Donna Jean Sjolander f/k/a Donna Jean Carlson v. Steven Gary Carlson ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0362
Donna Jean Sjolander
f/k/a Donna Jean Carlson, petitioner,
Respondent,
vs.
Steven Gary Carlson,
Appellant.
Filed April 11, 2016
Affirmed in part, reversed in part, and remanded
Schellhas, Judge
Clay County District Court
File No. 14-F9-07-001060
Melinda Hanson Weerts, Melinda Weerts Law, PLLC, Fargo, North Dakota (for
respondent)
Susan L. Ellison, Ohnstad Twichell, P.C., West Fargo, North Dakota (for appellant)
Laurie Christianson, Moorhead, Minnesota (guardian ad litem)
Considered and decided by Schellhas, Presiding Judge; Johnson, Judge; and Smith,
John, Judge.*
*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
SCHELLHAS, Judge
In this parenting-time dispute, appellant-father contends that the district court erred
by failing to sanction respondent-mother for her contempt of court and by terminating his
court-ordered parenting time with the parties’ two minor children. Respondent-mother
filed a notice of related appeal to challenge the district court’s contempt finding. We affirm
the contempt finding, but we conclude that the district court abused its discretion by not
sanctioning respondent-mother for her contempt and by terminating appellant-father’s
parenting time. We therefore reverse and remand to the district court for further
proceedings.
FACTS
Appellant-father Steven Gary Carlson and respondent-mother Donna Jean
Sjolander, f/k/a Donna Jean Carlson, are the parents of two minor daughters, S.O.C., born
in April 2000, and L.K.C., born in December 2001, and one now-adult daughter, S.E.C.,
born in December 1994. In 2009, the district court dissolved the parties’ marriage by partial
decree and granted father temporary supervised parenting time.1 The court subsequently
terminated father’s supervised visitation due to his conduct during the visits and ordered
father to engage in family therapy with S.E.C., S.O.C., and L.K.C.2
1
At the time of the dissolution, an order for protection was in effect against father for the
protection of mother and the children.
2
The district court subsequently terminated the family-therapy order with respect to S.E.C.
for lack of benefit.
2
In 2010, the district court entered an amended dissolution judgment and granted
mother sole legal and physical custody of S.E.C., S.O.C., and L.K.C. The court found that
“unrestricted parenting time [for father] w[ould] endanger the children’s physical or
emotional health or development” and continued the order for family therapy between
father and S.O.C. and L.K.C. (the children), with the goal to “mend [father’s] relationships
with [the] children and move forward towards unrestricted parenting time.” But the family
therapy ceased due to a deterioration of father’s mental health and a lack of cooperation by
mother and the children.
In 2012, the district court appointed a guardian ad litem (GAL) for the children and
ordered psychological evaluations of father and the children to determine the mental status
of father and the children and “the feasibility of beginning family reunification therapy.”
These psychological evaluations were not completed.
In January 2013, the GAL reported that father was participating in behavioral
therapy and recommended the commencement of efforts to reunify father and the children.
The GAL noted the children’s knowledge that their mother and S.E.C. did not want them
to see father and their belief that they would disappoint and anger their mother and S.E.C.
if they saw father. The GAL subsequently testified that the children wanted to see father
but believed that mother and S.E.C. “would be mad if they wanted to see him.” The district
court found that father “ha[d] undergone extensive therapy” and “made great strides” in
his mental health and that father’s exercise of parenting time with the children “[wa]s not
likely to endanger their physical or emotional health or impair their emotional
development.” The court ordered “[a] process of reunification between [father] and [the
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children], evolving into substantial parenting time, [to] begin forthwith” and instructed
mother to fully cooperate with the reunification process.
In May 2013, the GAL reported that no reunification progress between the children
and father had occurred because mother “ha[d] circumvented every effort to make
reunification possible.” The reunification therapist reported that the lack of reunification
progress was due in part “to the influence of mother’s strong negative reports regarding
[father],” mother’s repetition of “[r]ehearsed memories” about father’s behavior with the
children, and “[mother’s] adamancy in front of her daughters that it will ‘never be safe’ for
the girls to see [father].” Father asked the district court to find mother in contempt of court
for failing to cooperate with reunification therapy. The court declined to do so, stating that
“[a]though the Court strongly suspects that [mother] has been impeding the reunification
process, the Court cannot substantiate any overt act that would constitute contempt of
Court.” The court again ordered that a reunification process begin and that mother fully
cooperate with the process.
In the summer of 2013, reunification sessions between the children and father
began, and the reunification therapist “noted no evidence of fear or anxiety in [the children]
in the presence of their father,” that father “cooperated well with expectations of how he
should interact with his children,” and that “progress during sessions [wa]s moving slowly,
but still appear[ed] possible.” But that fall, reunification sessions ended because the
children refused to participate in the sessions. Father then moved the district court to
establish a supervised parenting-time schedule. At a December 2013 evidentiary hearing,
the reunification therapist opined that mother had tried to alienate the children from father,
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and the GAL testified that she never had experienced a case of “this intense alienation from
one parent towards the other.”
In January 2014, the district court found “that for the past several years, at least
since December 2011, [father] has not posed any threat to the welfare of his children, and
that no safety concerns have been evident since at least that time.” The court further found
that “[mother] ha[d] resisted, interfered with and sabotaged all attempts to therapeutically
reunite the children with their father” and “to allow [father] to enjoy a parenting
relationship with his children.” The court established a specific supervised parenting-time
schedule and ordered mother to cooperate with the schedule, including transportation of
the children to and from parenting-time visits. The court also ordered mother to “insist that
the children take part in the visits with their father”; “encourage the children to take part
in, and enjoy their time with their father” and “have a relationship with their father”;
“convey a positive attitude to the children regarding their father and the[] visits”; refrain
from “interrogat[ing] the children after the visits”; “cease and desist” from “mak[ing] any
disparaging or negative remarks about the Court’s Order, the parenting plan schedule, [the
parenting-time supervisor, father, or the GAL]”; and promptly pay half of the cost of the
parenting-time supervisor. The court cautioned mother that it would “seriously consider
permanently transferring the physical and legal custody of the children to [father], and
thereafter requiring all of [mother]’s parenting time be supervised,” if mother failed to
comply with the court’s order.
After several court-ordered visits, the parenting-time supervisor reported that the
children appeared to be sad, angry, and sometimes defiant during the visits; that S.O.C.
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continually accused father of past abuse; and that L.K.C. had not spoken one word to father
or maintained eye contact with him. But the parenting-time supervisor also noted that the
children did not appear “scared or threatened” during the visits, and she opined that the
visits did not pose any risk to the children’s safety; in fact, the supervisor suggested that
the duration of the visits be increased. After about one month, the visits ceased because the
children refused to attend the scheduled visits.
In February 2014, father moved the district court to find mother in contempt of court
by “failing to encourage the children to participate in the visitation,” “insist that the
children cooperate and take part in the visits,” “convey a positive attitude to the children
regarding their father and the visits,” “encourage the children to have a relationship with
their father,” “follow the Court’s directives in relation to visitation with [father],” and pay
half the cost of the parenting-time supervisor. Father proposed sanctions for mother’s
contempt that included payment of a civil penalty or bond, payment of father’s attorney
fees and costs, jail time, and redirection of father’s child-support payments to the parenting-
time supervisor. Mother moved the court to, among other things, vacate or modify the
parenting-time schedule. The court conducted evidentiary hearings between March and
May 2014.
In August 2014, the district court found mother in contempt of court for “her
consistent failure and refusal to comply with multiple orders of th[e] court to cooperate in
efforts to effect a reconciliation of the minor children . . . with their father, and her
consistent pattern of conduct designed to further alienate the children from their father.”
The court noted the testimony of the GAL and parenting-time supervisor regarding
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mother’s alienation of the children from father and mother’s “constant reinforcement” that
father had sexually abused S.O.C. and infected her with a sexually transmitted disease,
although medical records did not support the claim. But the court declined to sanction
mother for her contempt, stating that “any punishment which the court might impose upon
her, whether fine or imprisonment, would adversely affect the well-being of the minor
children, since there is no one else to care for them, and her financial situation is already
poor.” And the court found that the reconciliation efforts were having a “serious
detrimental effect” on the children, “creat[ing] and . . . exacerbate[ing] anxiety, stress and
depression in the [children],” and that the reconciliation efforts were not in the children’s
best interest. The court therefore terminated “[c]ourt-ordered efforts to effect reconciliation
between the minor children . . . with their father” and ordered father to “have no uninvited
contact with [the children] prior to their 18th birthdays.” Father moved for reconsideration,
and the court affirmed its order, stating that the August 2014 order “did not terminate or
restrict [father]’s parenting time” and “left parenting time wide open for [father], but only
upon the initiative of his daughters.”
This appeal follows.
DECISION
I.
“The district court’s decision to invoke its contempt powers is subject to reversal
for abuse of discretion.” In re Welfare of Children of J.B., 782 N.W.2d 535, 538 (Minn.
2010). An appellate court “will reverse the factual findings of a civil contempt order only
if [the] findings are clearly erroneous.” Id. (citing Minn. R. Civ. P. 52.01).
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“Civil contempt is failing to obey a court order in favor of the opposing party in a
civil proceeding.” Newstrand v. Arend, 869 N.W.2d 681, 692 (Minn. App. 2015) (quotation
omitted), review denied (Minn. Dec. 15, 2015).
[A] civil contempt proceeding must meet the following
minimum requirements:
(1) the court has jurisdiction over the subject matter and the
person;
(2) a clear definition of the acts to be performed;
(3) notice of the acts to be performed and a reasonable time
within which to comply;
(4) an application by the party seeking enforcement giving
specific grounds for complaint;
(5) a hearing, after due notice, to give the nonperforming party
an opportunity to show compliance or the reasons for failure;
(6) a formal determination by the court of failure to comply
and, if so, whether conditional confinement will aid
compliance;
(7) an opportunity for the nonperforming party to show
inability to comply despite a good faith effort; and
(8) the contemnor’s ability to gain release through compliance
or a good faith effort to comply.
Mower Cty. Human Servs. ex rel. Swancutt v. Swancutt, 551 N.W.2d 219, 223 (Minn. 1996)
(citing Hopp v. Hopp, 279 Minn. 170, 174–75, 156 N.W.2d 212, 216–17 (1968)).
Finding of contempt
Mother challenges the district court’s finding of contempt, arguing that the record
lacks “a clear order defining what actions the court required of her” and “evidence and
particular findings as to conduct violating said order.” Mother’s argument is unavailing.
The court’s January 2014 order required mother to cooperate with the parenting-time
schedule; transport the children to and from parenting-time visits; “insist that the children
take part in the visits with their father”; “encourage the children to take part in, and enjoy
8
their time with their father” and “have a relationship with their father”; “convey a positive
attitude to the children regarding their father and the[] visits”; refrain from “interrogat[ing]
the children after the visits”; “cease and desist” from “mak[ing] any disparaging or negative
remarks about the Court’s Order, the parenting plan schedule, [the parenting-time
supervisor, father, or the GAL]”; and promptly pay half the cost of the parenting-time
supervisor. The record reflects that the court did not clearly err in finding that mother
violated several parts of the January 2014 order. After S.O.C. ended her first visit with
father early, mother neither encouraged S.O.C. to continue the visit nor insisted—or
attempted to insist—that S.O.C. cooperate; in fact, S.O.C. left with mother. L.K.C. refused
to participate in any visit with father. In the children’s presence, mother told the parenting-
time supervisor that the visits constituted child abuse. Mother bought the children tape
recorders to wear during their visits with father and had S.E.C. transcribe the recordings
“to use . . . as evidence.” Mother made no court-ordered payments to the parenting-time
supervisor.
The record supports the district court’s finding that mother violated the January
2014 order by consistently refusing “to cooperate in efforts to effect a reconciliation of the
minor children . . . with their father” and by engaging in a “consistent pattern of conduct
designed to further alienate the children from their father.” The court did not abuse its
discretion by finding mother in contempt.
Sanction for contempt
Father argues that the district court abused its discretion by declining to sanction
mother for her contempt. “In exercising civil contempt powers in divorce cases, the only
9
objective is to secure compliance with an order presumed to be reasonable. Punishment for
past misconduct is not involved; that is a field reserved to criminal proceedings of which
criminal contempt is one example.” Hopp, 279 Minn. at 173, 156 N.W.2d at 216 (emphasis
omitted); see also Swancutt, 551 N.W.2d at 222 (stating that “[c]ivil contempt sanctions
are intended to operate in a prospective manner and are designed to compel future
compliance with a court order” (quotation omitted)). Father correctly points out that the
district court erred by focusing on the availability of an appropriate “punishment” for
mother’s civil contempt. We reverse the district court’s decision not to impose a contempt
sanction and remand for determination and imposition of an appropriate sanction or
sanctions to compel mother’s compliance with court orders and to identify conditions for
purging mother’s contempt. On remand the court shall consider all available contempt
remedies described by father in his March 12, 2014 response to mother’s counter-motions
in district court.
II.
“Appellate courts recognize that a district court has broad discretion to decide
parenting-time questions, and will not reverse a parenting-time decision unless the district
court abused its discretion by misapplying the law or by relying on findings of fact that are
not supported by the record.” Newstrand, 869 N.W.2d at 691 (quotation omitted). “A
district court’s findings of fact underlying a parenting-time decision will be upheld unless
they are clearly erroneous.” Id. (quotation omitted). “A finding is clearly erroneous if [an
appellate court is] left with the definite and firm conviction that the [district] court made a
mistake.” SooHoo v. Johnson, 731 N.W.2d 815, 825 (Minn. 2007).
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The district court stated that its August 2014 order “did not terminate or restrict
[father]’s parenting time” because “[father] has not had parenting time since the parties
were divorced in January 2009.” But this statement is inconsistent with the court’s January
2014 order that established a “parenting time schedule.” On appeal, the parties agree that
the August 2014 order terminated father’s court-ordered parenting time.
“If modification would serve the best interests of the child, the court shall modify
. . . an order granting or denying parenting time, if the modification would not change the
child’s primary residence.” Minn. Stat. § 518.175, subd. 5(a) (2014); see also Hagen v.
Schirmers, 783 N.W.2d 212, 216 (Minn. App. 2010) (stating that child’s best interest is
ultimate concern in parenting-time dispute). “[T]he court may not restrict parenting time
unless it finds that: (1) parenting time is likely to endanger the child’s physical or emotional
health or impair the child’s emotional development; or (2) the parent has chronically and
unreasonably failed to comply with court-ordered parenting time.” Minn. Stat. § 518.175,
subd. 5(b) (2014); see also Dahl v. Dahl, 765 N.W.2d 118, 123–24 (Minn. App. 2009)
(stating that “[a] restriction occurs when a change to parenting time is substantial” and that
“[m]odifications are less substantial changes in parenting time” (quotations omitted)).
Here, the district court substantially changed and restricted father’s parenting time by
terminating his court-ordered parenting time entirely. We consider whether the court
abused its discretion by restricting father’s parenting time.
“[A] party must demonstrate a significant degree of danger” to establish
endangerment to a child. Goldman v. Greenwood, 748 N.W.2d 279, 285 (Minn. 2008)
(quotation omitted) (discussing child endangerment in context of custody modification).
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“[A] complete, contingent or temporary denial of visitation is a grave matter and warranted
only by endangerment of a child’s physical or emotional health or development.” D.A.H.
v. G.A.H., 371 N.W.2d 1, 4 (Minn. App. 1985), review denied (Minn. Sept. 19, 1985); see
also Young v. Young, 370 N.W.2d 57, 64–65 (Minn. App. 1985) (stating that “[w]ith the
exception of total termination of parental rights or permanent suspension of visitation,
[temporary suspension of visitation] is the harshest sanction which can be imposed upon a
parent and upon a child” and reversing temporary suspension of mother’s visitation as
unjustified by record), review denied (Minn. Sept. 13, 1985).
The record does not support the district court’s finding that father’s parenting time
endangers the children’s emotional health. As above noted, in early 2013, the court found
that father had participated in “extensive therapy,” that parenting time was “not likely to
endanger [the children’s] physical or emotional health or impair their emotional
development,” and that “reunification . . . evolving into substantial parenting time” was
appropriate. And in January 2014, the court found that “there is no credible evidence in the
record that [father] is presently a threat or a safety concern to his children,” that “at least
since December 2011, [father] has not posed any threat to the welfare of his children, and
that no safety concerns have been evident since at least that time.” The parenting-time
supervisor testified that father created a safe and welcoming environment for his visits with
the children in the home that he shares with his parents and that the children were
repeatedly reassured that they were safe. Father exhibited patience with the children,
attempting to redirect S.O.C. when she made accusations against him and reading to L.K.C.
despite her refusal to interact with him. The supervisor reported that father was “consistent
12
in his attempts to interact” with the children despite the “very tense environment” and that
he “frequently t[old] each of them how much he loves them and how grateful he is to see
them again.” She reported that the children did not appear scared or threatened during the
visits, recommended that the supervised visits continue, and suggested that the duration of
the visits be increased.
The district court found that mother had emotionally damaged the children. This
finding is supported by the record and is not clearly erroneous. While the children
experienced stress and anxiety leading up to and during their visits with father, the record
establishes that this was due to mother’s negative influence on the children and her
consistent efforts to alienate them from father. Noting the GAL and parenting-time
supervisor’s opinions that this case is “the worst case of parental alienation” they have
encountered, the court found that mother “has done cruel and egregious harm to her
children—harm which will affect their outlooks on life and the world, and will likely cause
them problems with relationships throughout their lives.” Mother’s “consistent pattern of
conduct designed to . . . alienate the children from their father” is unacceptable. See Lemcke
v. Lemcke, 623 N.W.2d 916, 919–20 (Minn. App. 2001) (“A majority of courts, including
Minnesota courts, agrees that a sustained course of conduct by one parent designed to
diminish a child’s relationship with the other parent is unacceptable and may be grounds
for denying or modifying custody.” (citing Henrikson v. Henrikson, 288 Minn. 532, 532–
33, 179 N.W.2d 284, 285 (1970))), review denied (Minn. June 19, 2001).
On this record, we are left with the definite and firm conviction that the district court
clearly erred by finding that parenting time with father endangers the children’s emotional
13
health. We conclude that the court abused its discretion by terminating father’s court-
ordered parenting time. We therefore reverse the termination of father’s parenting time,
remand for reinstatement of the parenting-time schedule established in the January 2014
order, and direct the district court to revisit father’s request for compensatory parenting
time. Although we recognize the court’s broad discretion regarding the establishment of
parenting time, we strongly suggest that transportation related to the children’s parenting
time with father not be provided by mother. We also suggest that the court maintain
continuity of professionals involved in the case to the extent that the GAL and other
professionals are willing and available.
Affirmed in part, reversed in part, and remanded.
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