In re the marriage of:

This opinion is nonprecedential except as provided by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
A24-0669

In re the marriage of:

George Michael McFadden, petitioner,
Appellant,

vs.

Jessica Marie Basch FKA McFadden,
Respondent.

Filed May 12, 2025
Affirmed
Slieter, Judge

Carlton County District Court
File No. 09-FA-22-1620

Bill L. Thompson, Duluth, Minnesota (for appellant)

Matthew J. Gilbert, Patrick A. McDonald, Gilbert Alden Barbosa PLLC, Burnsville,
Minnesota (for respondent)

Considered and decided by Slieter, Presiding Judge; Cochran, Judge; and Larson,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
In this appeal from a custody-modification order granting respondent sole physical
and sole legal custody of the parties’ child, appellant argues that the district court abused
its discretion by (1) determining that granting respondent sole custody is in the child’s best
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interests and (2) awarding respondent conduct-based attorney fees. Because the district
court’s decision is well supported by the record, it acted within its discretion, we affirm.
FACTS
Appellant George Michael McFadden (father) and respondent Jessica Marie Basch
(mother) married in November 2014 and are the parents of a son who was born in July
2013. The parties dissolved their marriage in 2017, and pursuant to a stipulated order for
judgment, the Sherburne County District Court granted the parties joint physical and joint
legal custody of the ir son. The parties resided in Sherburne County and initially shared
equal parenting time.
In December 2018, without prior notice to or consultation with mother and while
exercising parenting time, father relocated with son to the City of Carlton, in Carlton
County. Mother learned of the relocation from son’s daycare provider. Soon after moving,
father enrolled son in a preschool program in the Carlton School District and arranged for
local childcare, again without prior notice to or consultation with mother. The record
suggests that, at least initially following father’s move, mother received parenting time
every other weekend and extended time during the summer. As time progressed, however,
father did not cooperate with mother’s parenting time, which began to decrease as a result.
In April 2022, mother filed a custody- modification motion in Sherburne County
District Court seeking sole physical and sole legal custody of son based upon
endangerment. In May 2022, father also filed a custody-modification motion seeking sole
physical and sole legal custody of son based upon integration of son into his home. The
district court scheduled an evidentiary hearing on mother’s motion and denied father’s
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motion without a hearing. An evidentiary hearing on mother’s modification motion was
initially scheduled for September 2022.
Prior to the scheduled evidentiary hearing, father moved to transfer venue to Carlton
County. The Sherburne County District Court granted the venue change. In the same
order, the district court directed that son primarily live with mother on a temporary basis
and attend Island Lake Elementary School, which is located near mother’s residence. On
the first day that son attended school at Island Lake, father removed him from the school,
brought him to Carlton, and enrolled him at South Terrace Elementary School located in
Carlton.
The Carlton County District Court scheduled the evidentiary hearing for April 2023.
Ultimately, the evidentiary hearing lasted four days but, for reasons the record does not
reveal, spanned seven months: one day in April, one day in July, and two days in
November. The district court’s February 2024 custody-modification order granted mother
sole physical and sole legal custody of son and ordered father to pay conduct-based
attorney fees to mother in the amount of $6,000.
Father appeals.
DECISION
Appellate courts review a district court’s child-custody determinations for an abuse
of discretion. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985); Matson v. Matson,
638 N.W.2d 462, 465 (Minn. App. 2002). The district court has broad discretion in making
or modifying child custody. Matson, 638 N.W.2d at 465. Ultimately, custody
determinations are very discretionary decisions and there is “scant if any room” for us to
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question the district court’s best-interests balancing analysis in an abuse-of- discretion
review. Vangsness v. Vangsness, 607 N.W.2d 468, 476-77 (Minn. App. 2000).
A district court abuses its discretion if its findings of fact are unsupported by the
record, if it improperly applies the law, or if it resolves the question in a manner that is
contrary to logic and the facts on record. Woolsey v. Woolsey, 975 N.W.2d 502, 506 (Minn.
2022). Appellate courts will review a district court’s findings of fact for clear error and
“will not conclude that a factfinder clearly erred unless, on the entire evidence, we are left
with a definite and firm conviction that a mistake has been committed.” In re Civ.
Commitment of Kenne y, 963 N.W.2d 214, 221 (Minn. 2021) (quotations omitted). The
clear-error standard “is a review of the record to confirm that evidence exists to support the
decision.” Id. at 222.
A parent seeking modification of custody due to endangerment must demonstrate
that “(1) the circumstances of the children or custodian have changed; (2) modification
would serve the children’s best interests; (3) the children’s present environment endangers
their physical health, emotional health, or emotional development; and (4) the benefits of
the change outweigh its detriments with respect to the children.” Christensen v. Healey,
913 N.W.2d 437, 440 (Minn. 2018). Father contests only the district court’s best-interests
determination.
The best interests of the child are the district court’s “guiding principle” and
“paramount commitment” when making child-custody decisions. Thornton v. Bosquez,
933 N.W.2d 781, 789 (Minn. 2019) (quotations omitted). “In considering the child’s best
interests, a district court must consider and evaluate all relevant factors, including 12
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factors set forth by statute.” Id. (quotation omitted); Minn. Stat. § 518.17, subd. 1(a)
(2024).
Father contends that the district court’s determination to grant mother sole legal and
sole physical custody “is not in the child’s best interest” and “amounts to an abuse of
discretion.” The crux of father’s argument is that most of the factors should have either
favored father or been considered neutral. F ather does not claim that the district court’s
factual findings are clearly erroneous. Instead, he claims the district court ignored
competing facts. For instance, in his discussion of the best -interest factor 6—the history
and nature of each parent’s participation in providing care for son —father states that the
district court provided “zero discussion of the three years” that son lived primarily with
father and that “this factor should have favored [father] or at least been neutral, and thus
an abuse of discretion occurred.” When discussing best-interest factor 8—the effect of the
child’s well-being and development change to home, school, and community—father
disputes that this factor favors mother and states that there “is a certain level of irony and
hypocrisy . . . because the court did not give any weight to the impact this same change
would have on the child” as a result of its September 2022 temporary order that granted
primary residence of son to mother.
As noted, father does not argue that the district court’s findings are unsupported by
the evidence. More importantly, father offers no applicable law to support his claim that
the district court abused its discretion in its best-interests analysis and conclusion.
“[O]n appeal error is never presumed. It must be made to appear affirmatively
before there can be reversal. . . . [T]he burden of showing error rests upon the one who
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relies upon it.” Loth v. Loth, 35 N.W.2d 542, 546 (Minn. 1949) (quotation omitted). And
“[a]n assignment of error based on mere assertion and not supported by any argument or
authorities in appellant’s brief is waived and will not be considered on appeal unless
prejudicial error is obvious on mere inspection.” Schoepke v. Alexander Smith & Sons
Carpet Co., 187 N.W.2d 133, 135 (Minn. 1971).
Upon mere inspection, we detect no prejudicial error in the district court’s
custody-modification determination. In addition to making general findings in support of
the child’s best interests, the district court carefully analyzed all the relevant best-interests
factors set forth in Minn. Stat. § 518.17, subd. 1(a), as part of its determination that granting
mother sole physical and sole legal custody is in the child’s best interests.
The district court found that, despite a temporary order that son shall primarily
reside with mother and attend nearby Island Lake Elementary, father removed son from
that school and enrolled him in South Terrace Elementary in Carlton. The district court
also found that father “engaged in a campaign of parental alienation to severely limit the
child’s time with [mother].” The district court found that father’s “parental alienation
continues to this day” and determined that father was not willing to cooperate as a co-parent
with mother. The district court found that father’s decision to move to Carlton caused
mother’s “parenting time [to be] significantly restricted” and that father was “withholding
parenting time” and this negatively impacted son’s well-being. The district court credited
the testimony of the custody evaluator whom, the court stated, it has “known and
experienced [the evaluator’s] abilities and her conduct in numerous family law matters.”
The evaluator testified that “she had never seen this level and complexity of parental
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alienation” in her experience as an attor ney, parenting-time expediter and consultant,
mediator, and custody evaluator. And finally, as to its grant of sole legal custody to mother,
the district court found that father’s behavior of “bullying, intimidating,” and general
unresponsiveness to mother’s requests suggests that joint legal custody is not feasible.
These findings are supported by the record.
We are not persuaded otherwise by father’s general claims that many of the
best-interests factors should have either favored him or be considered neutral. First, we do
not reweigh the evidence. See Kenney, 963 N.W.2d at 221 (“We have repeatedly stated
that clear-error review does not permit an appellate court to weigh the evidence as if trying
the matter de novo.”). Second, the remainder of the district court’s findings of fact are
sufficient to support its custody-modification conclusion because no single factor is
dispositive. See Lemcke v. Lemcke , 623 N.W.2d 916, 920 (Minn. App. 2001) (“The
legislature has expressly stated that no single factor is determinative .”). Thus, even if we
agreed that the district court misapplied the factors about which father complains, any such
error would be harmless. The rules require courts to ignore harmless error. Minn. R. Civ.
P. 61.
In sum, the district court acted within its discretion when it granted sole physical
custody and sole legal custody to mother. We next consider father’s claim that the district
court abused its discretion in awarding mother conduct-based attorney fees for conduct
father committed while the matter was venued in Sherburne County as well as after it was
transferred to Carlton County.
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A district court may award conduct-based attorney fees against a party who
unreasonably contributes to the length or expense of the proceeding. Minn. Stat. § 518.14,
subd. 1a (2024) 1; Szarzynski v. Szarzynski, 732 N.W.2d 285, 295 (Minn. App. 2007).
Whether to award conduct-based attorney fees generally depends on “the impact a party’s
behavior has had on the costs of the litigation.” Dabrowski v. Dabrowski, 477 N.W.2d
761, 766 (Minn. App. 1991). A district court must “make findings revealing its rationale
on the attorney fees issue.” Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1992).
An award of conduct-based attorney fees is reviewed for an abuse of discretion. Sharp v.
Bilbro, 614 N.W.2d 260, 264 (Minn. App. 2000), rev. denied (Minn. Sept. 26, 2000). The
district court found five instances in which father unreasonably increased the length and
cost of litigation.
First, the district court found that father filed an ex parte emergency motion in
Sherburne County District Court requesting temporary physical custody of son along with
other relief just 11 days after the district court had ordered the identical relief to mother ,
and father did not allege any change in circumstances to support his motion.
Second, the district court found that, despite the Sherburne County District Court
already ruling that mother was entitled to an evidentiary hearing on her
custody-modification motion, father filed a subsequent motion again asking the district

1 Minn. Stat. § 518.14 was amended with a restructure in 2024. Language regarding
conduct-based attorney fees, which was previously located in subdivision 1 along with
language regarding needs-based fees, is now located in subdivision 1a. This change does
not affect the case before us.
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court to dismiss mother’s motion. The district court determined that father “was attempting
to relitigate an issue that had previously been decided.”
Third, the district court found that father filed a motion in limine to preclude receipt
of the custody evaluator’s report at the evidentiary hearing, claiming it was not based upon
the correct legal standard because “neither endangerment [n]or best interests of the child
were contained in her report.” The district court concluded that this was a baseless motion
because, in fact, both standards were discussed in the evaluator’s report.
Fourth, the district court found that, despite its order denying father’s motion for an
evidentiary hearing on his custody motion, father “continues to address his motion for
modification of custody as if it was being decided by the Court through the evidentiary
hearing” scheduled solely on mother’s custody-modification motion.
Finally, the district court found that, contrary to language in the parties’ 2017
stipulated judgment decree and despite its clear order denying such relief, father continues
to claim that he was granted primary residence of son and that he has the sole right to make
legal decisions for the child.
The district court carefully considered mother’s request for conduct-based attorney
fees and provided a detailed explanation for its decision. Mother asked for $11,377 in
conduct-based attorney fees and the district court ordered only $6,000. The district court
carefully considered and weighed the competing evidence presented at trial, as well as the
parties’ positions, and we defer to the district court’s credibility determinations.
Eisenchenk v. Eisenchenk, 668 N.W.2d 235, 241 (Minn. App. 2003), rev. denied (Minn.
Nov. 25, 2003).
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The district court acted within its discretion by awarding mother conduct-based
attorney fees.
Affirmed.