In re the Marriage of: Kimberly Kay Seidel, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1396

In re the Marriage of:
Kimberly Kay Seidel, petitioner,
Appellant,

vs.

Trevor Carlton Seidel,
Respondent.

Filed April 22, 2019
Affirmed
Jesson, Judge

Anoka County District Court
File No. 02-FA-15-2022

Bradley John Haddy, Minnesota Esquire, LLC, Mendota Heights, Mi nnesota (for
appellant)

Trevor Carlton Seidel, Andover, Minnesota (pro se respondent)

Considered and decided by Johnson, Presiding Judge; Jesson, Ju dge; and Smith,
John, Judge.
*

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

2
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant-mother Kimberly Kay Seidel challenges the district c ourt’s award of
unsupervised parenting time and conduct-based attorney fees to respondent-father Trevor
Carlton Seidel. Mother argues that the district court abused its discretion when it ignored
alleged evidence that father sexually abused their minor child. Further, mother contends
that both parties caused the de lay in their marriage dissolutio n and thus conduct-based
attorney fees are inappropriate. Because the record supports t he district court’s findings,
we affirm.
FACTS
Appellant-mother Kimberly Kay S eidel and respondent-father Tre vor Carlton
Seidel were married in August 2008. Mother and father are the parents of the minor child,
born in 2012. Around the age of 9-12 months, while the parents were residing together,
the child stopped normal developmental progress. Because of this, mother took the child
to a number of doctors in an effort to determine the cause of the developmental issues. In
addition, the child began participating in play therapy with Dr. Kathleen Chara. After two
sessions, Dr. Chara reached the c onclusion that the child had e xperienced sexual abuse.
Upon Dr. Chara’s suggestion, mother had the home computer evalu ated for the existence
of child pornography. A computer forensics expert determined that there was fragmentary
evidence of child pornography on the computer, but could not de termine when it was
downloaded or accessed, or by whom.

3
The parties separated in March 2014 and mother filed a petition to dissolve the
marriage in March 2015. In December 2015, mother filed an ex p arte emergency motion
seeking temporary sole legal and physical custody of the child and denying any parenting
time to father. The basis for the motion was mother’s allegati ons of sexual abuse of the
child by father based, in part, on father’s alleged viewing of child pornography. The district
court granted mother’s motion. Two months later, the parties a ppeared for a temporary
motion hearing addressing child custody and parenting time. Th e district court granted
mother’s request for temporary sole physical custody, but denied mother’s request for sole
legal custody. The court awarded father temporary supervised p arenting time of a
minimum of one hour per week. Finally, because father became e stranged from the child
amidst the allegations of sexual abuse, the district court appointed Traverse Counseling to
conduct reunification therapy and supervise parenting time between father and the minor
child. And the district court appointed three neutral experts to evaluate the issues of child
custody and parenting time: psychological evaluator Dr. Samuel Albert, a forensic sexual
abuse evaluator, and a custody evaluator.
But eight months later, no supervised parenting time visits had occurred. The parties
returned to court in October 2016 . The district court then iss ued an order, directing the
parties to:
Prioritize the scheduling of ap pointments for [re]unification
therapy with Traverse Counseling over any other therapeutic
appointments. Prioritizing the scheduling of appointments for
[re]unification therapy with T raverse Counseling [means]
taking the first available appointment.

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[Re]unification therapy with [father] and [the child] shall occur
as soon as possible. The therapy shall occur even if both
parents do not embrace the process. Both parties shall
cooperate with the process.

But parenting time with father remained a problem. In February 2017, after a second
temporary motion, wherein it was disclosed that father had not yet received any opportunity
for parenting time despite the court’s previous two orders, the court ordered a graduated
parenting time schedule in which father would have unsupervised parenting time by March
18, 2017. In this order, the district court also granted father’s motion to compel mother to
disclose any and all mental health records and reserved father’ s motions regarding
conduct-based attorney fees.
1
The first of the six days of trial began in November 2017.2 The issues submitted to
the court were child custody, parenting time, child support, and attorney fees. Throughout
the course of the trial, the court received numerous exhibits a nd heard testimony from
mother, father, the computer for ensic analyst, the forensic sex ual abuse evaluator, the
custody evaluator, Dr. Chara, and two police detectives. 3 The forensic sexual abuse
evaluator testified that the child’s traumatic memories were re -stimulated by seeing her
father, and that father should receive supervised parenting time. But she also testified that
the information she had was “fairly stale” because it was over six months old. The custody

1 Dr. Albert, the psychological evaluator, needed mother’s menta l health records in order
to successfully complete his psychological evaluation pertaining to mother.
2 The six-day trial took place on November 3 and 29, 2017, December 1, 2017, and January
23, 25, and 26, 2018.
3 Although Dr. Albert did not testify at trial, the parties stip ulated to the admission of his
psychological evaluation reports regarding mother and father.

5
evaluator testified regarding her recommendations, which includ ed supervised parenting
time with father. And Dr. Chara testified that in her opinion the child was violated by an
angry male in her home. But Dr. Chara also testified that she did not make a note in her
records that she concluded that f ather sexually abused the chil d . O n e o f t h e p o l i c e
detectives testified that prior t o his short interview with the child, there was information
that “indicat[ed] that she had be en talked to by people prior t o [the] interview with her
about her Mean Daddy.”4
The district court issued a 39-pa ge judgment and decree awardin g mother sole
physical custody, both parties joint legal custody, and include d a parenting time schedule
dividing parenting time equally between the parties, with fathe r having unsupervised
parenting time. The district court found that the six-year-old child had been primarily taken
care of by her mother, that mother and child had a strong and l oving bond, and that there
was no reason to diminish or interfere with their relationship. And the district court found
that the recent parenting time with father appeared to have a b eneficial impact upon the
child.
In the judgment and decree, the district court discussed the 12 best-interests factors
regarding child custody and pare nting time. The district court also discussed the neutral
evaluators’ reports, and its issues with the timing, scope, and absence of up-to-date

4 In May 2017, Dr. Chara reported to the police that the child i ndicated that her “mean
daddy does more things to [her]” and that the child suggested t hat “mean daddy possibly
touched her genital area.” The child disclosed to a police off icer that there was some
touching by her father, but when he asked her who she had spoken with about the incident,
the child indicated that she was told this happened to her by mother and Dr. Chara.

6
information in the reports, which was a particular concern give n the delay in starting
father’s supervised parenting time. But while the district cou rt noted that it based its
findings in part on those of the custody evaluator and her repo rt, it also stated that “the
totality of the evidence yields a different conclusion as to [the child’s] best interests.” That
conclusion permitted father unsupervised parenting time.
Finally, in its order, the distri ct court awarded father conduc t-based attorney fees,
reasoning that while both partie s contributed to the “over-liti gated and unnecessarily
lengthy” case, mother prolonged the proceedings by failing to provide Dr. Albert with her
mental health history and medical records. The release of the complete medical records
led to two addendums to Dr. Albert’s report where he raised questions regarding mother’s
credibility, and stated that mother “presented with less than average honesty and openness,
much less than average accuracy, and continuing average insight .” Over five months
passed between when mother was ordered to release her mental he alth records and when
Dr. Albert released his final addendum to mother’s report after receiving a complete set of
records. Regarding the delay, the district court stated that mother’s failure to disclose her
mental health history to Dr. Albert “prolonged his evaluation and those of the other neutrals
who were waiting for Dr. Albert’s report to complete their own. ” The district court
awarded father $5,000 in conduct-based attorney fees.
Mother appeals.5

5 Father did not file a responsiv e brief and this court ordered the appeal to proceed under
Minnesota Rule of Civil Appellate Procedure 142.03.

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D E C I S I O N
Mother argues that the district court abused its discretion by granting father
unsupervised parenting time and by awarding him $5,000 in conduct-based attorney fees.6
We address each argument in turn.
I. The district court did not abu se its discretion by granting father unsupervised
parenting time.

A district court has broad discre tion when deciding parenting-t ime matters.
Hansen v. Todnem, 908 N.W.2d 592, 596 (Minn. 2018). “Our review is limited to whether
the district court abused its discretion by making findings unsupported by the evidence or
by improperly applying the law.” Id. (quotation omitted). We revi ew the district court’s
factual findings for clear error. Id. at 599.
When addressing parenting time, the district court shall “grant such parenting time
on behalf of the child and a pare nt as will enable the child an d the parent to maintain a
child to parent relationship that will be in the best interests of the child.” Minn.
Stat. § 518.175, subd. 1(a) (2018). “In the absence of other evidence, there is a rebuttable
presumption that a parent is en titled to receive a minimum of 2 5 percent of the parenting
time for the child.” Id., subd. 1(g) (2018). If “paren ting time with a parent is likel y to
endanger the child’s physical or emotional health or impair the child’s emotional
development, the court shall res trict parenting time with that p a r e n t a s t o t i m e , p l a c e ,
duration, or supervision and ma y deny parenting time entirely, a s t h e c i r c u m s t a n c e s

6 On appeal, mother argues only t hat father’s parenting time sho uld be supervised. She
does not argue that the amount of parenting time awarded was an abuse of direction.

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warrant.” Id., subd. 1(b) (2018). The “paramount issue” for the district co urt in making
parenting-time determinations mus t be the “welfare and best int erests of the child.”
Petersen v. Petersen, 206 N.W.2d 658, 659 (Minn. 1973); see also Schisel v. Schisel, 762
N.W.2d 265, 270 (Minn. App. 2009) (noting that the fundamental focus is on the child’s
best interests).
To ascertain whether supervised parenting time by father is in the best interests of
the child, the district court was required to consider and evaluate 12 relevant factors. Minn.
Stat. § 518.17, subd. 1(a)(1)-(12) (2018); Hansen, 908 N.W.2d at 596. Parenting-time
determinations must be supporte d by “detailed findings” on each of the statutory factors
related to the best interests of the child. Minn. Stat. § 518.17, subd. 1(b)(1) (2018). Here,
the district court included a clear statement of the law regard ing the best-interests factors,
analyzed the 12 best-interests f actors and made detailed findin gs for each. The district
court found that “[father] has demonstrated a willingness and a bility to exercise his
parenting time consistently, as well as the ability to support [the child’s] ongoing
developmental and emotional needs.” Further, the court stated that “[p]arenting time with
[father] appears to have a beneficial impact upon [the child].” And that “[t]he loss of this
reestablished relationship, either through abandonment or alien ation would undoubtedly
be traumatic.” Finally, the district court found that there was no evidence in the record that
allowed it to make a finding that father sexually abused the child.
In assessing the best-interests factors, the district court ana lyzed reports from the
different professionals who treated and evaluated the child. W hile the reports of the
professionals recommended supervised parenting time, the distri ct court ultimately

9
determined that father should receive unsupervised parenting ti me. The district court
explicitly noted issues of concer n regarding the professionals’ r e p o r t s , a s s u m m a r i z e d
below.
Regarding the custody evaluation, the district court noted that the evaluator had
spent only two hours observing the child with father which occu rred within one month of
father’s first parenting-time vis it, following three years of s eparation between father and
the child. The district court also noted that although nine months had passed between the
custody evaluator’s observations and when she finalized her report, “[a]t no later point did
[she] attempt to re-examine the extent of [father’s] emotional relationship with [the child],
or to assess how [the child] progressively perceived her relationship to and with [father].”
The district court noted that the custody evaluator’s conclusio n that “there is little
likelihood that a significant bond between [father and the child] has developed” was made
at the inception of father’s parenting time and that “it is difficult to surmise that [the child]
and [father] have not formed a significant bond at this time.” And the district court found
credible father’s testimony regarding his positive, emotionally-secure relationship with the
child.
In addition, the district court noted several concerns with the testimony of the
forensic sexual abuse evaluator and Dr. Chara, both of whom rec ommended supervised
parenting time for father. Specifically, the district court fo und that the forensic sexual
abuse evaluator met with the child for two 30-minute sessions in the summer of 2016, and
her speech and occupational records for the child end in 2016—but she failed to update her
records prior to completing her forensic investigation report in August of 2017. Further,

10
the forensic sexual abuse evalua tor adopted Dr. Chara’s observa tions as her own, and
allowed those observations to form the basis of her forensic ev aluation. With regard to
Dr. Chara, the district court did not find credible her conclusion that the child was sexually
abused by her father. It noted that “Dr. Chara became overly i nvolved in such a manner
that seemed to prevent her from providing neutral appropriate care to the child.”
Finally, the district court stated that Dr. Albert ultimately c oncluded that [mother]
“has less than average honesty and openness, much less than average accuracy.” And the
court relied upon the second addendum to mother’s psychological evaluation where
Dr. Albert stated:
The extent of [mother’s] recurrent history of medically
unexplained symptoms through at least 2008 and her
continuing belief that they have had a medical origin suggest
that additional caution be used when assessing the accuracy of
her observational reports of troubling behavior by [the child].
Asking about [the child’s] concrete, specific behaviors as well
as determining whether there are confirmatory observations of
the same behaviors by others is recommended before giving
them full credence.

(Emphasis added.)

Throughout its analysis, the district court discussed mother’s request for father to
not receive any parenting time because of her belief that father sexually abused the child.
But the district court found that the testimony and evidence pr esented during trial did not
support a finding that father abused the child. It expressed c oncern that mother will not
voluntarily facilitate father’s parenting time, and would alienate the child from father.
7

7 The district court also noted t hat “[f]urther litigation, poli ce reports, and therapeutic
activity is highly likely.” But the district court also noted that the parents have “shown the

11
In sum, the district court carefully considered both parties’ arguments and balanced
them accordingly to reach the con clusion that the best-interest s factors favored an award
of unsupervised parenting time to father.
The record supports the distric t court’s findings. Father subm itted to a
psychophysiological sexual intere st assessment, which revealed that father has “no
significant objectively measured r esponse” to pre-pubescent chi ldren. And though
fragmentary evidence of child pornography was found on the old family computer, there is
no evidence as to how it got on the computer, who accessed it, and to what extent it was
accessed. Throughout the entirety of the court proceedings, father denied having sexually
abused the child.
Regarding the child, though Dr. Chara concluded that the child regressed after
beginning parenting time with fat her, the custody evaluation in dicated that the child
continued to make progress and meet goals. And when father bro ught the minor child to
one of the speech-therapy appointments, the speech therapist re ported that “[father]
encouraged [the minor child], ask ed questions, and showed inter est in the therapy.”
Further, the record demonstrat es mother’s unwillingness to allo w father parenting time,
which only commenced after the second time the court ordered mother to cooperate.
But mother challenges the district court’s decision regarding unsupervised parenting
time on two grounds.8 She first argues that the district court failed to consider the testimony

ability to agree on some things reg arding parenting-time schedule changes and education
so there is reason to believe a level of understanding can exist.”
8 In mother’s argument regarding the district court’s abuse of discretion in allowing father
unsupervised parenting time, she appears to argue against the d istrict court’s credibility

12
from the professionals who testified. Then mother asserts that the district court
impermissibly relied upon the language in father’s proposed fin dings of fact, conclusions
of law, and judgment and decree, rather than conduct an independent analysis. We address
each argument in turn.9
Mother contends that the distri ct court erred by ignoring the t estimony from the
professionals who testified, and focusing instead on the testim ony given by two police
detectives who conducted a wellness-check interview with the ch ild. But the district
court’s findings of fact rely upon information received from va rious professionals,
including the custody evaluator, the school speech therapist, t he private speech therapist,
the Theraplay10 therapist, the occupational therapist, and Dr. Albert. The only mention of
law enforcement in the entirety of the 39-page judgment and dec ree is one line stating
“[l]aw Enforcement concluded the child had obviously been coach ed by [mother] and
Dr. Chara.” Because the district court referred to the various professionals’ reports and
findings throughout its almost nine-page best-interests factors discussion, it did not abuse
its discretion when weighing the testimony of the professionals and law enforcement.

determinations and findings of fact throughout this section of her brief and urges this court
to make credibility determinations and findings of fact supporting her. But caselaw is clear
that this is not the role of this court. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988)
(we defer to the district court’s credibility determinations); Kucera v. Kucera, 146 N.W.2d
181, 183 (Minn. 1966) (it is not the appellate court’s role to find facts).
9 Mother also characterizes the failure to award supervised visitation as the result of judicial
bias, but points to nothing in the record or the law to support her argument.
10 Theraplay is “an attachment-based therapy intervention designe d to replicate a healthy
parent-child relationship.”

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Mother then contends that pertinent information was ignored or intentionally left
out of the district court’s final analysis because the district court instead relied upon the
language in father’s proposed findings of fact, conclusions of law, and judgment and
d e c r e e . B u t w h e n c o m p a r i n g f a t h e r ’ s p r o p o s e d o r d e r w i t h t h e d istrict court’s final
judgment and decree, it is clear that the district court did no t rely entirely upon father’s
proposed language. Rather, the judgment and decree included in dependent descriptions
and findings, as well as significant deletions of father’s proposed findings.
Underlying mother’s arguments that father should receive supervised parenting time
is her intractable belief that father sexually abused the minor child. But the district court
concluded, after a six-day trial, that “[t]here is no evidence that would allow the [c]ourt to
make a finding that in fact [father] did abuse this child.” Th at conclusion is supported by
t h i s r e c o r d . W h i l e w e m a y h a v e r e a c h e d a d i f f e r e n t c o n c l u s i o n regarding the exact
parameters of father’s parenting time, the district court’s fin dings of fact are
well-supported. And current caselaw “leaves scant if any room” for us to question the
district court’s balancing of the best-interests factors. Vangsness v. Vangsness , 607
N.W.2d 468, 477 (Minn. App. 2000). As such, the district court did not abuse its discretion
by ordering unsupervised parenting time for father.

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II. The district court did not abuse its discretion by granting father conduct-based
attorney fees.

Mother argues that the district court abused its discretion by awarding
conduct-based attorney fees to father because “both parties participated equally in creating
a long and adversarial dissolution.”
11
T h i s c o u r t r e v i e w s a n a w a r d o f c o n d u c t - b a s e d a t t o r n e y f e e s f o r a n a b u s e o f
discretion. Brodsky v. Brodsky , 733 N.W.2d 471, 476 (Minn. App. 2007). Under
Minnesota Statutes section 518. 14, subdivision 1 (2018), a dist rict court may award
“additional fees, costs, and disbursements against a party who unreasonably contributes to
the length or expense of the proceeding.” Conduct-based attorn ey fees are discretionary.
Sharp v. Bilbro , 614 N.W.2d 260, 264 (Minn. App. 2000), review denied (Minn.
Sept. 26, 2000). But they may only be awarded for conduct occurring during the litigation
process, and the district court must identify the offending con duct. Geske v. Marcolina,
624 N.W.2d 813, 816, 819 (Minn. App. 2001).
Here, the district court acknowl edged that the case was “over-l itigated and
unnecessarily lengthy” which was attributable to both parties. But the district court
awarded conduct-based attorney f ees to father because “[mother] increased the time and
expense of this proceeding by intentionally failing to disclose her mental health history,
despite numerous opportunities to do so and a formal discovery request[].”

11 Additionally, mother asserts that the matter of conduct-based attorney fees should have
been litigated, but presents no authority supporting her position.

15
The record supports the district court’s decision. Father firs t requested records of
mother’s mental health history on July 1, 2016, and mother responded on August 8, 2016,
failing to disclose any information. Five months later, father formally noted the
deficiencies. In February 2017, mother stated in a more detail ed response that she had
made a “full disclosure of [her] medical and mental health issues to Dr. Samuel Albert, the
psychologist in this matter.” But she had not. 12 Due to mother’s failure to disclose the
requested discovery, the district court granted father’s motion to compel.
After two months, Dr. Albert issued mother’s psychological eval uation. But
Dr. Albert was required to issue an addendum only two days later, because he received an
additional 70 pages of mother’s m edical records, prompting Dr. Albert to make several
changes to his evaluation. Then, three months later, Dr. Alber t received numerous other
medical and mental health records from mother, requiring a seco nd addendum to her
evaluation. The late issuance of the addendums demonstrates th e delay by mother in
disclosing her medical and mental health records. Over six months passed between when
the district court ordered her to produce her mental health records and when Dr. Albert was
able to issue the final addendum. Further, other evaluators ne eded to review Dr. Albert’s
report in order to complete their own evaluations.

12 In several emails, which were e xhibits at trial, mother indica ted that she prayed the
district court would not require her to disclose her records and “would love it if God would
supernaturally erase [her] mental health records from Allina’s system.”

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Because the district court’s decision is not “against logic and the facts on record,”
the district court did not abuse its discretion in ordering conduct-based attorney fees. In re
Adoption of T.A.M., 791 N.W.2d 573, 578 (Minn. App. 2010) (quotation omitted).
Affirmed.