In re the Marriage of: Jason Robert Carter, 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This opinion is nonprecedential except as provided by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
A21-0913

In re the Marriage of:
Jason Robert Carter, petitioner,
Respondent,

vs.

Michelle Lee Winter-Carter,
Appellant.

Filed July 5, 2022
Affirmed
Bjorkman, Judge

Clay County District Court
File No. 14-FA-18-3273

Jason W. McLean, Parvey, Larson, and McLean, PLLC, West Fargo, North Dakota (for
respondent)

Michelle Winter, Dilworth, Minnesota (pro se appellant)

Considered and decided by Worke, Presiding Judge; Bjorkman, Judge; and Reilly,
Judge.
NONPRECEDENTIAL OPINION
BJORKMAN, Judge
Appellant challenges the district court’s order deciding the parties’ competing
contempt and enforcement motions regarding their parenting plan. She argues that the
district court (1) erred by denying her motion to enforce the parenting plan by awarding
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her joint physical custody and equal parenting time, (2) erred by modifying the phone-
contact provisions of the parenting plan, (3) erred by ordering the parties to engage a new
family therapist, (4) abused its discretion by deciding her enforcement motion solely on
affidavits, and (5) erred by holding her in contempt of court for failing to transfer the
children’s phone lines to respondent. We affirm.
FACTS
Appellant-mother Michelle Winter (f/k/a Michelle Winter-Carter) and respondent-
father Jason Carter were married in 1999. They have three children, born in 2002 , 2004,
and 2009. The district court dissolved the parties’ marriage on August 18, 2020. Later
that month, the parties agreed to a parenting plan under Minn. Stat. § 518.1705 (2020) “for
the benefit of their children.” The district court amended the dissolution judgment to
incorporate the parenting plan.
The Parenting Plan
Under the parenting plan, the parties share legal custody but father has sole physical
custody, subject to mother’s parenting time 5 days out of 14. As physical custodian, father
is “responsible for paying for and maintaining the children’s existing and new phone lines.”
Each party has limited phone contact with the children during the other’s parenting time.
The parenting plan requires the parties to choose a “mutual family therapist” or, if
they are unable to agree, to use one of two designated service providers. Each party must
separately attend therapy with the children. The broad therapy goals are “to improve
communication between the parents, communication between the parents and the children,
and to move toward a more equal sharing of time between the parents.” The plan requires
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the therapist to set “micro-goals” to aid the family’s progress. And the therapist must
“provide an update to the Court and the parties about these micro- goals” within the first
two months. Thereafter, the therapist must provide updates at least every two months that
“discuss the progress or lack of progress being made on the goals and micro-goals.”
The parenting plan contemplates increasing mother’s parenting time in two
phases—first from 5 to 6 days out of 14, then to equal parenting time with the possibility
of joint physical custody—based on progress in therapy. Advancement to the next phase
is conditioned on “the therapist see[ing] progress meeting the stated goals and micro-goals,
refraining from negative behaviors, progress in that the parties are not interfering with the
other parent’ s parenting time, except as specified in this parenting plan [to permit
attendance at therapy], and progress in adjusting to parallel parenting.” Regarding physical
custody, the parenting plan directs the therapist to submit a written recommendation to the
district court “when he/she believes that it is beneficial to the children for both parties to
have joint physical custody.” But the parenting plan also provides that mother’s parenting
time may be restricted if she “talk[s] about this matter with the children, us[es] them as
detectives, bad-mouth[s] [father], or otherwise disparage[es] him, or his parenting.”
Family Therapy
In September 2020, the parties selected Kristin Sharbono as the family’s therapist.
Later that month, Sharbono provided a report to the district court that generally outlined
the services she would provide and set initial goals. She included preliminary observations,
including that “[b]ased on current informati on received it is difficult to understand why
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custody is not 50/50.” But she acknowledged that she had not, at that point, reviewed the
parenting plan or any other court records.
Sharbono provided a one-paragraph update in late November 2020. She noted a
“mutual” family goal of 50/50 physical custody, her concern that the existing custody
arrangement was detrimental, and her suggestion that “custody be returned to 50/50 with
the expectation of ongoing counseling to repair relationships.”
Sharbono provided another update in late January 2021. She detailed the goals she
had identified for each week of counseling up to that point. She also expressed concern
that both parties continue to engage in “parental alienation” and expose the children to
“toxic environments where they are expected to favor one parent over the other.” She
identified the ongoing conflict around unequal custody and parenting time as a central point
of conflict and again recommended 50/50 physical custody.
Following that update, father stopped taking the children to therapy with Sharbono.
Mother continued to do so.
The Parties’ Motions
On February 19, 2021, mother moved the district court to hold father in contempt
for refusing to support family therapy with Sharbono. She also asked the district court to
enforce the parenting plan and order joint physical custody and equal parenting time,
asserting that she complied with the requirements for those changes.
Father responded with his own motion. He asked the district court to deny mother’s
motion because (1) the parenting plan permits him to select one of the designated providers
for family therapy instead of Sharbono, and (2) mother has not satisfied the requirements
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for increasing her parenting time because she continues to interfere with his parenting time
and engages in other negative behaviors. He also asked the court to hold mother in
contempt for failing to transfer the children’s phone lines to him. And he moved to enforce
the provision in the parenting plan permitting restriction of mother’s parenting time by
(1) making the custody and parenting-time provisions permanent, and (2) limiting mother’s
phone contact with the children.
The district court conducted an evidentiary hearing on the contempt motions,
receiving testimony from the parties and Sharbono. The court decided the enforcement
and modification motions based on the parties’ affidavits and arguments. In a written
order, the district court (1) denied mother’s motion to enforce the parenting plan, (2) denied
father’s motion to make the custody and parenting-time provisions permanent, (3) granted
father’s motion to limit mother’s phone contact, (4) held mother in contempt for failing to
transfer the phone lines, (5) held father in contempt for not allowing the children to
continue therapy with Sharbono, and (6) ordered the parties to engage a new therapist to
work with the entire family. Mother appeals.
DECISION
Mother asserts various legal and factual challenges to the district court’s rulings.
Interpretation of an unambiguous parenting plan is a question of law, which we review
de novo. See Ertl v. Ertl, 871 N.W.2d 410, 414 (Minn. App. 2015) (citing Starr v. Starr,
251 N.W.2d 341, 342 (1977)). But we review a district court’s factual findings for clear
error and defer to the district court’s credibility determinations. Thornton v. Bosquez, 933
N.W.2d 781, 790 (Minn. 2019); see Minn. R. Civ P. 52.01 (providing that clear-error
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review applies regardless of whether findings are “based on oral or documentary
evidence”).
I. The district court did not err by denying mother’s motion to enforce the
parties’ parenting plan to increase her parenting time.

Mother challenges both the district court’s legal conclusion as to what the parenting
plan requires with respect to increasing parenting time and the court’s determination that
mother did not satisfy the plan’s requirements. Her challenge is unavailing in both
respects.
Mother argues that the parenting plan “gave ruling on custody to the counselor,”
and all she needed to do to receive equal parenting time and joint physical custody was
obtain Sharbono’s recommendation to that effect. This argument is not persuasive. The
parenting plan requires Sharbono to provide guidance to the parties and the district court—
in the form of “updates”—and if warranted, to make a recommendation to the district court
regarding joint physical custody. And mother may only have increased parenting time if
there has been
progress meeting the stated goals [of improved communication
within the family] and micro-goals, refraining from negative
behaviors, progress in that the parties are not interfering with
the other parent’s parenting time, except as specified in this
parenting plan [to permit attendance at counseling], and
progress in adjusting to parallel parenting.

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Accordingly, the district court did not err by requiring evidence of such progress before
granting mother’s motion.1
Mother also claims error in the district court’s finding that her behavior toward
father has not improved, asserting, for example, that there is no “ proof” she has made
negative comments to the children about father. We disagree. Father’s affidavit is replete
with examples of mother disparaging and calling father names in front of the children,
telling them they do not have to follow his directions, interfering with his parenting time,
and manipulating the children to spend time with her on father’s scheduled days. Indeed,
mother does not deny engaging in these behaviors so much as she contends father behaves
similarly. Accordingly , we conclude the district court did not clearly err by finding that
mother has not improved her behavior as required to increase her parenting time.
II. The district court did not err by modifying the phone-contact provisions of the
parenting plan.

Mother challenges the district court’s decision to prohibit text messages and emails
between her and the children and reduction of their phone time by half. 2 She does not

1 Mother asserts that continuing unequal parenting time and physical custody is not in the
children’s best interests or fair to her. But the district court was not evaluating custody and
parenting time in the first instance. It was interpreting and applying the parties’ own
agreement, as incorporated into the amended dissolution judgment, which requires that she
demonstrate improved behavior before equalizing her parenting time and custody. Mother
may dislike this requirement, but it is the agreement she made—with the benefit of counsel.

2 The district court reduced mother’s phone time with the children from two unsupervised
30-minute calls per week to one 15- minute call, subject to father’s supervision “at his
discretion.” It also eliminated the provision for “reasonable” text messages and emails,
instead prohibiting text messages and email contacts.
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support her challenge with legal authority or identify any flaw in the district court’s
reasoning or factual findings. On this record, we discern no error.
The district court found that “[o]ne of the main issues in this case has been, and
continues to be, Mother’s phone contact with the children.” And it explained that mother
“has an inability to allow the children to have free and unrestricted time with their Father,”
and “monopolizes their time with their Father by calling, video chatting and texting them
for lengthy periods of time.” Those findings have ample support in father’s affidavit,
which details phone calls between mother and the children averaging 55 minutes per day,
mother “constantly” texting and emailing the children, his inability to reach the children
while they are in mother’s care, and his observation that at least one of the children has
returned to his care with his number blocked. On this record, we conclude the district court
did not err by limiting mother’s phone contact with the children.
III. The district court did not err by ordering t he parties to engage a new family
therapist.

Mother contends that the district court erred by requiring the parties to engage a new
family therapist because she lacks the financial resources to “add[] another counselor.” We
are not persuaded.
The district court ordered the parties to retain a new therapist “who shall have the
ability to consult with and obtain information from the parties’ and the children’s
therapists, to repair the family relationships and provide updates and recommendations
consistent with ” the parenting plan. The court reasoned this was necessary because
Sharbono, despite developing a rapport with the children, failed to perform this function.
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Instead, she focused on her disagreement with the stipulated custody and parenting- time
provisions of the parenting plan and largely declined to set the detailed goals and provide
updates the parenting plan requires. The district court did not err by ordering the parties to
engage a therapist who would honor the parenting plan.3
IV. The district court did not abuse its discretion by deciding mother’s
enforcement motion on affidavits.

Mother claims error in the district court’s decision of her enforcement motion
without permitting the parties or the two older children to testify regarding the factual basis
for the motion. We review the decision whether to hold an evidentiary hearing on a motion
for an abuse of discretion. Le v. Holter, 838 N.W.2d 797, 800 (Minn. App. 2013) , rev.
denied (Minn. Dec. 31, 2013).
The presumptive procedure in family matters is that all motions, except for contempt
motions, “shall be submitted on affidavits, exhibits, documents subpoenaed to the hearing,
memoranda, and arguments of counsel.” Minn. R. Gen. Prac. 303.03(d)(1). Parties may
request oral testimony, but they must do so by the time they file the motion for which the
testimony would be taken. Id. (d)(2), (5).
Here, both parties filed contempt motions, so the district court scheduled an
evidentiary hearing. But because the parties filed other motions, the district court stated at
the beginning of the hearing that it would only take testimony on the contempt motions and

3 We observe that mother retains the option t o discontinue the children’s therapy with
Sharbono. Nothing in the district court’s order mandates that she continue that therapy; it
merely recognizes the potential value of that therapeutic relationship and requires father to
“support and allow” the children to continue the relationship.
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would decide the other motions based on the affidavits. Mother and father, both
represented by counsel, agreed to that procedure. Given the parties’ assent and the plain
language of rule 303.03, we conclude the district court did not abuse its discretion by not
receiving testimony on mother’s enforcement motion.
V. The district court did not err by holding mother in contempt for failing to
transfer the children’s phone lines to father.

Finally, mother challenges the district court’s contempt finding, c ontending that
“there is nothing to transfer.” This contention is unavailing.
The parenting plan provides that, “[a]s the parent with primary custody, [father]
shall be responsible for paying for and maintaining the children’s existing and new phone
lines.” Father sought a contempt order because mother did not transfer the children’s phone
lines to him. Mother acknowledged that she had not done so but asserts that the parenting
plan does not obligate her to transfer the phone lines; it simply requires father to pay for
the phone plan. She also testified that only the eldest child, who is an adult, has a working
phone.
The district court treated the question of whether the children have phones as
separate from whether mother must transfer their phone lines to father. And the court
agreed that “[a]lthough the [parenting plan] did not explicitly state that Mother must
transfer the children’s phone lines to Father that is a reasonable interpretation of the
[parenting plan], especially in light of the Court’s prior order requiring Mother to transfer
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the phones to Father.”4 Accordingly, it held mother in constructive contempt. Because it
remains undisputed that mother has not transferred the phone lines to father, and the district
court did not condition her obligation to do so on the children having phones, she has not
demonstrated any error in the district court’s contempt holding.5
Affirmed.

4 A January 29, 2020 order provided: “The children’s cell phone accounts shall be
transferred back to [father’s] family account” and mother “shall sign all documents
necessary to change the accounts over.”

5 Mother also asserts a claim of judicial bias, pointing to Minn. Code Jud. Conduct Canon
2.2, which requires that judges “perform all duties of judicial office fairly and impartially.”
This claim is unavailing for two reasons. First, mother forfeited it by failing to raise it to
the district court. See Gummow v. Gummow, 375 N.W.2d 30, 34 (Minn. App. 1985); see
also Minn. R. Civ. P. 63.03 (permitting judicial removal at any time upon “an affirmative
showing that the judge . . . is disqualified under the Code of Judicial Conduct”). Second,
mother claims bias solely based on credibility findings and rulings in father’s favor, which
are insufficient bases for imputing bias to a judge. Ag Servs. of Am., Inc. v. Schroeder, 693
N.W.2d 227, 236-37 (Minn. App. 2005).