Sara Corinne Kysylyczyn, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (201 8).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1628

Sara Corinne Kysylyczyn,
Appellant,

vs.

Teresa MacNabb,
Respondent,

John Michael Kysylyczyn,
Respondent.

Filed June 29, 2020
Affirmed
Bjorkman, Judge

Ramsey County District Court
File No. 62-FA-19-984

Ryan L. Kaess, Kaess Law, LLC, St. Paul, Minnesota (for appellant)

Victoria Elsmore, Collins, Buckley, Sauntry & Haugh, P.L.L.P., St. Paul, Minnesota (for
respondent Teresa MacNabb)

Carl A. Blondin, Oakdale, Minnesota (for respondent John Kysylyczyn)

Considered and decided by Bratvold, Presiding Judge; Segal, Chief Judge; and
Bjorkman, Judge .

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U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellant-child challenges the rule 12 dismissal of her petition seeking
emancipation from respondent-mother. Because (1) the child did not s erve the summo ns
as required to commence this action and (2) the petition does not state a legally sufficient
claim, we affirm.
FACTS
Appellant Sara Kysylyczyn is the eldest of two children born to respondent Teresa
MacNabb (mother) and respondent John Kysylyczyn (father). 1 When their marriage was
dissolved in 2010, mother and father agreed to share joint legal and physical custody of
both children. That arrangement continues, although they have disputed custody and
parenting time, and Kysylyczyn’s relationship with mother has become contentious. See
MacNabb v. Kysylyczyn, No. A19-0376 (Minn. App. Feb. 18, 2020) (affirming denial of
father’s motion for full custody of Kysylyczyn), review denied (Minn. Apr. 28, 2020).
In April 2019, 16-year-old Kysylyczyn filed a petition seeking “emancipation from”
mother. In a supporting affidavit, Kysylyczyn averred that she is a successful student; she
has earned income and has her own investments; she finds mother’s behavior toward her

1 Father filed a brief urging this court to reverse the dismissal of Kysylyczyn’s petition, but
he neither appealed the dismissal nor joined Kysylyczyn’s appeal. As such, he is neither
an appellant nor a r espondent, and we need not address his arguments. See Minn. R. Civ.
App. P. 143.01 (defining respondent as the “adverse party ”); In re Welfare of Child of
J. R. R., ___ N.W.2d ___, ___, 2020 WL 1845256, at *9 (Minn. App. Apr. 13, 2020)
(declining to address questions raised by the guardian ad litem on appeal because she did
not appeal or join the child’s appeal and was thus neither an appellant nor a respondent).

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verbally and emotionally abusive; mother has refused to provide financial su pport for
several of her musical activities; she prefers to live full-time with father; and she will move
in with her paternal grandparents and “break off all communication with . . . mother” if the
court finds father in contempt in the dissolution proceeding and “imprison[s]” him.
After an initial ca se-management conference, the district court noted that
Kysylyczyn had not filed or served a summons. The court ordered Kysylyczyn to do so
and to file proof of service. Kysylyczyn thereafter filed an unsigne d summons and an
unsigned affidavit of service stating that mother and father were personally served with the
petition on May 2.
Mother moved to dismiss the petition on the grounds that it was not properly served
and fails to state a claim for which relief can be granted because Minnesota does not
recognize a cause of action for a child to emancipate from her parent . Kysylyczyn and
father opposed t he motion, and Kysylyczyn again filed an unsigned summons and an
unsigned affidavit of service stating that mother and father were personally served with the
petition on May 2.
The district court dismissed the petition , concluding that Kysylyczyn failed to
commence this action by serving the summons. And the court determined that the petitio n
does not state a claim for emancipation under Minnesota law because it does not allege that
Kysylyczyn is married, mother agreed to her emancipation, or mother’s conduct implies
an intent to relinquish her custodial rights. Kysylyczyn appeals.

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D E C I S I O N
I. Dismissal is warranted because Kysylyczyn did not serve the summons.

In Minnesota, a plaintiff commences a civil action by serving the summons upon
the defendant or obtaining the defendant’s waiver of service. Minn. R. Civ. P. 3.01.
Service of the summons confers personal jurisdiction over the defendant. Shamrock Dev.,
Inc. v. Smith, 754 N.W.2d 377, 382 (Minn. 2008). “Absent proper service of process or a
waiver thereof, the district court must dismiss the action.” Koski v. Johnson, 837 N.W.2d
739, 742 (Minn. App. 2013) (quotation omitted), review denied (Minn. Dec. 17, 2013).
When a defendant claims that the plaintiff failed to effectuate proper service of the
summons, the plaintiff “must submit evidence of effective service.” DeCook v. Olmsted
Med. Ctr., Inc. , 875 N.W.2d 263, 271 (Minn. 2016). “Whether service of process was
effective, and personal jurisdiction therefore exists, is a question of law that this court
reviews de novo.” Id. at 270.
Kysylyczyn contends she satisfied rule 3.01 because she filed the summons and
mother and father “acknowledged service.” We disagree. After the district court ordered
Kysylyczyn to serve the summons and file proof of service, she filed the summons and an
affidavit indicating that m other and father acknowledged service of the petition. There is
no evidence that they were served with the summons or waived service. On this record,
the district court did not err by concluding that Kysylyczyn failed to serve the summo ns
and dismissing the action accordingly.

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II. Kysylyczyn failed to state a legally sufficient emancipation claim.

A district court may dismiss a complaint when the plaintiff fails to state a claim
upon which relief can be granted. Minn. R. Civ. P. 12.02(e). On appeal, we review de novo
whether the complaint sets forth a legally sufficient claim for relief. Engstrom v.
Whitebirch, Inc. , 931 N.W.2d 786, 790 (Minn. 2019). We take the facts alleged in the
complaint as true and “draw reasonable inferences in favor of the nonmoving party. ” Id.
(quotation omitted).
Kysylyczyn argues that the district court erred by concluding that her allegatio ns
“fall short of any common law basis for emancipation,” because the court’s authority to
“grant emancipation is rooted in common law and has been recognized by the Minneso ta
Appellate Courts.” This argument is unavailing.
Minnesota courts have long recognized a common-law concept of “emancipatio n, ”
referring to the “severance of . . . ties, rights, and obligations between parent and child. ”
County of Becker v. County of Hennepin (In re Sonnenberg) , 99 N.W.2d 444, 447 (Minn.
1959). Emancipation “traditionally and usually” refers to complete severance between a
parent and a minor child who is “old enough to work and earn a living” when the child
(1) marries or (2) is “given his freedom to contract with others for wages and to support
himself as if he were of age.” Id. The principle underlying emancipation is that a parent
has rights to a child’s “services” and to “custody and control” of the child, and the parent
may relinquish those rights. County of St. Louis v. County of Scott (Application to
Determine Settlement of Fiihr) , 184 N.W.2d 22, 25 (Minn. 1971) (quoting Taubert v.
Taubert, 114 N.W. 763, 764 (Minn. 1908)). “A minor may be emancipated by an

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instrument in writing, by verbal agreement, or by implication from the conduct of the
parties.” Id. (quotation omitted).
Contrary to Kysylyczyn’s argument, Sonnenberg and Fiihr do not authorize a
district court to order emancipation at the request of a minor child. Rather, the cases apply
the principle that emancipation “is the act of the parent” to the unique factual circumstances
of each case. Id. (quotation omitted). And the cases establish that t he district court’s role
is to determine whether the parent has—by words or conduct—relinquished her parental
rights. Far from asserting that mother has done so, Kysylyczyn ’s petition alleges that
mother actively asserts her custodial rights, contrary to Kysylyczyn’s wishes. We discern
no error in the district court’s conclusion that the petition fails to state a legally sufficient
claim for emancipation.
Kysylyczyn presents additional arguments suggesting that we should recognize a
cause of action permitting a child to emancipate from a custodial parent against the parent’s
wishes. We first observe that “the task of extending existing law falls to the supreme court
or the legislature, not to this court.” Lake Superior Ctr. Auth. v. Hammel, Green &
Abrahamson, Inc., 715 N.W.2d 458, 472 (Minn. App. 200 6), review denied (Minn. Aug.
23, 2006). But we also conclude that her arguments fail on their merits.
First, Kysylyczyn contends that a district court should defer to an older child’s
“choice,” pointing to Ross v. Ross , 477 N.W.2d 753 (Minn. App. 1991) , and similar
caselaw. But Ross and the other cases on which she relies address a child’s choice between
parents or other legal custodians in a family law case. None of the cases support the
argument that a child may unilaterally choose to sever her legal relationship to a parent.

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Second, Kysylyczyn asserts that it is inequitable to deprive a 16 -year-old child of
the right to emancipate herself from a parent when she has the right to possess a gun, have
an abortion, or marry. But all of the rights she identifies are carefully circumscribed and
are at least implicitly contingent on a parent’s supervision or consent. See Minn. Stat.
§§ 97B.021, subd. 1 (providing that “a person under the age of 16 may not possess a
firearm, unless accompanied by a pa rent or guardian,” except in four specific
circumstances), 144.343, subds. 2, 4 (requiring notice to the parents of an “unemancipated
minor” before an abortion, unless parents consent or other specific exemptions apply ),
517.02 (providing that a 16 -year-old may marry “with the consent of [her] legal custodial
parents”) (2018).
Finally, Kysylyczyn argues that she is entitled to emancipation because mother is
“abusive.” As noted above, emancipation is effectively a voluntary relinquishment of
parental rights. Sonnenberg, 99 N.W.2d at 447. Involuntary termination of parental rights
may be warranted in instances of severe or pervasive abuse. See Minn. Stat. § 260C.301,
subd. 1(b) (2018) (listing grounds for involuntary termination of parental rights, includ i ng
that a parent is “palpably unfit” or has caused a child “egregious harm”). But Kysylyczyn
did not petition for involuntary termination of mother’s parental rights. Nor does she claim
that mother’s conduct—criticizing her, declining to fully support her activities, and seeking
to enforce her custodial rights over Kysylyczyn’s objection —rises to the level that would
justify such drastic action. See In re Welfare of Child of J.L.L. , 801 N.W.2d 405, 409
(Minn. App. 2011) (stating that parental rights “may be terminated only for grave and
weighty reasons” (quotation omitted)), review denied (Minn. July 28, 2011).

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In sum, because Kysylyczyn does not allege that mother has, by words o r conduct,
relinquished her custodial rights, the district court did not err by concluding that her
allegations “fall short of any common law basis for emancipation” and dismissing her
petition for failure to state a claim for which relief can be granted.
Affirmed.