Borth v. Borth

• Citation: 970 N.W.2d 699
• Decision Date: 10 January 2022
• Docket Number: A21-0571
• Parties: Breanna Marie BORTH, Appellant, v. Matthew Joseph BORTH, Respondent.
• Court: Court of Appeals of Minnesota

970 N.W.2d 699

Breanna Marie BORTH, Appellant,

v.Matthew Joseph BORTH, Respondent.

A21-0571

Court of Appeals of Minnesota.

Filed January 10, 2022

Danielle L. DiFiore, Anderson Law Firm, Rochester, Minnesota (for appellant)

Christopher W. Coon, Restovich Braun & Associates, Rochester, Minnesota (for respondent)

Considered and decided by Segal, Chief Judge; Cochran, Judge; and Klaphake, Judge.^*

COCHRAN, Judge

This appeal arises from the district court's dismissal of appellant's petition for a harassment restraining order (HRO). On appeal, appellant contends that the district court erred when it interpreted the definition of "harassment" provided in the HRO statute, Minn. Stat. § 609.748, and thereby abused its discretion when it dismissed appellant's HRO petition. Because we agree with appellant that the district court misapplied the law when it dismissed the HRO petition, we reverse and remand for reconsideration of the petition.

FACTS

In February 2021, appellant Breanna Marie Borth filed a petition for an HRO against respondent Matthew Joseph Borth. Among other allegations, appellant's HRO petition alleged that respondent sent a private sexual image of appellant to a third party without appellant's permission. The district court issued an ex parte HRO. Respondent then requested a hearing on the matter.

At the HRO hearing, the district court heard testimony from appellant as well as from the third party who allegedly received the private sexual image from respondent. The following summarizes the testimony relevant to this appeal.

In January 2021, appellant took a photo of herself in which she was partially nude and sent the photo to respondent, who is appellant's ex-husband. Appellant intended for respondent alone to receive the photo, sending it through a cell-phone application called Snapchat. According to appellant, respondent took a screenshot of the photo and threatened to send it to appellant's current significant other to "blackmail" appellant into giving respondent "what he wanted with [their] kids."

Appellant's current significant other, M.P., testified to later receiving a text message from respondent that included the partially nude photo of appellant. According to M.P., appellant did not intend for M.P. to receive the photo.

At the conclusion of the hearing, the district court determined that the evidence did not support issuing an HRO. With regard to the allegations relating to the photo, the district court ruled that dissemination of a private sexual image could be a basis for an HRO but concluded that the dissemination "has to be done with the intention of having a substantial adverse effect on the safety, security, or privacy of another." The district court then found that respondent did not disseminate the photo "for the purpose of adversely affecting the privacy or security of [appellant]" and accordingly the dissemination of the photo did not support issuance of an HRO.

Following the hearing, the district court issued a written order dismissing the petition. The written order reiterated the district court's conclusion that respondent did not have the requisite intent, stating "[t]he dissemination of private sexual images was not done with the intention of having a substantial adverse effect on the safety, security or privacy of another." On that basis, the district court concluded that respondent's dissemination of the photo did not constitute "harassment" under the HRO statute. In the order, the district court also found that the evidence did not support the other basis for an HRO alleged in the petition.

This appeal follows.

ISSUES

I. Did the district court err in its interpretation of the term "harassment" under Minn. Stat. § 609.748, subd. 1(a) ?

II. Does the district court's misapplication of the law require reversal and remand to the district court?

ANALYSIS

We review a district court's decision whether to issue an HRO for an abuse of discretion. Peterson v. Johnson , 755 N.W.2d 758, 761 (Minn. App. 2008). 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 , 923 N.W.2d 688, 696 (Minn. App. 2019).

I. The district court erred in its interpretation of the term "harassment" under the HRO statute.

Appellant raises a single issue on appeal. Appellant argues that the district court misapplied the law when it interpreted the definition of "harassment" in the HRO statute, Minn. Stat. § 609.748, subd. 1(a), and therefore abused its discretion when it dismissed her HRO petition. More specifically, she contends that the district court erred when it concluded that section 609.748, subdivision 1(a)(1), provides that the nonconsensual dissemination of a private sexual image can support an HRO only if the dissemination of the image was done with the "intent to have a substantial adverse effect on the safety, security, or privacy of another." She argues that the intent language cited by the district court does not apply to the nonconsensual dissemination of a private sexual image and instead applies to other conduct listed in subdivision 1(a)(1). We agree.

The issue raised by appellant presents a question of statutory interpretation. Appellate courts review questions of statutory interpretation de novo. State by Smart Growth Minneapolis v. City of Minneapolis , 954 N.W.2d 584, 590 (Minn. 2021) ; see Fiduciary Found., LLC ex rel. Rothfusz v. Brown , 834 N.W.2d 756, 760 (Minn. App. 2013) (invoking de novo review when construing Minn. Stat. § 609.748 (2012) ), rev. denied (Minn. Sept. 17, 2013). The goal of statutory interpretation is to "ascertain and effectuate the intention of the legislature." Smart Growth , 954 N.W.2d at 590 (quoting Minn. Stat. § 645.16 (2020) ). "The first step of statutory interpretation is to determine whether the statute's language, on its face, is ambiguous." Hagen v. Steven Scott Mgmt., Inc. , 963 N.W.2d 164, 169 (Minn. 2021) (quotation omitted). A statute is ambiguous only "if its language is subject to more than one reasonable interpretation." Id. (quotation omitted). To make this determination, we "analyze the statute's text, structure, and punctuation and use the canons of interpretation." Id. at 170 (quotation omitted). We must construe statutory words and phrases "according to the rules of grammar and common usage." Larson v. State , 790 N.W.2d 700, 703 (Minn. 2010). "If a statute, construed according to ordinary rules of grammar, is unambiguous, a court may engage in no further statutory construction and must apply its plain meaning." In re Custody of A.L.R. , 830 N.W.2d 163, 169 (Minn. App. 2013).

We begin our statutory analysis by examining the language of the HRO statute. Under section 609.748, a court may issue an HRO in response to a petition that has been properly served if it finds "that there are reasonable grounds to believe that the respondent has engaged in harassment." Minn. Stat. § 609.748, subd. 5(b). The term "harassment" as used in the HRO statute is defined, in relevant part, as:

a single incident of physical or sexual assault, a single incident of harassment under section 609.749, subdivision 2, clause (8), a single incident of nonconsensual dissemination of private sexual images under section 617.261, or 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[.]

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

As quoted above, subdivision 1(a)(1) sets forth four alternative types of conduct that can constitute harassment. The first three types of conduct listed all involve "a single incident"—a single incident of physical or sexual assault, a single incident of harassment under section 609.749, subdivision 2, or a single incident of nonconsensual dissemination of a private sexual image under section 617.261. Id. The fourth type of conduct involves "repeated incidents of intrusive or unwanted acts, words, or gestures." Id. Following the fourth type of conduct, subdivision 1(a)(1) includes the qualifying phrase: "that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another. " Id. (emphasis added). The dispute in this case centers on that qualifying phrase and what language it modifies.

Appellant argues that the qualifying phrase is specific only to the final type of conduct, "repeated incidents of intrusive or unwanted acts, words, or gestures." Respondent argues that the qualifying phrase modifies all four types of conduct listed in subdivision 1(a)(1), including "a single incident of nonconsensual dissemination of private sexual images." We agree with appellant.

Based on the plain language of subdivision 1(a)(1) and the application of rules of grammar, we conclude that appellant's interpretation is the only reasonable interpretation of subdivision 1(a)(1). We first note that, of the four types of conduct listed in subdivision 1(a)(1), the first three are described by singular noun phrases—"a single incident of ..."—while the final type of conduct is described by a plural noun phrase—"repeated incidents of ...." Id. Those four noun phrases are separated by the word "or." Id. And the final, plural noun phrase is immediately followed by the qualifying phrase. Id. "Or" is used as a disjunctive conjunction, meaning that it distinguishes the elements in a sentence. The Chicago Manual of Style § 5.205 (Univ. of Chicago Press ed., 17th ed. 2017).¹ Because the word "or" is disjunctive, a singular verb must be used in order for the qualifying phrase to modify the conduct involving "a single incident." Id. Here, however, the qualifying phrase contains plural verbs: "that have a substantial adverse effect or are...