In re the Marriage of: Jacquelyn Ann Costabilo, 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This opinion is nonprecedential except as provided by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
A22-1705

In re the Marriage of:
Jacquelyn Ann Costabilo, petitioner,
Respondent,

vs.

Frank Pat Costabilo Jr.,
Appellant.

Filed September 11, 2023
Affirmed in part, reversed in part, and remanded
Reyes, Judge

Washington County District Court
File No. 82-FA-13-6193

Jacquelyn Ann Hetchler, River Falls, Wisconsin ( self-represented respondent)

Elizabeth M. Cadem, Erik F. Hansen, Patrick C. Burns, Burns & Hansen, P.A., Wayzata,
Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Ross, Judge; and John Smith,
Judge.
*
NONPRECEDENTIAL OPINION
REYES, Judge
In this parenting- dispute case, appellant -father argues that the district court
(1) abused its discret ion by denying his motion for reunification therapy; (2) improperly

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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modified his legal-custody rights; and (3) abused its discretion by denying his motion for
contact with and information about the children. We affirm in part, reverse in part, and
remand.1
FACTS
Appellant Frank Pat Costabilo, Jr., (father) and respondent Jacquelyn Ann Hetchler
(mother) have two common children: E.D.C. (daughter), born in 2005, currently age 18,
and V.F.C. (son), born in 2007, currently age 15. By a judgment and decree dated August
18, 2015, the parties dissolved their marriage, and the district court awarded the parties
joint legal and joint physical custody with an equal parenting- time schedule.
By the time of the dissolution, mother had move d to River Falls, Wisconsin, with
both children, while father resided in Woodbury, Minnesota. The district court’s decree
ordered that mother move back to a location within five miles of Woodbury, Minnesota,
or to zip codes 55082 or 55003 before the beginning of the 2016 school year. However,
mother did not move back and continued to reside in River Falls. The parties’ long history
of acrimonious litigation ensued. In December 2016, the district court held mother in civil
contempt and ordered her to pay a portion of father’s attorney fees.
In May 2018, the district court denied mother’s ex parte motion to suspend father’s
parenting time with daughter and scheduled a motion hearing regarding modification of
parenting time and related issues. Father mov ed to (1) remove the children from mother

1 Because respondent-mother did not file a brief, we decide the appeal on the merits of the
case. See Minn. R. Civ. App. P. 142.03 (providing that when a respondent does not serve
or file brief on appeal, the “case shall be determined on the merits”).
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and her husband T.H.’s home; (2) grant him compensatory parenting time; (3) modify
custody of the children to award him sole physical custody; and (4) hold mother in
constructive civil contempt of court for “flatly refus[ing] to honor [the divorce decree]”
and denying his parenting time. In June 2018, mother filed a motion to modify parenting
time and physical custody and for an order for the children to attend schools in River Falls,
Wisconsin. The district court ordered the parties to attend family therapy and denied the
parties’ motions in July 2018 following a hearing and appointed A.H. as an ongoing
parenting-time expeditor to determine any valid reasons supporting modification of
parenting time or custody. A month later, the district court amended its therapy order to
require the parties to attend an evaluation with Dr. Jane McNaught.
In November 2018, A .H. filed a report with the district court. A.H.’s report found
that, although the parties were awarded equal parenting time, “both children have
expressed their desire to stay with [mother] full time” and “do not want [father] at any of
their sporting events, appointments, religion classes, afterschool activities or school in
general.” Despite the court-ordered parenting schedule, “both children refused to go with
[father] and refused to spend any more time with [him]. The police were called and showed
up at school when [daughter] refused to leave the school with [father]. The police did not
enforce the c ourt-ordered parenting time because [daughter] claimed to be afraid.” A.H.
recommended that father (1) should not attend children’s extracurricular practices, meets,
events, or tournaments unless invited by the children and (2) should not show up at the
school or at the school grounds, except for parent events and teacher conferences, unless
invited by the children.
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In March 2019, father filed a new motion for parenting- time assistance, seeking an
order (1) to address mother’s “continued alienation and denial of [his] parenting time” and
(2) for mother to provide information of children’s medical insurance, health, and
extracurricular activities. Mother in turn moved to modify parenting time and to allow the
children to choose their own schools.
In June 2019, the district court ordered that (1) father shall have “supervised
parenting time at FamilyWise parenting time center for one hour each week with each of
the children until further recommendation of the children’s therapists or until the children
confirm that they are ready for unsupervised parenting time with father ;” (2) the children
may, at their initiation, have nightly telephone contact with father at 9:00 p.m.; (3) the
parties’ daughter, then age 14, was of sufficient age to choose the school she wished to
attend; and (4) the parties’ son, then age 12, was too young to be given the responsibili ty
of school choice.
During supervised parenting time with father at FamilyWise, the children “exhibited
physical and verbal signs of anxiety and were unable to enter or stay in the room with
[father].” Father suggested that “[mother] leave the center and force the children to remain
without option to leave.” FamilyWise declined and closed his supervised parenting-time
case on August 23, 2019.
In September 2019, father filed motions asking the district court to hold mother in
constructive civil contempt of court and for parenting-time assistance, alleging that mother
failed to comply with the supervised parenting- time order by instructing the children not
to cooperate. Father also requested reunification therapy with a certain doctor .
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In a February 28, 2020 order, the district court found no support for father’s
allegation that mother interfered with father’s supervised parenting time and denied
father’s motion for contempt. At the time of this order, father was subject to a domestic
abuse no cont act order (DANCO) in another case , which allowed nightly calls w ith son
provided son initiated the phone call. The district court therefore denied father’s motion
for reunification therapy as moot.
In January 2021, father filed an ex parte motion and a motion for contempt, asking,
among other relief, that mother be found in civil contempt of court for failure to abide by
the custody order, an order for protection based on allegations of endangerment and abuse
by mother and T.H., and modification of the c hildren’s custody. The district court held an
evidentiary hearing on January 22, 2021.
A court-appointed guardian ad litem (GAL) filed a report and testified at the hearing.
The GAL interviewed the children and concluded that daughter was “very articulate in her
statements” and “extremely uncomfortable with her [f]ather and how his actions impact
her life .” D aughter reported havi ng a very good relationship with T.H. and denied the
allegations of abuse by T.H. Daughter also expressed that she felt embarrassed for having
to undergo questioning by law enforcement regarding the alleged abuse. As for son, the
GAL described him as “an intelligent, outgoing child who wishes to attend River Falls
schools, along with his sister.” Son believed that father was “overly controlling” and often
interfering in his activities. Son was upset that, d espite the then-in-effect DANCO, father
continued to make frequent unauthorized phone calls to him. The GAL testified that
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neither of the children appeared to have been coached regarding their statements. The
district court found the GAL’s report and testimony credible.
The district court also rece ived testimony from an investigator with the River Falls
Police Department. The investigator testified that father had been contacting the
department for several years regarding issues between the parties and at least monthly
about allegations involving T .H. and daughter. In January 2021, the investigator
interviewed daughter and found no merit to father’s allegation of abuse, and the
investigator closed the case.
A manager of the child -protection unit in Ellsworth, Wisconsin, testified that she
had received six reports of alleged abuse from father between January 2020 and early 2021,
but that none of the reports merited investigation. The district court found the manager’s
testimony to be credible. Finally, mother’s sister also testified that she believed that both
children were “100% safe” with mother and T.H. In an April 29, 2021 order, the district
court denied father’s motions and ordered that phone contact between the children and
father “be at the discretion of the children.”
In June 2022, fat her’s DANCO from the other case was dismissed. That month ,
mother obtained a harassment restraining order (HRO) against father on behalf of the
children. The district court dismissed the HRO in September 2022.
In July 2022, father moved for (1) reunifi cation therapy; (2) facilitation of nightly
calls with the children; (3) contact by mail; (4) disclosure of mother and the children’s
address; (5) an order directing mother to abide by the custody order; (6) access to medical
and educational records; and ( 7) permission to attend the children’s school and
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extracurricular activities. After a hearing on father’s motions, the district court denied each
of father’s requests in an October 5, 2022 order . This appeal follows.
DECISION
I. The district court did not abuse its discretion by denying father’s motion for
reunification therapy.

Father claims that the district court abused its discretion by denying his motion for
reunification therapy and by doing so without a hearing to make findings on the best -
interest factors under Minn. Stat. § 518.17, subd. 1(a) (2022). We are not persuaded.
A district court has broad discretion in deciding parenting- time questions and will
not be reversed absent an abuse of that discretion. Shearer v. Shearer, 891 N.W.2d 72, 75
(Minn. App. 2017). A district court must modify parenting time if it would serve a child’s
best interests. Minn. Stat. § 518.175, subd. 5 (2022). It must also consider “a child’s
changing developmental needs” when deciding a motion to modify parenting time. Minn.
Stat. § 518.175, subd. 5(b).
A district court may not restrict parenting time without first finding either
(1) “parenting time is likely to endanger the child’s physical or emotional health or impair
the child’s emotional development ” or (2) “the parent has chronically and unreasonably
failed to comply with court -ordered parenting time. ” Minn. Stat. § 518.175, subd. 5(c).
“When determining whether a reduction constitutes a restriction, the court should consider
the reasons for the change as well as the amount of the reduction.” Anderson v. Archer ,
510 N.W.2d 1, 4 (Mi nn. App. 1993) (citation omitted). “[A] reduction of total visitation
time [] is not necessarily a restriction of visitation,” but a restriction may occur when the
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court makes a “substantial alteration of visitation rights.” Id. (quotations and citations
omitted).
Here, the district court’s October 5, 2022 denial of father’s reunification- therapy
request does not constitute a restriction or modification of his parenting time because it has
not changed or reduced father’s parenting time since the April 29, 2021 order, which denied
father’s request for reunification therapy and provided that all phone contact with the
children shall be at the children’s discretion. As a result, the district court did not abuse its
discretion by not holding another evident iary hearing. See Minn. Stat. § 518.175, subd.
5(b) (providing that district court shall modify parenting time only when it serves child’s
best interests).
Father relies on Sheeley v. Sheeley , in which this court concluded that the district
court abused its discretion by denying a father’s motion for reunification therapy without
an evidentiary hearing or making a finding under Minn. Stat. § 518.175, subd. 5(c). A16-
1809, 2017 WL 3122339 (Minn. App. July 24, 2017). The father in Sheeley had not had
parenting time since the child was four years old, and the child refused to attend scheduled
parenting time. Id. at *3. Because the father in Sheeley had “no practical way to exercise
his parenting time,” we concluded that the district court’s “denial of father’s motion for
reunification therapy restricts father’s court -ordered parenting time with [child] in such a
way that is tantamount to the elimination of father’s parenting time.” Id.
Sheeley is a nonprecedential opinion that is not binding authority. See Minn. R. Civ.
App. P. 136.01, subd. 1(c). In addition, Sheeley is distinguishable. Unlike the father in
Sheeley, father here has other ways to exercise his parenting time with children, such as
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phone contact at the children’s discretion. The children in this case are also older than the
four-year-old child in Sheeley . The district court found that both daughter and son “are
now of sufficient age and maturity to have significant input into their environment and their
relationship with [father].”
We conclude that the district court did not abuse its discretion by denying father’s
motion for reunification therapy and by not holding an evidentiary hearing.
II. The district court did not abuse its discretion by failing to enforce father’s
legal-custody rights.

Father asserts that the district court abused its discretion by failing to enforce his
legal-custody rights and “essentially strip[ ped] him of those rights, modifying legal
custody.” We are not convinced.
Father’s July 12, 2022 motion requested the district court to order mother to comply
with prior court orders. Because the prior custody order was still in effect, the district court
denied the motion as duplicative and father’s legal-custody rights remained in effect . We
discern no abuse of discretion by the district court.
Moreover, father argues, for the first time on appeal, that the district court’s alleged
failure to enforce the prior custody order amounted to a “de facto modification” of legal
custody. Because father did not present this argument to the district court , this issue is not
properly before us, and we decline to address it . Thiele v. Stich , 425 N.W.2d 580, 582
(Minn. 1988) (“A reviewing court must generally consider only those issues that the record
shows were presented [to] and considered by the trial court in dec iding the matter before
it.”)
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III. The district court abused its discretion by denying father’s motion to receive
information about the children.

Father argues that the district court abused its discretion by denying his motions for
contact with and information about the children. We agree as to the information access.
A. Mail contact with children
Following the dismissal of the DANCO against father involving son, father
requested to have mail contact with the children in addition to the telephone contacts at the
children’s discretion as provided in previous orders. The district court denied the mot ion
without explanation.
As discussed in section I, father continues to have the right to have phone contact
with the children at the children’s discretion. Father does not argue that having mail contact
with the children will serve the children’s best interests. See Minn. Stat. § 518.175, subd.
5(b) (“If modification would serve the best interests of the child, the court shall modify the
[parenting plan].”) We conclude that the district court did not abuse its broad discretion
by denying father’s request to have mail contact with the children.
B. Access to information about the children
Father and mother have joint legal custody of children. As a result, both are entitled
to “equal rights and responsibilities, including the right to participate in major decisions
determining the child’s upbringing, including education, health care, and religious
training.” Minn. Stat. § 518.003, subd. 3(b) (2022).
Father alleged that mother has denied him access to the children’s medical and
education records and that mother and the children changed their address without notifying
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him. The district court did not make fact findings on these allegations . In response to
father’s motion to access various records related to the children, the district court denied it
as redundant because father has joint legal custody of the children under the divorce decree
and subsequent orders.
We reverse and remand to the district court to make the relevant findings on whether
mother has obstructed father’s access to the children’s rec ords and to fashion any
appropriate remedy. In doing so, the district court has the discretion to reopen the record.
Nothing in this opinion shall be construed as an expression of this court’s opinion regarding
whether the enforcement, in Wisconsin, of f ather’s rights under custody rulings issued by
a Minnesota court requires a proceeding in Wisconsin under Wisconsin’s version of the
Uniform Child Custody Jurisdiction and Enforcement Act. See Wis. Stat. §§ 822.01-.47
(2022).
Affirmed in part, reversed in part, and remanded.