In Re the Marriage of: Rosemary Kuth, f/k/a Rosemary Simonson, petitioner, Respondent, vs. Matthew Simonson, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2000).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-00-1210

In Re the Marriage of:

Rosemary Kuth,

f/k/a Rosemary Simonson,

petitioner,

Respondent,

vs.

Matthew Simonson,

Appellant.

Filed February 6, 2001

Affirmed
Klaphake, Judge

Dodge County District Court

File No. F59288

Matthew Simonson, 607 Seventh Avenue SE, Austin, MN  55912 (pro se appellant)

Mark G. Stephenson, Stephenson & Sutcliffe, P.A., 1635 Greenview Drive SW, Rochester, MN  55902 (for respondent)

            Considered and decided by Klaphake, Presiding Judge, Amundson, Judge, and Willis, Judge.

KLAPHAKE, Judge

Pro se appellant Matthew C. Simonson challenges an order by the district court requiring him to post a $1,000 bond before it would hear his motion to appoint psychologist Vernon Lewis to evaluate him and as a precondition for any future motions brought by appellant in this matter.  His ex-spouse, respondent Rosemary Kuth, sought the order under Minn. Gen. R. Pract. 9, which allows a court to require security from or impose sanctions on a frivolous litigant.

Because the district court did not abuse its discretion by imposing these restrictions on appellant, we affirm.

In the 1992 judgment and decree, appellant was granted three hours per week of supervised visitation with the parties' two-year-old daughter.  In 1997, after an evidentiary hearing, the district court suspended visitation and ordered appellant to successfully complete the following requirements before petitioning to have his visitation restored:

a.         Submit to an updated psychiatric or psychological evaluation by Doctor Charles Dawley or other psychologist or psychiatrist approved by the court.

b.         Enter the Men Who Batter Program and successfully complete that program.

c.         Follow the recommendations of the Ron McGuire letter dated November 18, 1996.

In his letter, McGuire made several recommendations, including that appellant complete a parenting program, accept the court's decisions, and contribute financially to his child's support.

            Rather than comply with the court's requirements, appellant has continued to unsuccessfully challenge the court's decisions.  In response to yet another motion by appellant, respondent sought sanctions under Minn. Gen. R. Pract. 9.

            Minn. Gen. R. Pract. 9.01 authorizes a court to enter an order

(a)  requiring the furnishing of security by a frivolous litigant who has requested relief in the form of a claim, or (b) imposing preconditions on a frivolous litigant's service or filing of any new claims, motions or requests.

A "frivolous litigant" is defined as a person who "repeatedly serves or files frivolous motions, pleadings, letters, or other papers."  Minn. Gen. R. Pract. 9.06(b)(2).  Before entering an order requiring security, a court must expressly determine that "there is no reasonable probability that the litigant will prevail on the claim."  Minn. Gen. R. Pract. 9.02(c).  Before entering an order imposing preconditions on the filing of new motions, a court must expressly determine that "no less severe sanction will sufficiently protect the rights of other litigants, the public, or the courts."  Id.

            The record in this case amply supports the district court's determinations that appellant's actions constitute those of a frivolous litigant and that his continued efforts to gain visitation without satisfying known requirements constitutes bad faith.  Appellant has filed more than 23 motions since the parties were divorced in 1992 and has attempted to appeal each ruling.  None of his motions or appeals has met with success.  His efforts have cost respondent more than $30,000 in attorney fees and she loses time from work each time a motion is filed.

            In addition, since his visitation rights were suspended in 1997, appellant has failed either to seek or successfully complete any course of therapy, counseling, or parenting classes that might support restoration of his visitation privileges.  He has been deemed inappropriate for several domestic abuse programs because he is unwilling to take responsibility for his behavior and acknowledge that he needs to work on his abuse and/or power and control issues.

            Instead, appellant continues to submit letters and evaluations from selected psychologists who adopt his view of the facts.  Most of these letters and evaluations have been rejected by the district court as not credible.  A close reading of these letters and evaluations shows that appellant has not given these psychologists his entire file or informed them of all relevant facts.

            The record also supports the district court's determination that there was no reasonable probability that appellant would prevail on his present claim to appoint psychologist Vernon Lewis to evaluate him.  Similar to other psychologists whose evaluations have been submitted to the court by appellant, appellant failed to allow Lewis an opportunity to consider all of the pertinent documents; rather, Lewis's recommendations appear to be based solely on standardized psychological testing.

            The record further supports the district court's determinations that there are no other sanctions available to deter appellant's conduct and that the court has previously imposed less severe sanctions to no avail.  In particular, the court has found appellant in contempt, ordered him to pay respondent's attorney fees, and imposed specific requirements in order for him to seek visitation.  Yet he continues to bring new motions.

            Finally, despite appellant's claim to the contrary, the record suggests that he has the ability to post the $1,000 bond, which is substantially less than the $10,000 to $30,000 requested by respondent.  Thus, we do not agree that appellant has been "shut out" of the court system.  Courts have "inherent" power to restrict abusive or frivolous litigants' access to the courts and to tailor restrictions to fit a particular litigant's abuses.  In re Burns, 542 N.W.2d 389, 390 (Minn. 1996) (affirming order restricting litigant's communications with court for period of 365 days); Cello-Whitney v. Hoover, 769 F. Supp. 1155, 1160 (W.D. Wash. 1991) (restricting litigant to three in formapauperis applications per year and requiring filed claims to demonstrate merit).  Here, appellant apparently has sufficient resources to obtain evaluations from various psychologists.  After reviewing the entire record in this case, we conclude that the district court did not abuse its discretion by requiring appellant to post a $1,000 bond in order for his present motion to be heard and as a precondition to file any further motions in this matter.  Cf. Whalen v. Whalen, 594 N.W.2d 277, 281-82 (Minn. App. 1999) (district court's decision to impose sanctions under Minn. Stat. § 549.211 (1998), which allows award of attorney fees for bad-faith litigation, is discretionary).

            Affirmed.