In re the Marriage of: Anthony Michael Bottolene, 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This opinion is nonprecedential except as provided by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
A21-1661

In re the Marriage of:
Anthony Michael Bottolene, petitioner,
Respondent,

vs.

Beleyou Getachew Bottolene,
Appellant,

County of Wright,
Intervenor.

Filed October 17, 2022
Affirmed
Frisch, Judge

Wright County District Court
File No. 86-FA-15-2360

Mary E. Cincotta, Throndset Michenfelder, LLC, St. Michael, Minnesota (for respondent)

Ryan J. Briese, Kristine J. Zajac, Zajac Law Firm, Minneapolis, Minnesota (for appellant)

Considered and decided by Frisch, Presiding Judge; Ross, Judge; and Connolly ,
Judge.
NONPRECEDENTIAL OPINION
FRISCH, Judge
Appellant-mother argues that the district court abused its discretion in modifying
child custody by (1) considering a prior finding of domestic abuse from a separate
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proceeding, (2) determining that mother’s physical contact with the child constituted
endangerment, and (3) failing to make reasonable accommodations for mother during the
evidentiary hearing as a pro se litigant. Because the district court did not abuse its
discretion in the consideration of evidence and did not clearly err in its findings of fact, we
affirm.
FACTS
In June 2011, appellant-mother Beleyou Getachew Bottolene and respondent-father
Anthony Michael Bottolene were married. Their child, M.G.B. (the child), was born later
that year. In 2016, the parties divorced, and the dissolution court awarded mother joint
legal custody and sole physical custody of the child subject to father’s parenting time. The
dissolution court later amended the decree in part but did not change the custody order.
OFP Proceeding
In December 2018, the OFP court issued an ex parte order for protection (OFP)
based on father’s allegations of domestic abuse of the child by mother. In January 2019,
the parties agreed to continue the OFP matter, reinstate the prior parenting-time
arrangement, and not use physical discipline against the child. Mother agreed to attend a
parenting class or individual therapy that would address age -appropriate discipline. In
April 2019, the parties again agreed to continue the OFP matter to give mother time to
attend suitable programming or therapy.
On September 3, 2019, the OFP court held a hearing on the OFP. Mother did not
appear at that hearing and did not contact the OFP court. At the hearing, the OFP court
received testimony from the court-appointed guardian ad litem about mother’s attendance
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and progress in therapy and an attempt to contact mother about the hearing. The OFP court
also received testimony from father that mother pulled the child’s arm and hit him because
the child had not completed his homework. Father testified that mother had dragged the
child to the bathroom by his shirt to wash his face, and the child asked to be let go. The
OFP court received as evidence a police report along with a photo of the child’s arm
depicting a bruise mark attributable to mother’s physical contact with the child.
After the hearing, the OFP court determined that mother committed domestic abuse
(the 2019 domestic-abuse finding) and issued an OFP, effective through December 13,
2020. Father and the child have been living together full-time since the issuance of the
OFP.
Motion to Modify Custody
Before the expiration of the OFP, father separately filed a motion to modify child
custody. Mother also moved to regain custody of the child.
On August 27, 2021, the modification court held a remote evidentiary hearing on
the parties’ cross-motions to modify custody. Although mother was initially represented
by counsel, mother’s counsel withdrew from representation before the modification court
conducted the evidentiary hearing. During the hearing, the modification court received
testimony about the child and the parties’ relationship with the child from father’s
co-worker, stepmother, and father. The modification court also received testimony from
mother and father about the child, their respective relationships with the child, their
relationship with each other, and the circumstances surrounding the issuance of the OFP.
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The modification court thereafter issued an order finding that mother’s physical
contact with the child constituted endangerment and modified custody, awarding father
sole physical custody of the child subject to mother’s parenting time.
Mother appeals.
DECISION
Mother argues that the modification court abused its discretion in issuing the
custody modification order by (1) considering the 2019 domestic-abuse finding by the OFP
court, (2) determining mother’s physical contact with the child constituted endangerment,
and (3) failing to make reasonable accommodations during the evidentiary hearing for
mother as a pro se litigant. We address each argument in turn.
I. The modification court did not abuse its discretion by considering the 2019
domestic-abuse finding.

Mother first argues that the modification court abused its discretion by considering
the 2019 domestic-abuse finding by the OFP court when determining whether to modify
custody. Mother asserts that the modification court effectively applied the doctrine of
collateral estoppel to prevent mother from challenging the 2019 domestic-abuse finding
and that application of collateral estoppel was improper because she was not present at the
hearing that resulted in that finding. We disagree.
As a threshold matter, mother did not object to the consideration of the 2019
domestic-abuse finding during the custody- modification evidentiary hearing, thereby
forfeiting her new objection on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988);
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see Lewis-Miller v. Ross, 710 N.W.2d 565, 570 (Minn. 2006) (applying Thiele in a custody
dispute).
Even so, the record does not show that the modification court considered or applied
the doctrine of collateral estoppel in the modification proceeding. Collateral estoppel
prevents a party from relitigating an identical issue litigated in a previous action. State
Farm Mut. Auto. Ins. Co. v. Lennartson, 872 N.W.2d 524, 534 (Minn. 2015). Here, the
modification court did not prevent mother from litigating the issue of whether domestic
abuse occurred. Instead, the modification court received the 2019 domestic-abuse finding
as evidence of domestic abuse and also received testimony regarding the underlying
allegations and findings of fact. In so doing, the modification court permitted mother to
question father about physical contact by mother against the child. Ultimately, the
modification court discredited mother’s testimony regarding the circumstances giving rise
to the 2019 domestic-abuse finding. We therefore do not agree with the characterization
that the modification court effectively applied the doctrine of collateral estoppel, and we
see no abuse of discretion in the consideration of the 2019 domestic-abuse finding.
1

1 Mother does not contest the relevance of a prior domestic-abuse finding in the custody-
modification context. We observe that Minnesota law contemplates the consideration of
such evidence by the district court in determining whether to modify a custody order.
Minn. Stat. § 518.18(d) (2020) provides that a court cannot modify a custody order unless
it finds, among other things, that (1) a change in circumstances has occurred and
(2) modification is in the best interests of that child. The existence of domestic abuse is a
specific factor for consideration in evaluating the best interests of the child. Minn. Stat.
§ 518.17, subd. 1(a)(4) (2020).
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II. The modification court did not abuse its discretion by determining mother’s
physical contact constituted endangerment.

Mother next argues that the modification court abused its discretion in concluding
that mother’s physical contact with the child amounted to endangerment and instead argues
that her physical contact was merely disciplinary. We disagree.
The circumstances constituting endangerment are “unusually imprecise,” but must
amount to a “significant degree of danger.” Goldman v. Greenwood, 748 N.W.2d 279, 285
(Minn. 2008). Not all corporal punishment necessarily supports a determination of
endangerment. See, e.g., Johnson v. Smith, 374 N.W.2d 317, 320-21 (Minn. App. 1985)
(concluding the district court abused its discretion in determining that the child was
endangered where, “[o]ther than this observation [that the child appeared ‘shook up’ after
one incident], and the evidence of a bump, there is no evidence the child has been hurt,
physically or emotionally”), rev. denied (Minn. Nov. 18, 1985); cf . Minn. Stat. § 609.06,
subd. 1(6) (2020) (permitting the use of reasonable force without consent when lawfully
used by a parent to correct a child). Ultimately, “the existence of endangerment must be
determined on the particular facts of each case.” Sharp v. Bilbro, 614 N.W.2d 260, 263
(Minn. App. 2000) (quotations omitted), rev. denied (Minn. Sept. 26, 2000).
“Appellate review of custody modification and removal cases is limited to
considering whether the [district] court abused its discretion by making findings
unsupported by the evidence or by improperly applying the law.” Goldman, 748 N.W.2d
at 284 (quotations omitted). We review the modification court’s findings of fact for clear
error. Id. “Findings of fact are clearly erroneous where an appellate court is left with the
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definite and firm conviction that a mistake has been made.” Id. (quotation omitted). We
defer to the modification court’s determinations of witness credibility. Id. (citing Minn. R.
Civ. P. 52.01; Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988)).
The modification court made several findings of fact regarding mother’s physical
contact to reach a conclusion of endangerment. The modification court found that mother
pinched the child, pulled the child by the collar, and pulled the child by his ears. The
modification court found that these physical contacts left a noticeable imprint on the child.
The modification court found that this physical contact necessitated the involvement of law
enforcement. The modification court noted that mother admitted to using physical
discipline on the child such as pinching or spanking and that mother did not believe that
her actions harmed the child or otherwise recognize the harm to her child resulting from
that physical contact. The modification court also determined that the 2019 domestic-abuse
finding was based on evidentiary submissions and not mother’s absence from the hearing.
The modification court credited father’s testimony and discredited mother’s testimony with
respect to the events surrounding the 2019 domestic-abuse finding. The modification court
found that mother’s physical contact adversely impacts the child’s safety, well-being, and
developmental needs. The modification court concluded that these factual circumstances,
taken together, “strongly favored” a modification to custody and that the child was
endangered.
These findings and conclusions are supported by the record. Mother admitted to
pinching the child. Father testified that mother pinched the child, choked the child by
dragging him into the bathroom by his shirt collar, pulled on his ears, and that mother’s
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physical contact with the child resulted in bruising. These factual findings—abuse of the
child with noticeable, physical manifestations—are sufficient to constitute endangerment.
III. The modification court did not abuse its discretion by excluding mother’s
inadmissible evidence.

Mother argues that the modification court abused its discretion by failing to provide
reasonable accommodations for mother as a pro se litigant . In support of her contention,
mother notes that the district court excluded her exhibits but allowed father to admit his
exhibits, despite neither party’s compliance with deadlines in the notice of remote Zoom
hearing. We disagree that the modification court treated the parties in an inequitable
manner and see no abuse of discretion by the modification court in its evidentiary ruling.
We review evidentiary decisions for abuse of discretion. Doe 136 v. Liebsch, 872
N.W.2d 875, 879 (Minn. 2015). District courts have a duty to reasonably accommodate
pro se litigants so long as such accommodations do not prejudice the opposing party.
Kasson State Bank v. Haugen, 410 N.W.2d 392, 395 (Minn. App. 1987). Even so,
“[a]lthough some accommodations may be made for pro se litigants, this court has
repeatedly emphasized that pro se litigants are generally held to the same standards as
attorneys and must comply with court rules.” Fitzgerald v. Fitzgerald, 629 N.W.2d 115,
119 (Minn. App. 2001).
The modification court excluded as evidence several testimonial but unnotarized
letters offered by mother because the documents were not authenticated and constituted
hearsay, not because mother failed to comply with deadlines. Evidence must be
authenticated or identified to be admissible. Minn. R. Evid. 901(a). Mother was unable to
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authenticate the veracity of the letters because the documents were not notarized and the
purported authors were not present at the hearing. And because the purported authors of
the letters were not present in court and not subject to cross-examination, the statements
set forth in the documents likely constituted hearsay, which is generally not admissible
evidence. Minn. R. Evid. 801(c), 802. Because mother’s proffered evidence was not
admissible, the modification court did not abuse its discretion in its evidentiary ruling.
Affirmed.