In re the Marriage of: Richard Otto, 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This opinion is nonprecedential except as provided by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
A20-0713

In re the Marriage of:
Richard Otto, petitioner,
Appellant,

vs.

Janyce Otto,
Respondent.

Filed March 29, 2021
Affirmed in part, reversed in part, and remanded
Bjorkman, Judge

Olmsted County District Court
File No. 55-FA-14-5012

Thomas R. Braun, Restovich Braun & Associates, Rochester, Minnesota (for appellant)

Carole A. Pasternak, Klampe, Delehanty, Pasternak & Niesen, LLC, Rochester, Minnesota
(for respondent)

Considered and decided by Bjorkman, Presiding Judge; Bratvold, Judge; and Bryan,
Judge.
NONPRECEDENTIAL OPINION
BJORKMAN, Judge
Appellant challenges (1) the denial of his motion to hold respondent in contempt for
failing to comply with a parenting-time order, and (2) conditions that impermissibly restrict
his parenting time. Because we conclude the district court acted within its discretion by

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denying the contempt motion, but abused its discretion by imposing conditions that
effectively suspended father’s parenting time indefinitel y without an evidentiary hearing,
we affirm in part, reverse in part, and remand.
FACTS
Appellant Richard Otto (father) and respondent Janyce Otto, n/k/a Janyce McHale
(mother) were married in 2002. In March 2017, the parties dissolved their marriage by a
stipulated judgment that awarded the part ies joint legal custody of their children—A.O.
(born 2002) and R.O. (born 2005)—and awarded sole physical custody to mother. The
dissolution judgment also provided that father would have parenting time as determined by
a parenting consultant the parties selected. The consultant issued her last parenting-time
order in March 2019 ,1 which provided that the parties would alternate specified holidays
and school breaks between “odd” and “even” years, and that father would have regular
parenting time every Wednesday and overnight parenting time on the first and third
weekend of each month.
In addition to making parenting -time decisions, t he consultant determined that
therapy was in R.O.’s best interests. Accordingly, the consultant appointed a therapist, set
a schedule for the parties to transport R.O. to and from therapy, and made R.O.’s therapy
sessions a “Safe Haven” free from interference by either parent. In mid -October, the
therapist invited the parties to att end one of R.O.’s sessions to discuss her reluctance to
attend parenting time with father. The parties relate differing accounts of what took place

1 The consultant’s contract terminated on April 1, 2019.

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at the session, but both agree that the session ended with R.O. crying and upset. Father has
not had parenting time with R.O. since approximately October 18, 2019 , except for brief
conversations through car windows and one attempt at a father -daughter therapy session
the following month.
In January 2020, father moved the district court to issue an order holding mother in
contempt for failing to ensure he received parenting time with R.O., and awarding
compensatory parenting time. Mother opposed the motion, and moved the court to order
the parties to cooperate with R.O.’s therapy, and to appoint a new parenting consultant.
The district court decided the motions without holding an evidentiary hearing. It s
March 2020 order found that father has not had parenting time since October 18, 2019, and
that R.O.’s opinions —as expressed through her therapist —regarding parenting time are
entitled to consideration. The district court denied father’s contempt motion, concluding
that father’s reduced parenting time s tems from R.O.’s decisions, rather than mother’s
conduct. The district court ordered father to “arrange for and attend individual counseling,”
and conditioned the resumption of his parenting time on cooperating with therapy
recommendations and eventually attending joint counseling sessions with R.O. The district
court reserved “the final decision on parenting time,” pending receipt of recommendations
from the therapists. Father appeals.
DECISION
Father argues that the district court abused its discretion by not holding mother in
contempt and by imposing condit ions on his parenting time, effectively suspending it
indefinitely without conducting an evidentiary hearing. We address each argument in turn.

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I. The district court did not abuse its discretion by declining to hold mother in
civil contempt.

District courts have the authority to enforce parenting-time orders by holding a party
in civil contempt. Erickson v. Erickson, 385 N.W.2d 301, 304 (Minn. 1986); see Minn.
Stat. § § 518.175, subd. 6(h) (stating “unwarranted denial of or interference with duly
established parenting time may constitute contempt of court”), 588.01, subd. 3(3) (stating
district courts are empowered to find a party in contempt for “disobedience of any lawful
judgment, order, or process of the court”) (2020). But “[c]ontempt is an extraordinary
remedy that must be exercised with caution.” Burgardt v. Burgardt, 474 N.W.2d 235, 236
(Minn. App. 1991). We review a district court’s contempt decision for an abuse of
discretion, but review underlying factual findings for c lear erro r. Mower C ty. Human
Servs. ex rel. Swancutt v. Swancutt, 551 N.W.2d 219, 222 (Minn. 1996) ; see Gustafson v.
Gustafson, 414 N.W.2d 235, 237 (Minn. App. 1987) (stating contempt decisions will be
upheld if they find support in the record).
Father contends the district court abused its discretion because mother did not
comply with the parenting-time order and did not demonstrate she was incapable of doing
so. See Meisner v. Meisner, 20 N.W.2d 486, 487 (Minn. 1945) (stating the burden is on
the purported contemnor to demonstrate an inability to comply with the vi olated order).
We disagree. The district court found that father’s lack of parenting time was due to R.O.’s
“opinions and fears” about spending time with him. The record supports this finding .
Communications from R.O.’s therapist to both parents reflect that R.O.’s “continued
rejection of parentin g time” following the mid -October incident “has been [R.O.’s]

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choice,” and stems largely from R.O.’s “history of relationship fears” with father. The
therapist further stated that R.O. “has let [ father] know that she is afraid of [ father],” and
that her decision “to not attend parenting time has been based on what she believes is safe
for her well being.” These communications reasonably support a finding that R.O.’s
fractured relationship with father —not any act or omission by mother —caused father’s
parenting time to cease. Accordingly, the district court’s implicit finding that mother did
not willfully refuse to comply with the parenting -time order is not clearly erroneous. On
this record, we discern no abuse of discretion by the district court in denying father’s
motion to find mother in civil contempt.
II. The district court abused its discretion by indefinitely suspending father’s
parenting time without an evidentiary hearing.

We note at the outset that neither party asked the district court to modify custody of
R.O. or the existing parenting -time order. And the district court’s order does not —on its
face—purport to do so. But the order conditions father’s parenting time as follows:
4. Father shall arrange for and attend individual counseling
. . . . Father shall ensure he engages a therapist who is
willing to report to the Court regarding Father’s progress.

5. Father’s parenting time with [R.O.] is conditioned on the
following:

a. Father must contact [R.O.]’s therapist . . . in a
respectful manner that acknowledges her position as
[R.O.]’s therapist, to learn of [R.O.]’s therapeutic
progress. Father shall not make any threats, explicit
or implicit, related to [R.O.]’s continued therapy
. . . .

b. Father’s therapist may contact [R.O.]’s therapist.
The therapists will then discuss each patient’s

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progress in order to work toward joint therapy
and/or therapeutic parenting time.

c. Father’s and [R.O.]’s therapists shall determine
whether joint therapy is appropriate and should
begin. When the therapists recommend joint
therapy, Mother and Father shall agree on a date for
a joint counseling session . Joint therapy shall only
begin upon Father and [R.O.]’s therapists agreeing
that joint therapy is appropriate given each of their
counseling thus far.

. . . .

6. The Court shall make the final decision on parenting time,
and will not ask the therapists to make decisions of that
magnitude. The therapists are there to provide
recommendations as to what is best for [R.O.]. They may
first make those recommendations to the parents, and if
they agree, they can voluntarily follow them. If the
parents disagre e, then the therapist shall make
recommendations to the Court, including facts relied
upon and the basis of the recommendations, so the Court
may make the best decision possible based upon the child
and parties’ progress and mental health prognoses.

The order does not schedule a review hearing or set a date by which the district court will
make its final parenting-time decision. The parties agree, as do we, that the effect of these
conditions is the indefinite suspension of father’s parenting time. We now consider
whether this indefinite suspension exceeded the bounds of the district court’s discretion.
District courts have “broad discretion in determining parenting-time issues and will
not be reversed absent an abuse of that discretion. ” Shearer v. Shearer, 891 N.W.2d 72,
75 (Minn. App. 2017) (quotation omitted). A district court may modify parenting time if
it is in the child’s best interest s, but may not restrict parenting time unless continued
parenting time is “likely to endanger the child’s physical or emotional health or impair the

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child’s emotional development.” Minn. Stat. § 518 .175, subds. 5(b), (c)(1) (2020 ).
Parenting time can be deemed restricted when a modification is “substantial.” Suleski v.
Rupe, 855 N.W.2d 330, 336 (Minn. App. 2014). To determine whether a modification of
parenting time is substantial—and therefore a restriction of parenting time —we consider
“the reasons for the change as well as the amount of the reduction ” of time , specifically
whether the reason for the reduction in parenting time goes to the parent ’s care or ability
to care for the child . Id. A district court may not substantially modify parenting time
without conducting an evidentiary hearing. Id.
We initially note that the reason for the reduction in father’s parenting time is his
fractured relationship with R.O., which goes to his care for R.O. Accordingly, the reason-
for-the-reduction prong of the analysis weighs in favor of considering the redu ction as a
restriction. The record also persuades us that the district court’s reduction of father’s
parenting time is substantial. In addressing this prong, we must first identify the “baseline
parenting-time schedule”—“the last permanent and final orde r setting parenting time” —
and then we must determine whether the changes from that baseline schedule are
“significant enough to constitute a restriction.” Dahl v. Dahl, 765 N.W.2d 118, 123 (Minn.
App. 2009). Here, the baseline schedule is that establishe d in the parenting consultant’s
last-issued parenting-time order from March 2019. Under this order, father was entitled to
parenting time every Wednesday and alternating holidays, and to overnights on the first
and third weekend of each month and on select holidays. As a result of the district court’s
order, father is essentially entitled to no parenting time unless and until (1) father begins
therapy, (2) his therapist and R.O.’s therapist recommend joint therapy, and (3) mother

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agrees to a date for a joint therapy session. In other words, father has gone from regularly
scheduled parenting time with R.O. to, at best, joint therapy sessions with R.O. as
determined by others. Absent a scheduled review hearing or a court-ordered timetable for
establishing a new parenting-time order, father is left with only the hope of future parenting
time. This amounts to an indefinite suspension of father’s parenting time, and substantially
modifies the last-issued parenting-time order.2
As noted above, a district court may not substantially modify parenting time without
conducting an evidentiary hearing. Suleski, 855 N.W.2d at 336 . The district court here
abused its discretion by failing to conduct such a hearing. Accordingly, we remand to the
district court to hold an evidentiary hearing during which the parties may present evidence
regarding R.O.’s best interests and whether parenting time with father endangers R.O.’s
health or development. See id.; Dahl, 765 N.W.2d at 124 (reversing and remanding for
findings determining whether parenting time endangered the children); see also Tarlan v.
Sorensen, 702 N.W.2d 915, 925 (Minn. App. 2005) ( stating “courts should err on the side
of requiring an evidentiary hearing when a child ’s health or emotional well -being are a t
stake”).

2 We note that the parties also contested whether the “rebuttable presumption that a parent
is entitled to receive a minimum of 25 percent of the parenting time” for a child should
apply here. Minn. Stat. § 518.175, subd. 1(g) (2020). But this rebuttable presumption only
applies “[i]n the absence of other evidence.” Id. Because the record does not establish that
father was entitled to more than “25 percent of the parenting time” under the March 2019
parenting-time schedule, we need not consider whether the district court erred by failing to
apply the statutory presumption.

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In sum, w e affirm the district court’s de nial of father’s motion to hold mother in
contempt. But we reverse the district court’s parenting-time order and remand for an
evidentiary hearing consistent with Minn. Stat. § 518.175, subd. 5(c).
Affirmed in part, reversed in part, and remanded.