hearing, including his exhibit that allegedly contains all of the text and email

communications he exchanged with Wolf, disproved Wolf’s claim of harassment.

       Schmainda’s argument asks us to weigh the evidence and to conclude that his

evidence was more persuasive than Wolf’s evidence. As a reviewing court, we do not

weigh evidence. Rather, when there is conflicting evidence, we generally defer to a district

court’s findings because the district court is in the best position to make credibility

determinations.    See Kush, 

 (stating that witness credibility

determinations are within the purview of the district court).

       However, we do review a district court’s factual findings for clear error. And based

on our review of the record, we determine that the district court clearly erred in finding that

Schmainda sent harassing texts and emails to Wolf. 

 At the hearing, Wolf’s testimony

regarding the allegedly harassing texts and emails was minimal. She testified, “We got—

received constant text messages after we left for the weekend of the locks being changed

things, threats with [the child], and that continued.” She also testified, “[H]e emails me


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constantly when I had turned off my phone because the text messages didn’t stop. So then

I shut my—blocked him on my phone. Then the emails wouldn’t stop and then it’s when

I went for the HRO.” Wolf introduced what she testified was a photograph of her email

inbox showing some incoming emails from Schmainda. But Wolf presented no evidence

regarding the content of the emails. Moreover, she did not rebut Schmainda’s testimony

that his exhibit included the content of all texts and emails that had been exchanged. We

agree with Schmainda that those texts and emails show no objectively unreasonable

conduct or intent on his part. See Peterson, 

 (requiring objectively

unreasonable conduct for an HRO). Instead, they depict ongoing and appropriate—

although terse—conversations about dividing property after Wolf moved out of the home.

And although these electronic communications occurred with regularity, they were

initiated by both Wolf and Schmainda. On the record before us, there is no evidence that

Schmainda’s texts and emails to Wolf were “repeated incidents of intrusive or unwanted

acts, words, or gestures” that had “a substantial adverse effect” or were “intended to have

a substantial adverse effect on” Wolf’s “safety, security, or privacy.” See 

, subd. 1(a)(1). Thus, the district court’s finding that Schmainda “sent harassing

text messages and email[s] to [Wolf]” was clearly erroneous. See Witchell v. Witchell, 

 (Minn. App. 2000) (determining that district court clearly erred in finding

that husband’s comments in a visitation notebook, used to communicate about shared

children, were “intrusive or that they were intended to adversely affect the safety, security,

or privacy of wife”).




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       Second, Schmainda challenges the district court’s finding that he “changed the locks

to the home to ensure [Wolf] was locked out.” He argues that the district court clearly

erred in finding that he locked Wolf out of the house. Alternatively, he contends that, even

if he did change the locks, this act did not constitute harassment.

       We discern no clear error in the district court’s finding that Schmainda changed the

locks. Because there is evidence in the record to support the district court’s finding that

Schmainda changed the locks, and we defer to the district court’s credibility findings, the

district court’s factual finding is not clearly erroneous. See Kush, 

.

       However, we agree with Schmainda’s argument that, in the context presented by

this record, the changing of these locks after Wolf moved out was not an act of harassment.

It was not an “intrusive or unwanted act,” and it was not an act intended to have “a

substantial adverse effect” on Wolf’s “safety, security, or privacy.” See 

, subd. 1(a)(1). There was no evidence that Wolf was permanently denied access

to the home in which she no longer lived; she ultimately removed her belongings from that

home. And once she retrieved her belongings, Wolf no longer sought access to the home.

Given these circumstances—and particularly the fact that Wolf had moved out of the

house—Schmainda’s act of changing the locks after Wolf no longer lived there was not

objectively unreasonable or “beyond an acceptable expression of outrage and civilized

conduct.” Kush, 

. Thus, the district court clearly erred in relying on this

act to determine that Schmainda engaged in harassment.

       Third, Schmainda challenges the district court’s determination that he harassed

Wolf because “[l]aw enforcement was called to the home and advised the parties to separate


                                              9
for safety reasons.” We agree that this act—law enforcement’s response to the home—

does not constitute harassment. The mere fact that law enforcement is called to a scene is

not, without more, grounds for issuing an HRO.

       Finally, Schmainda argues that the fourth ground for the HRO—the text that he sent

to the child regarding Wolf’s mental health—standing alone, is insufficient to support the

HRO. Although Schmainda seems to concede that this text was objectively unreasonable,

see 

, he points out that harassment requires “repeated incidents of intrusive or

unwanted acts, words, or gestures,” see 

, subd. 1(a)(1) (emphasis

added). Schmainda is correct on this point. “One incident of an intrusive or unwanted act

is insufficient to prove harassment if there is no infliction of bodily harm or attempt to

inflict bodily harm.” Peterson, 

. Because the hearing evidence

established only one such act, the district court did not have reasonable grounds to believe

that Schmainda engaged in harassment. Thus, the district court abused its discretion by

granting Wolf’s HRO petition. See Roer v. Dunham, 

 (Minn. App.

2004) (“Because the district court identified only one incident of harassment, the findings

are insufficient to support the restraining order.”). 1

       Reversed.




1
 Because we reverse the grant of the HRO, we do not reach Schmainda’s challenge to the
parenting-time provision in the HRO.

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