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This opinion will be unpublished and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
A19-1235

In re the Marriage of:

James Edward Cook, II, petitioner,
Respondent,

vs.

Hitomi Arimitsu,
Appellant.

Filed April 27, 2020
Affirmed in part, reversed in part, and remanded
Cochran, Judge

Hennepin County District Court
File No. 27-FA-15-499

Victoria M. B. Taylor, Shawn C. Reinke, Crossroads Legal Services, St. Paul, Minnesota
(for respondent)

Valerie Arnold, Micaela Wattenbarger, Arnold, Rodman & Kretchmer, P.A., Bloomington,
Minnesota (for appellant)

Considered and decided by Cochran, Presiding Judge; Ross, Judge; and
Segal, Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
In this international chil d-custody and divorce dispute, appellant-mother argues that
the district court erred by (1) failing to recognize and enforce certain Japanese court orders,

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(2) exercising jurisdiction over child custody, (3) making fi ndings not suppo rted by the
record, (4) awarding co nduct-based attorney fees, and (5) holding mother in contempt of
court. We affirm on the first four issues , but we reverse and remand on the issue of
contempt.
FACTS
This is the third appeal by appellant Hitomi Arimitsu (mother) in this child custody
and divorce dispute. In the first appeal, we affirmed the district court’s determination that
it had subject-matter jurisdiction to address child custody. See Cook v. Arimitsu ,
907 N.W.2d 233 (Minn. App. 2018), review denied (Minn. Apr. 17, 2018) ( Cook I). We
dismissed the second appeal by order because mother again challenged the district court’s
subject-matter jurisdiction and no relevant ch ange in circumstances affected our de novo
jurisdiction analysis. We brie fly summarize the complicated hi story of this case and the
relevant facts.
Respondent James Edward Cook, II (father) and mother were married in 1998. They
have two sets of twin children. In July 2014, mother took all four children to Japan.
Though father agreed to mother taking the children to Ja pan for a period of time, mother
and the children never returned to Minnesota and the children remain in Japan.
Father petitioned to dissolv e the marriage in 2 015 in Hennepin County District
Court. Early in the case, the district court determined that it did not have subject-matter
jurisdiction under the Uniform Child Cu stody Jurisdiction and Enforcement Act
(UCCJEA) to address child custody because, among other reasons, Minnesota was not the

3
children’s home state. The district court judge that made this determination retired, and a
successor judge was assigned.
Meanwhile, in Japan, father petitioned the Japanese courts to order the return of the
children under the Hague Convention on th e Civil Aspects of International Child
Abduction, opened for signature Oct. 25, 1980, T.I.A.S . No. 11670 (the Hague
Convention). Initially, a Japanese court issued an order (1) determining that the United
States was the children’s habitual residence,1 (2) requiring mother to return the younger set
of twins to the United States, and (3) concluding that the older set of twins could remain in
Japan based on their preferences. Both fa ther and mother appealed the order. In
January 2016, a Japanese appellate court issued a new order that required mother to return
all four children to the United States based on the interest in keeping the children together
(hereinafter “2016 Hague Order”). Mother appealed the 2016 Hague Order to the Japanese
supreme court, but the Japanese supreme cour t denied review in February 2016. Japan
then issued indirect enforcement orders that required mother to pay certain fines and costs
and also issued direct enforcement orders.
In September 2016, back in Minnesota, father moved the district court to reconsider
its subject-matter jurisdiction de termination. In December 2016, the district court did
reconsider and determined that it had jurisdiction under the UCCJEA because, among other
reasons, Minnesota was the children’s home state under th e UCCJEA. The district court

1 The Hague Convention does no t define “habitual residence,” but the federal appellate
courts of the United States have adopted a common understanding that a child’s “habitual
residence” is “[t]he place where a child is at home, at the time of removal or retention.”
Monasky v. Taglieri, 140 S. Ct. 719, 726 (2020).

4
ordered mother to return the children to Mi nnesota. But mother never returned the
children, and the district court found mother in constructive civil contempt in June 2017.
Mother, however, brought a petition in Ja pan to modify the 2016 Hague Order,
which required mother to return all of the children to the United States. In February 2017,
a Japanese court ruled that, based primarily on a deterioration in father’s financial
circumstances, mother was no longer required to return the children to the United States
(hereinafter “2017 Japanese Modification Order”). The 2017 Japanese Modification Order
did not amend the previous finding that Minnesota was the children’s habitual residence.
Relying on the 2017 Japanese Modification Order, mother moved the district court
to reconsider its order reestablishing subject-matter jurisdiction. The district court denied
mother’s motion in an April 2017 order. Mother appealed both the December 2016 order
reestablishing subject-matter jurisdiction and the April 2017 order denying mother’s
motion to reconsider. This co urt affirmed the district c ourt, concluding, among other
things, that subject-matter jurisdiction existed under the UCCJEA because Minnesota was
the children’s home state. Cook I, 907 N.W.2d at 238-40.
Father appealed the 2017 Japanese Modification Order in Japan. In December 2017,
the Japanese supreme court affirmed the order and, in January 2018, a certificate of final
decision was issued by the Japa nese courts. In March 2018 , a Japanese court issued a
subsequent order (herein after “March 2018 Japanese Order”) that revoked the previous
Japanese enforcement orders issued against mother. The March 2018 Japanese Order, in
effect, provided that mother was no longer required to pay a financial sanction for her

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failure to return the children. In April 2018, a certificate of service was filed in the Japanese
courts stating that the March 2018 Japanese Order was served on father and mother.
In September 2018, mother filed a new mo tion in Hennepin County District Court
requesting the district court to register and enforce the 2017 Japanese Modification Order
and subsequent Japanese orders. Mother also asked the district court to decline to exercise
jurisdiction, characterizing Minnesota as an inconvenient forum under Minn.
Stat. § 518D.207 (2018) in light of the more recent Japanese orders. Father opposed
mother’s motions.
By an order dated December 10, 2018, the district cour t largely denied mother’s
motions, concluding that the 2017 Japanese Modification Order misinterpreted the Hague
Convention, was inconsistent with the Hague Convention’s pr emises and objectives, and
was not supported by sufficient evidence. But the district court reserved consideration of
whether to register the March 2018 Japanese Order that reversed the prior direct and
indirect enforcement orders—despite concludi ng that it had the discretion to decline to
register the order. Mother again appealed to this court, asserting th at the district court
lacked subject-matter jurisdiction based on the Japanese orders that determined that mother
was not required to return the children. Moth er argued that the Japanese supreme court
decision, which rendered the 2017 Japanese Modification Order final, was a new fact that
materially impacted the jurisdiction issue. This c ourt dismissed the appeal, citing
Minn. R. Civ. P. 140.01 (“No petition for rehearing shall be allowed in the Court of
Appeals.”).

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After we dismissed mother’s second appeal, the parties proceeded to trial in district
court in May 2019. Mother did not appear for trial. The district court held trial in mother’s
absence. The district court later issued findings of fact, conclusions of law, and judgment
based on evidence introduced by father. The district court awarded permanent sole legal
and physical custody of the children to father. The district court also awarded attorney fees
to father. And, without notice that contempt would be addressed at trial, the district court
again found mother in contem pt and issued a bench warrant for mother’s arrest, among
other sanctions.
Mother appeals.
D E C I S I O N
Mother appeals the district court’s judgment, arguing that (1) the district court erred
by failing to recognize and enforce the Japanese orders she sought to register, (2) the district
court erred by exercising jurisdiction over child custody, (3) the district court’s posttrial
findings of fact, conclusions of law, and orde r for judgment rested on clearly erroneous
findings of fact, (4) the district court’s aw ard of attorney fees was based on clearly
erroneous findings, and (5) the district court e rred in holding mother in constructive civil
contempt. We first address mother’s argument that the district court erred by failing to
recognize and enforce the later Japanese orders because that issue is at the heart of this
case.
I. Registration and Enforcement of the Japanese Orders
The Japanese orders at issue are based on the Hague Convention, an international
agreement to which the United States and Japan are signatories. The objects of the Hague

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Convention are “to secure the prompt return of children wrongfully removed to or retained
in any Contracting State” and “to ensure that rights of custody and of access under the law
of one Contracting State are effectively respected in the other Contracting States.” Hague
Convention, Art. 1. The Eighth Circuit Court of Appeals has described the purpose of the
Hague Convention:
The Convention’s purpose is to protect children internationally
from the harmful effects of their wrongful removal or retention
and to establish procedures to ensure their prompt return to the
State of their habitual reside nce. The Convention seeks to
deter abduction by depriving the abductor’s actions of any
practical or juridical consequences. It accomplishes this goal
not by establishing any substant ive law of custody, but rather
by acting as a forum selection mechanism, operating on the
principle that the child’s country of habitual residence is best
placed to decide upon questions of custody and access. The
purpose of proceedings under the Hague Convention is thus not
to establish or enforce custody rights, but only to provide for a
reasoned determination of wher e jurisdiction over a custody
dispute is properly placed.

Barzilay v. Barzilay , 600 F.3d 912, 916-17 (8th Cir. 2010) (quotations and citations
omitted). And the Supreme Court of the Un ited States has indicated that the Hague
Convention “is based on the prin ciple that the best interests of the child are well served
when decisions regarding custody rights are made in the country of habitual residence.”
Abbott v. Abbott , 560 U.S. 1, 20, 130 S. Ct. 1983, 1995 (2010); see also Monasky ,
140 S. Ct. at 723 (recognizing that the “core premise” of the Hague Convention is that the
children’s best interests are generally “best served when custody decisions are made in the
child’s country of habitual residence”).

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Under the Hague Convention, a person or entity claiming that a child has been
wrongfully removed to, or retained in, another country may apply to a contracting state for
assistance in securing the return of the child. See Hague Convention, Art. 8. The judicial
or administrative authorities of the contra cting states “shall ac t expeditiously in
proceedings for the return of children.” Id., Art. 11. The judicial authority of the requested
state must order the return of a wrongfully removed or retained child unless one of several
exceptions apply. Id., Art. 12-13. The Japanese courts originally ordered the return of the
children, concluding that the United States is the children’s place of habitual residence.
Then, in the 2017 Japanese Modification Or der, a Japanese court invoked the following
exceptions under the Hague Convention to conclude that mother was not required to return
the children: (1) that “there is a grave risk that [the child’s] return would expose the child
to physical or psychological harm or otherwise place the child in an intolerable situation,”
and (2) that the child “has attained an age and degree of maturity at which it is appropriate
to take account of [the child’s] views.” Id., Art. 13.
The central focus of mother’s arguments on appeal is that the district court erred by
failing to extend comity to or otherwise r ecognize the 2017 Japanese Modification Order
that determined that mother was no longer re quired to return the children to the United
States. She argues that the district court erre d by failing to extend judicial comity to that
order and the subsequent Japanese orders, and also that the district court erred by failing to
enforce the orders under Minn. Stat. § 518D.302 (2018) and under the Uniform
Foreign-Country Money Judgments Recognition Act (UFCMJRA), Minn. Stat. §§ 548.54-
.63 (2018).

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A. Comity
“Judicial comity is the respect a court of one state or jurisdiction shows to another
state or jurisdiction in giving effect to the other’s laws and judicial decisions.” In re
Commitment of Hand , 878 N.W.2d 503, 506 (Minn. App. 2016), review denied (Minn.
June 21, 2016) (quotations omitte d). Comity is “at the hear t of the Hague Convention.”
Smedley v. Smedley , 772 F.3d 184, 189 (4th Ci r. 2014) (quotation omitted);
Asvesta v. Petroutsas, 580 F.3d 1000, 1011 (9th Cir. 2009); Diorinou v. Mezitis ,
237 F.3d 133, 142 (2nd Cir. 2001). Consequently, “American courts will normally accord
considerable deference to foreign adjudications as a matter of comity.” Diorinou, 237 F.3d
at 142.
American courts may decline to extend comity to foreign Hague Convention orders,
however, if the foreign court’s determination “clearly misinterprets the Hague Convention,
contravenes the Convention’s fundamental prem ises or objectives, or fails to meet a
minimum standard of reasonableness.” Smedley, 772 F.3d at 189 (quoting Asvesta,
580 F.3d at 1014); see also Friedrich v. Friedrich , 78 F.3d 1060, 1067 (6th Cir. 1996);
Carrascosa v. McGuire, 520 F.3d 249, 262-63 (3rd Cir. 2008). We review a district court’s
application of the principle of comity for an abuse of discretion. Hand, 878 N.W.2d at 506.
The district court did not afford comity to the 2017 Japanese Modification Order
and the subsequent related orders for three reasons. It determined that the orders (1) lacked
a factual basis, (2) defied the purposes of the Hague Convention, and (3) misinterpreted
the Hague Convention. Mother challenges all three bases for the district court’s decision
to decline comity. We conclu de that the district court di d not abuse its discretion in

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declining to extend comity be cause the district court correctly concluded that the orders
contravened the Hague Convention’s fundamental premises and objectives. See Smedley,
772 F.3d at 189.
In reaching its decision, the district court found that mother did not comply with the
2016 Hague Order requiring her to return the children to the United States despite attempts
by father and the Japanese government to enforce the order in Japan, and despite monetary
sanctions imposed by the Japanese courts. Then, after more than a year of noncompliance,
mother sought to modify the 2016 Hague Order based on fath er’s deteriorated financial
circumstances, which resulted in the Japa nese courts issuing the 2017 Japanese
Modification Order and subseq uent orders. The district court concluded that the
2017 Japanese Modification Order and subsequent orders that mother sought to recognize
contravened the purpose of the Hague Convention because they did not “ensure that
custody rights will be determined in the country of the children’s habitual residence,” and
instead “legitimize[d] [mother’s] wrongful retention of the children.”
On this record and under these unique facts, we conclude that the district court did
not abuse its discretion by declining to extend comity to the 2017 Japanese Modification
Order and subsequent orders th at mother wanted the district court to recognize. The
Japanese orders abandoned a fundamental pur pose of the Hague C onvention—to ensure
the prompt return of the children—and undermined the Hague Convention’s
forum-selection mechanism by allowing mother to wait for changed circumstances that
were advantageous to her goal of keeping the children in Japan. See Barzilay, 600 F.3d at
916 (“The Convention’s purpose is to protec t children internationa lly from the harmful

11
effects of their wrongful removal or retention and to establish proce dures to ensure their
prompt return to the State of their habitual residence.” (quotation omitted)).
Mother asserted at oral argument that it is the district court’s December 2018 order,
not the 2017 Japanese Modification Order and subsequent Japanese orders, that
contravenes the fundamental pr emises and objectives of the Hague Convention. Mother
argued that the district court’s December 2018 order is contrary to the Hague Convention
because the order does not “ensure that right s of custody and of access under the law of
one Contracting State are effect ively respected in the other Contracting States.” Hague
Convention, Art. 1(b). We are not pe rsuaded. The Hague Convention has two
purposes: (1) securing “the prompt return of children wrongfully removed to or retained in
any Contracting State,” and (2) ensuring “tha t rights of custody and of access under the
law of one Contracting State are effectively respected in the other Contracting States.” Id.,
Art. 1. The 2017 Japanese Modification Order and the subseque nt Japanese orders
undermine both purposes. As discussed above, the or ders reflect a failure to secure a
prompt return of the children. And they cont ravene the second objective by allowing
mother to forum-shop a child-custody determination to Japan.
Because we conclude that the district c ourt acted within its discretion in declining
to extend comity on the grou nds that the 2017 Japanese Modification Order and the
subsequent Japanese orders contravened the fundamental pu rpose and objectives of the
Hague Convention, we do not address whet her the other two grounds cited by the
district court support its decision.

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B. Minn. Stat § 518D.302
Mother also argues that the district c ourt erred by failing to recognize the most
recent Japanese orders under Minn. Stat. § 518D.302. The statute provides that “a court of
this state may enforce an or der for the return of the ch ild made under the [Hague
Convention] as if it were a child custody determination.” Minn. Stat. § 518D.302. Because
the statute provides that a court “may” enforce such an order, the district court concluded
that it would exercise its discretion and refu se to enforce the 2017 Japanese Modification
Order and subsequent orders based on the Japanese courts’ failure to abide by the principles
of the Hague Convention.
The district court also concluded that because the statute only refers to “an order for
the return of the child,” that the Japanese or ders in question were not within the reach of
the statute because they did not require the children to return to the United States. Mother
maintains that the district court erroneously in terpreted the statute to apply only to orders
that require the return of a ch ild. Mother argues that the statute applies more broadly to
any order “resulting from a petition for [the] re turn of the child,” which would include
orders denying a petition for the return of a child in addition to orders granting a petition
for the return of a child.
This court reviews matters of st atutory interpretation de novo. Cf.
Bergman v. Caulk, 938 N.W.2d 248, 250 (Minn. 2020). The goal of statutory interpretation
is to “ascertain and effectuate the intention of the legislature.” Christianson v. Henke ,
831 N.W.2d 532, 536 (Minn. 2013) (quotations omitted ). If the text of the law is
unambiguous, a court must apply the law as written. Id. at 537. If the law is ambiguous,

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the court may examine factors other than the words of the statute in interpreting the statute
and discerning the legislature’s intent. Id.
The unambiguous text of section 518D.302 indicates that it applies only to a foreign
order “for the return of a child.” Minn. Stat. § 518D.302. The 2017 Japanese Modification
Order and the subsequent Japanese orders that mother sought to enforce under this statute
were not orders “for the return of a child”—the orders did not require mother to return the
children. The 2016 Hague Order is the only order that required return of the children, and
the district court properly recognized that order in 2016. Consequently, we conclude that
the district court did not err in declining to enforce the more recent Japanese orders at issue
in this appeal.2
C. Minn. Stat. § 548.57 —the Uniform Foreign-Country Money Judgments
Recognition Act

Minnesota has adopted the Uniform Foreign-Country Money Judgments
Recognition Act (UFCMJRA). See Minn. Stat. § 548.54-.63. Under the act, Minnesota
courts must recognize a foreign-country judg ment under certain circumstances. Minn.
Stat. § 548.57. But a district court “need not recognize a foreign-country judgment
if . . . the judgment was rendered in circumstance s that raise substan tial doubt about the
integrity of the rendering court with respect to the judgment.” Id., (c)(7).

2 We note that, even if the statute did appl y to the orders at issue, mother makes no
argument on appeal regarding how the district court abused the discretion afforded to it by
the statute. Therefore, even if we reache d the issue, we would conclude that it was
forfeited. See State Dep’t. of Labor and Indus. v. Wintz Parcel Drivers, Inc. ,
558 N.W.2d 480, 480 (Minn. 1997) (declining to address an issue absent adequate
briefing).

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The only Japanese order that mother so ught to register that involves a
foreign-money judgment is the March 2018 Japanese Order that revoked the prior Japanese
enforcement orders, which required mother to pay sums of money. See Minn.
Stat. § 548.56(a) (noting that the UFCMJRA applies only to judgments that grant or deny
recovery of a sum of money). The orders concerning the return of the children are plainly
not subject to the UFCMJRA. See id.
In its December 2018 order, the district court recognized th e exception in the
UFCMJRA for orders issued under “circumstan ces that raise substa ntial doubt about the
integrity of the rendering court with respect to the judgment.” See Minn.
Stat. § 548.57(c)(7). Based on its determinati on that the Japanese orders are inconsistent
with the Hague Convention, the district court concluded that this exception applies to the
March 2018 Japanese Order. The district court’ s conclusion that the exception applies is
supported by the reasons discussed above re lating to comity—specifically that the
2017 Japanese Modification Order and subse quent Japanese orders are not entitled to
comity because they contravene the purposes of the Hague Convention. For the same
reasons that we conclude that the district c ourt did not abuse its discretion in declining to
extend comity to the orders at issue, we conclude that the di strict court did not abuse its
discretion by declining to recognize the March 2018 Japanese Order under the UFCMJRA.
In sum, we conclude that the district court did not abuse its discretion by not
recognizing the 2017 Japanese Modification Order and the subsequent Japanese orders
because the orders contravened the purposes of the Hague Convention.

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II. Jurisdiction
We next address mother’s argument that the district court lacked jurisdiction to
decide child custody. This argument is closely tied to mother’s argument that the district
court should have recognized the 2017 Japa nese Modification Order. We conclude that
the district court properly exercised jurisdiction.
A. The Existence of Subject-Matter Jurisdiction is Law of the Case
This is the third time that mother has appealed the district court’s subject-matter
jurisdiction determination. This court a ffirmed the district court’s jurisdiction
determination in Cook I. See 907 N.W.2d at 238-40. In Cook I, this court concluded that
the district court had subject-matter juri sdiction over child custody under the UCCJEA
because Minnesota was the children’s home state. Id.; see also Minn.
Stat. § 518D.201(a)(1) (2018) (providing that “a court of this state has jurisdiction to make
an initial child custody determination only if . . . this state . . . was the home state of the
child within six months before the commencement of the proceeding and the child is absent
from this state but a parent or person acting as a parent continues to live in this state”). In
mother’s second appeal, this court dismissed mother’s appe al, concluding that mother
failed to “articulate a reason why the Minnesota District Court, since the filing of Cook I,
lost subject-matter jurisdiction to hear this case.” Mother candidly conceded at oral
argument in this appeal that the Japanese orders do not affect the home-state analysis that
we conducted in Cook I.
“The doctrine of ‘law of the case’ is based on a policy requiring issues once fully
litigated to be set at rest.” Sylvester Bros. Dev. Co. v. Great Cent. Ins. Co. ,

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503 N.W.2d 793, 795 (Minn. App. 1993), review denied (Minn. Sept. 30, 1993). The
doctrine “applies when an appellate court has ruled on a legal issue and remanded the case
for further proceedings on other matters. The issue becomes ‘law of the case’ and may not
be relitigated in the trial or reexamined in a second appeal.” Id. To the extent that mother
challenges the existence of jurisdiction, we conclude that our determination of
subject-matter jurisdiction under the home-stat e provision of the UCCJEA is law of the
case.
B. Inconvenient Forum
Mother argues that the district court e rred by failing to decline jurisdiction under
Minn. Stat. § 518D.207. Section 518D.207(a) provides that “[a] court of this state which
has jurisdiction under this chap ter to make a child custody determination may decline to
exercise its jurisdiction at any time if it determ ines that it is an in convenient forum under
the circumstances and that a court of anothe r state is a more appropriate forum.” To
determine whether it is an inconvenient foru m, the court must consider “all relevant
factors,” including:
(1) whether domestic violence has occurred and is likely
to continue in the future and which state could best protect the
parties and the child;
(2) the length of time the ch ild has resided outside this
state;
(3) the distance between the court in this state and the
court in the state that would assume jurisdiction;
(4) the relative financial circumstances of the parties;
(5) any agreement of the parties as to which state should
assume jurisdiction;
(6) the nature and location of the evidence required to
resolve the pending litigation, including the testimony of the
child;

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(7) the ability of the court of each state to decide the
issue expeditiously and the procedures necessary to present the
evidence; and
(8) the familiarity of the c ourt of each state with the
facts and issues in the pending litigation.

Minn. Stat. § 518D.207(b). Because the statute requires the district court to consider “all
relevant factors, including” the listed factors, the stat ute contemplates that the identified
factors are not exclusive considerations. Id. (Emphasis added).
We review the district court’s decision under section 518D.207 regarding whether
it is an inconvenient forum for an abuse of discretion. See Levinson v. Levinson ,
389 N.W.2d 761, 762 (Minn. App. 1986). Mother argues that the district court abused its
discretion by failing to decline jurisdiction because the section 518D.207(b) factors weigh
in favor of finding that Japan is a more appropriate forum.
The district court did not expressly anal yze the section 518D.207(b) factors.
Instead, the district court concluded that its analysis regarding comity supported its
decision that Japan is not a mo re appropriate or convenient forum. As discussed above,
we have concluded that the district court did not abuse its discretion in declining comity to
the most recent Japanese orders. Mother’s arguments regarding the section 518D.207(b)
factors are primarily based on the fact that the children have been in Japan for a significant
amount of time. But these arguments ignore th e fact that the children have been in Japan
because mother wrongfully reta ined the children there and refused to comp ly with the
2016 Hague Order to return the children. Given the unique posture of this case, we
conclude that the district court did not abus e its discretion when it decided not to decline
jurisdiction under section 518D.207.

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III. Challenges to the District Court’s Pos t-Trial Findings of Fact, Conclusions of
Law, Order, and Judgment

Mother next argues that the district court made several clearly erroneous findings in
its post-trial order. Factual finding s are reviewed for clear error. In re Guardianship of
Dawson, 502 N.W.2d 65, 68 (Minn. App. 1993), review denied (Minn. Aug. 16, 1993).
Mother did not appear for trial and did not file a motion for a new trial. Consequently, the
scope of review on appeal is “to determine whether the evidence sustains the findings of
fact and whether such findings sustain th e conclusions of law and the judgment.”
Rubey v. Vannett, 714 N.W.2d 417, 425 (Minn. 2006 ). We also may review any
“substantive questions of law when a genuine issue of law is properly raised and considered
at the district court level.” Alpha Real Estate Co. of Roches ter v. Delta Dental Plan of
Minn., 664 N.W.2d 303, 311 (Minn. 2003). “To challenge the [district] court’s findings of
fact successfully, the party ch allenging the findings must show that despite viewing that
evidence in the light most favorable to the [district] court’s findings (and accounting for an
appellate court’s deference to a trial court’s credibility determinations and its inability to
resolve conflicts in the evidence), the record still requires the definite and firm conviction
that a mistake was made.” Vangsness v. Vangsness , 607 N.W.2d 468, 474 (Minn.
App. 2000).
A. Mother’s Qualifications for Employment
Mother challenges the district court’s findi ng that she is “capable and is qualified
for full-time employment as an English as Second Language (ESL) teacher or as a Graphic
Designer.” The record contains evidence that mother worked as a senior graphic designer

19
in 2001, and evidence that mo ther was attempting to find a job teaching children English
in Japan. Father testified about mother’s wo rk as a graphic designer. He testified that
mother has a college education. Viewing the evidence in the light most favorable to the
district court’s findings, we conclude that the finding is not clearly erroneous.
B. Parenting Time Adjustment
Mother argues that the district court clear ly erred in assigning 14% parenting-time
adjustment to mother. She ma intains that there is “no ba sis for a finding of 14% in
overnight equivalents” for mother. We see no merit in this argument. “The district court
has broad discretion in determining parenting-time issues and will not be reversed absent
an abuse of that discretion.” Dahl v. Dahl, 765 N.W.2d 118, 123 (Minn. App. 2009). Child
support is adjusted based on the obligor parent’s parenting time. See Minn. Stat. § 518A.36
(2018). Here, the district court assigned a parenting-time adjustment based on 14%
parenting time for mother. Th e 14% parenting time allocation is based on the district
court’s thorough analysis of the best inte rests of the children u nder the extraordinary
circumstances of this case. Because the district court carefully considered the best interests
of the children based on the evidence presented at trial, we conclude that the district court
did not clearly err or abuse its discretion in granting father’s request that mother be allotted
52 overnights per year (about 14% of the year).

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C. Boston Scientific 401(k ) as Nonmarital Property
Mother challenges the district court’s fi nding that father’s Boston Scientific 401(k)
account is nonmarital property because it was acquired afte r the parties’ separation. 3
Nonmarital property includes property that is acquired by a spouse after the valuation date.
Minn. Stat. § 518.003, subd. 3b (d) (2018). The valuation date is the “initially scheduled
prehearing settlement conference . . . unless the court makes specific findings that another
date of valuation is fair and equitable.” Minn . Stat. § 518.58, subd. 1. The district court
must make findings that support its decisi on to adopt an equita ble valuation date. See
Grigsby v. Grigsby, 648 N.W.2d 716, 720 n.1 (Minn. App. 2002).
Here, the district court concluded that it was fair and equitable to adopt an equitable
valuation date for certain assets. The distri ct court found that father acquired the Boston
Scientific 401(k) account long after the partie s separated. This finding is supported by
father’s testimony. The district court’s in tent to treat the account as nonmarital for
equitable reasons is clear and supported by its findings. Because the district court’s factual
findings support its decision to treat fathe r’s Boston Scientific 401(k) as nonmarital
property, we conclude that the district cour t did not err in treati ng the Boston Scientific
401(k) as nonmarital.

3 Mother also argues that ther e is no evidence to support the district court’s valuation of
the account, but that argument has no merit because, as mother concedes, father submitted
a chart that supported the valuation as evidence.

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D. Marital Equalizer Payment
Mother argues that the amount of the ma rital equalizer payment ordered by the
district court is clearly erroneous because it does not take into account the Boston Scientific
401(k) or father’s Pershing IR A account. As discussed above, father’s Boston Scientific
401(k) account is nonmarital, so it has no e ffect on the marital equalizer payment and
mother’s argument on that point is meritless. Father testified that he had a Pershing IRA
account with a balance of approximately $18,000 , but that he had cashed out the account
in April 2015 to pay for living expenses. Because the value of the account was zero, it did
not affect the district court’s marital equalizer payment. We discern no error in the district
court’s marital equalizer payment.
IV. Conduct-Based Attorney Fees
The district court issued a post-trial orde r awarding conduct-based attorney fees to
father based, in part, on the fact that mother’s failure to appear for trial increased the length
and expense of the proceedings. Mother argues that the district court abused its discretion
because her failure to appear for trial did not increase the lengt h or expense of the
proceedings.
Minnesota law provides that a district court may award conduct-based attorney fees
against a party who “unreasonably contributes to the length or expense of the proceeding.”
Minn. Stat. § 518.14, subd. 1 (2 018). The decision to award a ttorney fees “rests almost
entirely within the discretion of the [district] court and will not be disturbed absent a clear
abuse of discretion.” Jensen v. Jensen, 409 N.W.2d 60, 63 (Minn. App. 1987).

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Mother only argues that the district cour t abused its discretion because her failure
to appear did not affect the length or expense of the proceedings. While father would have
been required to prepare for trial regardless of whether mother appeared, we disagree that
father would have incurred the same time and expense preparing for a trial if mother had
provided prior notice that she would not app ear. But more importa ntly, mother does not
challenge the other bases of the district court’s conduct-based attorney fee award, including
mother’s filing of frivolous motions. Consequently, we determine that the district court’s
finding that mother’s conduct unreasonably cont ributed to the length and expense of the
proceedings was not clearly erroneous. Based on our review of the record, we conclude
that the district court did not abuse its discretion in awarding conduct-based attorney fees.
V. Contempt
Finally, mother argues that the district cour t abused its discretion in holding her in
contempt and issuing a bench warrant for her arrest after the May 2019 trial. She maintains
that the district court (1) erred by holding her in contempt for actions taken in compliance
with the 2017 Japanese Modification order, (2) denied her due process by failing to provide
notice that the contempt issue would be heard at trial, and (3) erred by imposing sanctions
that were not aimed at inducing compliance with its December 2016 orders requiring her
to return the children to Minnesota.
“The district court has broad discretion to hold an individual in contempt.” In re
Marriage of Crockarell, 631 N.W.2d 829, 833 (Minn. App. 2001) review denied (Minn.
Oct. 16, 2001). We review a district court’s decision to invoke its contempt power for an

23
abuse of discretion. Mower Cty. Human Servs. v. Swancutt , 551 N.W.2d 219, 222
(Minn. 1996).
To exercise civil contempt powers, th e district court must meet several
requirements:
(1) the court has jurisdiction ov er the subject matter and the
person;

(2) a clear definition of the acts to be performed;

(3) notice of the acts to be performed and a reasonable time
within which to comply;

(4) an application by the part y seeking enforcement giving
specific grounds for complaint;

(5) a hearing, after due notice, to give the nonperforming party
an opportunity to show compliance or the reasons for failure;

(6) a formal determination by th e court of failure to comply
and, if so, whether conditi onal confinement will aid
compliance;

(7) an opportunity for the nonperforming party to show
inability to comply despite a good faith effort; and

(8) the contemnor’s ability to gain release through compliance
or good faith effort to comply.

Id. at 223. These requirements are known as the Hopp requirements. Id.; see also
Hopp v. Hopp, 156 N.W.2d 212 (Minn. 1968).
Typically, civil contempt proceedings involve two hearings. At the first hearing,
the district court addresses whether a party is in contempt and, if so, sets purge conditions.
Swancutt, 551 N.W.2d at 223-24. If the party seeking enforcement of an order later alleges
non-performance of the purge conditions, the district court holds a second hearing (known

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as a Mahady hearing) at which the court determines “whether there has been a failure to
comply and if so, whether conditional conf inement is reasonably likely to produce
compliance fully or in part.” Id. at 224 (quotation omitted); see also Mahady v. Mahady,
448 N.W.2d 888, 891 (Minn. App. 1989) (establishing a two-stage contempt proceeding).
“At that point, the court may order confinemen t upon such terms and conditions as meet
the Hopp requirements, including providing to the contemnor the oppo rtunity to gain
release through compliance or a go od faith effort to comply.” Swancutt, 551 N.W.2d at
224.
In this case, the district court held th e initial contempt hearing in March 2017 and
then held a Mahady hearing in April 2017. At the Mahady hearing, mother argued that she
would not return the children to the United States because she was abiding by the Japanese
orders and that her noncompliance was therefore excusable. But the district court did not
find mother’s argument persuasive. In June 2017, the district court issued an order finding
mother in contempt, requiring mother to re turn the children, imposing a $1,000 per day
fine for each day that mother failed to retu rn the children, and staying both confinement
and a requirement that mother post a bond to exercise parenting time.
In May 2019, the district court held tria l on child custody and dissolution issues.
The district court did not provide notice that it would address the contempt issue. At the
hearing, father raised the issue of contempt and requested that the district court issue a
warrant and enter a judgment of $694,000 against mother to reflect the $1,000 per day fine
that had been imposed 69 4 days before trial. Following tr ial, the district court issued an

25
order again finding mother in contempt. In its order, the district court also lifted the stay
on confinement and the bond, and issued a bench warrant for mother’s arrest.
Mother argues that she did not have notice that the issue of contempt would be heard
at trial and maintains that sh e was not provided with a fair opportunity to respond. She
also argues that the district court violated Minn. Gen. R. Prac. 309.03(a) when it issued the
bench warrant. That rule provides that wher e a court has entered an order with a stay of
sentence and there has been a de fault in the performance of th e conditions of the stay, an
affidavit of noncompliance and a request for writ of attachment must be serv ed upon the
defaulting person before the district court may issue a bench warrant against the defaulting
person, unless the person is shown to be avoiding service. Minn. Gen. R. Prac. 309.03(a).
The moving party must submit a proposed orde r for writ of attachment that directs law
enforcement to bring the defaulting party be fore the court for a show-cause hearing
regarding why the stay of sent ence should not be revoked. Id., (b). Finally, mother
contends that the district court’s order vi olated Minn. Stat. § 588.04(a) (2018), which
requires an affidavit alleging the facts constituting contempt before a warrant may issue.
We agree with mother that , because no affidavit of no ncompliance had been filed
or served upon mother as required by the rule , the district court failed to comply with
Rule 309.03(a) prior to lifti ng the stay and issuing the be nch warrant. We are also
concerned that mother received no other type of notice that the district court would address
the issue of contempt at trial. Given the divergence from Rule 309.03(a) and the lack of
notice that contempt would be addressed at trial, mother was not afforded “a hearing, after
due notice . . . to show compliance or the reasons for failure” since the previous contempt

26
order. Swancutt, 551 N.W.2d at 223 (emphasis added); see also M i n n . G e n . R . P r a c .
309.03. Consequently, we conclude that the district court abused its discretion by holding
mother in contempt again, lifting the stay , issuing a bench warra nt, and imposing other
sanctions following trial.
Because we conclude that the district court abused its discretion by holding mother
in contempt again without sufficient notic e, we do not address mother’s arguments
challenging the findings supporting contempt or the sanctions that the district court
imposed. We reverse the cont empt order and remand for fu rther proceedings consistent
with this opinion.4
Affirmed in part, reversed in part, and remanded.

4 Our conclusion affects only the posttrial co ntempt order and bench warrant and not the
district court’s previous contempt orders. We do not intend to limit the district court’s
discretion to hold mother in contempt for failure to obey its orders. Our decision is based
solely on the lack of notice afforded to mother that this issue would be heard at trial.