In re the Marriage of: Teresa Corinne MacNabb, petitioner, Respondent,

This opinion is nonprecedential except as provided by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
A20-1172

In re the Marriage of:
Teresa Corinne MacNabb, petitioner,
Respondent,

vs.

John Michael Kysylyczyn,
Appellant.

Filed August 23, 2021
Appeal dismissed and vacated in part
Ross, Judge

Ramsey County District Court
File No. 62-FA-08-2020

Victoria A. Elsmore, Sarah Peterson, Collins, Buckley, Sauntry & Haugh, P.L.L.P.,
St. Paul, Minnesota (for respondent)

Carl A. Blondin, Oakdale, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Ross, Judge; and Gaïtas,
Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
The daughter of John Kysylyczyn and Teresa MacNabb has been the subject of a
parenting-time order since the parties’ 2010 divorce, but she has refused to spend the
designated time with her mother. The district court concluded that Kysylyczyn’s failure to
discipline the then 17 -year-old daughter or take other action to coerce her to go to
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MacNabb’s home as scheduled constituted constructive civil contempt of court and
warranted time in jail. Kysylyczyn appeals, arguing that the district court improperly
refused to allow the daughter to testify at the contempt hearing and inappropriately held
him responsible for the nearly adult daughter’s decision to avoid her mother. Since the time
of the district court’s order, the daughter has become an adult and graduated high school,
and is no longer subject to a parenting-time order. We therefore dismiss the appeal as moot
and vacate the contempt orders.
FACTS
Appellant John Kysylyczyn and respondent Teresa MacNabb divorced in 2010 under
a judgment and decree that assigned them joint legal and physical custody over their
children—a daughter born in March 2003 and son born in 2005. The children have been
the subject of a consequent parenting- time order. In March 2019 MacNabb moved the
district court to hold Kysylyczyn in civil contempt of court for failing to ensure that their
daughter adhered to the parenting- time schedule. She asked the district court to order
Kysylyczyn to serve time in jail and pay her attorney fees and costs.
The district court held a contempt hearing at which it refused to allow Kysylyczyn
to call the daughter to testify. Kysylyczyn testified about the personal conflict between
mother and daughter affecting daughter’s refusal to spend time with MacNabb and that he
encouraged their daughter to discuss her feelings with MacNabb. He told the court that he
said or did nothing to discourage daughter from going to her mother’s home as scheduled.
The district court questioned Kysylyczyn about whether he had punished the daughter for
her refusal and expressed disapproval when Kysylyczyn said he had not. The district court
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held Kysylyczyn in constructive civil contempt of court and ordered him to be confined to
jail for 30 days. The district court stayed execution of the confinement conditioned on
Kysylyczyn’s complying with the parenting-time order.
Five weeks later MacNabb moved the district court to vacate the stay, arguing that
Kysylyczyn had failed to satisfy the conditions. The district court held another hearing,
where Kysylyczyn testified that he told his daughter about the order, directed her to go to
MacNabb’s home during her scheduled parenting time, and forbade her from staying in his
house during that parenting time. Kysylyczyn said that he believed that, rather than going
to her mother’s home, the daughter would just go to the nearby home of her grandparents—
Kysylyczyn’s parents. Again the district court expressed its disapproval of Kysylyczyn’s
failure to engage in more disciplinary actions to compel the daughter to go to MacNabb’s
home as scheduled. The district court issued an order for writ of attachment and warrant of
commitment. The order directed that Kysylyczyn “may be released from [jail] after he”
agrees in writing to various behavior to force the daughter’s parenting-time compliance,
including
corrective measures and disciplinary efforts against [her], such
as restricting or limiting [her] privileges to drive, to use her cell
phone, to make recreational use of computer or internet access
(including access relating to [her] YouTube channel), to
schedule and attend social events with friends, to play with toys
or Legos, and to attend extracurricular events (including events
related to [her] involvement in scouts, band, music, [the] junior
explorers club, among others),

and to “prevent” her from spending time with Kysylyczyn’s parents during her scheduled
time with MacNabb. Kysylyczyn appeals.
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DECISION
During the pendency of this appeal, we asked the parties to update us about the
daughter’s status as a minor and to address any resulting question of mootness. For the
following reasons, we hold that the appeal is mooted by daughter’s adulthood, we dismiss
the appeal without deciding whether the district court’s orders were appropriate, and we
vacate the contempt orders.
The questions presented in the appeal are moot. We decide only justiciable
controversies, which are those involving a definite and concrete assertion of a legal right
threatened in a genuine conflict between parties having adverse interests. McCaughtry v.
City of Red Wing, 808 N.W.2d 331, 336– 37 (Minn. 2011). If the issues raised fail to
continue throughout the case, they become moot. Kahn v. Griffin , 701 N.W.2d 815, 821
(Minn. 2005). An appeal of a contempt order is moot when the contemnor purges his
contempt or the controversy underlying the contempt ends. See Seaver v. Indep. Sch. Dist.
No. 166 of Cook Cty., 281 N.W.2d 198, 199 (Minn. 1979); Clement v. Clement ,
204 N.W.2d 819, 819 (Minn. 1973). The controversy underlying the contempt order here
ended when the parties’ daughter turned 18 and graduated high school.
District courts have the power to enforce parenting-time orders by holding a party
in civil contempt of court. Minn. Stat. § 518.175, subd. 6(h) (2020). The purpose of a
civil-contempt order is to end a party’s ongoing failure to comply with a court order, not
to punish the party for past failures. Minn. Stat. § 588.12 (2020) ; Mahady v. Mahady,
448 N.W.2d 888, 890 (Minn. App. 1989). The district court here began the hearing on
MacNabb’s motion for contempt explaining to the parties, “[W] e’re here today on a
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contempt motion concerning allegations regarding your daughter [] and [Kysylyczyn’s ]
interfering with [MacNabb’s] parenting time.” The basis for finding Kysylyczyn in
contempt was his failure to encourage or compel the parties’ daughter to comply with the
parenting-time order. And the order specifically concluded that Kysylyczyn was “in
contempt of court for failure to comply with the Parties’ March 26, 2018, Stipulated
Agreement regarding parenting time.” But since then, Kysylyczyn’s contempt can no
longer occur because the parties’ daughter is no longer the subject of either parties’
enforceable parenting time.
The parties’ daughter can no longer be the object of the parenting-time order. Only
a child can be the subject of court-ordered parenting time. See Minn. Stat. § 518.175,
subd. 1(a) (2020). For the purposes of such an order, a “child” is a person younger than 18
years, a person who is between 18 and 20 years old and still attending secondary school,
or a person who has a mental or physical condition that prevents her from supporting
herself. Minn. Stat. § 518A.26, subd. 5 (2020). The parties have informed us that their now
18-year-old daughter graduated from high school shortly after oral argument in this appeal.
And the record does not suggest that she is incapable of self-support. She is no longer a
child whose habitation is based on the parenting-time order that the district court intended
to enforce by jailing Kysylyczyn. A party may not be compelled through a civil-contempt
order after the point he no longer has t he ability or duty to comply with the underlying
order for which he has been found to be in contempt. In re Welfare of Kg.E.H., 542 N.W.2d
658, 662 (Minn. App. 1996). Assuming Kysylyczyn engaged in contempt, his contempt
ended when his daughter ceased being a child.
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The circumstances here moot the issues Kysylyczyn raises on appeal. He challenges
the district court’s refusal to allow his daughter to testify at the contempt hearing, its
holding him in contempt, and its denial of his motion to amend the warrant-of-commitment
order. These decisions no longer affect Kysylyczyn’s legal interests.
MacNabb argues against mootness on theories that do not change our mind. She
argues that Kysylyczyn remains in contempt because of communication failures the district
court identified in its contempt order and purge conditions. But those communication
failures relate only to parenting-time issues concerning the parties’ daughter. The daughter
no longer being the subject of the parenting-time order, Kysylyczyn no longer bears any
duty to communicate with MacNabb about parenting time concerning the daughter.
MacNabb also argues that the fact that the parties’ son remains subject to the
parenting-time order prevents us from deeming the appeal moot. But a contempt order
cannot preemptively compel a party to avoid speculative, future noncompliance. Minn.
Stat. §§ 588.01, subd 3, 588.12 (2020); see Mahady, 448 N.W.2d at 890. The district
court’s decisions at issue in this appeal arise from a contempt order designed to remedy
Kysylyczyn’s alleged failure to facilitate MacNabb’s parenting time only with the
daughter, not the son. And the parties’ hearing testimony informs us that MacNabb raised
no concerns about her parenting time involving their son.
Conceding mootness, Kysylyczyn urges us not to dismiss the appeal because he will
suffer collateral consequences from the challenged orders. An appeal is not moot if the
challenged order, remaining intact, creates collateral consequences. In re McCaskill,
603 N.W.2d 326, 329 (Minn. 1999). Collateral consequences are those that may impose
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“real and substantial disabilities” on the challenging party. Id. (quotation omitted). A party
can show a “real and substantial ” impairment with evidence and explanation of how a
judgment could harm him. See State ex rel. Doe v. Madonna, 295 N.W.2d 356, 360 (Minn.
1980). Kysylyczyn argues that he is a political figure whom the district court’s decisions
will harm by inhibiting his work. He does not explain how this is so, and his assertions are
too vague for us to consider. We conclude that Kysylyczyn fails to identify a collateral
consequence.
The parties cite no Minnesota civil case addressing whether or when dismissing an
appeal as moot includes vacating the order or orders being appealed, and we are aware of
none. We may look for insight into how other jurisdictions have addressed issues that we
have not considered, Lorix v. Crompton Corp., 736 N.W.2d 619, 629 (Minn. 2007), and in
this case we find the Supreme Court’s reasoning on the issue for federal courts particularly
informative. When an appeal becomes moot in the federal courts through mere
happenstance rather than through the appealing party’s conduct, the appellate court should
vacate the appealed-from judgment or order. Alvarez v. Smith, 558 U.S. 87, 94, 130 S. Ct.
576, 581 (2009) (citing United States v. Munsingwear, Inc., 340 U.S. 36, 40, 71 S. Ct. 104,
107 (1950)). The federal courts base this approach on a federal statute that authorizes
federal appellate courts to “affirm, modify, vacate, set aside or reverse any judgment,
decree, or order of a court lawfully brought before it for review, and may remand the cause
and direct the entry of such appropriate judgment, decree, or order, or require such further
proceedings to be had as may be just under the circumstances.” 28 U.S.C. § 2106 (2018).
This broad authorization is akin to the applicable state procedural rule, which states in
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relevant part that “[t]he appellate courts may reverse, affirm or modify the judgment or
order appealed from or take any other action as the interest of justice may require.” Minn.
R. Civ. App. P. 103.04.
Relying on the federal statute, the Supreme Court reasons that vacating based on
mootness by happenstance is preferred because it “clears the path for future relitigation of
the issues between the parties, . . . [ensures] the rights of all parties are preserved, . . . [and]
prevent[s] a judgment, unreviewable because of mootness, from spawning any legal
consequences.” Munsingwear, 340 U.S. at 40–41, 71 S. Ct. at 107. By contrast, if an appeal
becomes moot because of the intentional actions of the appellant (like declining to pursue
the appeal or settling the case), the appellate court will not vacate the underlying decision
because the appellant has willingly surrendered the option for appellate review of the
judgment, and so that party is not entitled as a matter of fairness to the appellate court ’s
vacating that judgment. See U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18,
24–25, 115 S. Ct. 386, 391–92 (1994); Karcher v. May, 484 U.S. 72, 82–83, 108 S. Ct.
388, 395 (1987). Indeed, “the reference to ‘happenstance’ in Munsingwear must be
understood as an allusion to this equitable tradition of vacatur. A party who seeks review
of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought
not in fairness be forced to acquiesce in the judgment.” Bancorp, 513 U.S. 18, 25,
115 S. Ct. 386, 391.
The states that have considered the federal approach all seem to follow it, most
treating happenstance as a bright-line basis for vacating the underlying decision and a few
others adding the requirement that the appellant also make some showing of fairness in
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vacating. More specifically, the cases in the majority position either implicitly or explicitly
reason that vacatur is fair for the appellant when the case is mooted by happenstance,
without requiring further showing from the appellant, while the minority cases require a
further showing by the appellant before concluding that vacatur is fair. Today we will
follow the majority, bright-line approach.
Most state courts that have considered Bancorp and Munsingwear follow a
bright-line approach when addressing a case mooted on appeal by circumstances beyond
the appellant’s control. See Young’s Realty, Inc. v. Brabham, 896 So. 2d 581, 583 (Ala.
Civ. App. 2004) (“where, as here, mootness on appeal results from the unilateral action of
the party who prevailed below,” fairness to the appellant requires vacatur under
Munsingwear and Bancorp (quotation omitted)); Davidson v. Comm. for Gail Schoettler,
Inc., 24 P.3d 621, 624 (Colo. 2001) (vacating judgment interpreting a statute when the
legislature repealed the statute, preventing review through happenstance); Tyson Foods,
Inc. v. Aetos Corp., 818 A.2d 145, 148 (Del. 2003) (concluding that Bancorp agrees with
Delaware’s interests of justice standard for vacatur because that “standard is no doubt met
where the party seeking appellate review is thwarted by some event beyond its control.”
(emphasis in original)); Lewis v. Hotel & Rest. Emps. Union, Local 25, AFL-CIO, 727 A.2d
297, 299–302 (D.C. 1999) (vacating judgment when the D.C. Council amended legislation
at issue, mooting the issues through happenstance); Garces v. Legarda, 86 So. 3d 602,
605–07 (Fla. Dist. Ct. App. 2012) (vacating a custody order when father who prevailed in
district court returned children to Ecuador, mooting the appeal through his unilateral
action); Babies Right Start, Inc. v. Georgia Dep’t of Pub. Health, 748 S.E.2d 404, 406–07
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(Ga. 2013) (vacating a judgment disqualifying appellant from participating in a welfare
program when the disqualification expired after a year, mooting the appeal through
happenstance); Goo v. Arakawa, 321 P.3d 655, 665–66, 69 (Haw. 2014) (reasoning that
Bancorp preserved happenstance as a sufficient reason to vacate, but remanding for the
district court to determine the cause of mootness in the case); State v. Barclay, 232 P.3d
327, 330 (Idaho 2010) (vacating a court of appeals opinion on a criminal jurisdictional
issue when the respondent completed his sentence, mooting the case through
happenstance); Felzak v. Hruby, 876 N.E.2d 650, 657–59 (Ill. 2007) (vacating a lower
court decision in a case with facts similar to this one after determining the issue on appeal
is moot and citing the happenstance discussion from Munsingwear); Windstream Ky. W.,
LLC v. Ky. Pub. Serv. Comm’n, 362 S.W.3d 357, 360–61 (Ky. Ct. App. 2012) (vacating
judgment affirming state agency’s ability to investigate utility’s rates when agency closed
its investigation, unilaterally mooting the utility’s appeal); Aquacultural Research. Corp.
v. Austin, 41 N.E.3d 318, 321–23 (Mass. App. Ct. 2015) (vacating judgments denying
appellant’s standing to contest wind turbine’s certification when respondent mooted the
issue by granting restriction which forbade it from constructing the turbine); Anglers of
AuSable, Inc. v. Dep’t of Env’t Quality, 796 N.W.2d 240, 240 (Mich. 2011) (order opinion
vacating judgments on issue of riparian rights when respondent surrendered the physical
and legal means to discharge water, mooting the appeal); Asher v. Carnahan, 268 S.W.3d
427, 432 (Mo. Ct. App. 2008) (quoting Bancorp that “[a] party who seeks review of the
merits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought not in
fairness be forced to acquiesce in the judgment” (alteration in original)); Byerly v. S.C. Nat.
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Bank Corp., 438 S.E.2d 233, 233 (S.C. 1993) (vacating a judgment when party that
prevailed in district court died, mooting the case through happenstance); Bd. of Supervisors
of Fairfax Cty. v. Ratcliff, 842 S.E.2d 377, 379 (Va. 2020) (quoting Bancorp that “[a] party
who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of
circumstance . . . ought not in fairness be forced to acquiesce in that ruling.”); These courts
have tended to vacate underlying decisions mooted on appeal through happenstance as fair
to the appellant, without requiring more.
We have found that several states apply the federal approach by reading Bancorp to
require an appellant to also make a showing of entitlement to vacatur even when the appeal
is mooted by happenstance. See In re Emma F., 107 A.3d 947, 957–58 (Conn. 2015)
(instructing that appellant must show equitable entitlement to vacatur, which it failed to do
in this case); Thanks But No Tank v. Dep’t of Envtl. Prot., 86 A.3d 1, 4 (Me. 2014) (“We
agree with [Bancorp] and conclude that even if [the appellant] could demonstrate that
review of this case was prevented through happenstance, it has not met its burden of
demonstrating an entitlement to vacatur.”); Kerr v. Bradbury, 131 P.3d 737, 742 (Or. 2006)
(“[T]his court will be guided by the principles from [Bancorp] quoted above and the
observation in that case that vacatur is an extraordinary remedy to which a party must show
an equitable entitlement.” (quotations omitted)). Those states therefore require an appellant
to show unfairness caused by the moot judgment’s preclusive effect, demonstrate an impact
to the appellant’s job prospects, or establish that vacatur would serve the public interests.
We align with the majority approach to the federal standard and conclude that an
appellant demonstrates equitable entitlement to vacate by s howing that the appeal is
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mooted through happenstance rather than by the appellant’s voluntary acts. Vacating the
underlying, challenged orders is appropriate here because the appeal is mooted by the
happenstance of the parties’ daughter reaching adulthood and no longer being the subject
of the parties’ parenting-time dispute. Dismissing the appeal without vacating the
conditional contempt order and final order for the warrant of commitment would foreclose
Kysylyczyn’s opportunity to obtain review of those challenged orders through no act or
fault of his own. We therefore vacate the district court’s November 1, 2019 “Order for Writ
of Attachment and Warrant of Commitment” and the August 2, 2019 contempt order,
captioned “Amended Order Following Motion Hearing,” which is the basis of the
November 2019 order.
We do not vacate the district court’s order awarding attorney fees because that order
is not before us. An appeal begins with a notice of appeal “specifying the judgment or order
from which the appeal is taken.” Minn. R. Civ. App. P. 103.01, subd. 1(a). While we
liberally construe a notice of appeal, the notice must alert the parties to the issues to be
litigated. Kelly v. Kelly, 371 N.W.2d 193, 19 5–96 (Minn. 1985). The order identified in
Kysylyczyn’s notice of appeal is the order for the writ of attachm ent and warrant of
commitment. The district court’s order granting the award of attorney’s fees is not
identified in or attached to Kysylyczyn’s notice of appeal and is not the subject of any
argument in the parties’ briefing on the merits. Kysylyczyn’s br ief simply requests in
conclusory fashion that we reverse the fee order as we reverse the contempt order, which
is not enough to alert the parties to any issues with the fee order and make this an appeal
of the fee order. It is true that we “may review any order affecting the order from which
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the appeal is taken,” Minn. R. Civ. App. P. 103.04, but the fee order does not fit within this
caveat. The fee order is not specifically tied to attorney services accrued during the
contempt proceedings but rather expressly covers fees generated because of Kysylyczyn’s
noncompliance with the parenting-time order beginning one year before the August 2019
fee order. Nor does the final contempt order rely on the fee order in any way.
Appeal dismissed and vacated in part.