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This opinion will be unpublished and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 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1672

In re the Marriage of:

Terrence Michael Zelenka, petitioner,
Respondent,

vs.

Annie Valeria Anderson, f/k/a Anne Zelenka,
Appellant.

Filed July 15, 2019
Affirmed
Rodenberg, Judge

Dakota County District Court
File No. 19AV-FA-14-1274

Ryan J. Bies, Sharon K. Hills, Do ugherty, Molenda, Solfest, Hil ls & Bauer P.A., Apple
Valley, Minnesota (for respondent)

Annie Valeria Anderson, St. Charles, Minnesota (pro se appellant)

Considered and decided by Rodenberg, Presiding Judge; Bjorkman , Judge; and
Reyes, Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
In this appeal from the district court’s denial of her parenti ng-time-assistance
motion, appellant-mother Annie Anderson argues that the distric t court made findings of
fact that are not supported by th e record, should have granted her motion for additional

2
parenting time under the parties’ earlier schedule, and should have awarded her at least
25% parenting time. We affirm.
FACTS
Appellant and respondent-father Terrence Zelenka are the parents of K.Z., S.Z., and
M.Z.1 A stipulated judgment and decree dissolved the marriage of ap pellant and
respondent in 2009. The decree provided that the parties would have joint legal custody
of the children. Respondent was awarded sole physical custody of the children, subject to
appellant’s supervised visitation. A p p e l l a n t ’ s s u p e r v i s e d v i s itation was subject to
conditions, including that appellant maintain “absolute sobriety” and complete chemical-
dependency treatment as recommended by appellant’s counselors. In April 2014, pursuant
to a stipulated order, the district court expanded appellant’s parenting time to include
unsupervised parenting time, subject to conditions including appellant’s absolute sobriety.
If appellant failed to abide by the conditions, appellant’s parenting time would immediately
revert to supervised visitation until otherwise ordered by the court. In the summer of 2014,
appellant’s parenting time reverted to supervised visitation at the Children’s Safety Center
due to appellant’s alcohol and drug use.
In May 2018, appellant moved th e district court for parenting- time assistance and
sought to revert to the April 2014 parenting schedule. By affidavit in support of her motion,
appellant asserted that she has been sober since December 2014.

1 This appeal concerns only the parenting time of M.Z. The other two children are legally
emancipated.

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The district court denied appe llant’s motion. It found that a ppellant had provided
no independent support for her claim of sobriety since December 2014. Appellant provided
a Mayo Clinic medical report dated April 4, 2018, indicating that her chemical abuse is in
remission. But the district cour t explained that the report ap pears to be based on self-
reporting, it states that appella nt felt the need “to reduce al cohol,” and a need to “reduce
alcohol” does not support the claim of continuous sobriety sinc e December 2014. The
district court analyzed all of the statutory best-interests factors under Minn. Stat. § 518.17,
subd. 1(a) (2018), and concluded that it is in the best interests of the child for the parenting-
time schedule to remain unchanged.
This appeal followed.
D E C I S I O N
As an initial matter, we note that appellant’s argument on appe al does not provide
adequate citation to legal autho rity. Generally, an assignment of error based on mere
assertion, unsupported by argume nt or authority, is waived unle ss prejudicial error is
obvious on mere inspection. State v. Andersen, 871 N.W.2d 910, 915 (Minn. 2015); see
Ganguli v. Univ. of Minn. , 512 N.W.2d 918, 919 n.1 (Minn . App. 1994) (declining to
address allegations unsupported by legal analysis or citation). Reviewing courts are not
required to address inadequately briefed arguments, even for pa rties acting pro se.
Carpenter v. Woodvale, Inc., 400 N.W.2d 727, 729 (Minn. 198 7) (explaining that, while
an appellant acting pro se is “usually accorded some leeway in attempting to comply with
court rules, he [or she] is stil l not relieved of the burden of , at least, adequately
communicating to the court what it is he wants accomplished and by whom”). But even

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overlooking the inadequacy of a ppellant’s briefing, her argumen ts do not succeed on the
merits in any event.
Appellant posits that the applicable standard of review for th e district court’s denial
of her parenting-time request is de novo. This is incorrect. A district court has broad
discretion in deciding parenting-time questions and will not be reversed absent an abuse of
that discretion. Shearer v. Shearer, 891 N.W.2d 72, 75 (Minn. App. 2017). “Reversible
abuses of discretion include misapplying the law or relying on findings of fact that are not
supported by the record.” Id. (quotation omitted). On appeal, findings of fact are accepted
by a reviewing court unless the findings are clearly erroneous. Suleski v. Rupe, 855 N.W.2d
330, 334 (Minn. App. 2014).
Next, in arguing that the district court abused its discretion in denying her motion,
appellant relies on information outside of the record on appeal . The record on appeal
consists of “[t]he documents fil ed in the trial court, the exhi bits, and the transcript of the
proceedings, if any.” Minn. R. Civ. App. P. 110.01. “The cour t will strike documents
included in a party’s brief that are not part of the appellate record.” Fabio v. Bellomo, 489
N.W.2d 241, 246 (Minn. App. 1992), aff’d, 504 N.W.2d 758 (Minn. 1993); see Plowman
v. Copeland, Buhl & Co. , 261 N.W.2d 581, 583 (Minn. 1977) (stating that “[i]t is well
settled that an appellate court may not base its decision on ma tters outside the record on
appeal, and that matters not produced and received in evidence below may not be
considered”). Appellant included several documents in the adde ndum to her brief which

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were neither filed with the district court nor received as exhibits.2 Regardless of whatever
persuasive value these documents might have, we review the reco rd as it exists; we
generally do not consider documen ts that are not included in th e record and disregard
references in the briefing to documents not in the record. See AFSCME, Council No. 14 v.
County of Scott , 530 N.W.2d 218, 223 (Minn. App. 1995) (stating that court may
selectively disregard improper re ferences to evidence outside t he record without striking
the entire brief), review denied (Minn. May 16, June 14, 1995).
Appellant argues that the distr ict court’s finding that appella nt’s parenting time
reverted to supervised visits i n 2014 is clearly erroneous beca use appellant’s supervised
time reverted to supervised in 2015. Appellant’s affidavit adm its the she “lost parenting
time” in 2014 because of her relapse and, pursuant to the decree, appellant’s parenting time
would immediately revert to s upervised visitation upon any fail ure to maintain complete
sobriety. Respondent’s affidavit claims that appellant’s curre nt parenting time has been
supervised since early 2015, but also claims that appellant began using alcohol in summer
of 2014, which triggered the immediate suspension of parenting time and required
supervised visits. Despite the lack of precision concerning da tes, the district court’s
findings are not clearly erroneous. See Vangsness v. Vangsness , 607 N.W.2d 468, 474
(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.”).

2 Appellant appears to have reviewed at least one of those documents with the district court
judge during the proceedings below , and she acknowledges that s he “mistakenly thought
that this information would be part of the record.”

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Appellant also challenges several of the district court’s best -interests findings. This
argument fails for two reasons—the district court’s findings ar e supported by the record,
and the district court’s ultimat e best-interests determination was not a clear abuse of its
discretion.
It is well established that the ultimate question in disputes concerning parenting time
is what is in the best interests of the child. Clark v. Clark, 346 N.W.2d 383, 385 (Minn.
App. 1984), review denied (Minn. June 12, 1984). “[T]here is scant if any room for this
court to question a district court’s balancing of best-interests considerations.” In re Welfare
of C.F.N., 923 N.W.2d 325, 334 (Minn. A pp. 2018) (quotation omitted), review denied
(Minn. Mar. 19, 2019). We address the district court findings that appellant assigns as
error.
“History and nature of each parent’s participation in providing care for
the child.”

The district court found that each parent has a relationship with the child, respondent
is the primary caregiver, the child’s visits with appellant have been mostly supervised, and
appellant was using intoxicants t he last time the child was in her care. Appellant argues
that she was not using intoxicants the last time the child was in her care. However, the
record supports the district court’s finding on this factor bec ause there is record evidence
that appellant was using alcohol the last time the child was under the unsupervised care of
appellant. That there is contrary evidence that might have sup ported different findings is
no indication that the district court’s finding is clearly erroneous. Vangsness, 607 N.W.2d
at 474.

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“The effect on the child’s well-being and development of changes to home,
school, and community.”

The district court was concerned that disrupting the child’s cu rrent schedule and
reverting to the April 2014 pare nting schedule would have a neg ative effect on the child.
Appellant argues that there is no endangerment finding based on t h e c h i l d ’ s a g e . T h e
record supports the district c ourt’s finding that disrupting th e child’s schedule could be
detrimental.
“The benefit to the child in maximizing parenting time with both parents
and the detriment to the child in limiting parenting time with either
parent.”

The district court found that the child is accustomed to the cu rrent parenting
schedule, living with respondent and visiting appellant once pe r week. It further found
that, without verification of appellant’s sobriety and/or treat ment, the degree of potential
detriment to the child of returning to unsupervised parenting t ime with appellant is
“infinite.” Appellant argues that she has provided documentation of successful chemical-
dependency treatment. However, this argument rests primarily o n information that is not
in the record. Appellant did provide an April 2018 Mayo Clinic document in support of
this claim, but the district court found that document to be ba sed upon self-reporting and
included appellant’s statement of the need to “reduce alcohol,” indicating appellant had not
maintained complete sobriety. Appellant also argues that she is only able to see the child
every other week, contrary to the district court’s finding of once a week. This assertion is
also premised on a document that is not in the record on appeal. The district court’s finding
that appellant visits the child once a week is not clearly erroneous.

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Ultimately, the district court’s determination that retaining t he current parenting
time is in the child’s best interests was within its discretion.
Lastly, appellant raises in her statement of issues the claim t hat the district court
abused its discretion because the parenting time schedule affor d s h e r l e s s t h a n 2 5 %
parenting time and ignores the 25 %-parenting-time presumption u nder Minn. Stat.
§ 518.175, subd. 1(e) (2018). The statute provides a rebuttabl e presumption that a parent
is entitled to receive at least 25% of the parenting time for the child. Hagen v. Schirmers,
783 N.W.2d 212, 217 (Minn. App. 2010). “A court determining a noncustodial parent’s
parenting time must address application of the statutory presum ption for 25% parenting
time when the statutory presumption is raised by a party and the court awards less than the
presumed amount.” Id. at 214.
There are two problems with appellant’s argument. First, appellant did not raise the
statutory presumption to the district court. Second, although noted in appellant’s statement
of issues, appellant did not include this argument in her brief to this court. The argument
is therefore waived. See McKenzie v. State , 583 N.W.2d 744, 746 n.1 (Minn. 1998)
(arguments not briefed are waived in an appeal in which the appellant “alludes to” an issue
but “fails to address them in the argument portion of [her] brief”).
To be sure, appellant’s situation is a difficult one. Her relapse in 2014 continues to
impair the frequency and nature of her time with her child. Bu t the district court is best
situated to ascertain and protect the child’s best interests, and we defer to the district court’s
discretion. We see no abuse of that discretion here.
Affirmed.