In re the Matter of: Colleen Jea’ne Olson, 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This opinion will be unpublished and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
A17-1176

In re the Matter of:
Colleen Jea’ne Olson, petitioner,
Appellant,

vs.

Jeremy Michael Olson,
Respondent.

Filed May 21, 2018
Affirmed in part and reversed in part
Peterson, Judge

Olmsted County District Court
File No. 55-FA-16-7431

David L. Liebow, Godwin Dold, Rochester, Minnesota (for appellant)

Jeremy Michael Olson, St. Charles, Minnesota (pro se respondent)

Michelle Frohrip, Rochester, Minnesota (guardian ad litem)

Considered and decided by Worke, Presiding Judge; Peterson, Judge; and Ross,
Judge.
U N P U B L I S H E D O P I N I O N
PETERSON, Judge
In this appeal from a district court order that continues and amend s an order for
protection (OFP), appellant mother argues that the district court erred by (1) making
findings of fact that are n ot supported by the record; (2) granting respondent father more

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parenting time than he was granted under the parties’ dissolution judgment; and
(3) requiring the parties to engage in alternative dispute resolution. We affirm in part and
reverse in part.
FACTS
Appellant Colleen Jea’ne Olson (mother) and respondent Jeremy Michael Olson
(father) are the parents of a child born in September 2012. Their six-year marriage was
dissolved in August 2016 by a stipulated judgment and decree. Under the terms of the
stipulated judgment, the parties share joint legal custody , and mother has sole physical
custody of the child subject to father’s reasonable and liberal parenting time. The stipulated
judgment also states that no OFP affecting the parties or the child had been issued.
In October 2016, after the dissolution judgment was entered, mother petitioned on
behalf of herself and the child for an OFP again st father. The district court granted an ex
parte OFP and appointed a guardian ad litem (GAL). After a hearing in October 2016, the
district court issued an OFP for mother and child against father. A review hearing was held
in March 2017. In June 2017 , the district court issued an order continuing the OFP for
mother but dismissing it as to the child. Finding of fact number 15 in the district court’s
order states that “the parties have stipulated to dismiss the child from the Order for
Protection and that the continuing Order for Protection would only cover Mother.”
The district court also found that there was a pending criminal case in Dodge County
in which father was charged with rape against mother. The court found:
The rape case involves an inc ident that allegedly occurred in
2013; the parties remained married after it and no report was
made until 2015 when the parties separated and custody

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became an issue. Father signed and served the dissolution
summons & petition on Mother on October 1, 2017 ,[1] filed it
with the court on November 2, 2015 . . . and Mother’s initial
report to law enforcement was made on November 7, 2015.
The Court is aware that rapes are not always reported
immediately, but looking back at Mother’s actions before,
during [and] since the finalization of the dissolution, the Court
questions whether Mother’s reporting was in good faith or a
retaliatory action.

The June 2017 order also states that the charge against father was not resolved before the
OFP hearing, and, in a separate matter in 2014, father was convicted of third-degree assault
against mother.
Mother brought an appeal from the June 2017 order in this court and filed a motion
in the district court under Minn. R. Civ. App. P. 108.02, asking the district court to stay the
effect of the June 2017 order pending the appeal and to reinstate the district court’s
November 2016 OFP.2 Mother contended that she did not stipulate to dismissing the child
from the OFP.
Following a hearing on mother’s motion for a stay pending appeal, the district court
acknowledged in a September 12, 2017 order that it mistakenly found that the parties
stipulated to dismissal of the OFP as to the child. The district court also found that this
error
doesn’t change that the facts of the ca se that after hearing all
of the evidence, the recommendations of the guardian ad litem,
and the credibility of the testimony of the witnesses the Court
made no finding of domestic abuse by father toward the minor

1 It is apparent that 2017 is a typographical error, and the district court meant 2015.
2 Mother also filed an ex parte motion in the district court seeking a stay of the June 2017
order pending a hearing on her motion for a stay pending the appeal. The dis trict court
denied the motion for ex parte relief.

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child and dismissed the minor child from t he order for
protection.

The district court denied the motion for a stay pending appeal and amended finding
of fact number 15 in the June 2017 order to state, “Prior to the hearing, [father] stipulated
to the entry of an order for protection against him on behalf of Mother without a finding
that any domestic abuse had occurred.”
D E C I S I O N
I.
Mother challenges certain district court findings. We will not set aside a district
court’s findings of fact unless they are clearly erroneous. Maiers v. Maiers, 775 N.W.2d
666, 668 (Minn. App. 2009). “ A finding of fact is clearly erroneous if it is manifestly
contrary to the weight of the evidence or no t reasonably supported by the evidence as a
whole.” O’Brien v. Dombeck , 823 N.W.2d 895, 900 (Minn. App. 2012) (quotation
omitted). “When determining whether findings are clearly erroneous, [an] appellate court
views the record in the light most favorable to the [district] court’s findings.” Vangsness
v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000). “That the record might support
findings other than those made by the [district] court does not show that the court’s findings
are defective.” Id. at 474.
Finding that parties stipulated to dismiss child from OFP
Mother challenges the district court’s authority to amend the June 2017 order to
correct finding of fact number 15 while her appeal was pending before this court. We
review “[q]uestions concerning the authority and jurisdiction of [district] courts” de novo.

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State v. Pflepsen, 590 N.W.2d 759, 763 (Minn. 1999). Generally, “the filing of a timely
and proper appeal suspends the [district] court ’s authority to make any order that affects
the order o r judgment appealed from.” Minn. R. Civ. App. P. 108.01, subd. 2. “The
purpose of this rule is to avoid the confusion and waste of time potentially arising from
having the same issue before two courts at the same time.” State v. Dwire , 409 N.W.2d
498, 502 (Minn. 1987) (quotation omitted). But
[p]ending a duly executed appeal, the jurisdiction of a [district]
court is [s]uspended only as to those matters necessarily
involved in the appeal, not as to those matters which are
independent of, or which are s upplemental to, the appeal or
collateral to the proceeding in which the appealed order or
judgment was rendered. Among the matters over which the
[district] court retains jurisdiction pending an appeal are those
which are ancillary or supplemental to the appeal as in aid of
its proper presentation, such as orders to correct the record, to
make and certify a settled case or bill of exceptions.

State v. Barnes, 249 Minn. 301, 302–03, 81 N.W.2d 864, 866 (1957) (footnotes omitted);
see Minn. R. Civ. App. P. 108.01, subd. 2 (“[T]he [district] court retains jurisdiction as to
matters independent of, supplemental to, or collateral to the order or judgment appealed
from.”).
Mother specifically challenges finding of fact number 15 in her a ppeal. Whether
the finding is clearly erroneous is not a matter that is independent of, supplemental to, or
collateral to the June 2017 order. Therefore, mother’s appeal suspended the district court’s
authority to amend the finding. Based on our review of the record, we conclude that the
finding is clearly erroneous because we have not found a stipulation in which the parties
stipulated to dismissal of the OFP as to the child.

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Mother contends that this erroneous finding is significant because it demonstrates
that the district court was under a fundamental misapprehension of the posture of the case
when it decided whether to continue the OFP with respect to the child. But the district
court’s order to dismiss the OFP as to the child was not based only on the erroneous finding
that there was a stipulation. The district court found that the parties’ parenting -time
consultant credibly testified that he observed three visits between father and the child and,
during the visits, the child was very happy, engage d, and attended to father, acted very
normally, and had a strong bond. There were no signs of abuse, the child showed no signs
of fear of father, and the parenting -time consultant had no concerns regarding father’s
parenting. Also, the guardian ad litem recommended that father have unsupervised
parenting time that increases on a gradual basis.
Most significantly, the district court stated that “[the child’s] safety was taken into
consideration in setting the parenting time schedule.” The court then found that parenting
time with father is not likely to endanger the child’s physical or emotional health or impair
his emotional development and will enable father and the child to maintain a parent -child
relationship that is in the child’s best interests. These findings support the district court’s
decision to dismiss the OFP as to the child even without a stipulation.
Finding that mother delayed reporting sexual assault
Mother argues that the district court’s finding that she did not promptly report
father’s sexual assault in 2013 is clearly erroneous. C iting the court file in the criminal
case in Dodge County , the district court found that mother did not ini tially report the
alleged 2013 incident until November 7, 2015. But the statement of probable cause in the

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complaint in the Dodge County file states that mother reported the incident on November
7, 2013. The finding that mother initially reported the incident on November 7, 2015 is
clearly erroneous.
Finding regarding third-degree assault
Mother argues that the district court’s finding that father’s 2014 conviction of third-
degree assault was not a “domestic abuse” charge is clearly erroneous. The district court
did not find that the third-degree-assault conviction was not a “domestic abuse” charge; the
court found that “Father pled guilty to a third degree assault charge against Mother. The
charge is a qualified domestic violence related offense; however, Father was not convicted
of the two domestic abuse charges that the State also charged him with.” We find no error
in this finding. Third-degree assault under Minn. Stat. § 609.223 (2016) and domestic
assault under Minn. Stat. § 609.2242 (2016) are different offenses. The district court’s
finding indicates that mother was the victim of the third-degree assault, but that does not
convert the conviction under Minn. Stat. § 609.223 into a conviction under Minn. Stat.
§ 609.2242.
Effect of erroneous findings
Mother contends that the district court would have viewed the parties’ credibility
very differently if it had not made the erroneous findings of fact. But the court’s conclusion
that mother was not credible is supported by other evidence in the record that casts doubt
on mother’s credibility. For example , mother made a report of child abuse against father
with the St. Charles Police Department on October 25, 2016. The district court found:

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The officer who initially investigated the complaint found no
evidence of child abuse and no merit to go forward with the
case following the investigation. Mother was upset and sent
several emails from her Rochester Police Department
employee email address to the St. Charles Chief of Police, Ken
Frank, claiming their investigation had been inadequate and
requesting they reopen it. Chief Frank followed up on the
investigation and again concluded no child abuse had occurred.

The court also found that “Chief Frank raised the issue of Mother’s improper use of her
Rochester Police Department employee email address to send him several dozen email s
regarding reopening the investigation which he saw as an attempt to intimidate him.”
The district court found that Chief Frank’s testimony was credible and, with respect
to his testimony, found:
The Court agrees with Chief Frank that Mother’s use of he r
Rochester Police Department email address, number, nature of
complaints about and increasing intensity of contacts regarding
her child abuse allegations are troubling. It appears to the
Court as though Mother was trying to use her position with the
Rochester Police Department to pressure Chief Frank into
conducting further investigation(s), a forensic interview of the
child, and siding with her so a different determination would
be made.

In light of these findings, we are not persuaded that the district court would have
found mother credible if it had not made the two erroneous findings. We also note that the
district court extended the OFP for mother, which indicates that the court did not disregard
mother’s testimony.
II.
Mother argues that the dis trict court lacked authority to increase father’s parenting
time beyond the time awarded in the parties’ dissolution judgment . The dissolution

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judgment granted father parenting time alternating weekends from Friday at 4:00 p.m. until
Sunday at 6:00 p.m. The dissolution judgment also granted father alternating Sunday
evenings from “4:00 p.m. until 7:00 p.m. from approximately May through October so long
as he is unable to exercise mid-week parenting time due to his long hours.” The dissolution
judgment did not set a mid-week parenting time but stated that when father’s schedule
permitted it, he would be “entitled to one weekday evening of parenting time from 4:00
p.m. until 7:00 p.m. every week, the specific day of which shall be agreed upon by the
parties based upon each part [y’s] work schedule and the child’s activity schedule.” The
dissolution judgment specified that when father’s schedule permitted him to exercise mid-
week parenting time, the Sunday schedule would be eliminated.
The only increase in parenting time that mother cites is that the June 2017 order
grants father parenting time on alternating weekends from Friday at 4:00 p.m. until Sunday
at 7:00 p.m., instead of until Sunday at 6:00 p.m. We decline to address this de minimus
one-hour change in parenting time every two weeks. See Wibbens v. Wibbens, 379 N.W.2d
225, 227 (Minn. App. 1985) (holding that a technic al error that would provide party with
additional $120 was de minimus and did not require remand).
III.
Mother argues that the district court erred in requiring the parties to attend mediation
if they have difficulty communicating or agreeing on parenting time and to use some form
of alternative dispute resolution (ADR) to attempt to resolve parenting-time disputes before
applying to the district court for relief. Minn. R. Gen. Pract. 310.01(b) states:

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The court shall not require parties to participate i n any
facilitative process if one of the parties claims to be the victim
of domestic abuse by the other party or if the court determines
there is probable cause that one of the parties or a child of the
parties has been physically abused or threatened with physical
abuse by the other party. In circumstances when the court is
satisfied that the parties have been advised by counsel and have
agreed to an ADR process established in Rule 114 that will not
require face-to-face meeting of the parties, the court may direct
that the ADR process be used.

The parties agreed in the dissolution judgment to use mediation, and a mediator was
appointed to assist the parties. But the order continuing the OFP does not specify whether
the parties have been advised by counsel and have agreed to an ADR process that will not
require face-to-face meetings of the parties. Because father pleaded guilty to committing
third-degree assault against mother and mother was granted a continuing OFP against him,
the district court erred in ordering ADR w hen the requirements of Minn. R. Gen. Pract.
310.01(b) were not met. See Mechtel v. Mech tel, 528 N.W.2d 916, 918 -19 (Minn. App.
1995) (concluding that court erred by requiring parties to participate in mediation after
issuance of ex parte OFP). We, therefore, reverse the district court’s orde r requiring the
parties to participate in ADR.
Affirmed in part and reversed in part.