This post examines an opinion from the Court of Appeals of Minnesota: Boggs v. Boggs, 2015 WL 1961179 (2015). As the caption suggests, the case involves
spouses who were in the process of divorcing when the events that produced this
suit arose. Boggs v. Boggs, supra.
As the Court of Appeals explained,
[m]arried for twenty years, the parties
begin divorce proceedings in March 2014. They have two residences, one in
Minnesota and one in Arizona. At the time of the HRO [harassment restraining order] proceedings, husband lived in Arizona with the parties' minor son, and
wife lived in Minnesota with the parties' minor daughter.
[Husband] owns the Minnesota property
but agreed that [wife] would reside there until May 2014. [His] business
operates a horse farm with stables in the vicinity of and at the Minnesota
residence. Several vehicles are titled in the business name, including the one
driven by [wife]. S.O. is an employee of the business and is responsible for
maintaining the stables and vehicles and caring for the horses. In the winter
and during times relevant to this matter, there were no horses at the stables.
The horses were in Arizona.
Boggs v. Boggs, supra.
David is the husband and Terry Ann is the wife to whom the opinion
respectively refers to in the passage above.
The court goes on to explain that on May 2014, Terry ann filed a petition for
an HRO
against [David]. [She] alleged that [he] physically assaulted her, had
S.O. follow and stalk her, monitored her social life, had a tracking device
attached to the vehicle she used, made threats to her, and frightened her with
threatening behavior. [She] stated in the petition that the conduct made her
feel like she was `being persecuted and followed, and treated like a fugitive.
I have no privacy or protection from [him]. I do not feel safe being alone at
my home anymore.’ The district court granted an ex parte HRO. [David] contested
the order.
Boggs v. Boggs, supra.
The Wright County District Court Judge who had the case then
held an
evidentiary hearing on the HRO with
testimony from both parties and one other witness. [Terry Anne] testified that,
during an argument in May 2014, [David] grabbed her arms, she elbowed him, they
both fell, and she sustained bruises. [Terry Anne] also testified that employee
S.O. came to her Minnesota residence without her knowledge or consent on
multiple occasions in March and April 2014, that his presence was pursuant to
the direction of [David], and that [David] was tracking her vehicle through the
use of OnStar Family Link GPS services. [Terry Anne] further pointed out that
she had a male friend and that [David] attempted to monitor her activities with
that individual and restrict his presence at the Minnesota residence.
[David] testified that as the owner he
had a legitimate business interest in the use, care, and maintenance of the
Minnesota residence and nearby stables, that S.O. frequently goes to the
Minnesota residence because his job requires that he maintain the property and
stables, and that as the owner he communicated with S.O. regarding the
premises. [David] stated that he did not intend for S.O. to engage in any
stalking of [Terry Anne]. [He] also testified that all of the business vehicles
had OnStar services and that the vehicle used by [Terry Anne] was not treated
differently.
Boggs v. Boggs, supra.
The District Court Judge “granted [Terry Anne] an HRO,
finding that [David] did not physically assault [her] but that [he] `intentionally
engaged in repeated incidents of intrusive or unwanted acts.’” Boggs
v. Boggs, supra. David then appealed.
The Court of Appeals began its analysis of his appeal by
explaining that it reviews
the District Court's grant of an HRO
for abuse of discretion. Kush v. Mathison,683 N.W.2d 841 (Minnesota
Court of Appeals 2004). . . . To find an abuse of discretion, we `must conclude
that the district court erred by making findings unsupported by the evidence or
by improperly applying the law.’ State v. Underdahl, 767 N.W.2d 677
(Minnesota Supreme Court 2009). The district court's findings of fact `shall
not be set aside unless clearly erroneous, and due regard shall be given to the
opportunity of the [district] court to judge the credibility of the witnesses.’
Minnesota Rules of Civil Procedure Rule 52.01.
An HRO may be granted if `there are
reasonable grounds to believe that the [subject of the HRO] has engaged in
harassment.’ Minnesota Statutes § 609.748, subd. 5(b)(3) (2014). 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.’ MinnesotaStatutes § 609.748, subd. 1(a)(1) (2014).
To sustain an HRO petition, the
petitioner must prove `objectively unreasonable conduct or intent on the part
of the harasser’ and `an objectively reasonable belief on the part of the
[harassed] person’ that such conduct has a substantial adverse effect on her
safety, security, or privacy. Peterson v. Johnson, 755 N.W.2d
758 (Minnesota Court of Appeals 2008) (quotations omitted). Here, the
district court found [David] `intentionally engaged in repeated incidents of
intrusive or unwanted acts’ that established the `objectively unreasonable’
requirements. The court cited four incidents to support the issuance of the
HRO.
Boggs v. Boggs, supra.
The first incident occurred in March of 2014, when David
instructed S.O. to investigate the area
around [Terry Anne’s] residence after S.O. reported motorcycles were at the
house and there were signs of a party. [David] testified that S.O.'s report of
motorcycles and other indications that a party was occurring at the Minnesota
residence led him to worry that `there may be alcohol or damage to my
property.’ [David] testified that it was part of S.O.'s job `to check on the
property on almost a daily basis. . . . Horses eat on holidays, so you're on
properties and work 24/7 in the horse business.’
[Terry Anne] testified that the horses
were in Arizona for the winter, that the stables were empty in March and April,
and that normally `employees do not come to the Minnesota home anytime over the
winter. There's zero reason for them to do that.’ The district court found that
with the horses in Arizona, some of S.O.'s presence on the property and
communications with [David] constituted harassment monitoring by [David] of
[Terry Anne] and of her residence.
Boggs v. Boggs, supra.
As to the second incident, the Judge found that
S.O. reported to [David] that a
`strange vehicle’ was leaving the Minnesota residence on the evening of April
23, 2014, and [David] instructed S.O. to go to the property to look around. [David]
testified that while S.O. was `checking on the property, or going by or
something,’ S.O. called [David] to inform him that a strange car was in
the driveway. [David] testified that he asked S.O. to obtain the license-plate
number of the strange car and S.O. subsequently told [him] that the car
belonged to a friend of the parties' minor daughter. After dark, while S.O. was
investigating the car, the daughter saw him in the shrubbery and became
frightened that an intruder was on the property. . . .
[David] stated that he did not intend
for S.O. to stalk [Terry Anne]. [She] testified that her daughter called her at
9:00 p.m., crying and scared because of `a car in the driveway that had
followed her friends and then returned to the driveway.’ [Terry Anne] testified
that her daughter then observed S.O. hiding between two trees in front of the
garage. [Terry Anne] testified that it frightened her to learn S.O. was
following her daughter's friends. The district court found [David’s] testimony
that S.O. `just happened to be in the area . . . when he saw the strange
vehicle’ was not credible and found [David] directed S.O. to observe the
property and respondent and report his observations back to [him].
Boggs v. Boggs, supra.
With regard to the third incident, Terry Anne testified that
the next day S.O. was
`checking out the property’ and
reported to [David] that there was `a strange white van’ at the residence. [David]
asked S.O. to get the license-plate number or find out why it was there. S.O.
reported . . . that [Terry Anne] had requested a security-system firm come to
work on the locks at the residence. [David] testified that `there was no need
for her to change any locks’ because [she] was vacating the residence in May. [Terry
Anne] testified that she requested security maintenance because `the actual
security alarm to the home hadn't been working . . . and the children had asked
me for their security to please reconnect the security system.’ [Terry Anne] testified
that the security-system employee called her saying S.O. had told him to leave
and had followed him down the road. . . .
The district court found that [David]
sent S.O. to the property to monitor [Terry Anne’s] activities and report back
to him. The district court found that [David’] testimony that he was simply
concerned for his property was not credible. The district court again found [Terry
Anne’s] testimony credible, that S.O. did not need to be at the property during
the winter months, and that it was reasonable that [she] felt it was unsettling,
undermining, and scary to know that S.O. was monitoring the property and
herself.
Boggs v. Boggs, supra.
As to the fourth incident, the District Court Judge found
that in April of 2014, David,
or someone at his direction, arranged
for the activation of the OnStar Family Link GPS tracking service on the
vehicle [Terry Anne] was driving. [David] testified that his assistant, N.W.,
used OnStar `to know where the vehicle was’ because it belonged to his
business, and the intent was not to follow [her]. [Terry Anne] testified that
she spoke to an OnStar representative, who informed her that [David] arranged
to have the OnStar Family Link GPS tracking service activated on April 8,
2014.
[She] testified that she was scared and
felt violated by [David] tracking her movements. The district court found that [his]
business owned the vehicle but that [Terry Anne] had exclusively driven the
vehicle except for two occasions. The district court found [David] `had no
reason to activate the OnStar Family Link other than to track [her] movements.’
The district court found that tracking [Terry Anne’s] movements by using the
OnStar capabilities invaded [her] privacy.
Boggs v. Boggs, supra.
Finally, in his appeal, David also objected to the trial
judge’s considering
evidence of text
messages between [him] and N.W. to show that [David] tracked the vehicle's
location. [He] argued that [Terry Anne] illegally intercepted the text messages
without [his] knowledge. Both parties testified that [David] owns two iPads and
that [Terry Anne] uses [his] older iPad. The older iPad uses the data plan
associated with [David’s] mobile phone and receives text messages intended for [him].
When this occurs,
[Terry Anne] sees the text messages without [his] knowledge. [Terry Anne]
testified that she usually told N .W. when she saw text messages to or from [David],
but when she received the text messages between [David] and N.W. that indicated
[David] was tracking respondent's movements in her vehicle, she did not tell
N.W.
Boggs v. Boggs, supra.
On appeal, David argued that the
Federal Electronic Communications Privacy Act (ECPA) prohibits [Terry Anne’s] receipt of the text messages, and
therefore the district court erred by relying on the text-message evidence to
find that [David] harassed [her] through tracking the vehicle. [David] did not
make this argument to the district court. This court will not consider matters
not argued to and considered by the district court. Thiele v. Stich, 425
N.W.2d 580 (Minnesota Supreme Court 1988).
Even if this issue were properly before
us, the ECPA prohibits the intentional interception of an
electronic communication. 18 U.S. Code § 2511 (2012). Nothing in the
record here demonstrates that [Terry Anne] intentionally obtained [David’s] electronic communication or that she intercepted the
text messages. Instead, the district court found that `the text messages
automatically “pop up” when [respondent] is working on the iPad,’ which
indicates that [Terry Anne] inadvertently received the text messages. In these
circumstances, the district court did not err in considering the testimony
regarding the text messages when it found that [David’s] tracking of
[her] vehicle was an intrusive or unwanted act.
Boggs v. Boggs, supra (emphasis at the original).
For these and other reasons, the Court of Appeals held that
[b]ecause the record supports the
district court's findings and because its findings support the conclusion that [David]
intentionally engaged in repeated incidents of intrusive or unwanted acts that
had a substantial adverse effect on [Terry Anne’s] safety, security, or
privacy, we conclude that the district court did not abuse its discretion in
issuing the HRO.
Boggs v. Boggs, supra.
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