In re the Marriage of: Robert William Bessenbacher, 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This opinion will be unpublished and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
A18-2152

In re the Marriage of:
Robert William Bessenbacher, petitioner,
Appellant,

vs.

Olga Sergeyevna Bessenbacher,
Respondent,

County of Itasca, intervenor,
Respondent.

Filed August 5, 2019
Affirmed in part and reversed in part
Ross, Judge

Itasca County District Court
File No. 31-FA-14-2754

Robert William Bessenbacher, Grand Rapids, Minnesota (pro se appellant)

Rachel L. F. Weis, Legal Aid Service of Northeastern Minnesota, Grand Rapids, Minnesota
(for respondent Olga Bessenbacher)

Matti R. Adam, Itasca County Attorney, Jennifer Erin Ryan, Assistant County Attorney,
Grand Rapids, Minnesota (for respondent Itasca County)

Considered and decided by Larkin, Presiding Judge; Ross, Judge; and Bratvold,
Judge.
2
U N P U B L I S H E D O P I N I O N
ROSS, Judge
Robert Bessenbacher and Olga Bessenbacher are the divorced parents of seven
children. Robert appeals from the district court’s order denying his motions to modify
custody, child support, spousal maintenance, and the extant parenting-time arrangement,
and restricting him from filing motions based on a f inding that he is a frivolous litigant.
We affirm all but the district court’s restriction on filing motions, reversing in part because
Olga’s frivolous-litigant motion did not comply with procedural requirements.
FACTS
The district court issued a judgment and decree after a trial in 2015, dissolving
Robert Bessenbacher and Olga Bessenbacher’s marriage and ordering Robert to pay
spousal maintenance and child support. The decree incorporated the parties’ stipulated
custody designations and parenting -time schedule for their seven children. This appeal
arises from the district court’s decisions addressing various motions by Robert and Olga:
to modify child support; to modify spousal maintenance; to amend the parenting -time
allocation; to change the location of parenting exchanges; and to declare Robert a frivolous
litigant. The district court considered the custody and parenting-time motions based in part
on an evidentiary hearing but all other motions on the pleadings.
The district court issued an order reaffirming Olga’s status as sole legal custodian
and granting her sole physical custod y of the six minor children. It modified the
parenting-time schedule to increase Robert’s parenting time, and it left unchanged the
parental-exchange location. It denied Robert’s motion to modify child support and spousal
3
maintenance, and it declared him to be a frivolous litigant and restricted his right to file
additional support- or maintenance-modification motions. Robert unsuccessfully moved
the district court to amend its findings, to order a new trial, and, later, to hold Olga in
contempt of court for interfering with his parenting time.
Robert appeals.
D E C I S I O N
Robert challenges every facet of the district court’s decisions unfavorable to him.
His challenge to only one of those decisions—the order restraining his right to file motions
as a frivolous litigant—warrants reversal.
Custody
We identify no ground to reverse the district court’s custody decision. We review a
district court’s child-custody decision for an abuse of discretion. Pikula v. Pikula,
374 N.W.2d 705, 710 (Minn. 1985). The district court abuses its discretion when it makes
findings unsupported by evidence or improperly applies the law. Id. Robert argues that the
district court abused its discretion by making unsupported factual findings. We will set
aside a district court’s findings of fact only if they are clearly erroneous. Minn. R. Civ. P.
52.01; see also Goldman v. Greenwood, 748 N.W.2d 279, 284 (Minn. 2008). In other
words, when the disputed evidence could support a finding either for or against a factual
conclusion depending on which evidence the district court weighs heavily and which it
does not, we will leave the district court’s finding intact. We are simply in no position on
appeal to reweigh the evidence or reconsider credibility determinations so as to substitute
our view of the evidence for the district court’s. And our review of the record in light of
4
Robert’s argument leaves us satisfied that t he district court’s findings are adequately
supported.
Robert specifically questions the district court’s finding that he abused Olga during
the marriage, raising several theories that all essentially invite us to reweigh the quality of
the competing evidence. That finding supplied some of the basis f or the district court’s
custody-modification decision. The district court weighed the credibility of live testimony,
considered police reports, and reviewed other evidence that, considered in the light most
favorable to its finding, supplies the support for its understanding that Robert engaged in
physically and psychologically abusive conduct during the marriage. We need not recount
the evidence or specific conduct here. We say only that conflicted but sufficiently strong
evidence supports the finding of abuse.
Robert challenges the district court’s findings that homeschooling by Olga is in the
best interests of the children and that her role as their teacher favored granting her sole
legal and physical custody. These findings too have adequate evidentiary support. The
district court heard the competing evidence and found that the parties cannot cooperate in
educational decisions, that the children are doing well academically, and that conflict over
their education is likely to continue unless one parent has the custodial authority to make
the decisions. The district court’s findings are supported and its decision falls within its
discretion.
We also believe that the district court acted within its discretion by maintaining the
parenting exchanges at the Wellstone Family Safety Center after considering the best
interests of the children. The district court knew that other exchange locations and methods
5
employed by the parties had been unsuccessful at avoiding conflict. This demonstrates that
the district court exercised its discretion reasonably, and we will not disturb the decision.
Parenting Time
Robert also does not identify a compelling reason for us to reverse the district court’s
parenting-time decision. We review a district court’s decision to modify parenting time for
an abuse of discretion. Shearer v. Shearer, 891 N.W.2d 72, 75 (Minn. App. 2017). The
district court seemed to carefully weigh Robert’s strong contention that the parties’
parenting time with the children should be divided evenly. But it considered, among other
things, that homeschooling by Olga is in the best interests of the children and that an equal
division would interfere with their education. The operative statute framing the district
court’s decision does not obligate the court to presume an equal division. See Minn. Stat.
§ 518.175, subd. 1(g) (2018) (presuming each parent is entitled to 25% of parenting time).
We understand that a different decision-maker might have come to a different result, but
this is not because the result here is arbitrary; it is because the district court has broad
discretion and reasonable minds might differ about the best outcome.
Child Support and Spousal Maintenance
Robert argues that the district court erred by denying his motion to modify child
support and spousal maintenance. District courts have broad discretion to modify both child
support and spousal maintenance, and we will overturn the district court’s decision only if
it abuses that discretion. Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981);
Shearer, 891 N.W.2d at 77. Robert argues that the district court erred by finding that his
circumstances had not changed sufficiently to warrant a modification. For Robert to be
6
entitled to modification of support or maintenance, he must show that there has been a
substantial change in circumstances that makes the extant award unreasonable or unfair.
Minn. Stat. § 518A.39, subd. 2 (2018).
Robert offers different theories to support his contention that the district court
improperly rejected some of his claimed expenses as unsupported by evidence. None of his
arguments succeed. Robert argues that the district court erred by f ailing to adjust his
expenses to account for the parties’ oldest child living with him. But because that child has
lived with Robert since the original child-support determination, Bessenbacher v.
Bessenbacher, A17-0339, 2017 WL 3585124, at *4 (Minn. App. Aug. 21, 2017), the
residence of that child is not a change in circumstance. The district court also found that
Robert had not substantiated his child-related expenses, and Robert points to no evidence
that undermines that finding.
Robert maintains that the district court should have included his saving toward
retirement as a necessary expense because it was an expense during the marriage .
Assuming the argument has merit and that the court erred by treating the expense
otherwise, Robert does not convince us to reverse. He fails to identify compelling evidence
demonstrating that any difference between the amount of reasonable retirement savings
during the marriage and reasonable retirement savings now would constitute a substantial
change in circumstances. His contention that his attorney fees are necessary also fails on
various grounds, including his failure to provide evidence that these expenses would
continue when he is no longer engaged in this litigation. The district court dismissed as
7
unsupported by evidence Robert’s other claimed expenses. Robert fails to demonstrate that
the court’s treatment of those expenses reflects clear error.
Robert contends that the district court should have deviated from the typical
approach of basing ability to pay maintenance on gross income and instead measured his
ability to pay based on his net income because of his tax withholdings and credit-card debt,
citing Kostelnik v. Kostelnik. 367 N.W.2d 665, 670 (Minn. App. 1985), review denied
(Minn. July 26, 1985). It is true that the Kostelnik court held that the district court should
have determined spousal maintenance using the obligor’s take-home pay instead of his
gross income. Id. But that was because his business expenses significantly diminished the
value of his take-home pay. Id. Robert failed to introduce evidence or convincing argument
aligning his situation with Kostelnik’s as it regards business expenses. And the district
court was not persuaded that Robert’s credit-card debt resulted from reasonable or
necessary expenses. It also found credible Olga’s testimony that Robert had manipulated
his payroll withholdings to minimize his periodic take-home pay. The district court did not
misapply the law by calculating Robert’s ability to pay based on his gross income.
Frivolous Litigant
Robert argues that the district court erred as a matter of law by restricting his right
to file motions based on its conclusion that he is a frivolous litigant. A district court may
restrict a party’s right to file motions on a conclusion that he is a frivolous litigant. Minn.
R. Gen. Prac. 9.01–.07. We will overturn a district court’s conclusion that a party is a
frivolous litigant if the district court abused its discretion. See Szarzynski v. Szarzynski, 732
N.W.2d 285, 295 (Minn. App. 2007). An abuse of discretion occurs if the district court
8
fails to abide by the procedural requirements controlling frivolous-litigant motions set out
in the Minnesota General Rules of Practice. See id.; see also Phelps v. State, 823 N.W.2d
891, 894 (Minn. App. 2012) (“Minn. R. Gen. Pract. 9.01–.07 contain[] procedural
requirements with which the parties and district court must comply.”). The record supports
Robert’s assertion that Olga presented her frivolous-litigant motion outside the rules.
A party moving the district court to declare her opponent a frivolous litigant cannot
file or present her motion to the court “unless, within 21 days after service of the
motion . . . , the challenged claim, motion, or request is not withdrawn or appropriately
corrected.” Minn. R. Gen. Prac. 9.01. Olga served her frivolous-litigant motion on Robert
on January 29, 2018, and she waited only 14 days after service to file it on February 12.
Because Olga failed to honor the pre-filing waiting period required by the rule, the district
court abused its discretion by granting her motion.
Olga contends that the rule violation was cured by her presenting the motion to the
district court during the evidentiary hearing, which was more than 21 days after she served
it. Olga’s contention cannot prevent reversal. The rule states that a frivolous-litigant motion
“shall not be filed with or presented to the court” until the 21-day cure period has passed.
Minn. R. Gen. Prac. 9.01. We reverse the district court’s frivolous-litigant conclusion and
the consequent filing restriction.
Contempt
Robert argues that the district court erred by not holding Olga in contempt of court,
and here again we review for an abuse of discretion. In re Welfare of J.B., 782 N.W.2d
535, 538 (Minn. 2010). Robert maintains specifically that the record proves that Olga was
9
interfering with his parenting time by persuading the children to refuse to visit him. The
district court may hold a party in contempt for purposefully disobeying its order. Erickson
v. Erickson, 385 N.W.2d 301, 304 (Minn. 1986). The district court received evidence that,
according to the child who was allegedly refusing to visit Robert during the relevant period,
Olga had encouraged —not discouraged—th e child to participate in parenting time with
Robert. This evidence, notwithstanding any conflicting evidence, supports the district
court’s finding that Olga did not contemptuously disobey the court’s allegedly violated,
August 2018 parenting-time order.
Amended Findings and New Trial
Robert argues that the district court err oneously denied his motion for amended
findings or a new trial after it denied his motion to modify. A district court may amend its
findings or make additional findings upon a timely request by a party. Minn. R. Civ. P.
52.02. We review a denial of a motion requesting additional findings for an abuse of
discretion. Zander v. Zander, 720 N.W.2d 360, 364 (Minn. App. 2006), review denied
(Minn. Nov. 14, 2006). We have carefully considered Robert’s argument in light of the
record, and we see no merit to it. Robert argues that the district court made factual findings
inconsistent with the record, but he points to no finding that is unsupported by evidence in
the record. And “special proceedin gs” like motions to modify custody, maintenance, and
child support are not the proper subject of a new-trial motion. See Angelos v. Angelos,
367 N.W.2d 518, 520 (Minn. 1985); Huso v. Huso, 465 N.W.2d 719, 720–21 (Minn. App.
1991). We therefore affirm.
Affirmed in part and reversed in part.