In Re:  Michelle Gloria VandeZande, n/k/a Michelle Zoppa, petitioner, Appellant, vs. David Arthur Gysland, Respondent.

In Re:  Michelle Gloria VandeZande, n/k/a Michelle Zoppa, petitioner, Appellant, vs. David Arthur Gysland, Respondent. A04-1171, A04-1347, Court of Appeals Unpublished, February 8, 2005. This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

  STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1171

A04-1347

 

In Re:  Michelle Gloria VandeZande,
n/k/a Michelle Zoppa, petitioner,
Appellant,
 
vs.
 
David Arthur Gysland,
Respondent.

 

Filed February 8, 2005

Affirmed in part, reversed in part, and remanded

Peterson, Judge

 

Olmsted County District Court

File No. F89350408

 

Jill I. Frieders, Tammy L. Shefelbine, O'Brien & Wolf, L.L.P., 206 South Broadway, Suite 611, P.O. Box 968, Rochester, MN  55903-0968 (for appellant)

 

Carol M. Grant, Kurzman Grant & Ojala, 219 Southeast Main Street, Suite 403, Minneapolis, MN  55414 (for respondent)

 

            Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In these consolidated appeals, appellant-mother argues that: (1) the factors in Minn. Stat. § 518D.207(b) (2002) favor exercise of jurisdiction in Ohio, and, therefore, the Minnesota district court should have declined to exercise its jurisdiction on inconvenient forum bases; (2) she presented a prima facie case of endangerment of the child by respondent-father, and, therefore, the district court was required to hold an evidentiary hearing with oral testimony on her motion to modify parenting time; (3) the district court abused its discretion by not denying father's request for compensatory parenting time; (4) the district court should have appointed a guardian ad litem for the child; (5) the district court should have ordered a custody study; (6) because she was never served with the order to show cause why she should not be found in contempt of court, the district court improperly found her in contempt; (7) the district court should not have modified her ability to take the child to therapy when the order modified was being reviewed by this court and the modification precluded mother from exercising her right as a custodial parent to provide medical care for the child; and (8) part of the bad-faith attorney fees awarded against mother inappropriately included fees generated in a prior abortive appeal, and the record does not otherwise support an award of fees.  We affirm in part and reverse in part and remand.

FACTS

            Appellant-mother Michelle Gloria VandeZande, n/k/a Michelle Zoppa, and respondent-father David Arthur Gysland are the parents of K.G., age 12.  Mother has custody of K.G. subject to parenting time by father.  Mother and K.G. have resided in Ohio since 1995.

            In 1994, mother became concerned about possible sexual abuse of K.G. by father.

William Friedrich, Ph.D., conducted a psychological evaluation of K.G.  Friedrich initially determined that:

[K.G.] . . . appears to be on target developmentally with the exception of some significant behavior problems.  The range of behavior difficulties that he shows and which we also saw include separation problems, problems with temper, fearfulness, and sexuality.  All of these point to sexual misuse, and [K.G.'s] clear distress regarding his father, noted on interview, raises concerns about father's relationship with [K.G.]

 

But after evaluating father, including observing father interact with K.G., and also receiving a report of an evaluation of father performed by Margretta Dwyer of the University of Minnesota Program in Human Sexuality, Friedrich concluded:

            Dr. Dwyer indicated that in her clinical opinion, [father] is extremely unlikely to have molested [K.G.]  Not only was his psychological test data very clean, he passed both a polygraph and a voice stress test.  This corresponds closely to my evaluation of [father], and in addition, I think you should be reassured that his behavior with [K.G.] was exemplary.  In addition, [K.G.] clearly indicated how strongly attached he is to his father.

 

            I know that you [mother] believe that [father] molested [K.G.]  I do not believe that to be the case.  Rather, I think the allegations most likely emerged via a combination of misinterpretation of [K.G.'s] behavior and then a rigidification of his behavior because of your response to it.

 

In 1995, Dwyer's license was restricted because she failed to "interpret, report and testify (accurately and competently) with regard to psychological tests she administered" to a sex offender.

            In the spring of 2002, A.B., then age 17, met father, then age 32, through the Internet.  They began dating in May 2002 and, in October 2002, A.B. moved in with father.  Father and A.B. are the parents of a daughter, E.B., born in September 2003.

            A.B. stated in an affidavit:

            126.    [Father] would often expose himself to [K.G.]  [Father] would sit on the couch only wearing boxers and have his legs/knees pulled up toward his chest.  When sitting like this, [father's] privates would be exposed outside of his boxers.  [K.G.] would holler things like, "Yuck!  Dad, cover up!  Put your legs down you're hanging out!"  [K.G.] would ask [father] to put some pants on.

 

            . . . .

 

            128.  [Father] would play with his privates in front of [K.G.]  [K.G.] would tell [father] he thought this was gross and ask him to stop.  [Father] would tell [K.G.] that he was just "jingling his change".  . . . 

 

            . . . .

 

            130.  We lived in a small area inside the shop.  There was only one room.  This one room made up our kitchen, bedroom, living room, and the shop office.  From any area you were sitting in the room, you were able to see into the small bathroom that was connected to the main room.  [Father] would stand naked in the bathroom and leave the door open, allowing [K.G.] to see him standing there.  [Father] also walked naked from room to room after getting undressed before his shower, and before getting dressed after his shower.  [Father] would also stand naked getting ready in the bathroom with the door open.  [K.G.] would always say yuck and tell [father] to get dressed or close the door.

 

A.B. later denied that father masturbated in front of K.G. 

A.B. also stated in the affidavit that she and father frequently had sex when K.G. was in the room, sometimes when he was in bed and sometimes when he was awake and that, on one occasion, in the car, father tried to make her perform oral sex on him while K.G. was in the backseat.  A.B. stated that once, in front of K.G., father started a pet kitten's fur on fire with a cigarette lighter.

            After being contacted by A.B., mother took K.G. to be seen by a psychologist, Thelma White, Ph.D.  White stated in an affidavit:

            3.  When I was first apprised of the situation and the allegations of [father's] behavior, it was prior to meeting with [K.G.]  I initially believed that the claims were most likely an exaggeration, with two ex-girlfriends embroiled in a custody battle, each mutually benefiting from the allegations.  Regardless of the truth, I knew that there was a boy who was in the middle of it.  I therefore approached the therapy from a very neutral position . . . .

 

            . . . .

 

            5.  On [K.G.'s] second visit, [mother] and [stepfather] were very upset.  Their seven-year-old daughter . . .  disclosed to her grandmother that [K.G.] had asked her to orally copulate him.  . . . 

 

            6.  On [K.G.'s] third visit, his anxiety was lessening and he began to feel more comfortable discussing his emotions.  Having been a therapist for twenty-nine years, and a school psychologist for much of that time, I am certainly familiar with the proper techniques of providing therapy to sexually abused children or children for whom it is alleged to have been abused.  There was never any "pounding", "interrogating", "coaxing", "quizzing over and over", or "implantation of ideas" in my sessions with [K.G.]  The questions I asked him were open ended and absolutely not designed to elicit a particular response.  In fact, I initially felt somewhat protective of [father] and was accused by [mother] of "blowing her off".

 

            7.  The first discussion of [father's] purported sexual behavior was discussed in this session.  I already knew that [K.G.] was aware of the contents of the statement written by [A.B.] in which she detailed seeing [father] masturbate in front of [K.G.]  Without asking [K.G.] any specifics, I simply asked if he was aware of what [A.B.] said in her statement.  [K.G.] stated that he was.  I then asked him if what [A.B.] said was true.  [K.G.] stated that it was.  My very next question was simply "tell me about it".  It was then that [K.G.] began to describe numerous incidents of [father] masturbating in his presence and discussing sexually explicit subjects with him.  [K.G.] never used the term "masturbate", rather he used the phrase "playing with himself".  It is not at all unusual for children to use other than "proper" words when describing genitalia and sexual behavior and [K.G.] was no different.  However to be certain that I was clear about what [K.G.] was describing and to ensure that he was speaking about the same behavior I believed he was, I had him describe what he saw.  [K.G.] described seeing [father] sit on the couch watching a Brittany Spears movie, his hand in the area of his penis and moving up and down rapidly under the covers for some time period.  While doing this [father] is describing Brittany as "hot".  [K.G.] was very clear about what his father was doing, insisted that it was more then "simply adjusting himself".  [K.G.] stated that [father] was "playing with himself" in the same way that [K.G.] "plays with himself".  In fact, [K.G.] asked [father] to stop, but he would not.  . . . 

 

            8.  [K.G.'s] behavior of excessive masturbation and attempts to engage in molestation of his little sister made sense to me at that point.  I know from my own training, experience and the research in this area, that children who are inappropriately sexualized in some manner, may develop sexual feelings and emotions they are not physically or emotionally equipped to handle.  They physically act out what they are not physically or emotionally equipped to handle.  They physically act out what they are not able to put into words.  This sexualization often expresses itself in inappropriate sexual behavior, including molestation of younger children.  While masturbation alone by a boy this age is certainly normal, the extent of [K.G.'s] masturbation as described by both [mother] and [stepfather] has begun to interfere in his daily life and had stopped being normal.  Obviously the attempt to engage his young sister in oral copulation was not normal as well.

 

            In March and April 2004, the Union County, Ohio, Department of Jobs and Family Services (DJFS) conducted an investigation of alleged sexual abuse of [K.G.] by [father]:

The investigation resulted in the finding of unsubstantiated sexual abuse.  However, based on the distress experienced by [K.G.] from his father's sexual behaviors in [K.G.'s] presence, we are substantiating emotional maltreatment of [K.G.] by his father.  . . . 

 

            Union County Children Services is closing its case because you have already taken the appropriate steps to assist [K.G.] in dealing with the situation and the resulting distress.  I urge you to continue to have [K.G.] work with Dr. White and for you to be guided by her recommendations.

 

During the investigation, DJFS requested police assistance with interviewing K.G.  K.G. gave a statement to police in which he stated that father had been masturbating in front of him for years.

            Father denies mother's allegations, claiming that she and A.B. fabricated the allegations to aid them in their respective custody disputes with father.  Father admitted that he had "adjust[ed] my privates" in front of K.G. and that K.G. had commented on that behavior.  Father stated in an affidavit that he was unaware that K.G. was bothered by that behavior and that he would not again behave in a manner that caused K.G. discomfort.  Father was willing to stipulate that he would not adjust himself or touch his privates in K.G.'s presence. 

In May 2004, father underwent a psychosexual evaluation by Michael H. Miner, PhD, LP, Coordinator of the Sex Offender Treatment Program and the University of Minnesota Program in Human Sexuality.  Miner concluded:

            The accumulated information indicates that [father] does not meet criteria for any sexual dysfunction, paraphilia, or other psychosexual disorder.  He does not appear to show a preferential arousal to children and there is no substantiated evidence that he has ever sexually abused his son, daughter or any other child.  The accusations with his son have been investigated at least twice by different social service agencies who found no evidence of sexual abuse.  In fact, there is considerable evidence that [father] is very attached to his son, [K.G.], and that [K.G.] values his relationship with [father].  The behaviors that have been described by [A.B. and her parents] to imply that he has been inappropriate with his daughter can also be explained as appropriate given the situation in which [parenting time] has occurred.  It is very likely that [E.B.] has no attachment to [father], thus her crying when held by him and his inability to console her appear developmentally appropriate.  His behaviors, both in terms of how he holds her and in moving his legs when she is in his lap are also not necessarily indications of inappropriate parental behavior.  The important factor when holding an infant is support to the head and neck, it is not necessary to support the legs and arms.  In fact, maternity nurses routinely teach new parents the football hold, since it allows secure support to the child while leaving the parent one hand free for other activities.  The moving of his legs, and other incidents which are only vaguely described, do not necessarily indicate that [father] is doing something sexual.  His [parenting time] situation involves his visiting in the home of people who are openly hostile toward him.  It would not be surprising that [father] is nervous in the presence of [A.B.'s family].  That might explain the moving of his legs and his positioning himself to play with [E.B.] while not facing [A.B.'s family].

 

            . . . .

 

            In summary, [father] shows no indications of pedophilia or other sexual disorder, nor did this writer find any convincing evidence that [father] has been sexually inappropriate with his or any other children.  [Father] does have significant relationship problems and his involvement with [A.B.] was problematic from the start.  Given the available information, this writer sees no reason to limit [father's] involvement with his son and daughter.

 

At the time Miner evaluated father, Miner was aware of White's evaluation of K.G. 

Mother moved to suspend father's parenting time and to transfer jurisdiction to Ohio.  Alternatively, mother requested that the district court conduct an evidentiary hearing on the issue of parenting time, appoint a guardian ad litem, and order a custody study.  Mother also filed an ex parte motion to suspend father's parenting time pending a further court order, and in a March 10, 2004, ex parte order, the district court suspended father's parenting time until further order of the court.  Following a May 24, 2004, hearing, the district court issued a June 17, 2004, order that denied mother's motion in its entirety and explicitly stated that father's "parenting time with the parties' minor child shall be as previously ordered."   

Mother appealed from the June 17 order.  Mother then moved to stay the June 17 order and reinstate the March 10 ex parte order pending appeal and failed to produce the child for father's parenting time.  The hearing on mother's motion was scheduled for July 13, 2004.  Father moved to have mother held in contempt for refusing to abide by the district court's order denying mother's motion to suspend father's parenting time, and the district court issued a July 6, 2004, order to show cause directing mother to appear on July 13, 2004, and show cause why she should not be held in contempt for failing to comply with the June 17 order.  Also, in a July 9, 2004, order, the district court required mother to bring K.G. with her to the July 13 hearing along with all of his personal belongings necessary for father to exercise parenting time with K.G.

            On July 12, 2004, mother obtained from an Ohio court an ex parte order of protection that suspended father's visitation rights and referred the matter to a magistrate for a full hearing.

            Mother did not appear at the July 13 hearing to show cause, and in a July 19, 2004, order, the district court denied mother's motion to stay the June 17 order pending appeal and found mother in contempt for failing to comply with the district court's June 17 and July 9 orders.  The district court also ordered mother to pay father $2,500 "as a result of her actions in bad faith through the course of these proceedings" and to not permit K.G. to have any further contact with White.  Mother appealed from the July 19 order, and this court consolidated the appeal with mother's appeal from the June 17 order.

D E C I S I O N

I.

Mother contends that the Minnesota district court erred in failing to decline jurisdiction as an inconvenient forum under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).  A district court's decision whether to decline jurisdiction for inconvenient forum is reviewed for an abuse of discretion.  Danielson v. Nat'l Supply Co., 670 N.W.2d 1, 9-10 (Minn. App. 2003); see also Minn. Stat. § 518D.207(a) (2002) (providing that a court that has jurisdiction to determine child custody "may decline to exercise its jurisdiction").

            Under Minn. Stat. § 518D.202(a) (2002), a court that issues an initial child-custody determination obtains exclusive, continuing jurisdiction.  This jurisdiction continues until either (1) a Minnesota district court finds that the parties or the children "do not have a significant connection with [Minnesota] and that substantial evidence is no longer available in [Minnesota]" or (2) a district court from any jurisdiction finds that neither the parties nor the children continue to reside in Minnesota.  Id.  Under Minn. Stat. § 518.003, subd. 3(f) (2002), "custody determination" is defined to include decrees affecting parenting time.

            Notwithstanding continuing, exclusive jurisdiction, a district court has discretion to decline jurisdiction as an inconvenient forum under Minn. Stat. § 518D.207(a).  When considering whether to decline jurisdiction, the district court shall consider "all relevant factors," including

(1)  whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(2)  the length of time the child has resided outside [Minnesota];

(3)  the distance between the court in [Minnesota] and the court in the state that would assume jurisdiction;

(4)   the relative financial circumstances of the parties;

(5)  any agreement of the parties as to which state should assume jurisdiction;

(6)  the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

(7)  the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and

(8)  the familiarity of the court of each state with the facts and issues in the pending litigation.

 

Id., (b).

 

Mother argues that father's inappropriate sexual behavior in front of K.G. constitutes domestic violence.  But although the record contains evidence that father engaged in inappropriate sexual behavior, that evidence is disputed, and the district court made no finding that the behavior occurred.

The fact that K.G. has lived in Ohio for more than eight years favors Ohio jurisdiction.  See Nazar v. Nazar, 505 N.W.2d 628, 637 (Minn. App. 1993) (acknowledging that when children are absent from their "decree state" for an extended length of time it may be improper and inconvenient for the court to continue exercising jurisdiction under the UCCEJA in that state), review denied (Minn. Oct. 28, 1993).

Mother argues that the significant distance between Minnesota and Ohio favors Ohio jurisdiction because expert witnesses are located in Ohio.  But other witnesses, including expert witness Miner, are located in Minnesota.

Mother cites no evidence supporting her contention that her financial circumstances favor Ohio jurisdiction.

There are no agreements regarding jurisdiction.

While the Union County, Ohio, DJFS did conduct a brief investigation of the allegations of inappropriate sexual behavior by father, this has been an extremely long and contentious custody proceeding, and the Minnesota district court is familiar with the extensive record in this case.

We conclude that the district court did not abuse its discretion in declining to transfer jurisdiction to Ohio.

II.

Mother argues that the district court erred in denying an evidentiary hearing with oral testimony on the parenting-time issue.

The district court is granted broad discretion to determine what is in the best interests of the child when it comes to [parenting time] and we will not overturn its determination absent an abuse of discretion.  Procedural and evidentiary rulings are within the district court's discretion and are also reviewed under an abuse-of-discretion standard.

 

Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001) (citations omitted), review denied (Minn. Oct. 24, 2001).

 "If a parent makes specific allegations that parenting time by the other parent places the parent or child in danger of harm, the court shall hold a hearing at the earliest possible time to determine the need to modify the order granting parenting time."  Minn. Stat. § 518.175, subd. 5 (2002); see also Braith, 632 N.W.2d at 721 (stating that "[s]ubstantial modifications of [parenting time] rights require an evidentiary hearing when, by affidavit, the moving party makes a prima facie showing that [parenting time] is likely to endanger the child's physical or emotional well being"); Lutzi v. Lutzi, 485 N.W.2d 311, 316 (Minn. App. 1992) (concluding that party confronted with proposal for substantial modification of parenting time is entitled to evidentiary hearing).

            Mother made specific allegations that father engaged in inappropriate sexual behavior in front of K.G. and that father's inappropriate sexual behavior has had a detrimental effect on K.G.'s emotional health.  Mother supported those specific allegations with evidence, including A.B.'s affidavits, K.G.'s statements to White and police, the investigation by DJFS, and evidence regarding K.G.'s inappropriate sexual behavior.  The evidence was sufficient to require an evidentiary hearing under Minn. Stat. § 518.175, subd. 5.  See Harkema v. Harkema, 474 N.W.2d 10, 14 (Minn. App. 1991) (allegations of emotional abuse of children by custodial parent's spouse warranted hearing); Lilleboe v. Lilleboe, 453 N.W.2d 721, 724 (Minn. App. 1990) (hearing required to investigate allegations of abuse, fear of the custodial parent, and changes in the children's attitude and behavior).

            In arguing that the district court erred in determining that mother failed to establish a prima facie case of endangerment, mother mischaracterizes the district court's decision.  While the district court did not conduct an evidentiary hearing with oral testimony, the parties presented considerable evidence by affidavit, and the district court expressly stated during the May 24, 2004, hearing on mother's motion to modify father's parenting time that it considered those affidavits.  When asked by the district court whether an evidentiary hearing would "accomplish anything other th[a]n regurgitating what's in these affidavits," mother's counsel replied:

            Well, we would have the opportunity for Dr. Sweet [who had not yet completed his evaluation] to testify, but I think . . . if the Court's going to suspend or significantly limit [parenting time] I think [father] does have the right to an evidentiary hearing.  So I mean I would prefer that there not be an evidentiary hearing and let's just decide it on the affidavits . . . . 

 

            Minn. R. Civ. P. 43.05 states, "Whenever a motion is based on facts not appearing of record, the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions."  Rule 43.05 applies to the hearing requirement in Minn. Stat. § 518.175, subd. 5.  See Braith, 632 N.W.2d at 723 (citing rule 43.05 as support for the conclusion that district court properly denied motion to modify parenting time based on extensive record and documentary evidence).

            There is an extensive record in this case, with which the district court is familiar.  The parties presented considerable evidence by affidavit in support of and in opposition to the current motions, and the record shows that the district court considered that evidence.  Mother expressly waived the right to oral testimony.  Because Minn. Stat. § 518.175, subd. 5, does not require oral testimony, mother's argument that she lacked the right to waive oral testimony is without merit.  Under these circumstances, the district court did not abuse its discretion in declining to allow oral testimony.

            Considered as a whole, the district court's order and its comments at the May 24, 2004, hearing, show that it found incredible the evidence presented by mother.  This court defers to the district court's credibility determinations.  Rutz v. Rutz, 644 N.W.2d 489, 493 (Minn. App. 2002).  The district court did not abuse its discretion in denying mother's motion to modify parenting time.

III.

            Mother argues that the district court erred in declining to appoint a guardian ad litem (GAL) and in declining to order a custody study.

Minn. Stat. § 518.165, subd. 2 (2002), requires the court to appoint a GAL in parenting-time proceedings if the court has reason to believe that the child is a victim of domestic child abuse or neglect, as those terms are defined in Minn. Stat. §§ 260C.007 and 609.556.  In other circumstances, the district court "may" appoint a GAL.  Minn. Stat. § 518.165, subd. 1; see also Minn. Stat. 645.44, subd. 15 (2002) (providing that "may" is permissive).

Because the district court found the allegations against father incredible, it did not abuse its discretion by declining to appoint a GAL.

            In contested custody matters, a district court may order an investigation and report concerning custodial arrangements for the child.  Minn. Stat. § 518.167, subd. 1 (2002).  Custody determination "means a court decision and court orders and instructions providing for the custody of a child, including parenting time."  Minn. Stat. § 518.003, subd. 3(f) (2002).  Whether to order an investigation and report is discretionary with the district court.  Meyer v. Meyer, 375 N.W.2d 820, 826 (Minn. App. 1985), review denied (Minn. Dec. 30, 1985).

            Given the extensive record in this case, the district court did not err in declining to order a custody study.

IV.

            In arguing that the district court erred in awarding father compensatory parenting time, mother essentially repeats the arguments that we have already rejected relating to the denial of her motions to modify parenting time and stay the June 17 order pending appeal.  Minn. Stat. § 518.175, subd. 6(b)(1) (2002), states:

            If the court finds that a person has been deprived of court-ordered parenting time, the court shall order the parent who has interfered to allow compensatory parenting time to the other parent or the court shall make specific findings as to why a request for compensatory parenting time is denied.  If compensatory parenting time is awarded, additional parenting time must be . . . at least of the same type and duration as the deprived parenting time and, at the discretion of the court, may be in excess of or of a different type than the deprived parenting time[.]

 

            Minn. Stat. § 518.175, subd. 6(b)(1), mandates an award of compensatory parenting time when the custodial parent has interfered with parenting time.  Mother argues that the district court erred in failing to make findings that compensatory visitation time was in K.G.'s best interests.  But Minn. Stat. § 518.175, subd. 6(b)(1), only requires specific finding when compensatory parenting time is denied.  Mother also argues that the reason she did not produce K.G. for parenting time during Christmas 2003 was that he was being evaluated by a surgeon for swollen lymph nodes.  But the legitimacy of this medical reason for not producing K.G. is a fact issue to be resolved by the district court.

            The district court specifically identified the days that mother deprived father of parenting time, granted father compensatory parenting time for those days, and identified the days when father is to receive the compensatory parenting time.  The days when mother deprived father of parenting time included days during K.G.'s spring break and summer vacation in 2004.  But there was a district court order suspending parenting time in effect from March 10, 2004, through June 16, 2004.  Thus, there was no court-ordered parenting time during that period, and the district court erred in awarding compensatory parenting time for that time period.  We find no other error in the compensatory-parenting-time award.

However, because mother did not deliver K.G. to father as ordered in the June 17 order granting father compensatory parenting time, we remand the compensatory-parenting-time issue to allow the district court to establish a new schedule for compensatory parenting time.  When establishing a new schedule, the district court can account for the period during which parenting time was suspended, and the district court may grant additional compensatory parenting time to account for parenting time that father has been deprived of since the June 17 order.

            Mother argues that the district court erred in making her solely responsible for the cost of compensatory parenting time.  Citing Auge v. Auge, 334 N.W.2d 393, 400 (Minn. 1983) and Minn. Stat. § 518.64, subd. 2 (2002), mother argues that a change in the apportionment of parenting-time expenses requires a showing of a change in circumstances making the existing child-support order unreasonable and unfair and a showing that the apportionment serves the child's best interests.  Although the district court did not make findings on those factors, the district court's findings as a whole support an inference that mother's interference with parenting time is a changed circumstance making it unreasonable and unfair for father to pay the cost of compensatory parenting time.  Regarding K.G.'s best interests, the Auge court stated:

When removal is permitted, the court shall make such modifications of visitation as are reasonable and necessary to maintain a good relationship between the noncustodial parent and child, and may make appropriate adjustments in child support to spread the cost of visitation in an equitable manner, provided that such adjustments are not against the best interests of the child.

 

334 N.W.2d at 400.  Auge does not support mother's argument that findings on K.G.'s best interests were required to support the assessment of compensatory-parenting-time costs against mother.

V.

            Mother argues that because she was not served with the July 6, 2004, order to show cause, the district court erred when it found her in contempt for refusing to abide by the June 17 and July 9 orders and issued a warrant for her arrest.  We agree.

            "Constructive contempts are those not committed in the immediate presence of the court, and of which it has no personal knowledge, and may arise from . . . disobedience of any lawful judgment, order, or process of the court."  Minn. Stat. § 588.01, subd. 3(3) (2002).

In cases of constructive contempt, an affidavit of the facts constituting the contempt shall be presented to the court or officer, who may either issue a warrant of arrest to bring the person charged to answer or, without a previous arrest, upon notice, or upon an order to show cause, which may be served by a sheriff or other officer in the same manner as a summons in an action, may commit the person to jail, impose a fine, or both, and make such order thereupon as the case may require. 

 

Minn. Stat. § 588.04 (2002).

            "A valid judgment cannot be rendered against a party without due service of process upon him."  Lange v. Johnson, 295 Minn. 320, 324, 204 N.W.2d 205, 208 (1973); see Minn. R. Gen. Pract. 309.01 original advisory comm. cmt. ("Service of the order to show cause upon the person provides jurisdiction for the issuance of a writ of attachment or bench warrant, if necessary, and meets the requirement for an opportunity to be heard.") (citing Clausen v. Clausen, 250 Minn. 293, 84 N.W.2d 675 (1976) and Hopp v. Hopp, 279 Minn. 170, 156 N.W.2d 212 (1968)).  The Minnesota Rules of Civil Procedure require that a summons in a civil action be served personally or by acknowledged mail.  Minn. R. Civ. P. 4.03 (personal service), 4.05 (service by mail).  The determination of whether service of process was proper is a question of law that we review de novo.  Amdahl v. Stonewall Ins. Co., 484 N.W.2d 811, 814 (Minn. App. 1992), review denied (Minn. July 16, 1992). 

            Because the record contains no evidence that the order to show cause was served on mother, the district court lacked jurisdiction to find mother in contempt.  Personal service of the order to show cause was attempted at mother's residence four times but was unsuccessful.  The affidavit of nonservice states that the reason for nonservice was "each time attempted, no one was home."  The fact that no one was home does not by itself indicate that mother was attempting to avoid services.  Compare Nielsen v. Braland, 264 Minn. 481, 484, 119 N.W.2d 737, 739 (1963) (when a defendant is in close proximity to a process server, under circumstances that would convince a reasonable person that personal service of summons be attempted, the service is complete even though the defendant refuses physically to accept the summons).  The record does not show that service was attempted by mail.  See Minn. R. Civ. P. 4.05 (service by mail). 

            Father argues that mother had actual notice of the July 13 hearing because it was initially scheduled as a hearing on her motion.  But the record does not show that mother was required to personally appear as to her motions.  Moreover, actual notice of a lawsuit will not subject a defendant to personal jurisdiction of the court absent substantial compliance with the requirements of personal service of process in the rules of civil procedure.  Nieszner v. St. Paul School Dist. No. 625, 643 N.W.2d 645, 649 (Minn. App. 2002).

            Because the district court lacked jurisdiction to find mother in contempt, we reverse the portion of the July 19, 2004, order that holds mother in contempt for refusing to abide by the June 17 and July 9 orders and directs that a warrant be issued for mother's arrest pursuant to Minn. Stat. §  588.04.[1]

VI.

            Mother argues that by granting father's request at the July 13 hearing to require mother to cease K.G.'s therapy with his psychologist, the district court improperly modified its June 17 order while an appeal of that order was pending.

            The filing of a timely and proper appeal suspends the authority of the district court to make any order necessarily affecting the judgment that has been appealed.  Minn. R. Civ. App.  P. 108.01, subd. 1.  When an appeal is pending, a district court's jurisdiction is suspended only as to those matters that are necessarily involved in the appeal.  Muecke v. State, 348 N.W.2d 808, 810 (Minn. App. 1984).  The district court retains jurisdiction as to those matters independent of or supplemental to the appeal or collateral to the proceeding in which the appealed order or judgment was rendered.  Spaeth v. City of Plymouth, 344 N.W.2d 815, 824 (Minn. 1984).

            The relief requested by father in his May 4, 2004, responsive motion included that mother cease K.G.'s therapy with his psychologist.  Mother argues that the district court's June 17 order, currently pending on appeal, "in effect denied" father's request that K.G. cease therapy with his psychologist.  But the June 17 order does not address that issue, and K.G.'s therapy is not at issue in the appeal from the June 17 order.  Therefore, the district court retained jurisdiction as to father's request to require mother to cease K.G.'s therapy.

            Mother also argues that the district court failed to make the findings necessary to order her to cease K.G.'s therapy.  We agree.

Minn. Stat. § 518.176, subd. 1 (2002), provides that the custodial parent

may determine the child's upbringing, including education, health care, and religious training, unless the court after hearing, finds, upon motion by the other parent, that in the absence of a specific limitation of the authority of the parent with whom the child resides, the child's physical or emotional health is likely to be endangered or the child's emotional development impaired.

 

The district court did not find that continuing K.G.'s therapy with his current psychologist is likely to endanger K.G.'s physical or emotional health or impair his emotional development, and father cites no evidence in the record supporting such a finding.  Therefore, the district court erred by restricting mother's authority as custodial parent to take K.G. to therapy with a psychologist that she chooses.

 

VII.

            Mother argues that the district court erred in ordering her to pay conduct-based attorney fees.

            An award of attorney fees "rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion."  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotation omitted), review denied (Minn. Feb. 18, 1999).  A district court can award conduct-based attorney fees against a party who unreasonably contributes to the length or expense of the litigation.  Minn. Stat. § 518.14, subd. 1(1) (2002).  A showing of bad faith is not necessary for an award of conduct-based attorney fees.  Geske v. Marcolina, 624 N.W.2d 813, 818-19 (Minn. App. 2001).  An allocation of conduct-based attorney fees may only be based on conduct that occurs during the litigation process.  Id. at 819.  The district court must make findings regarding conduct-based fees to permit meaningful appellate review.  Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1992).

Father requested $2,803.29 for attorney fees and costs.  The affidavit supporting the fee request states that the legal services were performed on father's behalf

relative to [mother's] refusal to provide [father] with parenting time and her motion for the period of June 21, 2004 through the present which shows that [father] has incurred fees of $1603.29.  In addition to the above fees, [father] will incur additional estimated fees of approximately $1200 representing preparation for and attendance at the hearing.

 

The district court found that mother has acted in "bad faith through the course of these proceedings, including but not limited to, ignoring this Court's Orders and engaging in delay tactics in Ohio" and awarded father $2,500 for attorney fees.   

The record supports a finding that mother ignored the district court's orders.  After the district court denied mother's motions in its June 17 order, mother failed to produce K.G. for father's parenting time and, instead, filed a motion asking the district court to stay the June 17 order pending her appeal and reinstate the March 10 ex parte order that suspended father's parenting time.[2]  In response, father brought a motion seeking compensatory parenting time and asking that mother be held in contempt for refusing to abide by the June 17 order.

Because she brought a motion to stay the June 17 order, mother did not literally ignore the order; she acknowledged that the order existed and could not simply be ignored.  But mother ignored the substance of the order when she failed to produce K.G. for father's parenting time without first obtaining a stay.  Because mother failed to produce K.G., father incurred attorney fees in bringing his motion to enforce the June 17 order.  The district court's finding that mother ignored the court's orders is sufficient to support an award for fees that father incurred bringing his motion to enforce the June 17 order. 

The district court also awarded father attorney fees that father incurred responding to mother's motion to stay the June 17 order and reinstate the March 10 ex parte order.  Because mother's motion to stay the June 17 order recognizes the district court's order, rather than ignoring it, the finding that mother ignored the court's orders does not support an award for fees incurred responding to mother's motion.  Therefore, we reverse the attorney fee award and remand to permit the district court to determine the amount of fees father incurred bringing his motion to enforce the June 17 order.

Mother also argues that the attorney fee award includes fees that father incurred with respect to proceedings before this court.  But although the billing records submitted to the district court by father's attorney include references to work on appellate matters, the district court did not award father the full amount of fees requested, and it appears that the reduction made by the district court reflects the amount attributable to appellate matters.

Affirmed in part, reversed in part, and remanded.

[1] Under Minn. Stat. § 588.04, when a contempt allegation is presented to the district court, the court may have the alleged contemnor brought before the court to answer the charge by issuing a warrant of arrest or an order to show cause.  Here, the district court issued an order to show cause.  It is not clear what authority the district court intended to exercise when, after holding mother in contempt, it ordered a warrant for her arrest issued pursuant to Minn. Stat. § 588.04.

If the alleged contemnor is properly brought before the court using an arrest warrant or an order to show cause, the court must conduct a hearing under Minn. Stat. § 588.09 (2002) to investigate the charges, and under Minn. Stat. § 588.10 (2002), the court must make a determination of guilt or innocence based on the evidence presented at the hearing.

[2] On the day before the hearing on mother's motion, mother obtained an ex parte order of protection from an Ohio court that suspended father's visitation rights.  The ex parte order was later terminated effective July 28, 2004, after the Ohio court concluded that it had no jurisdiction over K.G. because the issues involving K.G. had already been litigated in Minnesota.  In its order terminating its ex parte order, the Ohio court explained that although mother had advised the Ohio court that a proceeding had taken place in Minnesota, she did not make the Ohio court aware that the Minnesota court had reviewed the same documents presented to the Ohio court, and, as a result, the Ohio court did not realize that res judicata applied to the issues involving K.G.

            Mother argues that a request for fees for the Ohio action should be brought in Ohio, which implies that the district court awarded fees for the Ohio action.  But the district court only awarded fees associated with motions heard at the July 13 hearing.