In re the Matter of:

This opinion will be unpublished and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
A16-1809

In re the Matter of:

Sari Rae Sheeley, n/k/a Sari Rae Moen, petitioner,
Respondent,

vs.

James Harvey Sheeley,
Appellant.

Filed July 24, 2017
Reversed and remanded
Schellhas, Judge

Anoka County District Court
File No. 02-F7-04-004409

Terri A. Melcher, Fridley, Minnesota (for respondent)

Robert A. Manson, Robert A. Manson, P.A., White Bear Lake, Minnesota (for appellant)

Considered and decided by Bratvold, Pres iding Judge; Schellhas, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
In this parenting-time dispute, appellant-father argues that the district court abused
its discretion by denying his motion for reunification therap y with his youngest child

2
without making best-interest findings and that the court was biased against him. We reverse
and remand for proceedings not inconsistent with this opinion.
FACTS
Appellant James Sheeley (father) and resp ondent Sari Moen, f/k/a Sari Sheeley,
(mother) are the parents of four children. J.S. is the youngest of the parties’ children and
the only child at issue in this appeal. Father and mother were married in 1990 and resided
together with their children until October 31, 2003, when fath er left the home. J.S. was
born in November 2003, so father has never lived with J.S.
The district court dissolved the parties’ marriage on February 28, 2007, based on
the parties’ partial settlement agreement and after three days of trial on unresolved issues.
The court adopted the parties’ stipulation an d granted mother “permanent sole legal and
physical custody of the parties’ minor childr en, subject to [father]’s parenting time as set
forth in Conclusion of Law No. 3,” which states , in relevant part, that father “shall have
supervised parenting time with [J.S.] at Perspectives, at a minimum, for two hours every
two weeks.”1
Throughout 2008, the district court conducted multiple evidentiary and non-
evidentiary hearings in response to vari ous motions, including mother’s motion to
terminate father’s supervised parenting time with J.S. Father appeared pro se at these
hearings. On October 20, 2008, pending the c ourt’s issuance of an order on the motions,

1 Perspectives is a non-profit organization that, among other things, provides a parenting-
time program intended to facilitate visitation between children and non-custodial parents.
See PERSPECTIVES, http://www.perspectives-fa mily.org/programs/ (l ast visited July 17,
2017).

3
father informed the court by le tter that Perspectives had term inated its supervision of his
parenting time with J.S., then age four, beca use of J.S.’s refusal on three successive
occasions to attend scheduled parenting-time sessions. Father asked the court to delay
making a decision about his parenting time with J.S. until the court received an anticipated
follow-up letter from the director of Perspec tives. Father also asked the court to allow
reunification therapy so that he could continue to have a relationship with J.S.
On October 23, 2008, the Perspectives direct or sent a letter to the district court,
informing the court that J.S. had refused to attend three consecutive parenting-time sessions
with father in August and September of 2008; that prior to the three refused sessions, J.S.
had not resisted the parenting-time sessions; th at neither mother nor father had “behaved
at Perspectives . . . in any wa y that would have contributed to [J.S.]’s recent resistance”;
and that it appeared to the director that fath er’s parenting time with J.S. needed to be
“facilitated in [a] more therapeutic environment than Pe rspectives . . . [could] provide.”
The director advised the court that both mother and father were “in agreement that due to
[J.S.]’s behavior at Perspectives, a therapeu tic intervention [wa]s necessary.” Apparently
because both father’s and the Perspectives director’s letters were received by the court after
the close of the record, the court did not consider the letters.
On January 17, 2009, the district court issued 28 pages of findings of fact,
conclusions of law, and an order that, amon g other things, denied mother’s motion to
terminate father’s supervised parenting time with J.S. and co ncluded, “The best interests
of [J.S.] continue to be met by supervised visitation with [father] at Perspectives, allowing
an increase from two to three hours in durat ion at the recommendation and availability of

4
Perspectives pursuant to its ru les and policies.” But, as note d above, Perspectives was no
longer supervising father’s parenting time with J.S. Thereafter, the case was reassigned to
a different judge.
In March 2009, father moved pro se to reinstate his parenting time with J.S. and for
an order “[d]irecting that Therapist Kathleen Fischer of ACP or Therapist Sandra Johnson
of ACP be installed as therapis t, to facilitate the re-continua tion of visits between [father
and J.S.].” Father expressed concern abou t mother’s suspected non-adherence to a
provision in the court’s dissolution judgment that prohibits each parent from disparaging
the other in front of the childre n or attempting to influence the children to take sides. On
July 5, 2009, after non-evidentiary hearings on April 6 and June 2, the district court denied
father’s motion “to reinstate visitation.” The c ourt also noted that father had failed to pay
previous attorney-fee awards to mother and therefore ordered that “any future motions by
[father] require[d] the review and approval by the Court before a hearing [wa]s scheduled”
and stated that “the Court may condition any fu ture motions on the de posit of a bond or
cash to assure the payment of future awards of attorney fees.”
In June 2016, father moved the distri ct court to order the commencement of
reunification therapy between father and J.S. and order mother to “cooperate and help
facilitate the reunification process.”2 Father represented to the court that he would pay for
the reunification therapy. Mother opposed father’s motion and moved the court to, among

2 Father’s counsel conceded before the dist rict court and this court that reunification
therapy is functionally necessary before father can exercise his right to parenting time with
J.S., now age 13.

5
other things, deny father’s motion for reunification therapy. The court dismissed mother’s
motion without prejudice as untimely. After a non-evidentiary hearing on father’s motion,
the court denied the motion. Father appeals.
D E C I S I O N
I
Father argues that the district court abused its discretion by denying his motion for
reunification therapy without making best-int erest findings. We agree. We construe
father’s motion for reunifica tion therapy as a motion for assistance from the court to
exercise his court-ordered parenting time with J.S. “[A] district court has broad discretion
to decide parenting-time questions.” Suleski v. Rupe , 855 N.W.2d 330, 334 (Minn. App.
2014) (citing Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995)). We “will not reverse a
parenting-time decision unless the district cour t abused its discretion by misapplying the
law or by relying on findings of fact that are not supported by the record.” Id.
Modification of parenting time is genera lly governed by Minn. Stat. § 518.175,
subd. 5 (2016), which provides that any modi fication of parenting time must “serve the
best interests of the child.” Minn. Stat. § 518 .175, subd. 5(b). Minnesota Statutes section
518.18 (2016), sets forth the procedures that the district court must follow in modifying
parenting time. “Modifications [of parenting time] are less substantial changes in parenting
time.” Dahl v. Dahl , 765 N.W.2d 118, 124 (Minn. Ap p. 2009) (quotation omitted). “A
restriction [of parenting time] occurs when a change to pare nting time is substantial.” Id.
at 123 (quotation omitted). To determine whether an adju stment to parenting time

6
constitutes a modification or restriction, we must consider the amount of the reduction as
well as the reasons for the adjustment. Id. at 124.
Here, the district court’s January 17, 2009 order provides father with parenting time
as follows:
[Father] shall continue with supervised parenting time with
[J.S.] at Perspectives. [Father]’s parenting time may be two or
three hours in duration every two weeks, depending upon the
rules and procedures of Perspect ives. [Father] may take [J.S.]
off Perspectives’ grounds only if [the director of Perspectives]
is willing to allow such off-gro unds parenting time and [J.S.]
and [father] are accompanied by [the director]. If [the director]
is unwilling or unable to acco mpany [father] and [J.S.] off-
grounds, then no off-grounds parenting time shall occur.

Father has not had parenting time with J.S. si nce 2008 when J.S., then four years old,
refused to attend scheduled supe rvised parenting time. In 2 016, J.S. submitted a letter to
the district court, stating that “[he] would absolutely refuse to see [father] again”; that “[he
is] old enough to make [his] own decisions and no one can tell [him] what to do”; and that
“[he is] in 7th grade and . . . not a little kid [and] no one will force [him] to see [father].”
Father maintains that without reunificatio n therapy he has no practical way to
exercise his parenting time with J.S. We agree. Given the ci rcumstances in this case, the
district court’s denial of father’s motion fo r reunification therapy restricts father’s court-
ordered parenting time with J.S. in such a wa y that it is tantamount to the elimination of
father’s parenting time. A court may not restrict parenting time unless “(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 chronica lly and unreasonably failed to comply with
court-ordered parenting time.” Minn. Stat. § 518.175, subd. 5(c).

7

The district court did not conduct an evid entiary hearing or make a finding under
Minn. Stat. § 518.175, subd. 5( c), to support the parenting-time restriction. By restricting
father’s parenting time after conducting only a non-evidentiary hear ing in response to
father’s motion, the district court did not comply with the requirement that an evidentiary
hearing be conducted before substa ntially modifying parenting time. See Suleski , 855
N.W.2d at 336 (“When the modification is substantial, an evid entiary hearing is
required.”). When a parenting-time restrict ion is tantamount to the elimination of
parenting-time, an evidentiary hearing is required.3
II
Father argues that the district court demonstrated judicial bias by the content of the
memorandum that accompanied its order, par ticularly the court’s comment questioning
father’s motivations. The court noted its “c oncerns about the true purpose of [father]’s
motion, largely based on [father]’s own affidavit.”
Judicial bias claims must first be raised in the district court. See Baskerville v.
Baskerville, 246 Minn. 496, 501, 75 N.W.2d 762, 766 (1956) (“A litigant who, in the
absence of fraud or other controlling circumst ance, elects to go to trial without taking
timely and appropriate action to disqualify a judge for bias waives his right to assert such

3 During oral argument, respondent’s counsel advised this court that remand is unnecessary
because, even if the district court erred, the court would not alter the original decision. We
are troubled by respondent’s counsel’s comment and anticipate that on remand the district
court will fully consider the law and the ev idence and will fulfill its duty to evaluate
whether restricting father’s parenting time is in J.S.’s best interests.

8
bias.”); see also Jones v. Jones, 242 Minn. 251, 262, 64 N. W.2d 508, 515 (1954) (stating
that the “fundamental right [to a fair and im partial judge] may be waived by failure to
seasonably assert it”). Because father did not raise his claim of judicial bias in the district
court, the issue is not properly before this court, and we decline to address it. See Thiele v.
Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that appellate courts generally address
only those questions previously presented to and considered by the district court).
Reversed and remanded.