In re the Marriage of: Janelle Rozalind Spah, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1127

In re the Marriage of:
Janelle Rozalind Spah, petitioner,
Appellant,

vs.

Steven Phillip Spah,
Respondent.

Filed May 1, 2017
Affirmed; motion granted in part
Cleary, Chief Judge

Anoka County District Court
File No. 02-FA-14-213

Janelle Rozalind Spah, Elk River, Minnesota (pro se appellant)

Paul P. Sarratori, Mesenbourg & Sarratori Law Offices, P.A., Coon Rapids, Minnesota (for
respondent)

Considered and decided by Bjorkman, Pr esiding Judge; Cleary, Chief Judge; and
Peterson, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
After a court trial, the district court aw arded custody of the parties’ minor children
to respondent-father. Appellant-mother argues that the district court denied her the right
to equal legal representation, erred in its cu stody determination, failed to serve process to
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a corporation and a trust whose interests were affected by the dissolution, and violated the
judicial code of conduct by failing to inform the parties of its potential bias. Because we
conclude that appellant was not entitled to equal legal representation, the district court did
not abuse its discretion in awarding custody to respondent, appella nt did not properly
preserve and raise the service of process issue, and there was no reason to doubt the district
court’s impartiality, we affirm.
FACTS
Appellant-mother Janelle Rozalind Spah ma rried respondent-father Steven Phillip
Spah in 1992. The parties have three children: a son born in 1996 (adult son), a son born
in 1998 (minor son), and a daughter born in 2003 (minor daughter).
In September 2013, appellant filed a petition for an order for protection (OFP)
against respondent, and the couple reached a settlement by which respondent consented to
the entry of an OFP (OFP I) without a finding of domestic abuse. OFP I granted appellant
temporary custody of the children and temporary use and possession of the couple’s home.
Appellant later moved to modify OFP I, an d on January 28, 2014, respondent filed a
petition for an OFP against appellant on behalf of the three children, alleging that appellant
had physically assaulted minor son and the other children witnessed the assault. The same
day, appellant commenced a dissolution action by serving a pe tition for divorce on
respondent.
In March 2014, the district court held a consolidated hearing to address both OFP
files and found that appellant had engaged in domestic abuse against minor son on two
occasions. The district court awarded temporary custody of the children and possession of
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the home to respondent and gr anted an OFP (OFP II) restri cting appellant from having
unsupervised contact with minor son. OFP I remained in place.
The district court later entered an order in the dissolution proceeding including the
same temporary-custody and home-possession te rms, explicitly providing for supervised
parenting time between appellant and adult son and minor daughter, and requiring that the
first two supervised visits be at a child safety center. Appellant claimed at an August 2014
review hearing that she could no t afford to pay the fees at the child safety center, and the
court accordingly ordered respondent to sell an older vehicle and deposit the proceeds of
the sale with the child safety center to cover the costs, and ordered appellant to participate
in supervised parenting time.
Both parties were unrepresented at the two- day court trial. In addition to their own
testimony, respondent offered testimony of the guardian ad litem, and appellant offered
testimony by her business associate. Trial testimony relevant to this appeal focused on two
issues: the custody determination and the ownership of a small business.
On the custody issue, the guardian ad litem testified about factors relating to each
parent. She testified that she was conc erned with appellant’s “inconsistency and
instability,” and that sometimes appellant soun ds like “two different people that would
switch back and forth rapidly.” According to the guardian ad litem, the children reported
that, before respondent moved out of the ho me, appellant’s outbursts were directed at
respondent, but after respondent moved out of the home pursu ant to OFP I, the outbursts
were directed toward the children. The guardian ad litem test ified that when the children
lived with appellant, both sons seemed “generally concerned about what was happening in
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their home” and told the guardia n ad litem that appellant hits , yells, kicks, and throws
things. On one occasion, appellant refused to feed minor son. Resp ondent testified that
the family had kept a ppellant’s “dirty little secrets” by not reporting her abuse earlier.
According to the guardian ad litem, minor daughter was nonchalant about appellant’s
outbursts, though she told the guardian ad litem that appellant yelled every day when they
had lived together, and had not visited minor daughter for s upervised parenting time.
Appellant testified that she did not take ad vantage of supervised parenting time because
she was concerned about bringing minor daughter into the environment of the child safety
center. She also testified that all allegations of her abuse were false, and that the children
lied to the guardian ad litem.
The guardian ad litem testified that the children want respondent to retain custody,
but minor daughter wants to be able to visit w ith appellant. She tes tified that respondent
encourages minor daughter to stay in contact with appellant . Appellant testified that
respondent should not be given custody because he is an abusive alcoholic, but the guardian
ad litem testified that she did not find any evidence supporting this claim. The guardian ad
litem ultimately recommended that respondent be granted sole legal and sole physical
custody.
The parties also litigated extensively over ownership and control of 33 shares of a
business. The business, known as Bella Extensions, but inco rporated in Wyoming as JR
Gatsby LLC, is an online hair ex tension business. Appellant’s business associate, who is
also a part-owner of JR Gatsby, testified that the JR Gatsby shares are valueless. He also
testified that one of the district court’s pretri al orders, which directed that the contents of
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the company’s PayPal account be placed in to an attorney trust account pending the
outcome of the divorce proceeding, “cause[d] concerns to the other owners that their assets
could [be determined to be] part of [respondent’s].”
The district court entered a judgment dissolving the marriage. The judgment
awarded custody of the minor children to re spondent and awarded appellant supervised
parenting time with minor daughter and with minor son1 at his discretion. The district court
also divided the parties’ real and personal property, awarding appellant “all right, title, and
interest in the 33 shares of JR Gatsby, LLC” and the funds in the business’s PayPal account.
Appellant later made a motion for amende d findings or a new trial, which was
granted in part relating to issues not disputed in this appeal. The district court held a
subsequent hearing to consider the divisi on of personal property and issued another
amended order.
This appeal follows.
D E C I S I O N
I. Respondent’s Motion to Strike Appellant’s Reply Brief
While this appeal was pending, respondent filed a motion to strike appellant’s reply
brief, arguing that it is “not confined to new matters raised in the brief of the respondent as
required.” We deferred a ruling on this mo tion until consideration of this case on the
merits, and therefore address it now. “If an argument is raised in a reply brief but not raised

1 We note that minor son is now an adult, a nd therefore the custody order as it relates to
him is no longer in effect. We therefore address only custody of minor daughter, who is
still a minor.
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in an appellant’s main brief, and it exceeds th e scope of the respondent’s brief, it is not
properly before this court and may be stricken from the reply brief.” Wood v. Diamonds
Sports Bar & Grill, Inc., 654 N.W.2d 704, 707 (Minn. App. 2002), review denied (Minn.
Feb. 26, 2003); see Minn. R. Civ. App. P. 128.02, subd. 3 (stating that any reply brief “must
be confined to new matter raised in the brief of the respondent”). However, we may address
a newly raised issue “in the interest of justice.” Timeline, LLC v. Williams Holdings No. 3,
LLC, 698 N.W.2d 181, 186 (Minn. App. 2005), review denied (Minn. Aug. 24, 2005); see
Minn. R. Civ. App. P. 103.04 (addressing the scope of review on appeal).
While appellant’s reply brief addresses a nd clarifies some issues raised in her
principal brief, it also raises new issues and factual allegations, many of which were neither
raised to the district court nor raised in appellant’s principal brief. Accordingly, we grant
respondent’s motion to strike as to the new arguments raised by appellant, and we deny the
motion as to the brief’s clarific ation of issues raised in appe llant’s principal brief. In
deciding this appeal, we consider appellant’s reply brief only to the extent that it addresses
previously raised issues and do not consider newly raised issues.
II. Equal Legal Representation
Appellant argues that the district cour t erred in denying her “the right to
representation when it knew sh e was incapable of properly re presenting herself.” Both
parties were represented by counsel during a portion of the pretrial proceedings, but both
were self-represented at tria l because they could not afford representation. Appellant
argues that one of her attorneys was ineffec tive, that respondent received more legal
assistance than she did, and th at despite the fact that she was not capable of representing
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herself, her “numerous requests to the trial court for equal access to marital assets in order
to obtain equal representation,” were “continually denied.”
Appellant’s argument is flawed for many re asons. Parties to a martial dissolution
have no right to court-appointed counsel, much less “equal” representation. Reed v. Albaaj,
723 N.W.2d 50, 56 (Minn. App. 2006). Fu rther, we note that respondent was also
unrepresented at trial, and we are not convinced by appellant ’s argument that the parties’
pretrial representation was unequal because respondent was represented for a longer period
of time. This record does not support appella nt’s argument that he r former attorney was
incompetent; it certainly does not support her allegation th at her former attorney’s status
as a victim in a case which the district court judge had previously presided over “drastically
interfered with [the attorney’s] ability to properly represent her.”
Additionally, contrary to a ppellant’s claims that her requests for access to funds
were all denied, the district court ordered respondent’s pension fund to allow a hardship
withdrawal so that both parties could hire attorneys. However, the record reflects that the
pension company refused to release the funds. The record does not suggest that appellant
challenged the pension company’s decision, or requested money for an attorney again.
Accordingly, appellant is not entitled to reversal on this ground.
III. Custody Determination
Appellant argues that the district cour t should not have awarded custody to
respondent. “Appellate review of custody de terminations is limited to whether the trial
court abused its discretion by making find ings unsupported by the evidence or by
improperly applying the law.” Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). We
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defer to the district court’s credibility determinations. In re Welfare of Child of J.K.T., 814
N.W.2d 76, 90 (Minn. App. 2012).
Custody determinations must be suppor ted by “detailed findings” on the best
interests of the child according to the enumerated statutory f actors. Minn. Stat. § 518.17,
subd. 1 (2014). These factors take into acco unt the child’s wishes, the wishes of each
parent, the relationships between the childre n and with each parent, the child’s cultural
background and health, the mental and physical health of the parents, the child’s interest
in stability, the place of the home and commun ity in the child’s life, each parent’s
willingness to encourage contact with the other parent, the e ffect of any domestic abuse,
and each parent’s capacity to “give the child love, affection, and guidance.” Id.2
In this case, the district court made deta iled findings on the statutory best-interests
factors. Finding that both parents wanted sole custody of the children, the children have a
strong relationship with each other, both minor children want respondent to have custody,
appellant has had a violent relationship with minor son and failed to visit her daughter,
respondent has a positive relationship with both minor children, the children’s adjustment
to their home and community has improved since respondent has had custody, the children
have an interest in a stable environment, appellant’s “unpredictable and volatile behavior
is a significant risk to the children,” and re spondent has complied with court orders and
appellant has not, the district court concluded that it was in the best interests of the children
that respondent receive sole custody.

2 The statutory best-interests factors were amended after the trial. See Minn. Stat. § 518.17,
subd. 1 (2016). However, we apply the factors in effect at the time of trial.
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Appellant raises several con cerns regarding the district court’s findings leading to
the custody determination, but mainly focuses on her argument that “[b]y placing minor
children in the sole custody of [respondent] the trial court has put them in the care of an
abuser who uses alcohol to treat a chronic head condition.” We construe appellant’s
arguments as challenging the district court’s fi ndings that respondent is not addicted to
alcohol or physically abusive and that the children are faring well in respondent’s custody.
In its analysis of the mental and chemical health of the parties, the district court
acknowledged appellant’s argument that re spondent has an alc ohol addiction, but
concluded “there is little ev idence to support that alle gation,” citing a chemical-
dependency evaluation, the testimony of the guardian ad litem, and the guardian ad litem’s
testimony that the children ha d not perceived of respondent having an alcohol problem.
The district court noted that the only eviden ce of a potential alcohol problem, aside from
appellant’s own testimony, was a police report suggesting respondent smelled of alcohol.
The record supports the district court’s finding. The district court also found that, though
there was evidence that appellant had abused minor son, there was su fficient evidence to
find that respondent abused neither the childre n nor appellant. In so finding, the district
court explicitly found that appellant’s test imony regarding responde nt’s abuse was not
credible. Because appellant’s testimony and out-of-court statements to her business
associate and to the police were the only evidence of respondent’s alleged abuse, and the
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district court found appellant to be not credible, we conclude that the district court did not
err in finding appellant’s allegations of abuse are not supported by the record.3
Appellant also argues that the district court erred when it found that the children are
faring well in father’s custody. According to appellant, the children’s grades are dropping,
they are missing school, they complain about their lives on social media, and a tanning bed
has been moved into the family home. To the extent that these concerns were raised, the
district court addressed them, saying, “[Appellant] asserted that there have been significant
behavioral issues concerning the children at school. However, there was no credible
evidence introduced to support th at assertion. [Appellant’s] a ssertions in this regard are
given little weight because she has had minimal contact with the children in the past year.”
The only evidence of the children’s well-being that appellant presented at trial, aside from
her own testimony, was an email exchange be tween appellant and a school administrator
documenting a planned meeting between appellant and the administrator. Accordingly, the
record supports the district court’s finding relating to appellant’s argument.
Appellant argues in the alternative that the district court’s order that parenting time
with minor daughter must occu r in a supervised environment was improper. Appellant
argues that because OFP II only concerns minor son, the di strict court had no reason to

3 Similarly, appellant argues on appeal that respondent lied to the district court and
manipulated the children to lie about appellant’s abuse. The district court found appellant’s
testimony that the children “were lying to th e Guardian or coached by [respondent] to be
not credible. [Appellant’s] testimony indi cates a lack of self-awareness and an
unwillingness to accept responsibility for her actions.” Appellant’s allegations that various
witnesses lied to the district court ask this court to ques tion the district court’s credibility
determinations, which we will not do.

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require that parenting time with minor da ughter be supervised. However, “[a]ppellate
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.” Suleski v. Rupe , 855 N.W.2d 330, 334 (Min n. App. 2014) (citation
omitted). The district court did not state th at its decision was based on OFP II, and we
conclude that the district c ourt could have reached its conclusion base d entirely on facts
relating to appellant’s conduct, without relyi ng on the existence of OFP II. The district
court found that respondent credibly testified that appellant has “difficulty regulating her
emotions and acts out violently when angered,” the children “mentioned multiple specific
incidents of violence” involving appellant, the children are “fearful of her erratic and
sometimes abusive behavior,” a nd her behavior is “a significa nt risk to the children.”
Appellant does not point to anything in the record contradicting these factual findings
except her own testimony, which the district court found to be not credible. Accordingly,
we conclude that the district court’s fact ual findings adequately support its award of
supervised parenting time.
IV. Failure to Serve Bella Extensions
Appellant next argues that the district court erred when it filed orders related to Bella
Extensions without serving process on the corporation. The district court twice implicated
the corporation in its orders. Prior to trial, when PayPal refused to release funds belonging
to the corporation to either appellant or respondent, the district court, at the parties’ request,
found “that any assets, revenues, profits , inventory or equipment owned by Bella
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Extensions are potentially marital assets,” and ordered PayPal to release “any funds
associated with Bella Extensions” to appellant’s then-attorney, pending the outcome of the
dissolution. Second, the dist rict court made findings at and after trial regarding the
ownership of the family’s undisputedly valueless shares in JR Gatsby. While respondent
argued that adult son owned the shares, appellant argued she owned the shares. The district
court concluded that adult son, a nonparty, could not be awarded property in the marriage
dissolution, and therefore awarded the shares to appellant because she was more involved
in the business than respondent. The district court also awarded the contents of the PayPal
account to appellant.
The corporation was never served process in this matter. Appellant raised the lack-
of-service issue on the first day of trial, and the district court stated that the company need
not be served because:
The only thing I’m determining is the interest of the business
between the two of you.

. . . .

. . . My only determination that I’m making here today
is to what extent, if any, is th is business a marital asset and to
what extent, if any, do either pa rty have an interest in this
marital asset and what’s its value.

Appellant cites no authority to support the proposition that a corporation must be notified
that shares of ownership are be ing distributed in a divorce, nor are we aware of any such
authority. Moreover, appellant, who claims to be the rightful owner of the shares, received
them in the dissolution. We find no error in the district court’s awarding the shares without
notifying the corporation prior to trial.
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Appellant also argues that the district court should have served the corporation
before it “rul[ed] to freeze the assets of JR Gatsby LLC in their entirety and place them in
a trust account.” The record establishes that the district court, at appellant’s request,
ordered that the contents of a PayPal account, apparently that of the corporation, be held
pending the outcome of the litigation. Even if the district court erred by ordering a freeze
of the corporation’s PayPal account, appellant may not raise this issue on behalf of the
corporation. Appellant is a party to this proc eeding in her individual capacity rather than
as a representative of the corporation. Though appellant, as an officer of the corporation,
can make statements or decisions on behalf of the corporation, she cannot make arguments
on its behalf in a court of law without enga ging in the unauthorized practice of law. 301
Clifton Place L.L.C. v. 30 1 Clifton Place Condo Ass’n , 783 N.W.2d 551, 560-61 (Minn.
App. 2010). Accordingly, we need not address this issue.4
V. Failure to Serve P.M.C.M. Trust
Appellant also contends that the district court erred when it failed to serve the trust
that she alleges controls all of her assets. According to appellant, the P.M.C.M. trust was
created in 2008 for the purpose of documenting the alleged abusive behavior of respondent
and to “ensure that Appellant and her children would be able to have the necessities of life
given an emergency as a result of the Resp ondent’s abusive and controlling behavior.”

4 We note that the corporation itself did no t appeal from the order freezing the PayPal
account though it likely had a right to do so. See In re Marriage of Sammons, 642 N.W.2d
450, 456 (Minn. App. 2002) (noting that a nonparty may appeal from a judgment adversely
affecting his or her rights). The corpora tion attempted, through appellant’s business
associate, to intervene on appeal, but the busi ness associate is not an attorney and cannot
represent the corporation.
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Appellant claims that the trust became the owne r of all of her property in 2013, and that
the trust therefore had a right to notification regarding the claims on her property in this
dissolution. Appellant claims that notice was never given and that the district court
“brushed aside” appellant’s mentions of the trust, but she cites to nothing in the record to
support these contentions. The only referenc e to a trust in the record was made during
appellant’s testimony. Immedi ately after her reference to a trust, the district court
requested documentation of the existence of the trust. Ap pellant refused to provide
documentation, claiming the trust was private. Because the trust issue was not sufficiently
raised to create a record on the issue, we do not address it on appeal.
VI. Judicial Disqualification
Appellant argues that the district court j udge violated rule 2.11 of the Minnesota
Judicial Code of Conduct when he failed to disqualify himself from the dissolution
proceeding. Appellant argues that the judg e was biased because he “presided over a
hearing in which he sentenced an individua l to 200 months in prison for stabbing
[appellant’s former attorney] over 25 times.” Respondent argues that if anything, this
“would have benefited the Appe llant,” but appellant clarified in her reply brief that she
believes that the judge was biased against her because he “believed [she] was trying to gain
an advantage in the dissolution by choosing” that specific attorney.
Rule 2.11 states that “[a] judge shall dis qualify himself . . . in any proceeding in
which the judge’s impartiality might reasonably be questioned.” Minn. Code Jud. Conduct
Rule 2.11(A). “A judge’s impartiality is reasonably qu estioned when a reasonable
examiner, with full knowledge of the facts and circumstances, would question the judge’s
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impartiality.” State v. Cleary , 882 N.W.2d 899, 904 (Minn. App. 2016) (quotation
omitted). “Whether a judge viol ated the code of judicial conduct is a question of law,
which we review de novo.” State v. Hicks, 837 N.W.2d 51, 58 (Minn. App. 2013), aff’d
on other grounds, 864 N.W.2d 153 (Minn. 2015).
Assuming without deciding that a ppellant’s allegations are true, 5 we cannot
understand why any reasonable person would question the impartiality of this district court
judge. Accordingly, we find no error in the district cour t judge’s refusal to disqualify
himself.
However, appellant argues that the judge e rred not only in failing to recuse himself,
but in failing to inform the parties of his in volvement in the case in which appellant’s
attorney had been a victim. Comment 5 to rule 2.11 states that “[a] judge should disclose
on the record information th at the judge believes the par ties or their lawyers might
reasonably consider relevant to a possible motion for disqualification.” However, the
Minnesota Supreme Court has stated that “the use of the word ‘should ’ indicates that the
comment is not mandatory.” In re Jacobs , 802 N.W.2d 748, 754 (Minn. 2011).

5 On this record, it is difficult to determine the veracity of appellant’s assertions. It appears
that appellant did not raise this concern at the district court until after the trial had occurred,
and long after her former counsel had stopped working on the case, when she filed a motion
to remove the judge, which the judge denied. There was apparently a hearing on this
matter, but appellant did not provide a transcript of this hearing. Later, during the hearing
on division of personal property, appellant again raised the is sue, asking the judge if he
should have disclosed any information to the parties pursuant to Minn. Code Jud. Conduct
Rule 2.11 cmt. 5. The j udge did not answer her question, and continued with the
questioning about the personal property.
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Accordingly, the district court judge did not ha ve a duty to inform the parties that he had
previously sentenced a defendant who had stabbed appellant’s former attorney.
Affirmed; motion granted in part.