In the Marriage of: Jody LaRae Theisen, n/k/a Jody LaRae Wellman, petitioner, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0580

In the Marriage of: Jody LaRae Theisen,
n/k/a Jody LaRae Wellman, petitioner,
Appellant,

vs.

Harvey Lee Theisen,
Respondent.

Filed January 11, 2021
Affirmed
Slieter, Judge

Stearns County District Court
File No. 73-FA-15-5954

Jody LaRae Wellman, Albany, Minnesota (pro se appellant)

Gregory S. Walz, Walz Law Office, St. Cloud, Minnesota (for respondent)

Considered and decided by Slieter, Presid ing Judge; Frisch, Judge; and Smith, John,
Judge.

NONPRECEDENTIAL OPINION
SLIETER, Judge
In this appeal from an or der of the district court co nfirming the decision of a
parenting counselor (PC) te mporarily suspending appellant ’s parenting time with the

Retired judge of the Minnesot a Court of Appeals, servin g by appointment pursuant to
Minn. Const. art. VI, § 10.

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parties’ joint children, appellant argues that th e district court abused its discretion by not
reversing the PC’s decision. Because the par ties stipulation specifically granted the PC
authority to make decisions re garding parenting time, the dist rict court did not abuse its
discretion by confirming the PC and we, therefore, affirm.
FACTS
Appellant and respondent are the divorced parents of two children. On May 6, 2019,
upon stipulation of the parties, the district co urt issued an order appo inting a PC to assist
them in disputes about several issues invol ving the children, including parenting time.
Consistent with the terms of the parties’ agreement, the appointing order states that “[t]he
PC shall have the duty and responsibility to assist the parties in resolving all child-related
issues submitted for resolution . . . .” This in cludes “[d]ecid[ing] revisions to previously
decided parenting issues as needed to meet changing circumstances” as well as “mak[ing]
recommendations, memorializ[ing] agreements and mak[ing] decisions, including the
authority to impose consequences for non-compliance.”
On October 19, 2019, in re sponse to a request sent by respondent the previous day,
the PC issued a decision temporarily suspending appellant’s parenting time. In his written
communication to the parties, the PC explained that he had taken this measure in response
to respondent’s concerns that appellant repeatedly involved the children in parental conflict
and repeatedly accused respondent of physical and sexual abuse of the children despite a
lack of evidence.

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On October 31, 2019, appellant moved fo r the district court to “overrule the
Parenting Consultant’s decisi on” and “[r]evert back to the original Court Order.”
Appellant also requested that the district court remove the PC and appoint a replacement.
Appellant argued that the PC had abused his discretion in suspending her parenting time.1
The district court disagreed and found that no such abuse by the PC occurred. The district
court also declined to remove the PC. This appeal follows.
DECISION
“The term ‘parenting consultant’ is not used in the Minnesota statutes. In practice,
the term refers to a creature of contract or of an agreement of the parties which is generally
incorporated into (or at least referred to in) a district court’s custody ruling.” Szarzynski v.
Szarzynski, 732 N.W.2d 285, 293 (Minn. App. 2007 ). The stipulation incorporated into
the order appointing the PC is a contract, id., the interpretation of which is a question of
law we review de novo. Roemhildt v. Kristall Dev., Inc. , 798 N.W.2d 371, 373 (Minn.
App. 2011), review denied (Minn. July 19, 2011). However, district courts have extensive
discretion to decide questions relating to visitation. Olson v. Olson, 534 N.W.2d 547, 550
(Minn. 1995). Such decisions will not be overturned absent an abuse of discretion. Id.
The issue presented on appeal is whether the district court abused its discretion in
confirming the PC’s suspension of appellant’s parenting time and declining to remove the
PC. For the reasons below, we conclude that it did not, and affirm.

1 Pursuant to the parties’ stipulation, the district court reviewed the decision of the PC
pursuant to an abuse of discretion standard of review.

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I. The district court properly confirmed the PC’s parenting time decision.

Appellant argues that the district cour t should have found the PC abused his
discretion by (1) relying only on information provided by respondent and other unfounded
speculation, (2) failing to meet with appellan t prior to making his decision regarding
parenting time, (3) exceeding his authority by “restricting” her parenting time, and
(4) failing to address the statutory best-interests factors. Appellant argues that these abuses
required the district court to reverse the PC, a nd that its failure to do so was an abuse of
discretion. We disagree.
A. The PC possessed an adeq uate factual basis to suspend appellant’s
parenting time.

Appellant argues that the district court e rred in confirming the PC’s suspension of
parenting time because the PC’s decision wa s not factually justified and depended on
unsupported assertions from respondent. However, it is clear from the record that the PC’s
decision was made in the context of both pa rties’ history of disconcerting parenting
behavior.
Indeed, the record reflects that, rather th an solely relying upon the allegations from
respondent, the PC looked at the history of the parties’ behavior and compared it to the
new allegations which had surfaced: that appe llant was continuing to put the children in
“impossible situations” by discussing legal matters and the poten tial of foster-care
placement with the children and by raising additional concerns of child abuse by
respondent. The PC described “copious child protection reports” and “many, many police
reports.” He described a history of conflict between the parties which had led to Stearns

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County child protection work ers convening a decision-making conference mere weeks
before the PC issued his contested decision. The PC also described the ongoing concerns
and involvement of child protection, due in large part to the aforementioned child
protection reports. According to the PC, appe llant made “allegation after allegation” of
parental abuse against respondent, none of which resulted in any evidence of mistreatment.
All of these facts are consistent with the PC’s narrative of parental conflict and the need to
separate the parties, and support the PC’s decision to temporaril y suspend appellant’s
parenting time.
The PC noted that not all the allegations of parental conflict were proven to be true,
but that they were nonetheless highly concerning given the parties’ history of inappropriate
and confrontational conduct. As the PC indi cated, the decision to suspend appellant’s
parenting time was not made to punish appe llant. Rather, it was made to protect the
children. On this record, th e district court did not abuse its discretion in confirming the
PC’s suspension of parenting time.
B. The PC’s failure to meet with both parties before suspending appellant’s
parenting time was harmless.

Appellant argues that the PC erred by fa iling to initiate a conversation with both
parties prior to making his decision regarding parenting time and that this failure required
the district court to reverse. We conclude this error was harmless.
The order appointing the PC requires that “[u]pon notification by a party that there
is an issue in controversy, the PC will meet with the parties by telephone, in person, or by

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other means as determined appropriate by the PC, to discuss the issue in controversy.” The
PC did not meet with appellant before making his decision regarding parenting time.
However, despite failing to meet with appellant, the PC did have an email
conversation with appellant several days after issuing his decision. During that exchange,
appellant offered little more th an denials of the allegations made against her and her
disagreement with the decision. The PC had the discretion to reverse his prior parenting
time suspension decision and restore appellant’s parenting time at a ny point after talking
to appellant had she presented evidence to sufficiently rebut re spondent’s claims.
Appellant did not do so. Thus, the PC’s failure to notify appellant prior to his decision was
harmless. Harmless errors do no t warrant reversal. Minn. R. Civ. P. 61 (“The court at
every stage of the proceeding must disregard any error or defect in the proceeding which
does not affect the substantial rights of the parties.”). Thus, the district court did not abuse
its discretion by not reversing the PC’s decision on this basis.
C. The PC properly suspended parentin g time without reference to the
“endangerment” or “best interest s” requirements of Minn. Stat.
§ 518.175 (2018).

Appellant also argues that the district c ourt abused its discretion in confirming the
PC’s suspension of parenting time because (1) the PC lacked the authority to completely
suspend parenting time, (2) the PC failed to make a finding of endangerment, and (3) the
PC failed to address the statutory best-int erests factors. These arguments are not
persuasive.
The order appointing the PC grants the PC authority to “decide alterations in the
access schedule” and “[d]ecide revisions to previously decided parenting issues as needed

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to meet changing circumstances.” Furthermore, this order sets forth specific areas in which
the PC cannot make decisions, including “addressi ng child support and permanently
modifying custody labels.” There is nothing in the order appointing the PC that limits his
broad authority to temporarily suspend parenting time.
Additionally, appellant’s arguments rega rding the applicability of Minn. Stat.
§ 518.175 to the PC’s decisions are unpersuasive . This statute requires a court find that
“endangerment” exists before enacting a rest riction of parenting time and consider the
“best interests of the child,” evaluated pursua nt to the factors set forth in Minn. Stat.
§ 518.17, subd. 1 (2018). Minn. Stat. § 518. 175, subd. 1(a), (b). However, the parties
contractually agreed, and the district court did so order, to vest the PC with the authority
described above without reference to a govern ing statutory standard. As a result, the
requirements of Minn. Stat. § 518.175 are irrelevant to the PC’s decision. The district court
did not abuse its discretion in declining to reverse the PC’s decision on these grounds.
In sum, the district court did not a buse its discretion in confirming the PC’s
suspension of parenting time.
II. The district court did not err in declining to remove the PC.
Appellant also challenges the district c ourt’s failure to remove the PC. However,
the order appointing the PC is clear: the PC can be removed only before the expiration of
his two-year term (1) if the PC becomes unavailable, (2) if the PC does not agree to serve,
or (3) “by written agreement of the parties.” Appellant cites no ot her authority allowing
for removal of the PC.
Affirmed.