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

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0362

Donna Jean Sjolander
f/k/a Donna Jean Carlson, petitioner,
Respondent,

vs.

Steven Gary Carlson,
Appellant.

Filed April 11, 2016
Affirmed in part, reversed in part, and remanded
Schellhas, Judge

Clay County District Court
File No. 14-F9-07-001060

Melinda Hanson Weerts, Melinda Weerts Law, PLLC, Fargo, North Dakota (for
respondent)

Susan L. Ellison, Ohnstad Twichell, P.C., West Fargo, North Dakota (for appellant)

Laurie Christianson, Moorhead, Minnesota (guardian ad litem)

Considered and decided by Schellhas, Presiding Judge; Johnson, Judge; and Smith,

John, Judge.*

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 UNPUBLISHED OPINION

SCHELLHAS, Judge

In this parenting-time dispute, appellant-father contends that the district court erred

by failing to sanction respondent-mother for her contempt of court and by terminating his

court-ordered parenting time with the parties’ two minor children. Respondent-mother

filed a notice of related appeal to challenge the district court’s contempt finding. We affirm

the contempt finding, but we conclude that the district court abused its discretion by not

sanctioning respondent-mother for her contempt and by terminating appellant-father’s

parenting time. We therefore reverse and remand to the district court for further

proceedings.

FACTS

Appellant-father Steven Gary Carlson and respondent-mother Donna Jean

Sjolander, f/k/a Donna Jean Carlson, are the parents of two minor daughters, S.O.C., born

in April 2000, and L.K.C., born in December 2001, and one now-adult daughter, S.E.C.,

born in December 1994. In 2009, the district court dissolved the parties’ marriage by partial

decree and granted father temporary supervised parenting time.1 The court subsequently

terminated father’s supervised visitation due to his conduct during the visits and ordered

father to engage in family therapy with S.E.C., S.O.C., and L.K.C.2

1
At the time of the dissolution, an order for protection was in effect against father for the
protection of mother and the children.
2
The district court subsequently terminated the family-therapy order with respect to S.E.C.
for lack of benefit.

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 In 2010, the district court entered an amended dissolution judgment and granted

mother sole legal and physical custody of S.E.C., S.O.C., and L.K.C. The court found that

“unrestricted parenting time [for father] w[ould] endanger the children’s physical or

emotional health or development” and continued the order for family therapy between

father and S.O.C. and L.K.C. (the children), with the goal to “mend [father’s] relationships

with [the] children and move forward towards unrestricted parenting time.” But the family

therapy ceased due to a deterioration of father’s mental health and a lack of cooperation by

mother and the children.

In 2012, the district court appointed a guardian ad litem (GAL) for the children and

ordered psychological evaluations of father and the children to determine the mental status

of father and the children and “the feasibility of beginning family reunification therapy.”

These psychological evaluations were not completed.

In January 2013, the GAL reported that father was participating in behavioral

therapy and recommended the commencement of efforts to reunify father and the children.

The GAL noted the children’s knowledge that their mother and S.E.C. did not want them

to see father and their belief that they would disappoint and anger their mother and S.E.C.

if they saw father. The GAL subsequently testified that the children wanted to see father

but believed that mother and S.E.C. “would be mad if they wanted to see him.” The district

court found that father “ha[d] undergone extensive therapy” and “made great strides” in

his mental health and that father’s exercise of parenting time with the children “[wa]s not

likely to endanger their physical or emotional health or impair their emotional

development.” The court ordered “[a] process of reunification between [father] and [the

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children], evolving into substantial parenting time, [to] begin forthwith” and instructed

mother to fully cooperate with the reunification process.

In May 2013, the GAL reported that no reunification progress between the children

and father had occurred because mother “ha[d] circumvented every effort to make

reunification possible.” The reunification therapist reported that the lack of reunification

progress was due in part “to the influence of mother’s strong negative reports regarding

[father],” mother’s repetition of “[r]ehearsed memories” about father’s behavior with the

children, and “[mother’s] adamancy in front of her daughters that it will ‘never be safe’ for

the girls to see [father].” Father asked the district court to find mother in contempt of court

for failing to cooperate with reunification therapy. The court declined to do so, stating that

“[a]though the Court strongly suspects that [mother] has been impeding the reunification

process, the Court cannot substantiate any overt act that would constitute contempt of

Court.” The court again ordered that a reunification process begin and that mother fully

cooperate with the process.

In the summer of 2013, reunification sessions between the children and father

began, and the reunification therapist “noted no evidence of fear or anxiety in [the children]

in the presence of their father,” that father “cooperated well with expectations of how he

should interact with his children,” and that “progress during sessions [wa]s moving slowly,

but still appear[ed] possible.” But that fall, reunification sessions ended because the

children refused to participate in the sessions. Father then moved the district court to

establish a supervised parenting-time schedule. At a December 2013 evidentiary hearing,

the reunification therapist opined that mother had tried to alienate the children from father,

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and the GAL testified that she never had experienced a case of “this intense alienation from

one parent towards the other.”

In January 2014, the district court found “that for the past several years, at least

since December 2011, [father] has not posed any threat to the welfare of his children, and

that no safety concerns have been evident since at least that time.” The court further found

that “[mother] ha[d] resisted, interfered with and sabotaged all attempts to therapeutically

reunite the children with their father” and “to allow [father] to enjoy a parenting

relationship with his children.” The court established a specific supervised parenting-time

schedule and ordered mother to cooperate with the schedule, including transportation of

the children to and from parenting-time visits. The court also ordered mother to “insist that

the children take part in the visits with their father”; “encourage the children to take part

in, and enjoy their time with their father” and “have a relationship with their father”;

“convey a positive attitude to the children regarding their father and the[] visits”; refrain

from “interrogat[ing] the children after the visits”; “cease and desist” from “mak[ing] any

disparaging or negative remarks about the Court’s Order, the parenting plan schedule, [the

parenting-time supervisor, father, or the GAL]”; and promptly pay half of the cost of the

parenting-time supervisor. The court cautioned mother that it would “seriously consider

permanently transferring the physical and legal custody of the children to [father], and

thereafter requiring all of [mother]’s parenting time be supervised,” if mother failed to

comply with the court’s order.

After several court-ordered visits, the parenting-time supervisor reported that the

children appeared to be sad, angry, and sometimes defiant during the visits; that S.O.C.

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continually accused father of past abuse; and that L.K.C. had not spoken one word to father

or maintained eye contact with him. But the parenting-time supervisor also noted that the

children did not appear “scared or threatened” during the visits, and she opined that the

visits did not pose any risk to the children’s safety; in fact, the supervisor suggested that

the duration of the visits be increased. After about one month, the visits ceased because the

children refused to attend the scheduled visits.

In February 2014, father moved the district court to find mother in contempt of court

by “failing to encourage the children to participate in the visitation,” “insist that the

children cooperate and take part in the visits,” “convey a positive attitude to the children

regarding their father and the visits,” “encourage the children to have a relationship with

their father,” “follow the Court’s directives in relation to visitation with [father],” and pay

half the cost of the parenting-time supervisor. Father proposed sanctions for mother’s

contempt that included payment of a civil penalty or bond, payment of father’s attorney

fees and costs, jail time, and redirection of father’s child-support payments to the parenting-

time supervisor. Mother moved the court to, among other things, vacate or modify the

parenting-time schedule. The court conducted evidentiary hearings between March and

May 2014.

In August 2014, the district court found mother in contempt of court for “her

consistent failure and refusal to comply with multiple orders of th[e] court to cooperate in

efforts to effect a reconciliation of the minor children . . . with their father, and her

consistent pattern of conduct designed to further alienate the children from their father.”

The court noted the testimony of the GAL and parenting-time supervisor regarding

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mother’s alienation of the children from father and mother’s “constant reinforcement” that

father had sexually abused S.O.C. and infected her with a sexually transmitted disease,

although medical records did not support the claim. But the court declined to sanction

mother for her contempt, stating that “any punishment which the court might impose upon

her, whether fine or imprisonment, would adversely affect the well-being of the minor

children, since there is no one else to care for them, and her financial situation is already

poor.” And the court found that the reconciliation efforts were having a “serious

detrimental effect” on the children, “creat[ing] and . . . exacerbate[ing] anxiety, stress and

depression in the [children],” and that the reconciliation efforts were not in the children’s

best interest. The court therefore terminated “[c]ourt-ordered efforts to effect reconciliation

between the minor children . . . with their father” and ordered father to “have no uninvited

contact with [the children] prior to their 18th birthdays.” Father moved for reconsideration,

and the court affirmed its order, stating that the August 2014 order “did not terminate or

restrict [father]’s parenting time” and “left parenting time wide open for [father], but only

upon the initiative of his daughters.”

This appeal follows.

DECISION

I.

“The district court’s decision to invoke its contempt powers is subject to reversal

for abuse of discretion.” In re Welfare of Children of J.B., 782 N.W.2d 535, 538 (Minn.

2010). An appellate court “will reverse the factual findings of a civil contempt order only

if [the] findings are clearly erroneous.” Id. (citing Minn. R. Civ. P. 52.01).

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 “Civil contempt is failing to obey a court order in favor of the opposing party in a

civil proceeding.” Newstrand v. Arend, 869 N.W.2d 681, 692 (Minn. App. 2015) (quotation

omitted), review denied (Minn. Dec. 15, 2015).

[A] civil contempt proceeding must meet the following
minimum requirements:
(1) the court has jurisdiction over the subject matter and the
person;
(2) a clear definition of the acts to be performed;
(3) notice of the acts to be performed and a reasonable time
within which to comply;
(4) an application by the party seeking enforcement giving
specific grounds for complaint;
(5) a hearing, after due notice, to give the nonperforming party
an opportunity to show compliance or the reasons for failure;
(6) a formal determination by the court of failure to comply
and, if so, whether conditional confinement will aid
compliance;
(7) an opportunity for the nonperforming party to show
inability to comply despite a good faith effort; and
(8) the contemnor’s ability to gain release through compliance
or a good faith effort to comply.

Mower Cty. Human Servs. ex rel. Swancutt v. Swancutt, 551 N.W.2d 219, 223 (Minn. 1996)

(citing Hopp v. Hopp, 279 Minn. 170, 174–75, 156 N.W.2d 212, 216–17 (1968)).

Finding of contempt

Mother challenges the district court’s finding of contempt, arguing that the record

lacks “a clear order defining what actions the court required of her” and “evidence and

particular findings as to conduct violating said order.” Mother’s argument is unavailing.

The court’s January 2014 order required mother to cooperate with the parenting-time

schedule; transport the children to and from parenting-time visits; “insist that the children

take part in the visits with their father”; “encourage the children to take part in, and enjoy

8
their time with their father” and “have a relationship with their father”; “convey a positive

attitude to the children regarding their father and the[] visits”; refrain from “interrogat[ing]

the children after the visits”; “cease and desist” from “mak[ing] any disparaging or negative

remarks about the Court’s Order, the parenting plan schedule, [the parenting-time

supervisor, father, or the GAL]”; and promptly pay half the cost of the parenting-time

supervisor. The record reflects that the court did not clearly err in finding that mother

violated several parts of the January 2014 order. After S.O.C. ended her first visit with

father early, mother neither encouraged S.O.C. to continue the visit nor insisted—or

attempted to insist—that S.O.C. cooperate; in fact, S.O.C. left with mother. L.K.C. refused

to participate in any visit with father. In the children’s presence, mother told the parenting-

time supervisor that the visits constituted child abuse. Mother bought the children tape

recorders to wear during their visits with father and had S.E.C. transcribe the recordings

“to use . . . as evidence.” Mother made no court-ordered payments to the parenting-time

supervisor.

The record supports the district court’s finding that mother violated the January

2014 order by consistently refusing “to cooperate in efforts to effect a reconciliation of the

minor children . . . with their father” and by engaging in a “consistent pattern of conduct

designed to further alienate the children from their father.” The court did not abuse its

discretion by finding mother in contempt.

Sanction for contempt

Father argues that the district court abused its discretion by declining to sanction

mother for her contempt. “In exercising civil contempt powers in divorce cases, the only

9
objective is to secure compliance with an order presumed to be reasonable. Punishment for

past misconduct is not involved; that is a field reserved to criminal proceedings of which

criminal contempt is one example.” Hopp, 279 Minn. at 173, 156 N.W.2d at 216 (emphasis

omitted); see also Swancutt, 551 N.W.2d at 222 (stating that “[c]ivil contempt sanctions

are intended to operate in a prospective manner and are designed to compel future

compliance with a court order” (quotation omitted)). Father correctly points out that the

district court erred by focusing on the availability of an appropriate “punishment” for

mother’s civil contempt. We reverse the district court’s decision not to impose a contempt

sanction and remand for determination and imposition of an appropriate sanction or

sanctions to compel mother’s compliance with court orders and to identify conditions for

purging mother’s contempt. On remand the court shall consider all available contempt

remedies described by father in his March 12, 2014 response to mother’s counter-motions

in district court.

II.

“Appellate courts recognize that a district court has broad discretion to decide

parenting-time questions, and will not reverse a parenting-time decision unless the district

court abused its discretion by misapplying the law or by relying on findings of fact that are

not supported by the record.” Newstrand, 869 N.W.2d at 691 (quotation omitted). “A

district court’s findings of fact underlying a parenting-time decision will be upheld unless

they are clearly erroneous.” Id. (quotation omitted). “A finding is clearly erroneous if [an

appellate court is] left with the definite and firm conviction that the [district] court made a

mistake.” SooHoo v. Johnson, 731 N.W.2d 815, 825 (Minn. 2007).

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 The district court stated that its August 2014 order “did not terminate or restrict

[father]’s parenting time” because “[father] has not had parenting time since the parties

were divorced in January 2009.” But this statement is inconsistent with the court’s January

2014 order that established a “parenting time schedule.” On appeal, the parties agree that

the August 2014 order terminated father’s court-ordered parenting time.

“If modification would serve the best interests of the child, the court shall modify

. . . an order granting or denying parenting time, if the modification would not change the

child’s primary residence.” Minn. Stat. § 518.175, subd. 5(a) (2014); see also Hagen v.

Schirmers, 783 N.W.2d 212, 216 (Minn. App. 2010) (stating that child’s best interest is

ultimate concern in parenting-time dispute). “[T]he court may not restrict parenting time

unless it finds that: (1) parenting time is likely to endanger the child’s physical or emotional

health or impair the child’s emotional development; or (2) the parent has chronically and

unreasonably failed to comply with court-ordered parenting time.” Minn. Stat. § 518.175,

subd. 5(b) (2014); see also Dahl v. Dahl, 765 N.W.2d 118, 123–24 (Minn. App. 2009)

(stating that “[a] restriction occurs when a change to parenting time is substantial” and that

“[m]odifications are less substantial changes in parenting time” (quotations omitted)).

Here, the district court substantially changed and restricted father’s parenting time by

terminating his court-ordered parenting time entirely. We consider whether the court

abused its discretion by restricting father’s parenting time.

“[A] party must demonstrate a significant degree of danger” to establish

endangerment to a child. Goldman v. Greenwood, 748 N.W.2d 279, 285 (Minn. 2008)

(quotation omitted) (discussing child endangerment in context of custody modification).

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“[A] complete, contingent or temporary denial of visitation is a grave matter and warranted

only by endangerment of a child’s physical or emotional health or development.” D.A.H.

v. G.A.H., 371 N.W.2d 1, 4 (Minn. App. 1985), review denied (Minn. Sept. 19, 1985); see

also Young v. Young, 370 N.W.2d 57, 64–65 (Minn. App. 1985) (stating that “[w]ith the

exception of total termination of parental rights or permanent suspension of visitation,

[temporary suspension of visitation] is the harshest sanction which can be imposed upon a

parent and upon a child” and reversing temporary suspension of mother’s visitation as

unjustified by record), review denied (Minn. Sept. 13, 1985).

The record does not support the district court’s finding that father’s parenting time

endangers the children’s emotional health. As above noted, in early 2013, the court found

that father had participated in “extensive therapy,” that parenting time was “not likely to

endanger [the children’s] physical or emotional health or impair their emotional

development,” and that “reunification . . . evolving into substantial parenting time” was

appropriate. And in January 2014, the court found that “there is no credible evidence in the

record that [father] is presently a threat or a safety concern to his children,” that “at least

since December 2011, [father] has not posed any threat to the welfare of his children, and

that no safety concerns have been evident since at least that time.” The parenting-time

supervisor testified that father created a safe and welcoming environment for his visits with

the children in the home that he shares with his parents and that the children were

repeatedly reassured that they were safe. Father exhibited patience with the children,

attempting to redirect S.O.C. when she made accusations against him and reading to L.K.C.

despite her refusal to interact with him. The supervisor reported that father was “consistent

12
in his attempts to interact” with the children despite the “very tense environment” and that

he “frequently t[old] each of them how much he loves them and how grateful he is to see

them again.” She reported that the children did not appear scared or threatened during the

visits, recommended that the supervised visits continue, and suggested that the duration of

the visits be increased.

The district court found that mother had emotionally damaged the children. This

finding is supported by the record and is not clearly erroneous. While the children

experienced stress and anxiety leading up to and during their visits with father, the record

establishes that this was due to mother’s negative influence on the children and her

consistent efforts to alienate them from father. Noting the GAL and parenting-time

supervisor’s opinions that this case is “the worst case of parental alienation” they have

encountered, the court found that mother “has done cruel and egregious harm to her

children—harm which will affect their outlooks on life and the world, and will likely cause

them problems with relationships throughout their lives.” Mother’s “consistent pattern of

conduct designed to . . . alienate the children from their father” is unacceptable. See Lemcke

v. Lemcke, 623 N.W.2d 916, 919–20 (Minn. App. 2001) (“A majority of courts, including

Minnesota courts, agrees that a sustained course of conduct by one parent designed to

diminish a child’s relationship with the other parent is unacceptable and may be grounds

for denying or modifying custody.” (citing Henrikson v. Henrikson, 288 Minn. 532, 532–

33, 179 N.W.2d 284, 285 (1970))), review denied (Minn. June 19, 2001).

On this record, we are left with the definite and firm conviction that the district court

clearly erred by finding that parenting time with father endangers the children’s emotional

13
health. We conclude that the court abused its discretion by terminating father’s court-

ordered parenting time. We therefore reverse the termination of father’s parenting time,

remand for reinstatement of the parenting-time schedule established in the January 2014

order, and direct the district court to revisit father’s request for compensatory parenting

time. Although we recognize the court’s broad discretion regarding the establishment of

parenting time, we strongly suggest that transportation related to the children’s parenting

time with father not be provided by mother. We also suggest that the court maintain

continuity of professionals involved in the case to the extent that the GAL and other

professionals are willing and available.

Affirmed in part, reversed in part, and remanded.

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