Ronald Jeffrey Smith, petitioner, Appellant,

This opinion is nonprecedential except as provided by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
A24-1541

Ronald Jeffrey Smith, petitioner,
Appellant,

vs.

Brian Robert Kessen, et al.,
Respondents.

Filed June 23, 2025
Affirmed
Reyes, Judge

Hennepin County District Court
File No. 27-FA-24-1902

Karim El-Ghazzawy, El-Ghazzawy Law Offices, LLC, Minneapolis, Minnesota; and

Scott M. Flaherty, Taft Stettinius & Hollister, LLP, Minneapolis, Minnesota (for appellant)

Jason C. Brown, Barna, Guzy & Steffen, Ltd., Coon Rapids, Minnesota (for respondents)

Considered and decided by Bond, Presiding Judge; Reyes, Judge; and Jesson,
Judge.
∗
NONPRECEDENTIAL OPINION
REYES, Judge
Appellant argues that the district court abused its discretion when it (1) determined
that he is a frivolous litigant and (2) imposed sanctions and filing preconditions. We affirm.

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
FACTS
This case involves over five years of nearly constant litigation between appellant
Ronald Jeffrey Smith and respondents Brian Robert Kessen and Katherine Anne Kessen
(the Kessens).1 Smith is the maternal grandfather to B.R.K. (born 2011) and L.M.K. (born
2014) (the children), the biological children of Brian and his deceased wife, Lauren Kessen,
Smith’s daughter. Lauren died after giving birth to L.M.K. Brian relied heavily on Smith
after Lauren’s death, and the children spent significant time with him. Around 2018, when
Brian and Katherine married, Smith’s time with the children began to decrease.
Following mediation, the parties entered into two settlement agreements in 2019.
However, the district court never reviewed or signed either of them.
On March 3, 2020, Smith filed his first petition for grandparent visitation. On
August 17, 2020, the district court denied Smith’s petition because, while it found that he
satisfied the first prong for grandparent visitation under Minn. Stat. § 257C.08 (2024), that
visitation is in the best interests of the children, it found that he failed to satisfy the second
prong, that visitation would not interfere with the parent-child relationship.
On September 15, 2020, Smith filed a motion for amended findings requesting that
the district court amend nearly 30 of its 42 findings. In a February 23, 2021 order, the
district court denied Smith’s motion except for one nonsubstantive change. The district
court stated that Smith was “using the motion for amended findings as an opportunity to
re-argue the merits of the case before the [district] [c]ourt” and attempting to “relitigate[e]

1 Because several people share the same last name, we use their first name when referring
to them individually.
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[] issues of fact,” including his argument that granting him visitation would not interfere
with the parent-child relationship.
Smith filed a motion for grandparent visitation on June 16, 2021. The district court
denied the motion on September 30, 2021, once again finding that granting him visitation
would interfere with the parent-child relationship. In its order, the district court noted that
it was “taken aback by [Smith]’s aggressive tactics and desire to seek litigation to get his
way. Such behavior can only be seen as strident efforts to interfere with the decision
making and choices of the other party.” Smith then appealed to this court on November
12, 2021, and we affirmed the district court’s order in its entirety, including the district
court’s findings that Smith failed to prove that visitation would not interfere with the
parent-child relationship. See Smith v. Kessen, No. A21-1521, 2022 WL 2659293, at *3-4
(Minn. App. July 11, 2022), rev. denied (Minn. Sept. 20, 2022) (Smith I). We also
concluded that Smith forfeited his argument that the Kessens could not argue that he had
interfered with the parent-child relationship based on the 2019 mediation agreements
because he did not raise it before the district court. Id. at *2, n.1. The supreme court denied
Smith’s petition for review (PFR) on September 20, 2022. Id.
On October 14, 2022, less than a month after the supreme court denied his PFR,
Smith filed a nother motion for grandparent visitation arguing changed circumstances,
based primarily on noninterference, which he averred in an accompanying affidavit. The
affidavit alleged the following changed circumstances: (1) nearly three years had passed
since Smith had seen the children and it “ha[d] been over a year since [his] last request” to
the district court; (2) the Kessens have had “uninterrupted” bonding time; (3) Smith had
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healed and gained perspective; (4) the Kessens refused “to voluntarily allow actual
grandparent visitation” since March 2020; (5) Smith would be able to satisfy his burden of
proving noninterference; (6) Smith had stopped providing Brian with financial support;
(7) the real reason the Kessens were denying Smith visitation was because he disapproved
of Brian’s physical discipline of the children; and (8) the end of the COVID-19 pandemic
“should better allow for compromise.”
Smith also included with this motion a discovery plan, requests for documents,
interrogatories, and subpoenas for depositions of multiple out-of-state witnesses, which
totaled over 60 pages. The Kessens moved to dismiss the motion and quash the subpoenas.
Smith filed several additional motions, including a motion to strike the Kessens’ motion to
dismiss and recover attorney fees, a motion opposing the Kessens’ motion to quash and for
protective orders, and a “cross-merits” motion. Smith’s cross-merits motion once again
argued that granting him visitation would not interfere with the parent-child relationship.
On January 23, 2023, the district court denied Smith’s motion for grandparent visitation,
finding there had “been a final judgment in this matter.” Four days later, on January 27,
2023, Smith appealed to this court, and we affirmed the district court’s order in a
precedential opinion on October 9, 2023. See Smith v. Kessen, 996 N.W.2d 581 (Minn.
App. 2023), rev. denied (Minn. Jan. 31, 2024) (Smith II). We stated in our opinion that
“perpetual visitation-related litigation is likely contrary to the best interests of the
children.” Id. at 590. The supreme court denied Smith’s PFR on January 31, 2024. Id.
On March 25, 2024, less than two months after the supreme court denied his PFR,
Smith filed a new petition for grandparent visitation based , once again, on changed
5
circumstances. The Kessens filed a rule 9 motion against Smith, seeking a determination
from the district court that he is a frivolous litigant and requesting that it impose filing
preconditions on Smith and require him to furnish a $250,000 security. See Minn. R. Gen.
Prac. 9. On September 3, 2024, the district court (1) granted the Kessens’ rule 9 motion
and determined Smith to be a frivolous litigant and (2) granted their requests for prefiling
conditions and a $250,000 security. In its order, the district court stated that “Smith’s
current petition is virtually identical to his prior petitions and restates his prior arguments.”
It also noted that Smith’s petition “undermined” his arguments under both prongs of the
visitation statute, namely, that visitation would be in the best interest s of the children and
that visitation would not interfere with the parent-child relationship, based on him
“constantly litigating the issues.” This appeal follows.
DECISION
I. The district court did not abuse its discretion when it determined that Smith is
a frivolous litigant.

Smith argues that the district court abused its discretion when it determined that he
is a frivolous litigant, contending that: he has not repeatedly relitigated a finally determined
claim because he has never had a merits determination on his changed-circumstances
argument, he has not repeatedly filed frivolous motions or served unnecessary discovery,
and his most recent petition for grandparent visitation was “substantively grounded in fact
and law and not for the purpose of harassment.” We are not persuaded.
Appellate courts review a district court’s frivolous-litigant determination for an
abuse of discretion. Szarzynski v. Szarzynski , 732 N.W.2d 285, 295 (Minn. App. 2007).
6
“A district court abuses its discretion by making findings of fact that are unsupported by
the evidence, misapplying the law, or delivering a decision that is against logic and the
facts on the record.” Woolsey v. Woolsey, 975 N.W.2d 502, 506 (Minn. 2022) (quotations
omitted).
There are three definitions of “frivolous litigant” under Minn. R. Gen. Prac. 9.06(b):
(1) A person who, after a claim has been finally determined
against the person, repeatedly relitigates or attempts to
relitigate either
i. The validity of the determination against the
same party or parties as to whom the claim was
finally determined, or
ii. The cause of action, claim, controversy, or any
of the issues of fact or law determined or
concluded by the final determination against the
same party or parties as to whom the claim was
finally determined; or
(2) A person who in any action or proceeding repeatedly
serves or files frivolous motions, pleadings, letters, or
other documents, conducts unnecessary discovery, or
engages in oral or written tactics that are frivolous or
intended to cause delay; or
(3) A person who institutes and maintains a claim that is
not well grounded in fact and not warranted by existing
law or a good faith argument for the extension,
modification or reversal of existing law or that is
interposed for any improper purpose, such as to harass
or cause unnecessary delay or needless increase in the
cost of litigating the claim.
(Emphases added).

The district court considered each of these definitions and found that Smith satisfied
them all. First, under Minn. R. Gen. Prac. 9.06(b)(1), the district court found that “Smith
has repeatedly litigated the issues of grandparent visitation despite numerous prior final
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determinations on the same issue and claim. ” The district court cited its denial of his
visitation requests “on four prior occasions over the last four years,” which were all
affirmed on appeal. Second, under Minn. R. Gen. Prac. 9.06(b)(2), the district court found
that “Smith has both filed frivolous motions and conducted unnecessary discovery” by
filing “three subsequent motions into the case in an attempt to procure visitation” despite
the district court’s determination that he “failed to meet his statutory burden of proof” and
dismissing the matter. Third, under Minn. R. Gen. Prac. 9.06(b)(3), the district court found
that “Smith moved the [district] [c]ourt twice for grandparent visitation after his 2020
petition was denied. He used a third motion, his Motion for Amended Findings, to
relitigate the merits of his 2020 petition” and his “current petition is a regurgitation of all
arguments made over the last four years, none of which have been successful.” The district
court further found that Smith “is needlessly increasing the cost of litigating his claims”
and that the litigation is taking a “financial toll” on the Kessens.
The record supports the district court’s findings that Smith is a frivolous litigant.
For example, Smith’s petitions for grandparent visitation and subsequent filings attempt to
relitigate issues courts have already decided, repeat previously unsuccessful arguments,
and repeatedly fail to satisfy the statutory burden for grandparent visitation.
2 We therefore

2 Smith argues that the district court abused its discretion when it sanctioned him for
conduct that he could not withdraw or correct within the 21-day safe- harbor period under
rule 9. See Minn. R. Gen. Pract. 9.01. However, as is the purpose of the safe-harbor period,
Smith was put on notice before the Kessens filed their rule 9 motion in district court that
his filing was deficient, and he did nothing to remedy it. Smith’s argument fails.
8
conclude that the district court did not abuse its discretion when it determined that Smith
is a frivolous litigant.
Smith further argues that he has never had a merits determination on his changed-
circumstances argument. “The burden of showing a change of circumstances is on the
moving party. No matter what the measuring date, as part of his burden, the moving party
must provide sufficient proof of his present circumstances before any comparison can be
made.” Johnson v. Fritz, 406 N.W.2d 614, 616 (Minn. App. 1987). The district court did
address the merits of Smith’s changed circumstances petition, albeit during its discussion
of the rule 9.02(b) factors regarding sanctions and preconditions.3 Specifically, the district
court found that:
Smith alleges in his 2024 Petition that he should be awarded
grandparent visitation because circumstances have changed,
and he would no longer interfere with the parent-child
relationships between the Kessens and their children. Smith
also maintains that visitation with the children is in their best
interests. Both of these claims – which constitute Smith’s
evidentiary burden – are undermined by Smith’s Petition itself.
[The district court] cautioned Smith in [its] September 30,
2021 Order that Smith’s aggressive litigation tactics
constituted interference with the Kessens’ parental decision-
making authority. In the three years since that Order, Smith
has been constantly litigating the issues and is now asking a
new Judge, in a new court file number, to find that he would no
longer interfere with parent-child relationships. Additionally,
Smith’s basis for claiming that he would no longer interfere
with the Kessens’ parent-child relationships is nebulous at
best. Smith points out that he hasn’t interfered with the Kessen
family in the last four years. This, of course, is because Smith
has been unsuccessful in gaining visitation rights. The Court

3 We encourage district courts, when presented with an issue like this, to conduct a separate
analysis of the merits of a party’s frivolous-litigant argument and then analyze the factors
for sanctions.
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finds that Smith’s current petition is virtually identical to his
prior petitions and restates his prior arguments. Due to the
fact that Smith provides no substantively new information to
reconsider his petition, and his continued aggressive tactics
and disregard for how his actions affect his grandchildren’s
family, the Court cannot find that there is a reasonable
probability that Petitioner will now prevail on his claim.

(Emphases added).

Notably, Smith’s March 2024 petition did not identify the changed circumstances
that serve as the bases for his petition. Instead, he argued that his October 14, 2022,
affidavit is “uncontroverted” and “determinative,” but his petition does not detail what the
changed circumstances actually are, nor does he elaborate on what his 2022 affidavit
provided. Smith also referred to Dr. Coleman’s “qualified and uncontroverted November
21, 2022” affidavit regarding changed circumstances, which he contends focuses on the
time that has elapsed since Smith and the children have spent time together. It does not
appear from the record that either Smith’s or Dr. Coleman’s affidavits detailing changed
circumstances were submitted with his petition and no additional details are given in
Smith’s brief regarding changed circumstances other than elapsed time. While the
affidavits are seemingly part of the record in a previous, closed file between the same
parties regarding grandparent visitation, see Smith II, N.W.2d at 590 -91, Smith’s current
petition is a new filing that opened a new district court file. Smith’s previous affidavits
and filings did not automatically carry over to this new file and are not a part of this record.
The only reason that Smith’s affidavit is in our record on appeal is because the Kessens
submitted it as one of the exhibits accompanying their rule 9 motion to deem S mith a
frivolous litigant. Notably, Dr. Coleman’s affidavit is not part of our record on appeal.
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However, even if Smith’s 2022 affidavit was attached to the March 2024 petition, it does
not speak to “present circumstances.” Johnson, 406 N.W.2d at 616.
For the first time on appeal, Smith notes that the “alleged changed circumstances”
are identified in the “Second Petition . . . namely, that six years have passed during which
the Children have had [an] opportunity to adapt to viewing the Kessens as their primary
caretakers and sole parental authority.” But, as stated above, Smith’s failure to attach either
his or Dr. Coleman’s affidavits upon which he relies to show changed circumstances, in
addition to the fact that they are outdated, also results in an argument that is no more than
a “mere assertion,” which is unavailing. Schoepke v. Alexander Smith & Sons Carpet Co.,
187 N.W.2d 133, 135 (Minn. 1971).
Smith also argues that he has never had a merits determination on his argument that
the Kessens, by participating in settlement negotiations in 2019, waived any subsequent
interference argument. As we noted in our 2022 opinion, and as Smith acknowledges in
his brief, Smith forfeited this argument because he did not raise it before the district court.
See Smith I, 2022 WL 2659293, at *2, n.1.
II. The district court did not abuse its discretion when it imposed sanctions and
preconditions on Smith.

Smith argues that the district court abused its discretion when it imposed sanctions
and preconditions on him. We disagree.
Once a district court determines that a person is a frivolous litigant, it may require
that person to furnish security or impose preconditions that must be satisfied before filing
a new claim, motion, or request with the court. Minn. R. Gen. Prac. 9.01. The district
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court must consider the following seven factors when determining whether to require
security or impose sanctions:
(1) the frequency and number of claims pursued by the
frivolous litigant with an adverse result;
(2) whether there is a reasonable probability that the
frivolous litigant will prevail on the claim, motion, or
request;
(3) whether the claim, motion, or request was made for
purposes of harassment, delay, or vexatiousness, or
otherwise in bad faith;
(4) injury incurred by other litigants prevailing against the
frivolous litigant and to the efficient administration of
justice as a result of the claim, motion, or request in
question;
(5) effectiveness of prior sanctions in deterring the
frivolous litigant from pursuing frivolous claims;
(6) the likelihood that requiring security or imposing
sanctions will ensure adequate safeguards and provide
means to compensate the adverse party;
(7) whether less severe sanctions will sufficiently protect
the rights of other litigants, the public, or the courts.

Minn. R. Gen. Prac. 9.02(b)(1)-(7). The district court may also consider any other relevant
factors. Minn. R. Gen. Prac. 9.02(b).
The district court considered all seven factors, found that six weighed in favor of
requiring security or imposing sanctions, one was neutral, and made appropriate findings
supported by the record. The district court noted: (1) all of Smith’s claims before the
district court, this court, and the supreme court “have had an adverse result”; (2) the district
court’s repeated findings that granting Smith grandparent visitation would interfere with
the Kessens’ relationship with their children and that his “current petition is virtually
identical to his prior petitions and restates his prior arguments” (emphases added);
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(3) Smith is a tireless, persistent litigant, and the Kessens “feel bullied and harassed” by
his constant litigation; (4) Smith’s constant litigation puts “financial, social and emotional
stress on the Kessens”; (5) Smith has not heeded prior cautions by the district court or this
court about his aggressive litigation; (6) security will provide a way to compensate the
Kessens and set a tone for the proceedings while still allowing Smith to be heard in court;
and (7) less-severe sanctions will not sufficiently protect the Kessens or the courts.
As with Smith’s “frivolous litigant” argument, the record supports the district
court’s findings with respect to the factors under Minn. R. Gen. Prac. 9.02(b). We conclude
that the district court did not abuse its discretion by imposing preconditions on Smith. 4
Affirmed.

4 The district court’s determination that Smith is a frivolous litigant and its accompanying
sanctions does not preclude Smith from filing a proper, meritorious, and fact-based legal
claim going forward. While Smith’s current petition failed to establish changed
circumstances, he is not foreclosed from making this argument in the future, provided that
his claim has a legal and factual basis.