In re the Marriage 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This opinion will be unpublished and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
A17-0064

In re the Marriage of:

David Allan Kotz, petitioner,
Respondent,

vs.

Edna Vassilovski,
Appellant.

Filed August 21, 2017
Affirmed
Reilly, Judge

Carver County District Court
File No. 10-FA-09-217

Marc G. Kurzman, Kurzman Grant Law Office, Minneapolis, Minnesota (for respondent)

Valerie Arnold, Micaela Wattenbarger, Arnold, Rodman & Kretchmer, PLLC,
Bloomington, Minnesota (for appellant)

Mark Metz, Carver County At torney, Jennifer Stanfield, Assistant Coun ty Attorney,
Chaska, Minnesota (for respondent Carver County)

Considered and decided by Reilly, Presiding Judge; Johnson, Judge; and
Kalitowski, Judge.
*

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

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U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant-wife argues that the district co urt erred by (1) acting outside of its
authority by affirming a Pare nting Time Expeditor’s decisi on, awarding compensatory
parenting time and assessing costs and PTE f ees against wife, awarding respondent-
husband unblocked telephone access to the couple’s children, and ordering wife to provide
sporting equipment for the children; (2) finding wife in contempt of court for her disregard
of district court orders; (3) ordering wife to respond to outstanding discovery requests; and
(4) awarding conduct-based attorney fees to husband. We affirm.
D E C I S I O N
The factual background of this protracted and highly contentious marital dissolution
dispute is set forth in two previous appeals. Kotz v. Vassilovski, No. A11-0495, 2011 WL
6141641, at *1 (Minn. App. Dec. 12, 2011) and Kotz v. Lynch, No. A13-0897, 2014 WL
801992, at *1 (Minn. App. Mar. 3, 2014). On her third appeal, wife argues that the district
court erred by acting outside of its authority in ruling on th e parties’ postdecree motions,
finding wife in contempt of court for failing to abide by the district court’s orders, ordering
wife to fully comply with discovery, and awarding conduct-based attorney fees to husband.
The district court has broad discretion in family-law matters and will not be reversed absent
an abuse of that discretion. Prahl v. Prahl, 627 N.W.2d 698, 702, 704, 707 (Minn. 2001).
“A district court abuses [its] discretion by making findings unsupported by the evidence or
improperly applying the law.” Hagen v. Schirmers , 783 N.W.2d 212, 215 (Minn. App.

3
2010). We review de novo qu estions of law, including the legal standard applicable to
changes in parenting time. Dahl v. Dahl, 765 N.W.2d 118, 123 (Minn. App. 2009).
I. The District Court Had the Authorit y to Rule on Po stdecree Motions
Without First Referring the Parties to the Services of a Parenting
Consultant, a Parenting Time Expeditor, or a Mediator.
At the crux of this appeal is wife’s argument that the district court lacked authority
to rule on the parties’ postdecree motions without first referring the parties to the services
of a Parenting Consultant (a PC), a Parenting Time Expeditor (a PTE), or a mediator. The
marital dissolution judgment and decree dissolved the parties’ marriage and awarded legal
and physical custody of the minor children to wife, with parenting time to husband. The
judgment and decree ordered the parties to utilize the services of a PC or a PTE to resolve
parenting-time disputes. Any claims that c ould not be resolved through a PC or a PTE
were referred to mediation. Several years later, the district court granted wife’s motion to
relocate to Massachusetts with the minor children and modified parenting time to reflect
the move. Wife argues that the district court acted outside of its authority by (A) upholding
a PTE’s decision regarding modified parenting time; (B) awarding compensatory parenting
time and assessing costs and PTE fees against wife without first referring those issues to a
PC or a PTE for consideration; (C) ordering wife to provide husband with unblocked access
to the children’s cell phones; and (D) ordering wife to provide sporting equipment for the
children and to repay husband $1,000. Wife argues that the district court lacked authority
to consider these issues because they should have been raised in the first instance to a PC,
a PTE, or a mediator.

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Wife is wrong. A PTE is a “neutral person authorized to use a mediation-arbitration
process to resolve parenting time disputes.” Minn. Stat. § 518.1751, subd. 1b(c) (2016).
And while the term “parenting consultant” is not used in the Minnesota statutes, “[i]n
practice, the term refers to a creature of contract or of an agreement of the parties which is
generally incorporated into . . . a district court’s custody ruling.” Szarzynski v. Szarzynski,
732 N.W.2d 285, 293 (Minn. App. 2007). The district court re tains authority over
parenting issues, irrespective of the appointment of a PC or a PTE. See id.; see also Minn.
Stat. §§ 518.175, .1751 (2016) (recognizing district court’s continuing authority to decide
and modify parenting time, a ppoint or remove a PTE, and review PTE decisions); Minn.
Stat. § 518.18 (2016) (authorizi ng district court to modify custody orders or parenting
plans); Minn. R. Gen. Pract. 114.04(b) (permitting court, at its discretion, to order parties
to participate in alternative dispute resolution). To the extent wife’s appeal is based on the
assertion that the appointment of a PC or a PTE divested the district court of authority, we
reject it as meritless.
A. The PTE Did Not Have Authority to Modify Parenting Time.
Wife challenges the district court’s or der upholding a decision from a PTE dated
June 23, 2015. Wife requested that a PTE modify the children’s summer 2015 parenting-
time schedule to accommodate a summer hockey program in Massachusetts. A PTE denied
the request based on her determination that “[i]t is not within a PTE’s authority to override
or modify one parent’s cour t-ordered parenting time.” Th e district court upheld the
decision, and wife argues that the district court erred because the hockey program was an
“unforeseen circumstance.” We disagree. A PTE shall not make decisions inconsistent

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with an existing parenting-time order, “unless the parties mutually agree.” Minn. Stat.
§ 518.1751, subd. 3(c) (2016). The parties s tipulated to the “exact parameters for both
summer and school year parenting time” in spri ng 2014, and have not mutually agreed to
alter that existing order. The PTE was not permitted to render a decision “inconsistent
with” that existing pa renting-time order. Id. The court did not err by applying the plain
language of the statute and upholding the decision.
B. The District Court Had the Authorit y to Award Compen satory Parenting
Time and Assess PTE Fees and Travel Costs Against Wife.
Following the PTE’s decision, discussed above, husband moved the district court to
uphold the decision regarding parenting time, which the court did. Husband also asked the
court to award compensatory parenting tim e, assess costs agai nst wife, and pay a
proportionate share of travel costs. The PTE’s decision did not address these issues. The
district court ruled that wife failed to abide by the stipulated parenting-time order, assessed
PTE costs, and awarded husband compensatory parenting time and travel costs. Wife
alleges that the district court was not authori zed to consider these issues until they were
first addressed by a PTE.
We disagree. A district court may appoint a PTE to resolve parenting-time disputes.
Minn. Stat. § 518.1751, subd. 1. Upon notice of a parenting-time dispute, a PTE “shall
make a diligent effort to facilitate an agreement to resolve the dispute.” Id., subd. 3(a). If
the parties cannot reach an agreement, a PTE “shall make a decision resolving the dispute.”
Id., subd. 3(b). A PTE may award compensato ry parenting time under section 518.175,
subdivision 6, and may recommend to the distri ct court that the noncomplying party pay

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certain fees and costs. Id. A plain reading of Minnesot a Statutes sections 518.175 and
518.1751 reveals that while a PTE shall make a decision regarding the underlying dispute,
she is not required to make a recommendation on fees or compensato ry parenting time.
Compare Minn. Stat. § 645.44, subd. 15 (2016) (“‘May’ is permissive.”) with Minn. Stat.
§ 645.44, subd. 16 (2016) (“‘Shall’ is mandatory.”). Section 518.175 authorizes the district
court to “provide compensatory parenting time when a substantial amount of court-ordered
parenting time has been made unavailable to one parent.” Minn. Stat. § 518.175, subd.
6(a). The district court may also “require th e party who violated the parenting time order
. . . to reimburse the other party for costs incurred as a result of the violation of the order.”
Minn. Stat. § 518.175, subd. 6(d)(4). Beca use the district court’s decision to award
compensatory parenting time, award travel co sts, and assess PTE costs against wife was
supported by the evidence and properly applied the law, it does not constitute an abuse of
discretion. See Hagen, 783 N.W.2d at 215 (defining abuse of discretion).
C. The District Court Had the Authority to Order Wife to Provide Husband
with Unblocked Telephone Access to the Children.
We also reject wife’s argument that the district court erred by requiring her to
provide husband with unblocked telephone access to the children because it lacked
authority to do so. The judgment and decree ordered that “[e]ach parent shall exert every
reasonable effort to maintain free access and unhampered contact and communication
between the children and the other parent.” Exhibit A, which was in corporated into the
judgment and decree, pr ovided that each parent “has the right of reasonable access and
telephone contact with the minor children.” The modified parenting-time order also

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included an exhibit which reiterated that “[e] ach party has the right of reasonable access
and telephone contact with the minor childre n.” After moving to Massachusetts, wife
blocked the children’s cell pho nes and husband was unable to make or receive telephone
calls with the children. The court, acting on husband’s motion, ordered wife to allow
husband unblocked access to the children’s cell phones, stating that husband “shall not be
blocked from placing calls in any capacity,” and that “the children shall not be blocked
from contacting [their father] as they desire.” In reaching this decision, the court reviewed
husband’s affidavit and supplemental materials outlining wife’s attempts to interfere in his
communication with the children and found hu sband’s statements “credible in their
consistency and theme.” We defer to the court’s credibility determinations and the
resolution of conflicting eviden ce in family-law matters. See Sefkow v. Sefkow , 427
N.W.2d 203, 210 (Minn. 1988) (“Deference mu st be given to the opportunity of the
[district] court to assess the credibility of the witnesses.”). On this record, we discern no
abuse of discretion in the court’s order regarding unblocked telephone access.
D. The District Court Had the Authorit y to Issue a Decision Related to
Sporting Equipment.
Wife challenges the district court’s d ecision regarding sporting equipment for the
children. Following the judgment and decree, a PC issued a decision related to the division
of expenses for the children’s sporting equipm ent. After wife and the children moved to
Massachusetts, husband requested an order requiring wife to provide sporting equipment
for the children during his parenting time in Massachusetts, and to repay $1,000 he had
previously paid wife. The court granted husband’s motion and ordered wife to repay

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husband $1,000, and to “provi de all sporting equipment for the children for participation
in activities in Massachusetts—regardless of whether [husband] has parenting time with
the children in Massachusetts or not.” Wife argues that the district court “nullified” an
earlier PC decision. But we ag ree with the district court’ s reasoning that, because the
children now play all of their sports in Ma ssachusetts, “this PC decision no longer is
appropriate.” Because the district court’ s decision has support in the record and
appropriately applies the law, it does not constitute an abuse of discretion.
II. The District Court’s Contempt Order Was Not Erroneous.
The district court granted husband’s contempt motion finding wife in contempt for
her failure to abide by the sti pulated parenting-time order and for her failure to sign IRS
tax forms. Wife challenges the district court’s contempt findings as erroneous. The district
court has broad discretion to hol d a party in civil contempt and we review the district
court’s decision for an abuse of discretion. Crockarell v. Crockarell, 631 N.W.2d 829, 833
(Minn. App. 2001), review denied (Minn. Oct. 16, 2001). F actual findings of a contempt
order will be reversed only if they are “clearly erroneous.” Id. Because the alleged
disobedience here did not occur in the pres ence of the court, it constitutes constructive
contempt and certain procedural safeguards apply. See In re Cascarano, 871 N.W.2d 34,
37-38 (Minn. App. 2015) (distinguishing between contempt committed in the presence of
the court, which may be summarily punished, and constructive contempt, which may not).
First, wife challenges the order on the ground that husband’s motion was defective.
We disagree. In family-law matters, contempt proceedings may be initiated by motion and
served upon the nonconforming party with a ppropriate supporting affidavits. Minn. R.

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Gen. Pract. § 309.01(a). The motion must refe r to the “specific orde r or judgment of the
court alleged to have been violated” and put the contemnor on notice as to the alleged
violations. Id. at (b). The moving party’s affidavit must “set forth each alleged violation
of the order with particularity.” Id. at (c). Husband’s motion properly complied with rule
309.01. The motion set forth in detail wife’s alleged violations of the stipulated parenting-
time order and wife’s failure to sign IRS form 8332 for 2012, 2013, and 2014. Husband
further detailed wife’s alleged contemptuous conduct in his brief and in his affidavit, and
he attached a copy of the district court’s orders as exhibits to the brief. Husband’s contempt
motion was adequately supported and satisfied the requirements of rule 309.01.
Next, wife argues that the contempt orde r was erroneous. Before finding a party in
civil contempt, the district court considers eight factors articulated in Hopp v. Hopp: (1) the
court has jurisdiction; (2) the acts to be pe rformed by the contemnor are clearly defined;
(3) the contemnor had notice of the decree and reasonable time to comply; (4) the injured
party applied to the court and specified the grounds for the complaint; (5) the court held a
duly-noticed hearing at which the contemnor had an opportunity to show compliance or
reasons for her failure to comp ly; (6) after the hearing, the court must determine whether
the party failed to comply with court orders ; (7) the court may not compel the contemnor
to perform something she is wholly unable to do; and (8) when confinement is directed,
the contemnor has an opportunity to effect her release. 279 Minn. 174-75, 156 N.W.2d
212, 216-17 (1968).
Each factor is satisfied here. First, the district court has jurisdiction. Second, the
acts to be performed regarding parenting time and wife’s obligation to sign tax forms are

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clearly defined in the district court’s orders. Third, wife had notice of the decree and a
reasonable time within which to comply. Fourth, husband filed a contempt motion and
adequately specified the ground s for the complaint. Fifth, the court held a duly-noticed
hearing. Wife did not appear in person and chose instead to be represented by local
counsel. Although wife ’s counsel informed th e district court that wife could be made
available by telephone, if necessary, counse l made no attempt to contact her during the
hearing. Sixth, the district court determined that wife failed to co mply with the court’s
orders. With regard to the stipulated parenting time, the district court determined that wife
failed to “abide by the Stipulated Parenting Time Order . . . by failing to have the children
travel to Minnesota on numerous occasions and failing to pay ½ of the travel costs of the
children.” The district court stated that it s order made “abundantly clear” the “exact
parameters for both summer and school year parenting time,” and noted that “[t]hose exact
parameters shall be followed by the parties—not the least of which are the exact dates and
times of the parenting time, the location of the parenting time, and each party’s
responsibility to pay ½ of air travel costs.” With regard to the tax forms, the district court
determined that wife was in contempt of court for her ongoing refusal to sign IRS tax forms
as ordered. Seventh, the district court did not compel wife to do something she was unable
to do. Eighth, the district c ourt elected to “not impose jail time,” despite its contempt
finding.
In sum, we determine that the Hopp factors have been satisfied and the district court
did not abuse its discretion by holding wife in civil contempt.

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III. The District Court’s Discovery Orders Were Not an Abuse of Discretion.
Wife challenges the district court’s order directing her to resp ond to outstanding
discovery requests regarding her income and expenses. Rule 37.01(b)(2) authorizes a party
to request an order compelling discovery in the event of incomplete or nonresponsive
discovery requests. Minn. R. Civ. P. 37.01(b )(2). The district court has broad discretion
to issue discovery orders and its orders will not be disturbed absent a clear abuse of that
discretion. In re Comm’r of Pub. Safety , 735 N.W.2d 706, 7 11 (Minn. 2007). A
misapplication of the law constitutes an abuse of discretion. Dobrin v. Dobrin, 569 N.W.2d
199, 202 (Minn. 1997).
In December 2014 and in Ja nuary 2015, husband request ed financial information
from wife. Wife contested the discovery demands and husband moved for an order
requiring her to respond to discovery requests regarding her net income and expenses. The
court partially granted husband’s discovery request and ordered wi fe to respond to
discovery pertaining to her income and expenses. The district court reminded the parties
that they were “required to respond to discovery requests when there is a pending motion,
or as otherwise ordered by the Court,” and that “[d]iscovery must be fully complied with,
subject to sanctions.” Husband filed another discovery motion in January 2016, to which
wife objected. The district court ordered wife to respond to outstanding discovery requests
regarding her income and addressed the parties’ ongoing discovery disputes, reiterating its
earlier admonition that discovery requests “m ust be fully complied with, subject to
sanctions.”

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Wife characterizes the district court’s May 2016 discovery order as a “general
declaration of cooperation,” rather than as an order requiring discovery. We disagree. The
district court ordered wife to respond to husband’s outstanding discovery requests, and
reminded the parties of their obligation to fully comply with discovery requests, subject to
sanctions. The court’s order is proper under Minnesota Rule of Civil Procedure 37.01 and
does not constitute an abuse of discretion.
IV. The District Court’s Attorney Fee Order Was Not Abuse of Discretion.
Wife argues that the district court abused its discretion by awarding conduct-based
attorney fees to husband, and by not awardi ng attorney fees to wife. “A conduct-based
attorney-fee award is reviewed for an abuse of discretion.” Sanvik v. Sanvik, 850 N.W.2d
732, 737 (Minn. App. 2014).
The district court granted husband’s motion for an award of attorney fees and costs
and ordered wife to pay husband’s law firm $2,500 in conduct-based attorney fees and
costs pursuant to Minnesota Stat utes section 518.14, subdivis ion 1 (2016). This statute
authorizes the district court to award atto rney fees and costs “against a party who
unreasonably contributes to the length or expense of [a] proceeding.” Minn. Stat. § 518.14,
subd. 1. A party moving for conduct-based fees bears the burden of proof. See Baertsch
v. Baertsch, 886 N.W.2d 235, 238 (Minn. App. 20 16) (“[A] party moving for conduct-
based attorney fees . . . ha s the burden to show that the conduct of the other party
unreasonably contributed to the length or e xpense of the proceeding.”). “Generally,
conduct-based attorney fees are to be based on the party’s behavior occurring during the
litigation process.” Id. Here, the district court determined that husband made an “adequate

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showing of unreasonable contribution to the length and expense in this lawsuit by [wife],”
meriting an award of costs and fees. The c ourt did not make any similar findings with
respect to husband’s conduct. We discern no a buse in the district court’s order awarding
conduct-based attorney fees and costs in husband’s favor.
Affirmed.