Ross Ronald Olsen, 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This opinion will be unpublished and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
A17-1151

Ross Ronald Olsen, petitioner,
Appellant,

vs.

Molly Erin Koop, f/k/a Molly E. Humphrey,
Respondent.

Filed April 9, 2018
Affirmed
Bratvold, Judge

Crow Wing County District Court
File No. 18-FA-09-3698

Michael D. Dittberner, Linder, Dittberner, Bryant & Winter, Ltd., Edina, Minnesota (for
appellant)

Molly Erin Koop, Baxter, Minnesota (pro se respondent)

Considered and decided by Larkin, Presiding Judge; Bratvold, Judge; and Florey ,
Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
Appellant-father challenges the district court’s decision to modify custody by
awarding sole legal custody to respondent- mother. Because the district court gave both
parties sufficient notice that modif ication of legal custody was an issue, both parties
implicitly consented to litigating modification of custody during the evidentiary hearing,
2
and the district court’s findings of fact were supported by record evidence, we conclude
that the district court did not abuse its discretion. Therefore, we affirm.
FACTS
Appellant-father Ross Ronald Olsen and respondent- mother Molly Erin Koop are
the parents of H.K.O., who was born in 2008. Olsen and Koop never married. In May 2010,
pursuant to a stipulation, Olsen and Koop entered into a judgment and decree regarding
custody and parenting time of H.K.O. The May 2010 order adjudicated Olsen as H.K.O.’s
father, granted Koop and Olsen joint legal custody, granted Koop sole physical custody,
and incorporated an agreement as to physical custody and parenting time.1 The decree also
provided for the appointment of a parenting consultant.
Olsen and Koop experienced difficulties working together, particularly with
managing parenting time. In June 2012, Koop moved for the appointment of a parenting-
time expeditor, requested that parenting exchanges take place at a designated center, and
that Olsen’s parenting time be supervised. In September 2012, the court granted Koop’s
motion, in part, and ordered that the parenting exchanges take place at a law enforcement
center and appointed a parenting-time consultant.
In approximately July 2013, Olsen brought H.K.O. on an extended vacation without
receiving Koop’s permission. In response, Koop moved for Olsen’s parenting time to be
supervised. The district court ordered that Olsen return H.K.O. to Koop’s care and
suspended Olsen’s parenting time for extended visits, including vacation time. Olsen

1 Olsen was provided parenting time on alternating weekends, Wednesdays, alternating
holidays, portions of school breaks, and two weeks of vacation.
3
continued to have unsupervised visits. In August 2013, Olsen’s extended visits were
reinstated.
In 2014, Lori Hanson, who had been appointed as the parenting-time consultant over
a year earlier, asked the court to remove her because Olsen had become “increasingly
difficult to work with,” was disrespectful and argumentative, and that the “parents [were]
clearly unable to communicate effectively.” The court appointed Annie Merriam as the
consultant to replace Hanson.
In January 2015, Merriam required that parenting exchanges occur at the Alex and
Brandon Child Safety Center (Center) and that all communication between the parties
occur on “Our Parenting Wizard,” an online communication and scheduling tool. Merriam
also directed both parties to receive psychological evaluations, and Olsen to receive an
anger management evaluation.
After speaking to Olsen on the phone, the evaluator, LaDonna Scott, informed
Merriam via email that Olsen had expressed “bizarre thoughts and behaviors,” and was
extremely focused on Koop, accusing her of “parental alienation” through use of the “silent
treatment.” Scott also informed Merriam that she should be aware of her own safety
because Olsen’s behavior was not stable. Scott described Olsen as “dangerous” and stated
that she was also concerned for Koop and H.K.O.’s safety. Merriam suspended Olsen’s
unsupervised parenting time on January 21, 2015, and required that his visits take place at
the Center. Olsen later testified that he objected to Scott completing his evaluation because
he felt that she was not “fair-minded” and thus, he did not complete the evaluation at that
time.
4
In February 2015, Olsen moved for parenting-time assistance, asked the court to
grant him compensato ry time, remove the parenting consultant, require Koop and her
husband to have supervised parenting time, and modify the parenting-time schedule. The
motion and attached affidavit made multiple references to a “conspiracy,” including that
Koop and her husband were attempting to “eliminate” Olsen and were in contempt of court
for failing to follow the May 2010 order regarding custody and parenting time. Olsen’s
affidavit also averred that Scott’s email contained “fabrications, inflam[m]atory language,
and conclusions which have no factual or logical bas[is].”
In March 2015, Koop opposed Olsen’s request for compensatory parenting time and
requested that Olsen’s parenting time be supervised at the Center. In her af fidavit, Koop
stated she was concerned about Olsen’s “erratic behavior and anger.” Koop also stated that
she had attempted to get an order for protection against Olsen but her request was denied.
Koop averred that Olsen had called the police several time s, asking them to check on
H.K.O. and claiming that Koop’s husband was involved in criminal activity.
Also in March 2015, Olsen hired a private investigator to investigate Koop’s
husband. The private investigator reported that the husband’s only conviction was for
driving while impaired in 2004. Olsen reported the results of this investigation to Merriam,
who rejected the information, stating that she was not concerned about Koop’s husband.
Olsen filed a second motion for parenting-time assistance in April 2015, again
requesting unsupervised parenting time. This motion alleged Koop had excluded him from
making decisions about H.K.O.’s care because H.K.O. had been treated for a disability
5
without Olsen’s consent. Olsen repeated allegations that Koop’s husband had a significant
criminal history.
On April 27, 2015, the district court heard all pending motions, taking the issues
under advisement. The following day , the district court issued an order stating that joint
legal custody may no longer be in H.K.O.’s best interest and scheduling an evidentiary
hearing. The court ordered Olsen to complete a psychological evaluation. Koop had
previously completed a psychological evaluation, as directed by Merria m. Before the
evidentiary hearing, Olsen filed additional motions and attached several affidavits and
exhibits, repeating earlier allegations about Koop’s husband and asserting that Koop had
failed to comply with the May 2010 order.
In summer 2015, Olsen was arrested and charged with one count of felony stalking
and three counts of gross misdemeanor stalking, after incidents in June and July 2015,
where Olsen left pizza, toy s, and documents in Koop’s yard, and sent harassing
communications and voicemails to Koop. As a result of these charges, Olsen started
residential treatment at Minnesota Adult and Teen Challenge, where he resided during the
evidentiary hearing.
The evidentiary hearing took place on September 15, 2015 and October 27- 29,
2015. On the first day of the hearing, Olsen requested a continuance, which the judge
denied.2 The district court heard testimony from the following witnesses: Merriam ;
Katherine Webster, who conducted Olsen’s psychological evaluation; Koop’s husband;

2 Olsen appeared pro se on the first day of the hearing, but was represented by counsel for
the remaining hearing dates.
6
Koop; Olsen; and Janice Olson , Olsen’s mother. Merriam testified that H.K.O. had been
diagnosed with a disability and had an individualized education program (IEP) in place.
Merriam also testified that Olsen has “stopped” or “sabotage[ ed]” H.K.O.’s educational
progress by withdrawing his permission to allow H.K.O. to complete an “IEP program.”
Merriam testified that Olsen alleged that there had been a “ conspiracy against him ” and
H.K.O.’s school had failed to inform him of H.K.O.’s treatment plan and diagnosis, but
she had found no evidence that this was true. Koop testified that Olsen had been asked not
to return to the YMCA , which provided daycare for H.K.O., and the Center, where they
had previously done parenting exchanges. According to Koop, both establishments stated
that Olsen had violated their conduct codes.
On February 17, 2016, the district court issued a written order with findings of fact
and granted Koop sole legal custody of H.K.O. The district court’s decision also suspended
Olsen’s parenting time, set a review hearing to later reinstate Olsen’s parenting time,
reinstated Olsen’s ability to have telephone contact with H.K.O., discharged Merriam as
the parenting consultant, and provided for the appointment of a parenting-time expeditor.
On July 15, 2016, Olsen filed a motion for post-hearing relief . On December 11,
2016, the district court rejected the majority of Olsen’s requests, but acknowledged that in
one finding of fact and two conclusions of law it had “refer[ed] to other [c]ourt records”
outside the record in the custody case, and that the parties had not been given a chance to
be heard on those findings. 3 Therefore, the district court ordered a new hearing. After the

3 Finding of fact 25 states that Olsen was charged with one count of felony stalking and
three counts of gross misdemeanor stalking after incidents at Koop’s home. The
7
hearing, the district court denied Olsen’s request to strike the challenged finding of fact
and conclusions of law from the record, reasoning that it was appropriate to take judicial
notice of the court records under the specific circumstances. Olsen appeals.4
D E C I S I O N
I. The district court did not err by directing the parties to appear for an
evidentiary hearing to decide whether modifying legal custody was
appropriate.

Olsen argues that the district court erred by modifying legal custody sua sponte.
While both parties filed motions seeking changes to parenting time, neither party moved
for modification of legal custody . After hearing the competing motions, the district court
issued an order setting an evidentiary hearing on possible custody modification.
Olsen is correct that the custody modification statute appears to contemplate that
custody will be modified following a motion or other request by a party. See Minn. Stat.
§ 518.18(a) (2016) (“Unless agreed to in writing by the parties, no motion to modify a
custody order or parenting plan may be made earlier than one year after the date of the
entry of a decree of dissolution . . . .”). Although court-initiated modification of legal

December 11 order states “conclusions of law 3, 4, and 5” but at the hearing on January 30,
2017, the court clarified that it was referring to conclusions of law 3(4) and 3(5). The
relevant conclusions of law provide: 3(4) modification of custody is necessary to serve the
best interest of the child when domestic abuse has occurred in the parents’ household or
relationship and 3(5) any physical, mental, or chemical health issue of a parent that affects
the child’s safety or developmental needs.

4 Koop did not file a responsive brief; consequently, this matter proceeds on the merits
pursuant to Minn. R. Civ. App. P. 142.03.

8
custody is not directly authorized by the statute, it is not prohibited by statute and we
determine that the district court did not err for three reasons.
First, Minnesota Rule of Civil Procedure 15.02 provides issues that are not raised
by the parties but that “are tried by express or implied consent of the parties . . . shall be
treated in all respects as if they had been raised.” Because the district court’s April order
stated that legal custody was at issue, both parties were notified that custody would be
addressed at the evidentiary hearing. In addition, on the first day of the hearing, the court
told Olsen that it had decided in April “at the last hearing when we were here on your
motions and your orders, that the Court, rather than proceeding with all of those, took all
of the information and the allegations and the responses together and determined that a lot
of the information warranted the setting of an evidentiary hearing to determine whether or
not the current custodial status, as well as the current parenting time, continued to be in the
best interest of the minor child.” Neither party objected. We conclude that the parties
implicitly consented to try the custody issue.
Second, a district court’s paramount consideration is the best interests of the child.
For example, a district court may reject a stipulation that provides for joint legal custody
based on the best interests of the child. See Frauenshuh v. Giese, 599 N.W.2d 153, 158-59
(Minn. 1999) (holding that “considerable weight will be given to stipulations entered with
the benefit of counsel, but the paramount consideration is the welfare and best interests of
the children”), superseded in part on other grounds by statute, 2000 Minn. Laws ch. 444,
art. 1, § 5, at 984-85 (codified at Minn. Stat. § 518.18(d)(i) (2016)); see also Petersen v.
Petersen, 296 Minn. 147, 148, 206 N.W.2d 658, 659 (1973) (stating that courts are not
9
bound by stipulations); Clark v. Clark, 642 N.W.2d 459, 465 (Minn. App. 2002) (“[A]
district court has the discretion to accept all or part of a proposed stipulation. . . .”).
Consistent with this principle, we conclude that, on this record, the district court did
not abuse its discretion when it notified the parties of an evidentiary hearing to review the
current custody arrangement. Here, the district court set an evidentiary hearing only after
hearing the parties’ pending motions and implicitly concluding that it could not grant
appropriate relief without further analysis. The district court determined that the
circumstances raised by the parties indicated that the existing custody decree may no longer
be in H.K.O.’s best interest. The subsequent evidentiary hearing occurred with ample
notice and Olsen does not claim that he lacked adequate notice or an opportunity to
respond. While court- initiated custody hearings may not be co mmon, they may be
appropriate under the circumstances, as was the case here.5
Third, Olsen does not argue any prejudice from the district court’s decision to set
an evidentiary hearing to determine whether modification was appropriate. To prevail on
appeal, an appellant must show both error and prejudice resulting from the error. See Minn.

5 Olsen relies on caselaw that is not applicable. In Splinter v. Landsteiner, this court
overturned the district court’s sua sponte order modifying custody with “no motion for
modification, no affidavits addressed to that issue, no hearing, no transcript and no
findings.” 414 N.W.2d 213, 214 (Minn. App. 1987). But here the district court notified the
parties of the legal custody issue, held a four- day evidentiary hearing, and issued detailed
findings. Olsen also relies on J.M.G. v. J.C.G., where this court overturned the district
court’s sua sponte decision to transfer custody. 431 N.W.2d 592, 594 (Minn. App. 1988).
In J.M.G., neither party argued that the district court lacked authority to transfer custody
sua sponte, but only contended that the district court abused its discretion in the final
custody decision. Id.; see also Hegerle v. Hegerle, 355 N.W.2d 726, 729, 732 (Minn. App.
1984) (affirming district court’s sua sponte order to amend the custody provision of original
judgment and decree).
10
R. Civ. P. 61 (harmless error on appeal); Midway Ctr. Assocs. v. Midway Ctr. Inc., 306
Minn. 352, 356, 237 N.W.2d 76, 78 (1975) . The district court’s April 2015 order gave
Olsen more than four months’ notice of the evidentiary hearing. Olsen appeared pro se on
the first day of the hearing, but then was represented for the remainder of the hearing dates.
And Olsen does not challenge the district court’s decision to deny his request for a
continuance. Because Olsen asserts no prejudice from the district court’s decision to set an
evidentiary hearing on custody modification, and the district court’s decision to do so was
supported by the circumstances raised in the parties’ motions, we conclude that the district
court did not err.
II. The district court’s conclusions of law were supported by its findings and its
findings of fact were supported by the evidence in the record.

A district court has “broad discretion in determining custody matters.” Goldman v.
Greenwood, 748 N.W.2d 279, 282 (Minn. 2008) (q uotation omitted). On appeal, our
review of a custody modification is “limited to whether the district court abused its
discretion by making findings unsupported by the evidence or b y improperly applying the
law.” Id. at 281-82. We defer to a district court’s findings unless they are clearly erroneous.
Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).
Before modifying custody, a district court must find that the statutory requirements
set forth in Minn. Stat. § 518.18 have been satisfied. See Crowley v. Meyer, 897 N.W.2d
288, 293 (Minn. 2017). A district court may modify legal custody when, among other
things, the child’s “present environment endangers the child’s physical or emotional health
or impairs the child’s emotional development and the harm likely to be caused by a change
11
of environment is outweighed by the advantage of a change to the child.” Minn. Stat.
§ 518.18(d)(iv). In order to establish danger to a child’s welfare, a parent’s conduct must
be shown to result in “an actual adverse effect on the child.” In re Weber, 653 N.W.2d 804,
811 (Minn. App. 2002).
A. Conclusion of law 4: Endangerment
Olsen challenges the district court’s conclusion of law that H.K.O.’s present
environment endangered his physical and emotional health or impaired his emotional
development. The district court found that Olsen’s “resistance to working with, or actively
antagonizing, [Koop], the child’s teachers, therapists, and daycare personnel, and [Olsen]’s
escalating behavior had distressed [H.K.O] and placed his educational future in limbo, the
present legal custody environment of [H.K.O.] endangers [his] emotional health.” Olsen
asserted that his behavior only affected the parenting- consultant, but the district court
specifically found that Olsen was “banned” from H.K.O.’s YMCA daycare and that the
Center also had terminated their services due to Olsen’s behavior.
The district court also found that the parties were unable to agree or parent without
the assistance of the court or a parenting consultant, and concluded that Olsen “has
consistently displayed a contumacious course of conduct when dealing with [ Koop][.] . . .
The parties have no ability to jointly resolve disputes regarding major decisions concerning
the life of the minor child.” The district court reasoned that, because Olsen and Koop were
unable to make decisions about H.K.O. without involving the court system, continuing
joint legal custody would endanger H.K.O.’s emotional and mental health. Other courts
have reached a similar conclusion based on similar facts. See, e.g., Andersen v. Andersen,
12
360 N.W.2d 644, 646 (Minn. App. 1985) (finding that continued ex posure to the parents’
disagreement endangered the child’s health and development by trapping her in a “tug-of-
war” between the parents). Although Olsen testified that he did not think that his actions
resulted in an adverse effect on H.K.O.’s emotional health, the district court was not
required to accept Olsen’s opinion . The district court’s conclusion was supported by its
findings and the record evidence.
B. Conclusion of law 5 : Balancing harm and advantage of change in
custody

Olsen challenges the district court’s conclusion of law that the harm to be caused by
a change of custody was outweighed by the advantage of the change to H.K.O. The district
court found that H.K.O. was harmed by the current legal custody arrangement, his progress
in school was at a standstill, and, due to Olsen’s hostility toward Koop and others, timely
decisions were not made consistent with H.K.O.’s best interest.
Olsen contends that no evidence supports the district court’s findings. We disagree.
Merriam’s testimony fully supports the district court’s findings. F or example, Merriam
testified, H.K.O. “has a disability and an IEP program, and there’s a lot of things [ Koop]
has tried to put forward in the best interests of [H.K.O.], and it is always, and I’m sa ying
always, stopped by [Olsen] by sabotaging records.”
In addition, Olsen testified that, after initially giving permission for H.K.O. to
continue IEP testing, he withdrew permission because “it became a possibility that [he]
might have a legal action against the school.” In response to Koop’s question on cross-
examination, Olsen acknowledged that the “further testing that the school recommended
13
[for H.K.O.]” did not happen. Based on this evidence, t he district court found that Olsen
had “tried to sabotage [H.K.O.’s] progress in the [IEP].” The district court implicitly found
more credible Merriam’s testimony that Olsen had interfered with H.K.O.’s educational
progress than Olsen’s testimony that he had not. We defer to a district court’s credibilit y
determinations. In re Welfare of J.K.T., 814 N.W.2d 76, 90 (Minn. App. 2012), review
dismissed (Minn. July 17, 2012).
Olsen also argues that the district court merely restated Merriam’s testimony in its
findings, rather than making its own independent f indings. See Dougherty v. Dougherty,
443 N.W.2d 193, 194 n.1 (Minn. App. 1989) (requiring district court’s findings to be stated
affirmatively, rather than a recitation of party’s claims). We disagree. Although the district
court could have been more explicit in making its findings in addition to summarizing the
witness testimony, the court’s findings were sufficiently stated. The district court credited
Merriam’s testimony, stated specific findings, and then reached conclusions of law, which
are described in its detailed order.
C. Additional factual findings
Olsen challenges other specific factual findings for various reasons, none of which
are persuasive in light of our standard of review. First, Olsen argues that the district court’s
findings in paragraph s 17f and 17z are not supported by the record. Paragraph 17f states
that Merriam testified that H.K.O. “ha[ d] a disability,” was placed on an IEP, and that
“[e]verything about [the IEP] was shared by the school to both parents.” Paragraph 17f also
states that Olsen tried to “sabotage” H.K.O.’s success and thought there was a conspiracy
between Koop and the school against him. Paragraph 17z states that the parenting-
14
consulting contract does not allow Merriam to modify custody, but adds that Merriam
expressed the opinion that H.K.O.’s interests would be best served if Koop was granted
sole legal custody . Olsen argues that the district court sustained his objection when
Merriam gave her opinion on legal custody, and therefore, the finding regarding her
custody opinion should not have been included in the order.
Initially, we note that, for the most part, the district court’s findings in paragraph 17
were supported by the record evidence. Nonetheless, Olsen is correct that the district court
sustained his objection to Merriam’s opinion testimony about legal custody. Although the
district court should not have included this testimony in its findings, there was sufficient
record evidence supporting the district court’s decision, apart from Merriam’s testimony.
Thus, we conclude the district court’s erroneous reference to Merriam’s opinion was
harmless error. See Hanka v. Pogatchnik, 276 N.W.2d 633, 636 (Minn. 1979); see Minn.
R. Civ. P. 61 (requiring harmless error to be ignored).
Olsen also argues that the finding that “[e]verything about [the IEP] was shared by
the school to both parents,” is contradicted by the district court’s later findings in
paragraphs 22q, 22r, and 22s, which provide that Olsen’s name was not included in IEP
reports and correspondence from the school. It is true that Olsen’s name was not included
on at least three documents that provided information about H.K.O.’s education and
disability. However, the district court specifically found that Koop informed Olsen of
H.K.O.’s diagnosis and disability, as well as the name and place of H.K.O.’s school. The
district court also found that Koop provided Olsen with the names of “the specialists at the
school,” and told Olsen to contact the “teach ers and the school for more information.”
15
Additionally, the district court found that “[ Koop] received emails from [H.K.O.’s]
teachers concerning meetings they had with [ Olsen] regarding going over the IEP with
him.” Moreover, Olsen admitted that he “went [ to the school] and met with [H.K.O.’s]
teachers.” The district court thus had ample support for its conclusion that “[Koop] had no
reason to believe that [Olsen] did not have th[e] information” about H.K.O.’s IEP, despite
the fact that his name was not on several documents. Olsen is correct that he was not
provided “everything” from the school regarding H.K.O.’s IEP, and we agree that the
district court’s broad language was not supported by the record. Despite this isolated error,
the district court’s other findings about the information provided to Olsen were fully
supported by the record evidence.
Next, Olsen contends that the district court’s findings in paragraph 22, relating to
Koop’s testimony, are “problematic.” First, Olsen argues that paragraph 22a’s finding that
it “ha[d] become increasingly difficult to co-parent with [Olsen] over [H.K.O.’s] lifetime,
and that [Olsen] refuse[d] to work with [Koop] or professionals involved in [H.K.O.’s]
life” is conclusory because there was no evidence that Olsen refused to work with
educational professionals. Next, Olsen objects to paragraph 22d of the findings, where the
court stated that Koop testified that Olsen’s “argumentative and threatening behavior ha[d]
been a hindrance to the agencies that work with the minor child.” Olsen argues that Koop
offered no testimony that Olsen had been argumentative and threatening to educational
professionals involved with H.K.O. We disagree. Koop testified, and the court found, that
the YMCA, where H.K.O. attended preschool, asked Olsen not to return based on
violations of its code of conduct.
16
Next, Olsen objects to the district court’s findings in paragraph 22l, which states
that when H.K.O.’s learning delay was diagnosed, Koop and Olsen had regular phone calls
and discussed the issue. Olsen argues that Koop acknowledged under cross-examination
that she signed up H.K.O. f or his IEP “without too much.” This finding is nonetheless
supported by Koop’s testimony.
Finally, Olsen objects to the findings in paragraph 22p, which provides that Koop
testified that she had no reason to believe Olsen did not have necessary information about
H.K.O.’s IEP and disability. As discussed above, the district court’s finding was supported
by evidence.
We conclude that the district court’s findings were supported by record evidence,
and the district court’s findings supported its conclusions of law and its decision to modify
legal custody.
Affirmed.