Sokkhan Ka, 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This opinion is nonprecedential except as provided by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
A21-0718

Sokkhan Ka, petitioner,
Appellant,

vs.

Mai Yia Vang,
Respondent.

Filed November 22, 2021
Affirmed
Larkin, Judge

Ramsey County District Court
File No. 62-FA-17-2304

Sokkhan Ka, Shoreview, Minnesota (pro se appellant)

John C. Markham, Wagner, Falconer & Judd, Ltd., Minneapolis, Minnesota (for
respondent)

Considered and decided by Bratvold, Presiding Judge; Larkin, Judge; and Jesson,
Judge.
NONPRECEDENTIAL OPINION
LARKIN, Judge
In this child-custody dispute, appellant-father challenges the district court’s award
of conduct-based attorney fees to respondent-mother and its refusal to address issues that
father raised in a responsive motion. We affirm.
FACTS
Appellant Sokkhan Ka (father) and respondent Mai Yia Vang (mother) are the
parents of a minor child born in 2014. Father and mother have never been married. In
September 2017, father petitioned to establish custody and parenting time of the child.
In February 2020, mother moved the district court to order father to sign an
authorization for release of medical records pursuant to Minn. R. Civ. P. 35.04. In March,
the district court granted that motion and ordered father to provide a list of the providers,
clinics, and hospitals where he had been treated since the proceedings commenced and to
provide signed authorizations to permit mother’s counsel to inspect and copy his medical
records. After father failed to provide the signed medical authorizations, mother moved
the district court to compel him to provide them. She also moved for attorney fees for the
time incurred attempting to obtain the authorizations and bringing the motion to compel.
On May 15, the district court granted mother’s motion to compel after a hearing on
the motion. It ordered father to sign the medical authorizations “immediately.” The district
court denied mother’s motion for attorney fees, but it warned father that if he
continue[d] to act in such a manner as to delay these
proceedings and add to the length and expense of the
proceeding, [mother] may renew her motion to have these fees
awarded. [Father] is advised that if his conduct continues to
cause delays and contributes to the length and expense of these
proceedings, the court may well award attorney fees to
[mother].
Father immediately signed the medical authorizations, but he revoked them on June
24. His reason for revoking the authorizations was that he believed that mother’s counsel
had had enough time to obtain his medical records and that there was no reason for counsel
to have continued access to that information. On July 31, father provided new signed
medical authorizations to mother.
On August 24, f ather appeared for a deposition. That deposition ended after
approximately 45 minutes because father claimed to be having a panic attack. Father also
refused to answer several questions, insisting that they were asked in bad faith to “annoy,
embarrass, and oppress” him. Mother provided father notice to appear for a September 8
deposition. Father told mother’s counsel that he could not attend th at deposition because
he had recently started a job and would be working on that date. Although father submitted
his work schedule as proof , he redacted his employer’s information for confidentiality
reasons. Because the work schedule was heavily redacted, mother’s counsel was unable to
confirm father ’s assertion that he was unavailable for the deposition. Father failed to
appear for the deposition on September 8.
On September 16, mother moved for attorney fees based on father’s revocation of
the signed medical authorizations, premature termination of the August 24 deposition, and
failure to appear at the September 8 deposition. Father filed a responsive motion on
September 30. In addition to responding to mother’s motion for attorney fees, father
requested that the distri ct court limit the scope and manner of any future deposition and
find that mother’s counsel violated the Minnesota Rules of Civil Procedure and the
Minnesota Rules of Professional Conduct.
The district court granted mother’s motion for attorney fees after a hearing on the
motion. It awarded mother $4,427 in conduct-based attorney fees and costs related to
father’s medical authorizations and $1,425 in attorney fees related to the depositions. The
district court declined to consider the new issues that father raised in his responsive motion,
concluding that the motion was untimely. Father appeals.
DECISION
I.
Father challenges the district court’s award of conduct-based attorney fees and costs
related to his medical authorizations and depositions. Minn. Stat. § 518.14 (2020) governs
awards of attorney fees in family -law cases. “Nothing in [section 518.14] . . . precludes
the court from awarding, in its discretion, additional fees, costs, and disbursements against
a party who unreasonably contributes to the length or expense of the proceeding.” Minn.
Stat. § 518.14, subd. 1. When, as here, the parties do not dispute the issue, we have
assumed that this statute provides a substantive basis for a district court to award conduct-
based fees. Madden v. Madden , 923 N.W.2d 688, 702 (Minn. App. 2019). The party
moving for conduct -based attorney fees has the burden to show that the other party’s
conduct unreasonably contributed to the length or expense of the proceeding. Baertsch v.
Baertsch, 886 N.W.2d 235, 238 (Minn. App. 2016).
We review an award of conduct -based attorney fees for an abuse of discretion.
Brodsky v. Brodsky, 733 N.W.2d 471, 476 (Minn. App. 2007). We review related factual
findings for clear error. Goldman v. Greenwood, 748 N.W.2d 279, 284 (Minn. 2008). A
finding is clearly erroneous if we are left with the definite and firm conviction that the
district court made a mistake. Id.
Father argues that he does not have the means to pay the court-ordered attorney fees
and that mother does not need the fees because her counsel represented her pro bono. But
the district court may award conduct-based attorney fees “regardless of the recipient’s need
for fee s and regardless of the payor’s ability to contribute to a fee award.” Geske v.
Marcolina, 624 N.W.2d 813, 818 (Minn. App. 2001). Therefore, father’s purported
inability to pay and mother’s lack of need do not demonstrate that the district court abused
its discretion.
Father also argues that he stayed in “continuous contact with all parties” throughout
discovery, his communication was “immediate and timely,” and he made a “substantial
effort to provide discovery.” Those assertions are conclusory, and father does not identify
support for his assertions in the record. Contrary to father’s assertions, the district court
found that father was unwilling “to comply with the basic rules of discovery and to follow
court orders,” which resulted in mother’s attorneys “having to do legal work they otherwise
would not have had to do,” and that his deliberate conduct unreasonably delayed the
proceedings.
The record supports those findings. Regarding the signed medical authorizations,
the district court ordered father to provide the authorizations in March 2020, but mother
had to move to compel father to do so. After granting the motion, the district court declined
to award attorney fees to mother, but it warned father that it may award attorney fees in the
future if he continued to delay the proceedings. Shortly after providing the signed medical
authorizations, father revoked them based on his unilateral assertion that mother’s counsel
had had enough time to access his medical information and did not need continued access
to that information. Father did not obtain permission from the district court before he
revoked the authorizations, and his actions violated the district court’s previous orders.
Father notes that he signed new medical authorizations. Father’s execution of new
medical authorizations is immaterial. Absent the district court’s permission to do
otherwise, father was obligated to comply with the court’s order. His unauthorized
revocation of his authorizations was a refusal to do so, and, as the district court found,
father’s conduct caused mother’s counsel to do legal work that was otherwise unnecessary.
Regarding the depositions, father attributes his failure to answer questions at the
August 24 deposition to his mental -health issues and maintains that he failed to appear at
the September 8 deposit ion because he had to work. The district court rejected father’s
arguments, finding that father’s actions demonstrate that he will not comply with court
rules and instead “will interpret the rules as he sees fit, without legal basis for his position.”
The court also found that father’s conduct related to the depositions unnecessarily delayed
the proceedings.
Once again, t he record supports the district court’s finding. The August 24
deposition ended early because father became upset and refused to answer deposition
questions. For example, when discussing father’s education, mother’s counsel asked why
he did not finish high school, and father accused mother’s counsel of “trying to make [him]
look like an idiot.” Father then failed to appear for the deposition scheduled for September
8. Although father claims to have had good reasons for his actions, he did not follow the
rules of civil procedure governing depositions. See Minn. R. Civ. P. 30.03 (providing that
any objections to the evidence presented or the conduct of a party during a deposition shall
be noted, “but the examination shall proceed, with the testimony being taken subject to the
objections”), 30.04(a) (stating that “[a] person may instruct a deponent not to answer only
when necessary to preserve a privilege, to enforce a limitation on evidence directed by the
court,” or to present a motion to suspend the deposition) , 37.04 (authorizing the court to
take certain action when a party fails to appear for a deposition after being served with
proper notice).
In sum, the district court did not clearly err in finding that father’s actions
unreasonably contributed to the length or expense of the proceeding . The resulting award
of conduct-based attorney fees—which came after the district court warned father that his
conduct could lead to that result—was not an abuse of discretion.
II.
Father contends that the district court erred by failing to address issues that he raised
in his responsive motion. A responding party that raises new issues other than those raised
in the initial motion must file and serve notice of the motion at least 14 days before the
hearing. Minn. R. Gen. Prac. 303.03(a)(2). Here, the motion hearing was scheduled for
October 7, 2020. Father did not file his responsive motion until September 30, just seven
days before the hearing. Because father did not satisfy the notice requirements of the rules
of general practice, the issues he attempted to raise in his responsive motion were not
properly before the district court, and the district court did not err by declining to address
those issues.
Father argues that his responsive motions did not raise new issues because his
arguments related to the depositions that mother discussed in her ini tial motion. For
instance, father argued that mother’s counsel violated the rules of civil procedure when
scheduling the depositions and violated the rules of professional conduct during the August
24 deposition. To the extent that th ose issues overlapped with the issues mother raised in
her initial motion, the district court implicitly rejected them in concluding that father was
responsible for the delay in the depositions. See Loth v. Loth, 35 N.W.2d 542, 546 (Minn.
1949) (stating that we do not presum e error on appeal). Again, we discern no basis to
reverse the district court’s decision.
Affirmed.