In re the Marriage of: Sarah Meagan Gallo, 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This opinion is nonprecedential except as provided by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
A21-0773

In re the Marriage of: Sarah Meagan Gallo,
Respondent,

vs.

Robert Warren Gallo, petitioner,
Appellant.

Filed February 28, 2022
Affirmed in part, reversed in part, and remanded
Reilly, Judge

Hennepin County District Court
File Nos. 27-FA-16-5898, 27-FA-17-4203

Sarah M. Gallo, Bloomington, Minnesota (pro se respondent)

Robert A. Manson, Robert A. Manson, P.A., Roseville, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Johnson, Judge; and Reilly,
Judge.
NONPRECEDENTIAL OPINION
REILLY, Judge
In this parenting-time dispute, appellant -father challenges the district court’s
decisions (1) restricting his parenting tim e with his child without a finding of
endangerment; (2) ordering a parenting assessment; (3) denying his motion to hold mother
in civil contempt of court; and (4) denying his request for attorney fees. Because the district
court’s parenting-time orders are unclear and contradictory, we reverse and remand those
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portions of the district court’s order. The di strict court may also review its parenting-
assessment order on remand. We affirm the remaining aspects of the district court’s orders.
FACTS
Appellant-father Robert Warren Gallo and respondent-mother Sarah Meagan Gallo
are the parents of a minor child, L.G., born in 2013. The parties divorced in October 2017.
On April 4, 2018, the district court issued a custody order awarding mother sole legal and
sole physical custody of L.G. and establishing parenting time for father.
In June 2018, mother unilaterally suspended father’s parenting time with L.G. Six
months later in December 2018, mother move d the district court to formally suspend
father’s parenting time. In response, father moved to (1) deny moth er’s motion, (2) find
mother in constructive contempt for deny ing his parenting time, (3) award father
compensatory parenting time, and (4) order mo ther to pay conduct-based attorney fees.
The district court found that mother made a prima facie showing that the child’s parenting
time with father endangered the child and set a date for a future evidentiary hearing. The
district court also ordered that, pending that hearing, father’s parenting time be supervised.
The district court did not rule on the remaining issues.
In July 2019, father moved th e district court to (1) find that father made a prima
facie case for modification of custody, and (2) award father attorney fees, among other
things. Mother moved the district court to (1) deny father’s motion, and (2) award her
conduct-based attorney fees. The district court held an evidentiary hear ing to consider
mother’s motion to suspend father’s parenting time. In March 2020, the district court filed
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an order requiring that father’s parenting tim e with L.G. be supervised and reserving all
other issues.
Father then moved for amended findings or for a new trial, the district court denied
that motion in September 2020, and father appealed the March 2020 and September 2020
orders. This court dismissed that appeal as premature and remanded for the district court
to “promptly resolve” the outstanding issues. Gallo v. Gallo, No. A20-1438 (Minn. App.
Dec. 16, 2020) (order). After a hearing on remand, the district court entered a final
judgment in April 2021, denying father’s motions for contempt and for conduct-based
attorney fees. Father appeals.
DECISION
I. We reverse and remand the district court’s parenting-time decisions.
Father challenges the district court’s pa renting-time determinations. Generally,
questions of child custody are discre tionary with the district court. See Christensen v.
Healey, 913 N.W.2d 437, 443 (Minn. 2018) (not ing that “a district court has broad
discretion in determining cu stody and parenting time”); see also Minn. Stat. § 518.003,
subd. 3(f) (2020) (defining a “[c]ustody determination” to include a parenting-time
decision). A district court abuses its discre tion if it makes findings of fact that are not
supported by the record, misapplies the law, or resolves the matter in a manner that is
contrary to logic and the facts on record. Honke v. Honke, 960 N.W.2d 261, 265 (Minn.
2021); Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997). A reviewing court will “set
aside a district court’s findings of fact only if clearly erroneous, giving deference to the
district court’s opportunity to evaluate witness credibility.” Goldman v. Greenwood, 748
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N.W.2d 279, 284 (Minn. 2008). Findings are clearly erroneous if they are not reasonably
supported by the evidence as a whole or are ma nifestly contrary to the weight of the
evidence. In re Civ. Commitment of Kenney , 963 N.W.2d 214, 221-22 (Minn. 2021)
(discussing, in a commitment appeal, the clear-error standard for reviewing findings of fact
and noting that the standard applies “across many contexts”).
We begin by addressing the district court’s orders related to father’s parenting time.
The April 2018 custody order awarded father parenting time every other weekend “from
after school on Friday until drop off at scho ol/daycare on Monday morning,” and every
Wednesday evening but did not require father’s parenting time to be supervised.
In its March 2020 order requiring father’s parenting time with L.G. to be supervised,
the court also ordered that:
Father’s current parenting time schedule should remain in
place if the parties are able to arrange for supervised parenting
time. Accordingly, the Court fi nds that Father shall have two
hours of supervised parenting time . . . on every other Friday,
Saturday, Sunday, and Monday, and every Wednesday.

Thus, the April 2018 order awards father parenting time “from after school on
Friday until drop off at school/daycare on Monday morning,” and every Wednesday
evening. And the March 2020 order states that “[f]ather’s current parenting time schedule
should remain in place if the parties are able to arrange for supervised parenting time.” But
the March 2020 order also iden tifies father’s parenting time as “two hours of supervised
parenting time . . . on every other Friday , Saturday, S unday, and Monday, and every
Wednesday.” Under these circumstances, it is unclear to us whether, and how much (if
any), the March 2020 order reduced father’s parenting time.
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The district court’s Septembe r 2020 order does not clarif y the March 2020 order.
That order recognizes that th e “baseline” parenting-time schedule for L.G. is set by the
April 2018 order, states that “[t]he [March 2020] Order converted Father’s parenting time
to supervised parenting time on those same days,” and asserts that it “maintain[ed] Father’s
parenting time days,” such that he “still se es [L.G.] every other weekend from Friday to
Monday, and every Wednesday.” The Septem ber 2020 order also claims that the
“parenting time days remain the same,” without acknowledging that the number of hours
decreased from 24 hours a day of unsupervised time to two hours a day of supervised time.
But in the April 2021 order filed on remand, the district court states that “the Court
ordered that Father should have supervised parenting time with [L.G.] every other weekend
from Friday to Monday for two hours each day and every Wednesday for two hours.” Thus,
the April 2021 order suggests that the district court reduced father’s parenting time from
the entire weekend to just two supervised hours per day.
Reading these three orders together, it is unclear to us what parenting time, exactly,
the district court ordered. On remand, the district court shall clarify the nature and extent
of the parenting time awarded to father. When doing so, the district court may reevaluate
the propriety of any reduction, restriction, or modification of fath er’s parenting time,
considering that clarification. Whether to reopen the record on remand shall be
discretionary with the district court.
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II. The district court may reconsider it s parenting-assessment decision on
remand.
Father challenges the portion of the dist rict court’s April 2021 order making his
participation in a parenting assessment a prer equisite to the district court addressing his
motion for unsupervised parenting time. We a ssume for the purpose of this opinion that
the district court’s order for a parenting assessment is analogous to an order for a custody
evaluation. And we review a district court’s decision to order a custody evaluation for an
abuse of discretion. J.W. ex rel. D.W. v. C.M. , 627 N.W.2d 687, 696 (Minn. App. 2001)
(addressing custody evaluations), rev. denied (Minn. Aug. 15, 2001).
In custody disputes, the district court “may order an investigation and report
concerning custodial arrangements for the child.” Minn. Stat . § 518.167, subd. 1 (2020);
see also id. , subd. 2(b) (2020) (addressing the c ontent of the report produced by an
investigation). On remand, the district court may consider whether a parenting assessment
is still necessary, after it clarifies its parenting-time decision.
III. The district court did not abuse its dis cretion by denying father’s motion to
hold mother in civil contempt of court.
Father argues the district court improper ly denied his motion to hold mother in
constructive civil contempt of court. Civil contempt orders are remedial and “are designed
to induce future performance of a valid court order, not to punish past failure to perform.”
Mahady v. Mahady, 448 N.W.2d 888, 890 (Minn. App. 1989). The Minnesota Supreme
Court has outlined the minimu m requirements, known as Hopp factors, that a civil-
contempt proceeding must meet:
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(1) the court has jurisdiction over the subject matter and the
person;
(2) a clear definition of the acts to be performed;
(3) notice of the acts to be performed and a reasonable time
within which to comply;
(4) an application by the party seeking enforcement giving
specific grounds for complaint;
(5) a hearing, after due notice, to give the nonperforming party
an opportunity to show comp liance or the reasons for
failure;
(6) a formal determination by the court of failure to comply
and, if so, whether cond itional confinement will aid
compliance;
(7) an opportunity fo r the nonperforming party to show
inability to comply despite a good faith effort; and
(8) the contemnor’s ability to gain release through compliance
or a good faith effort to comply.

Hopp v. Hopp , 156 N.W.2d 212, 216-17 (Minn. 1968 ). The district court has broad
discretion to hold an individual in contempt, which we review for an abuse of discretion.
Crockarell v. Crockarell , 631 N.W.2d 829, 833 (Minn. App. 2001), rev. denied (Minn.
Oct. 16, 2001).
In June 2018, mother unilaterally suspended father’s parenting time with L.G., and
father did not have parenting time with L.G. until March 2019 . In January 2019, father
moved the district court to find mother in constructive civil contempt of court for denying
him his parenting time during this period. The district court held a hearing in January 2021
to give mother an o pportunity to explain wh y she disregarded the custody order, and to
consider the Hopp factors. See Hopp, 156 N.W.2d at 216 (stating that “upon due notice[,]
a hearing [shall] be conducted and at such hearing the party charged with nonperformance
be given an opportunity to show compliance or his reasons for failure”).
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In its resulting order, the district court fo und that mother “did not comply with the
parenting time ordered in the Cu stody Order” but declined to find mother in contempt of
court because it found that mother’s noncompliance with the custody order was, under the
circumstances, reasonable. The district cour t found that mother had “good reason” for
failing to comply with the custody order beca use a child protection services (CPS) social
worker advised mother that she did not have to allow father to ha ve parenting time with
L.G. if she was concerned for L.G.’s safety. 1 Based on its finding that mother’s
noncompliance with the custody order was, under the circumstances, “reasonable” (or at
least excusable), the district court determined that mother did not act “contumaciously, in
bad faith, or out of disrespect for the judicial process.” See Minn. State Bar Ass’n v.
Divorce Assistance Ass’n, 248 N.W.2d 733, 740 (Minn. 1976).
Upon review, we are satisfied both that the district court adequately addressed each
Hopp factor, and that the record supports its de terminations on those factors. As for the
final three factors, the district court determ ined that mother faile d to comply with the
custody order by denying fath er parenting time, but that mother’s noncompliance was
excusable because she relied on representati ons from CPS that L.G. should not have
parenting time with father. While father disa grees with the district court’s analysis, we

1 Father argues that the instruction of a CPS social worker should not supersede a district
court order. We agree with father that the CPS social worker lacked the authority to direct,
or even to suggest, that mo ther disregard the existing court order. The better course for
mother would have been to file a motion in the custody case and have the district court
resolve parenting-time concerns.
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discern no abuse of disc retion. We therefore affirm the district court’s decision denying
father’s motion for contempt.
IV. Father’s challenge to the district court’s denial of his motion for attorney fees
is not properly before this court.
Finally, father challenges the district court’s denial of his motion for attorney fees,
but his brief includes only two sentences on th is point and he cites no legal authority to
support his assertion. “[E]rror is not presumed on appeal, and the burden of showing error
rests on the party asserting it.” Horodenski v. Lyndale Green Townhome Ass’n , 804
N.W.2d 366, 372 (Minn. App. 2011). A party forfeits a claim by failing to support it with
argument or authority. Scheffler v. City of Anoka , 890 N.W.2d 437, 451 (Minn. App.
2017), rev. denied (Minn. Apr. 26, 2017). Father failed to adequately brief his attorney-
fee argument because he cited neither the relevant portions of the record nor relevant legal
authority. As a result, we cons ider the argument forfeited. See State, Dep’t of Labor &
Indus. v. Wintz Parcel Drivers, Inc ., 558 N.W.2d 480, 480 (Minn. 1997) (noting that
reviewing court may decline to reach issu es that are not adequately briefed); Brodsky v.
Brodsky, 733 N.W.2d 471, 479 (Minn. App. 2007) (applying Wintz in a family-law appeal).
Affirmed in part, reversed in part, and remanded.