In re the marriage of: Lisa Dickey Cashin, petitioner, Appellant, vs. Jim Lee Cashin, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-02-1984

 

In re the marriage of:

Lisa Dickey Cashin, petitioner,

Appellant,

 

vs.

 

Jim Lee Cashin,

Respondent.

 

Filed June 3, 2003 Affirmed in part, reversed in part, and remanded
Randall, Judge
Concurring in part, dissenting in part, Huspeni, Judge*

 

Ramsey County District Court

File No: FX-97-1841

 

 

Leland S. Watson, 836 Wells Fargo Midland Building, 401 South Second Avenue, Minneapolis, MN  55401 (for appellant)

 

John F. Gilsdorf, Gilsdorf & Askvig, 1712 Firstar Center, 101 East Fifth Street, St. Paul, MN  55101 (for appellant)

 

Jim Lee Cashin, 22350 Bataan Street NE, East Bethel, MN  55011 (pro se respondent)

 

 

            Considered and decided by Randall, Presiding Judge, Shumaker, Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            Appellant challenges the district court's denial of her motion to remove the parenting time expeditor and vacate the expeditor's recommended parenting time schedule.  Appellant also contends the district court abused its discretion by enjoining her from bringing or filing any motions in district court unless she pays respondent $500 in pro se attorney fees.  We affirm in part, reverse in part, and remand.

FACTS             The 16-year marriage of appellant, Lisa Dickey Cashin, and respondent, Jim Lee Cashin, was dissolved in July 1999.  The district court awarded the parties joint legal custody of their two sons, M.B.C., now age 18, and S.D.C., now age 15.  Appellant was awarded physical custody and respondent received parenting time on alternating weekends and holidays.             While the dissolution action was pending, the district court appointed a parenting-time expeditor for the parties pursuant to Minn. Stat. § 518.1751 (2002).  The expeditor, Janeen Massaros, was appointed for a two-year term.  In October 1998, Massaros recommended, and the district court later ordered, parenting time with respondent scheduled for four-day periods, from Thursday evening to Monday evening, every other weekend.             In August 2000, following the expiration of Massaros's term, the district court appointed Ann H. McNattin as expeditor for the parties.  The order appointing McNattin gave her the authority to: resolve visitation disputes of the parties by enforcing, interpreting, and clarifying the visitation provisions of the [decree of dissolution] as well as all subsequent Orders of this Court.

 

Additionally, the order stipulated that the parties were to be equally responsible for the costs of McNattin's services, and that she would serve as the parties' expeditor until June 30, 2005.  Following her appointment as expeditor, McNattin continued to schedule respondent's parenting time for four-day periods over alternating weekends.             Over time, appellant's working relationship with McNattin deteriorated.  Appellant's first motion to remove McNattin as the parties' expeditor was denied on May 22, 2001, and appellant decided not to appeal the Order.  Disputes concerning parenting time continued to frequently arise.  Appellant elected to file a second motion to remove McNattin as expeditor, and also to require that the expeditor's fees be apportioned equally between the parties.  On March 21, 2002, appellant's motion was denied, and appellant appealed contending, in case number C4-02-902, that McNattin (1) continually made parenting-time decisions based solely on discussions with respondent and refused to mediate between the parties; (2) inappropriately handled an incident involving a "contract" between appellant and her son Matt; and (3) disproportionately billed appellant for her services.  On January 7, 2003, this court released its opinion affirming the district court's decision not to remove McNattin as expeditor and allowing McNattin to determine how to equitably apportion her fees between the parties, but reversing that part of the district court order providing that a party who unsuccessfully appeals a fee apportionment will bear the costs of the appeal, without further inquiry or findings.             On April 22, 2002, before oral arguments had been heard for case number C4-02-902, appellant filed another motion in district court from which this appeal stems.  Although the parties, the parenting time expeditor, and the trial court are the same in this appeal as in case number C4-02-902, the order appealed from and the facts and circumstances serving as a basis for appellant's motion to the trial court arose subsequent to the issuance of the order from which case number C4-02-902 was taken.  Appellant claims that after "another parenting-time dispute" in early March 2002, appellant proposed an alternating weekend parenting-time rotation, which would have coordinated parenting-time weekends with Mother's Day and Father's Day as well as the summer holiday weekends.  Respondent disagreed with the suggestion and contacted McNattin.  On March 30, 2002, McNattin prepared and mailed to the parties a schedule based upon her expectations regarding the parenting-time schedule for the remainder of 2002.  According to appellant, McNattin prepared the schedule after communicating with respondent only, and without meeting and conferring with appellant.             Upon receiving the new parenting-time schedule, the parties' younger son, S.D.C., wrote a letter requesting that McNattin change the schedule.  S.D.C. stated in his letter that the new schedule would interfere with his dental appointments, thus prolonging the removal of his braces.  In addition, S.D.C. stated that he enjoyed having the entire weekend with his parents instead of just one day because it was more conducive to planning camping trips and commuting between houses.  Unfortunately, a parenting-time agreement could not be reached between the parties, and on April 10, 2002, McNattin decided against the requested changes when she prepared the parenting-time schedule.             On April 22, 2002, after respondent had discharged his attorney, appellant moved to vacate or modify the McNattin's parenting schedules.  Appellant claimed the schedules were not prepared in compliance with the procedure for resolving parenting-time disputes in the expediting statute and the order appointing her, and that the schedule was inconvenient for S.D.C.  Appellant also moved for the removal of McNattin as expeditor.  Appellant argued that McNattin used a procedure in resolving parenting-time disputes that was directly contrary to the mandates within the expediting statute and order appointing her.  Specifically, McNattin wrote a letter to appellant accusing her of abusing both her 15 and 18-year old sons.  In addition, appellant asserted that McNattin violated the confidentiality mandate of the expediting statute when McNattin wrote a letter to the district court judge.  In the letter, McNattin acknowledged to the judge that she had a duty of confidentiality not to send that letter, but she was breaching that duty because of her concern for the children and, as a "mandated reporter" she was required to report to the court that "the Cashin children are being emotionally abused by the punitive vagaries of [appellant's] behavior."

            Following respondent's request for continuance of the hearing, and appellant's filing of supplemental motion papers relating to respondent's payment of dental care for SDC, the motion was heard before the Honorable Kathleen Gearin on August 14, 2002.  The district court: (1) denied appellant's motions to remove the parenting time expeditor and to modify or vacate the expeditor's recent decision; (2) ordered appellant to pay $500 to respondent for pro se attorney fees, and that the fees must be paid in full before any additional motions may be heard or filed by appellant; (3) ordered that the parenting-time schedule and recommendations signed by the expeditor on April 10, 2002, be made part of the order; and (4) ordered that the provisions of the March 21, 2002, order regarding expeditor fees remain in effect.  This appeal follows.

D E C I S I O N

I.          Expeditor schedule

The district court has extensive discretion in deciding visitation questions and will not be reversed absent an abuse of discretion.  Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).  Minnesota law provides that a parenting time expeditor may be appointed by the court to resolve parenting time disputes that occur after a decree has been entered.  Minn. Stat. § 518.1751, subd. 1 (2002).  In resolving these parenting time disputes, the expeditor statute states:

Within five days of notice of the appointment, or within five days of notice of a subsequent parenting time dispute between the same parties, the parenting time expeditor shall meet with the parties together or separately and shall make a diligent effort to facilitate an agreement to resolve the dispute.  If a parenting time dispute requires immediate resolution, the parenting time expeditor may confer with the parties through a telephone conference or similar means.  An expeditor may make a decision without conferring with a party if the expeditor made a good faith effort to confer with the party, but the party chose not to participate in resolution of the dispute.

 

Minn. Stat. § 518.1751, subd. 3(a) (2002).  The statute further provides that:

If the parties do not reach an agreement, the expeditor shall make a decision resolving the dispute as soon as possible but not later than five days after receiving all information necessary to make a decision and after the final meeting or conference with the parties.  The expeditor is authorized to award compensatory parenting time under section 518.175, subdivision 6, and may recommend to the court that the noncomplying party pay attorney's fees, court costs, and other costs under section 518.175, subdivision 6, paragraph (d), if the parenting time order has been violated.  The expeditor shall not lose authority to make a decision if circumstances beyond the expeditor's control make it impracticable to meet the five-day timelines.

 

Minn. Stat. § 518.1751, subd. 3(b) (2002).

            Appellant argues that by failing to mediate between the parties, the expeditor did not follow the mandates set forth in the expediting statute.  Thus, appellant contends that because the expeditor's schedule was not made pursuant to the legislative mandates, it is void.  Realistically, the possibility of mediation between appellant, respondent and McNattin appear to be almost non-existent.  Although appellant claims McNattin deliberately refused to mediate or communicate with appellant, there are references to McNattin's attempts to contact appellant.  McNattin sent appellant letters with regard to a visitation schedule, and in one letter, stated that her attempts to contact appellant via telephone or fax-machine were thwarted by appellant disconnecting the phone lines.  In addition, appellant admits in her affidavit that she refuses to meet with and mediate with respondent and McNattin face-to-face.  Yet, appellant adamantly claims the failure to reach an agreement on a parenting time schedule is completely McNattin's fault.  We disagree.

The expediting statute states that an expeditor may make a decision regarding the parenting time without conferring with a party if the expeditor has made a good faith effort to confer with the party, but the party decided not to participate in resolving the dispute.  Minn. Stat. § 518.1751, subd. 3(a) (2002).  Further, the order appointing McNattin as the expeditor states in paragraph five that:

The visitation expeditor shall first attempt to resolve a visitation dispute by facilitating negotiations between the parties, i.e., mediating the visitation dispute.  If the expeditor is unable to mediate a visitation dispute between the parties, then the expeditor shall make a decision resolving the dispute.  The agreement of the parties and/or decision of the visitation expeditor is binding on the parties unless vacated or modified by the Court as provided in subparagraph 7 below.

 

Therefore, based upon the statute and the order, when mediations between the parties are futile, the expeditor has the authority to make a decision regarding a parenting time schedule.

McNattin acted within the bounds of the expediting statute and order.  The documents provided in appellant's appendix demonstrate that mediation between the parties was useless, thus giving McNattin the authority to make a decision resolving the dispute.  In addition, the schedule is basically a continuation of the rotation the parties had been following.  The district court has extensive discretion in deciding visitation questions and will not be reversed absent an abuse of discretion.  Olson, 534 N.W.2d at 550.  There is no evidence the district erred by adopting McNattin's recommended parenting time schedule.  The district court did not abuse its discretion in denying appellant's motion to vacate the parenting time schedule.

II.  Removal

Appellant argues that the district court abused its discretion by denying her motion to remove the parties' expeditor.  Uniformly, appellate courts review a refusal to remove a parenting time expeditor on an abuse-of-discretion standard.  Cf. In re Welfare of J.G.W. and J.L.W., 429 N.W.2d 284, 286-87 (Minn. App. 1988) (observing that this standard applies to a refusal to remove children's psychotherapist), aff'd, 433 N.W.2d 885 (Minn. 1989).

The parenting time expeditor statute provides that:

If a parenting time expeditor has been appointed on a long-term basis, a party or the expeditor may file a motion seeking to have the expeditor removed for good cause shown.

 

Minn. Stat. § 518.1751, subd. 5a (2002).  Minnesota law recognizes that time spent with the noncustodial parent is in the best interests of the child.  Minn. Stat. § 518.175, subd. 1(a) (2002).  Accordingly, a district court should use its discretion to remove an expeditor only when continuing the expeditor's services is no longer in the child's best interests.  Cf. In re Guardianship of Kowalski, 392 N.W.2d 310, 314 (Minn. App. 1986) (applying best-interests analysis to district court's refusal to remove a guardian), review denied (Minn. Oct. 17, 1986).

            In Cashin v. Cashin, decided on January 7, 2003, appellant raised the exact same issue before this court.  Cashin v. Cashin, No. C4-02-902, 2003 WL 42269 (Minn. App. January 7, 2003).  Appellant argued that McNattin should be removed as expeditor because: (1) McNattin is biased against her; (2) McNattin acts unilaterally and refuses to mediate between the parties, and (3) McNattin violated the confidentiality provision of section 518.1751 by sending copies of the letter concerning a "contract" incident to the sons.  Id. at 3.  This court found that the statute gives the expeditor the authority to make decisions on parenting time issues, if negotiations are fruitless.  Id.  In addition, the court determined the letter concerning the "contract" incident did not violate the confidentiality provision of the expediting statute because the letter was a formal communication between the expeditor and parent made in the normal course of her duties as expeditor.  Id.  Although the court then noted that under a less deferential standard of review, it might be persuaded that a different expeditor could resolve the parties' parenting time disputes more harmoniously, the court held that "we are not persuaded that the district court abused its discretion by concluding ‘after a review of the file that [McNattin] is fulfilling her duties on a complex, difficult case.'"  Id.

            Appellant makes the same arguments in the present case.  She contends McNattin should be removed because McNattin refuses to resolve the parenting time disputes through mediation.  Again, this court recognizes that when negotiations are fruitless, the expeditor has the authority to make decisions on parenting time issues.  Cashin, 2003 WL 42269, at 3 (citing Minn. Stat. § 518.1751, subd. 1b(c) (2002)).  Based on the facts, the parties' conduct, and the correspondence between the parties, it is apparent that mediation is futile.  Accordingly, McNattin's decision regarding the parties' parenting time does not constitute good cause to remove her as the expeditor.

            Appellant also contends that McNattin should be removed because she violated the confidentiality provision of section 518.1751 by communicating directly with the court and other judicial personnel.  Specifically, McNattin sent a letter to the judge expressing concern that the parties' children are "being emotionally abused by the punitive vagaries of the appellant's behavior."  The confidentiality provision of the expediting statute provides:

(c) Notes, records, and recollections of parenting time expeditors are confidential and must not be disclosed to the parties, the public, or anyone other than the parenting time expeditor unless:

(1)  all parties and the expeditor agree in writing to the disclosure; or

(2)  disclosure is required by law or other applicable professional codes.

Notes and records of parenting time expeditors must not be disclosed to the court unless after a hearing the court determines that the notes or records should be reviewed in camera.  Those notes or records must not be released by the court unless it determines that they disclose information showing illegal violations of the criminal law of the state.

 

Minn. Stat. § 518.1751, subd. 4a(c) (2002).  Thus, according to the statutory language, McNattin's letter constitutes a note, record or recollection, and disclosure of this information technically violates the confidentiality mandates of the statute.

            Taken in context, the letter alone is not good cause to remove McNattin as expeditor.  McNattin was within the statutory mandates when she made her decision regarding the parenting time schedule.  There is no evidence that McNattin has not been
fair and neutral as the parties' expeditor.  Further, the letter to the court that technically violates the confidentiality mandates was written because of McNattin's concern for the parties' minor child.  Accordingly, considering the complex difficulties of the case, the court did not abuse its discretion by denying appellant's motion to remove McNattin based on her letter to the court.

III.  Attorney fees

Appellant argues the district court abused its discretion by its sua sponte order enjoining appellant from bringing or filing any motions until she pays respondent $500 in pro seattorney fees.  A trial court has discretion to enjoin a party from commencing vexatious litigation.  Liedtke v. Fillenworth, 372 N.W.2d 50, 52 (Minn. App. 1985), review denied (Minn. Sept. 13, 1985).  Nevertheless, pro se attorney fee awards to a non-lawyer, here pro se Jim Lee Cashin, are almost uniformly rejected.  Kay v. Ehler, 111 S. Ct. 1435, 1436, 499 U.S. 432, 435 (1991).  

Appellant correctly states in her brief that an order for the recovery of money must be reduced to judgment prior to appeal.  Sheeran v. Sheeran, 481 N.W.2d 578, 579 (Minn. App. 1992) (citing Schaust v. Town Bd. of Hollywood Township, 295 Minn. 571, 572-73, 204 N.W.2d 646, 648 (1973)).  In Sheeran, the court questioned whether the appellant's appeal of an attorney fees award must be taken from a judgment.  Id.  The court stated that the trial court administrator is required to enter judgment "forthwith" upon an order for the recovery of money only "unless the court otherwise directs."  Id.  (quoting Minn. R. Civ. P.  58.01).  The court added that the order awarding money to the respondent for his attorney fees was an order upon which judgment must be entered, even though the trial court did not specifically direct entry of judgment.  Id.  Therefore, the court held the proper appeal was from the judgment.  Id. (citing Graupmann v. Rental Equip. & Sales Co., 425 N.W.2d 861, 862 (Minn. App. 1988)).

Appellant contends the district court improperly awarded respondent pro se attorney fees.  Appellant recognizes that the proper appeal is from a judgment.  Appellant states that the district court failed to direct that judgment be entered on the attorney fees award.  In addition, appellant contends that because the paragraph in the district court's order awarding the pro se attorney fees included the injunction requiring payment before appellant could file further motions, no judgment was entered by the court administrator, and would not be without the district court's order specifically directing entry.  Appellant asserts that the only way to cause such judgment to be entered on the money award is to make a motion to the trial court, an action from which appellant is enjoined.  Thus, appellant argues the district court abused its discretion by enjoining her from bringing or filing any motions until she pays the pro se attorney fees awarded to respondent.

            District courts do have broad discretion in determining appropriate sanctions. A district court could, for instance, require reimbursement of out-of-pocket expenses, such as travel, parking, wage loss, or require a bond for appellant for future motions.  But we conclude that a district court cannot properly award pro se attorney fees.  Thus, the district court's award of attorney fees to pro se respondent was erroneous.  Therefore, we reverse the trial court's order enjoining appellant from bringing or filing any motions until she pays the $500 in pro se attorney fees, and we remand to the district court to determine different suitable sanctions. 

IV.  Dental care

            Finally, appellant contends the district court abused its discretion by failing to address appellant's motion pertaining to respondent's liability for dental health care costs. Because we reverse and remand the order awarding respondent $500 in pro se attorney fees, the district court can address the issue of liability for dental health care costs on remand. 

            Affirmed in part, reversed in part, and remanded

           

 

 

HUSPENI, Judge (concurring in part, dissenting in part)

 

I concur in the majority's resolution of the issues concerning attorney fees and dental care.  I respectfully dissent, however, from the decision to affirm the district court's denial of the motion to remove the parenting time expeditor.  In dissenting on this issue, I do not intend to criticize the actions of the expeditor, nor to support those of appellant.  It is necessary, I believe, to set aside completely all behavior of the adults in this case, and focus solely on the best interests of the minor child.  While he, arguably, has arrived at an age where his desires regarding parenting time should be given consideration, and will soon be at an age where he will be the sole decision-maker regarding the time he spends with each parent, he nonetheless is a minor at this moment, and as such has the right to expect that his interests will be of paramount concern to the court.   Cf. In re Guardianship of Kowalski, 392 N.W.2d 310, 314 (Minn. App. 1986) (applying best interests analysis to district court's refusal to remove a guardian), review denied (Minn. Oct. 17, 1986).

I cannot imagine how the best interests of a child possibly can be served under the circumstances present in this case.  The litigation is almost constant, the relationship (again fault aside) between two of the primary participants in establishing a parenting schedule is non-existent at best and exceedingly acrimonious at worst, and the financial and emotional drain on all interested parties is intolerable. 

Finally, in urging that the best interests of the minor child cannot be served by retention of the present expeditor, I recognize the broad discretion afforded to the district court in matters such as this.  See Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).  I recognize also that the standard of review of this court is a narrow one.  Cf. In re Welfare of J.G.W., 429 N.W.2d 284, 286-87 (Minn. App. 1988) (abuse-of-discretion standard applies to refusal to remove children's psychotherapist), aff'd, 433 N.W.2d 885 (Minn. 1989).  However, the experienced district court judge in this case did not have the benefit of the cautionary language of this court's January 7, 2003 opinion when the order dated October 28, 2002 was issued.  Had the judge been able to consider our concern that "[u]nder a less deferential standard of review, we might be persuaded that a different expeditor could resolve the Cashins' parenting-time disputes more harmoniously," perhaps the broad discretion vested in the district court would have been exercised differently.  Cashin v. Cashin, No. C4-02-902, 2003 WL 42269, at *3 (Minn. App. Jan. 7, 2003).

 

*   Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.