In re the Marriage of: Jean Ann Geske, f/k/a Jean Ann Marcolina, petitioner, Respondent, vs. Jeffrey Alan Marcolina, Appellant.

In re the Marriage of: Jean Ann Geske, f/k/a Jean Ann Marcolina, petitioner, Respondent, vs. Jeffrey Alan Marcolina, Appellant. A04-1773, Court of Appeals Unpublished, July 26, 2005.

 

This opinion will be unpublished and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

A04-1773

 

 

In re the Marriage of:

 

Jean Ann Geske,

f/k/a Jean Ann Marcolina, petitioner,

Respondent,

 

vs.

 

Jeffrey Alan Marcolina,

Appellant.

 

Filed July 26, 2005

Affirmed

Lansing, Judge

 

 

Ramsey County District Court

File No. DM-F9-94-2321

 

 

Steven P. Hegranes, Stebbins & Hegranes, L.L.C., 877 Jefferson Avenue, Suite D, St. Paul, MN 55102 (for respondent)

 

Mark A. Olson, 2605 E. Cliff Road, Burnsville, MN 55337 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            In this ongoing parenting dispute following a marital dissolution, Jeffrey Marcolina appeals from four district court orders.  He challenges issues relating generally to parenting time and specifically to the district court's refusal to find Jean Geske in contempt, denial of a request for recusal, and imposition of attorneys' fees.  Because the district court did not misapply the law, abuse its discretion, or make a decision against logic and the facts of record, we affirm.

F A C T S

            Jean Geske and Jeffrey Marcolina are the parents of two daughters, who, at the time of appeal, are eleven and thirteen.  Geske and Marcolina dissolved their nine-year marriage in 1996.  The dissolution judgment provided that Geske would have sole legal and physical custody of the children, subject to Marcolina's reasonable and liberal visitation.  In February 2000 the district court suspended Marcolina's visitation and prohibited him from contacting the children's school.  In November 2000 the district court determined that it was in the younger child's, but not the older child's, best interests to be reunified with Marcolina.

On September 5, 2003, the guardian ad litem (GAL) assigned to the case asked to be removed because she did not believe that the guardian program could offer any further assistance.  Shortly thereafter, on September 16, Marcolina moved for an order allowing him to attend parent-teacher conferences and to remove court-ordered restrictions on his communication with the school. 

In the hearing on these motions, and in response to Marcolina's comments, the district court judge commented on Marcolina's anger and questioned whether Marcolina had "the children's best interests in mind because [he] would prefer them to be in [a] foster home rather than with their mother."  In its order following the hearing, the district court granted the GAL's withdrawal motion and denied Marcolina's motion relating to parent-teacher conferences and communication with the school.  The district court found that it was not in the children's best interests to allow Marcolina to attend the parent-teacher conferences because he exhibited a lack of regard for how his behavior caused the children anxiety, stress, and embarrassment.

On April 6, 2004, Marcolina filed another motion requesting that the court find Geske in contempt of judicial orders relating to reunification, reappoint the GAL to monitor Geske's compliance with court orders, find that Geske had alienated the children from him, and set "clear, fair, and attainable guidelines for restoring [his] right to attend parent[-]teacher and other school conferences."  Geske opposed the motions and moved for attorneys' fees.

On April 8, 2004, the district court denied Marcolina's motion to allow the former GAL to testify on the issue of contempt.  At the motion hearing, Marcolina moved for recusal of the district court judge because of his comments during the September 2003 hearing.  The court denied each of Marcolina's motions in its July 16, 2004 order and granted, in part, Geske's motion for attorneys' fees.  Marcolina appeals principally from the July 16, 2004 order and the November 20, 2003 order removing the GAL.  He contends that the district court erred by (1) denying his motion to find Geske in contempt, (2) refusing to compel the testimony of the former GAL, (3) refusing to reappoint the GAL, (4) declining to recuse, (5) denying his motion for a finding that Geske alienated the children, (6) refusing to set guidelines for reinstatement of his attendance at parent-teacher conferences, and (7) allowing Geske attorneys' fees.

D E C I S I O N

I

 

The purpose of civil contempt proceedings in a dissolution action is to secure compliance with an order presumed to be reasonable.  Hopp v. Hopp, 279 Minn. 170, 174, 156 N.W.2d 212, 216 (1968).  The district court has "inherently broad discretion to hold an individual in contempt but only [if that individual] has acted contumaciously, in bad faith, and out of disrespect for the judicial process."  Erickson v. Erickson, 385 N.W.2d 301, 304 (Minn. 1986) (quotation omitted).  We review a district court's determination on contempt for abuse of discretion.  Id.  Factual findings incorporated into the contempt determination are reviewed for clear error.  Mower County Hum. Servs. v. Swancutt, 551 N.W.2d 219, 222 (Minn. 1986).

            Marcolina asserts that Geske is in contempt of three orders: a February 4, 2000 order that required Geske to "make every effort to help the children be ready for reunification with their father," an October 9, 2001 order that required Geske and Marcolina to "follow the recommendations of the professionals involved and move forward toward reunification of [Marcolina] and both minor children," and a November 20, 2002 order that required both parents to continue individual therapy and stated that "[r]eunification therapy for the minor children shall be suspended during this period of individual therapy for the parties."

            The district court did not abuse its discretion in denying Marcolina's motion to find Geske in contempt.  The court's findings in the previous orders, which the court refers to in the current order, demonstrate Geske's compliance with effective orders.  She encouraged the children to visit Marcolina, voluntarily provided information to the therapists, and monitored the children's attendance at therapy sessions aimed at reunification.  Marcolina objects to Geske's opinion that reunification is not a good idea and contends that this opinion could subconsciously affect the success of the reunification process.  It is not, however, Geske's opinion but her conduct that is within the reach of the court's order, and no evidence establishes that she has failed to comply.  The district court properly observed that the facts indicate that it is primarily Marcolina's conduct, not Geske's, that will determine the success or lack of success of the reunification with the children.

            Furthermore, Marcolina attempts to enforce compliance with provisions that have been modified by subsequent orders.  The most recent order suspends the reunification therapy of the children.  The GAL noted that continuing litigation interfered with reunification and that the children needed a break from the reunification therapy.  The district court's current order focuses on individual therapy, and Marcolina has not demonstrated that Geske has failed to comply with this order, which effectively suspends the reunification therapy for the children.

II

            The district court denied Marcolina's motion to compel the testimony of the former GAL because it was not relevant to the issue of contempt.  Evidentiary rulings are within the discretion of the district court, and we reverse a district court's decision to exclude testimony only if it is an abuse of discretion.  Conroy v. Book Automation, Inc., 398 N.W.2d 657, 659 (Minn. App. 1987).

            Although Marcolina correctly notes that his motion encompassed more issues than simply contempt, his only stated reason for obtaining the GAL's testimony was to provide independent evidence of Geske's noncompliance with judicial orders that facilitate the reunification process.  The district court therefore acted within its discretion in considering whether the GAL's testimony was relevant to the contempt issue, and the record supports the determination that the testimony was not relevant.

            The GAL's involvement in the case ended in November 2003, and her testimony therefore would not be relevant to whether Geske was in contempt of court at the time of the April 2004 hearing.  Additionally, Marcolina did not establish that the GAL would testify that Geske was not complying with the orders.  The GAL stated that Geske did attend therapy, but did not "believe" it was in the best interests of the children to be reunified.  Because Geske is in compliance with the requirement to attend individual therapy, which is her current obligation, the district court did not abuse its discretion in concluding that the GAL's testimony would not be probative or relevant on the issue of contempt.

III

Minnesota law permits a judge to appoint a GAL in a dissolution case to represent the interests of a child and "advise the court with respect to custody, support, and parenting time."  Minn. Stat. § 518.165, subd. 1 (2004).  The appointment of a GAL is required when the court has reason to believe the child is a victim of domestic child abuse or neglect.  Minn. Stat. § 518.165, subd. 2 (2004).  In the absence of abuse allegations, the statute does not require the appointment of a GAL.  Id.

Nothing in the record suggests that Geske is either abusing or neglecting the children.  And the record lacks any affirmative allegation of abuse.  Therefore, the decision of whether to appoint or reappoint a GAL is within the discretion of the district court.  Although a GAL can provide invaluable service, the district court did not abuse its discretion in choosing not to reappoint the GAL given the GAL's testimony that the program has nothing more to offer the children.  Marcolina's stated purpose for requesting the GAL is to monitor Geske's compliance with court orders.  A GAL's role is limited to informing the court on issues of custody, support, and visitation; a GAL's function is not to monitor a parent's compliance with court orders.  We therefore affirm the district court's decision not to reappoint the GAL.

IV

            Marcolina challenges the district court's refusal to make a factual finding of parental alienation of the children.  For two reasons we discern no error or abuse of discretion.  First, Marcolina has not demonstrated that the findings would be relevant to any pending issue.  Second, and adjunctively, Marcolina has demonstrated no prejudice from the district court's failure to address this issue.

            The record contains substantial evidence that the children are afraid of their father, experience physical symptoms related to the stress of seeing him, and are reluctant to attend any activity that he may also attend.  On this record, the evidence supports a determination that any alienation has been the result of his conduct rather than Geske's.  The affidavits and transcripts show that the ongoing litigation, Marcolina's decision to involve the media in the dispute, and his behavior have hindered attempts at reunification.  Thus, the district court did not err or abuse its discretion in refusing to make a factual finding of alienation.

V

We find no basis to reverse the district court's determination on recusal.  The Minnesota Rules of Civil Procedure provide that "[n]o judge shall sit in any case if that judge is interested in its determination or if that judge might be excluded for bias from acting therein as a juror."  Minn. R. Civ. P. 63.02.  A party who wishes to remove a judge may file a notice of removal "within ten days after the party receives notice of which judge or judicial officer is to preside at the trial or hearing, but not later than the commencement of the trial or hearing."  Minn. R. Civ. P. 63.03.

A party may not file a notice of removal against any judge "who has presided at a motion or any other proceeding of which the party had notice," and the presiding judge cannot be removed "except upon an affirmative showing of prejudice."  Id.  The rule is intended to prevent counsel from using the notice-to-remove procedures to change an assignment of a judge after pretrial hearings.  Id. 1985 advisory comm. note.  "[T]he period in which the judge may be removed therefore ends absolutely at the time the trial or hearing commences."  Id.

We review de novo the question of whether a party has complied with rule 63.03's requirements for filing a notice of removal.  Citizens State Bank v. Wallace, 477 N.W.2d 741, 742 (Minn. App. 1991).  But a district court has discretion to deny a motion for recusal, and we will reverse its decision only if it abused its discretion.  Carlson v. Carlson, 390 N.W.2d 780, 785 (Minn. App. 1986), review denied (Minn. Aug 20, 1986).

Marcolina failed to file a notice of removal before the district court judgepresided over the motions and the decisions in this case.  The judge issued several orders starting in September 2003, and Marcolina did not request removal until the April 22, 2004 hearing.  The timing of his notice requires that he affirmatively show prejudice to obtain a different judge.  See Olson v. Olson, 392 N.W.2d 338, 341 (Minn. App. 1986) (observing that showing of actual prejudice is required after commencement of proceedings).  We employ an abuse-of-discretion standard on the issue of whether the district court judge should have honored the removal request.

Marcolina offers no evidence of the judge's personal interest or prejudice relating to the case.  Instead, he points to courtroom dialogue during the September 2003 hearing.  He asserts that the judge depicted him as angry and argumentative and that this characterization demonstrates bias.  But a judge may properly form an opinion about a party's conduct and discuss the implications of that conduct on the case.  See Liteky v. United States, 510 U.S. 540, 550-51, 114 S. Ct. 1147, 1155 (1994) (noting that district court judge may "be exceedingly ill disposed towards" a party, but not recuse for bias when opinions were properly formed at trial because such opinions are sometimes "necessary to completion of the judge's task").

Marcolina further claims that the district court erred in refusing to grant him access to the audiotape of the proceeding, which he believes would illustrate the judge's bias by establishing that Marcolina's tone and conduct were reasonable.  Because the tape could not affect the outcome of this issue and because Marcolina had access to the transcript of the hearing, the district court's refusal to grant Marcolina access to it, even if error, was harmless.

Marcolina also asserts that the chief judge should have decided the issue of removal.  But the presiding judge first rules on a motion for his own removal, and, if that motion is denied, it "may subsequently be heard and reconsidered by the Chief Judge."  Minn. Gen. R. Pract. 106.  Notably, "[t]he rule does not require the party seeking removal to bring the motion for reconsideration before the chief judge; it merely permits that reconsideration."  Id. 1991 task force cmt.  Thus, after the denial of the motion for removal, the moving party has the option of seeking review by the chief judge.  Marcolina did not seek further review at the district court, and he cannot now claim that the absence of review by the chief judge mandates reversal.

VI

Collateral estoppel "bars the relitigation of issues which are both identical to those issues already litigated by the parties in a prior action and necessary and essential to the resulting judgment."  Clapper v. Budget Oil Co., 437 N.W.2d 722, 725 (Minn. App. 1989), review denied (Minn. June 9, 1989).  Collateral estoppel presents a mixed question of law and fact subject to de novo review.  Falgren v. State, Bd. of Teaching, 545 N.W.2d 901, 905 (Minn. 1996).  Law of the case, another form of preclusion, "is a discretionary doctrine developed by the appellate courts to effectuate the finality of appellate decisions."  Loo v. Loo, 520 N.W.2d 740, 744 n.1 (Minn. 1994).  Although no form of preclusion may technically be available in a dissolution action in the district court, both because of the absence of a final judgment and lack of a prior decision in a related case, "the underlying principle that an adjudication on the merits of an issue is conclusive, and should not be relitigated, clearly applies."  Id. at 743-44.

Marcolina frames his motion about the parent-teacher conferences as a motion to establish guidelines for some possible future attempt to modify visitation or custody.  Nonetheless, the issue is essentially the same.  The district court indicated previously that the consideration for deciding whether to permit Marcolina to attend the conferences was whether it would be in the children's best interests and that Marcolina has the burden of offering proof that his participation would be in their best interests.  The court has therefore provided the guideline, and Marcolina's request is duplicative.  In the absence of any changed circumstances, this renewed request for a partial determination of the issue of attending the conferences is the same as Marcolina's previous motions.

The district court decided the issue in its March 2001 order and explicitly denied Marcolina access to parent-teacher conferences because his disruptive behavior at school was not in the best interests of the children.  We affirmed the order in an unpublished opinion in December 2001.  Geske v. Marcolina, 2001 WL 1609062 (Minn. App. Dec. 18, 2001). 

Thus the issue is precluded from redetermination because this court already addressed the argument on appeal, law of the case precludes raising the issue after an appellate decision, and the principles of preclusion bar the redecision in the absence of changed circumstances.

Marcolina understandably seeks to be involved in his children's lives and has become frustrated with the restrictions placed on his involvement.  But he cannot evade past requirements by repetitively raising challenges; we are required to adhere to well-established rules of judicial process.  Marcolina may, within appropriate limits, move for review and provide evidence of changed circumstances that would demonstrate that his participation in the conferences would be in the best interests of the children.  If he cannot do so, he should not bring repeated motions on the same facts to cover the same issues.  See Loo, 520 N.W.2d at 743 (observing that party may move for modification based on changed circumstances without raising issue of preclusion).  Marcolina may seek appropriate judicial review of evolving facts if he can meet his evidentiary and procedural burdens on the designated issues.

VII

A district court may impose attorneys' fees when a litigant unreasonably contributes to the length or expense of the proceeding.  Minn. Stat. § 518.14, subd. 1 (2004).  The decision to impose attorneys' fees is almost entirely within the discretion of the district court, and we will not disturb the decision absent an abuse of discretion.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).

            Because the district court properly determined that Marcolina's argument about the parent-teacher conferences is precluded, it did not abuse its discretion by requiring him to pay $300 in attorneys' fees.  The district court found that Marcolina unreasonably contributed to the length and expense of the proceeding by raising the same issue that had previously been decided in two district court orders and by this court on appeal.  Given the deferential standard of review and the evident lack of regard for the district court's time, the imposition of conduct-based attorneys' fees is not an abuse of discretion. 

            Affirmed.