This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Pamela M. Hess, Petitioner,


Jeffrey A. Hess,


Filed February 18, 2003


Wright, Judge


Dakota County District Court

File No. F29715164



Thomas Tuft, Valerie Downing Arnold, Thomas Tuft Law Offices, 1590 White Bear Avenue, St. Paul, MN  55106 (for appellant)


Elizabeth Anderson Holt, Holt and Anderson, Ltd., Anchor Bank Building, 14665 Galaxie Avenue, Suite 110, Apple Valley, MN  55124 (for respondent)



            Considered and decided by Stoneburner, Presiding Judge, Anderson, Judge, and Wright, Judge.


U N P U B L I S H E D  O P I N I O N



In this family law matter, appellant Jeffrey Hess challenges the district court’s denial of his motion to hold respondent Pamela Hess in contempt without an evidentiary hearing.  We affirm.



            The parties, who were divorced in 1998, have two minor children.  Respondent was awarded sole physical custody of the children, and the parties were awarded joint legal custody.  In pertinent part, the dissolution decree required that (1) the parties equally divide the costs of medical and dental expenses not covered by insurance; (2) respondent maintain medical and dental insurance for the children through her employer; (3) decisions pertaining to medical and dental care be decided by both parties; (4) each party not vilify the other parent in the presence of the children; (5) “[t]he parties * * * assist the children in selecting and purchasing gifts for the other parent for holidays, birthdays and Mother’s Day and Father’s Day”; and (6) each party be responsible for one-half of transportation time and costs with regard to visitation. 

            On May 1, 2002, appellant moved the district court to find respondent in contempt, alleging that respondent had violated each of the provisions discussed above.  In addition, appellant requested that the district court order respondent to (1) set up dental appointments for both children; (2) maintain health insurance for the children; (3) “stop vilifying [appellant] in front of the children or in hearing distance of the children”; (4) meet appellant halfway when he had visitation with the children; (5) drive round trip to compensate for making appellant drive round trip on prior occasions; (6) help the children select and purchase presents for appellant’s birthday, Father’s Day, and holidays; and (7) pay appellant’s attorney fees for the cost of bringing the contempt motion. 

            The district court ordered respondent to show cause why she should not be held in contempt.  Both parties submitted affidavits.  Appellant’s affidavit reiterated the allegations set forth in the motion and also alleged that respondent (1) left one of the children at home alone and (2) “neglected to help the boys select a birthday, Christmas, or Father’s Day gift for [appellant] altogether, or has given [appellant] cash well after the occasion * * * .”  In her affidavit, respondent countered appellant’s allegations, stating that she (1) provided ongoing medical and dental care for the children; (2) did not feel there were major medical or dental concerns that warranted a discussion with appellant; (3) did not make disparaging comments regarding appellant to the children; (4) attempted to help the children buy gifts for appellant; and (5) did not leave one of the children at home “for long periods of time.”

At a hearing on May 28, 2002, the parties presented arguments to the district court regarding the contempt motion.  The district court denied appellant’s motion to find respondent in contempt.  The district court did not hold an evidentiary hearing prior to denying the contempt motion.  Appellant moved for a reconsideration, which the district court denied.  This appeal followed.  On September 30, 2002, appellant moved this court to strike certain portions of respondent’s brief and appendix. 




            “The purpose of the contempt power is to provide the trial court with the means to enforce its orders.”  Erickson v. Erickson, 385 N.W.2d 301, 304 (Minn. 1986) (citing Hopp v. Hopp, 279 Minn. 170, 174, 156 N.W.2d 212, 216 (1968)).  “Contempt is an extraordinary remedy that must be exercised with caution.”  Burgardt v. Burgardt, 474 N.W.2d 235, 236 (Minn. App. 1991) (citing Hampton v. Hampton, 303 Minn. 500, 502, 229 N.W.2d 139, 140-41 (1975)).  The district court has broad discretionary decision-making power in contempt proceedings.  Hopp, 279 Minn. at 174, 156 N.W.2d at 216.  We will not disturb the district court’s ruling on a contempt motion absent an abuse of discretion.  See Erickson, 385 N.W.2d at 304. 

            The district court’s power to hold an individual in contempt is permissive, not mandatory.  Minn. Stat. § 588.02 (2000) (stating that “[e]very court and judicial officer may punish a contempt by fine or imprisonment, or both.”) (emphasis added). 

This power gives the trial court inherently broad discretion to hold an individual in contempt but only where the contemnor has acted contumaciously, in bad faith, and out of disrespect for the judicial process.


Erickson, 385 N.W.2d at 304 (quotation omitted).  “[T]here is no requirement for findings when a contempt motion is denied.”  Tatro v. Tatro, 390 N.W.2d 461, 464, (Minn. App. 1986).

            Appellant argues that the district court abused its discretion because it failed to adhere to certain procedural steps addressed in Hopp, 279 Minn. at 174-75, 156 N.W.2d at 216-17,and denied the contempt motion without an evidentiary hearing.  We disagree. 

            The Hopp court set forth the procedural steps as “limits on the power of a trial judge in the exercise of his civil contempt powers.”  Id. at 174, 156 N.W.2d at 216.  They include:

(1) the court has jurisdiction over the subject matter and the person; (2) a clear definition of the acts to be performed; (3) notice of the acts to be performed and a reasonable time within which to comply; (4) an application by the party seeking enforcement giving specific grounds for complaint; (5) a hearing, after due notice, to give the nonperforming party an opportunity to show compliance or the reasons for failure; (6) a formal determination by the court of failure to comply and, if so, whether conditional confinement will aid compliance; (7) an opportunity for the nonperforming party to show inability to comply despite a good faith effort; and (8) the contemnor's ability to gain release through compliance or a good faith effort to comply. 


Mower County Human Servs. v. Swancutt, 551 N.W.2d 219, 223 (Minn. 1996) (citing Hopp, 279 Minn. at 174-75, 156 N.W.2d at 216-17).  The plain language of the requirements and a review of the caselaw make clear that the procedural requirements set forth in Hopp are intended to protect the alleged contemnor.  See, e.g. Mower County, 551 N.W.2d at 224 (characterizing Hopp requirements as “protective measures”).  The requirements are not procedural protections or guarantees to be used offensively for the benefit of the party bringing a contempt action.  Thus, the district court’s denial of the contempt motion without following the Hopp procedure does not result in an abuse of discretion.

            We also are not persuaded by appellant’s argument that the district court abused its discretion by denying the contempt motion without an evidentiary hearing.  In response to the show-cause order, both parties submitted affidavits.  The district court found that respondent’s affidavit provided an adequate basis to conclude that she should not be held in contempt.  Respondent explained the medical and dental care and insurance issues raised by appellant, denied making disparaging comments to or within earshot of the children, and addressed the disputed transportation issues.  It was well within the district court’s discretion to decide, based on the affidavits of appellant and respondent, whether sanctions were warranted to ensure further compliance with its order.  Cf. Tatro, 390 N.W.2d at 464 (stating “purpose of civil contempt proceedings in a dissolution setting is to secure future compliance of a court order by one party to vindicate the rights of the other party,” not to punish for past acts “in derogation of judicial authority.”) (citations omitted).  Respondent’s affidavit filed pursuant to the district court’s show-cause order refuted any claim that she acted “contumaciously, in bad faith, and out of disrespect for the judicial process.”  Erickson, 385 N.W.2d at 304 (quotation omitted).  Further, given the permissive nature of the district court’s contempt power, the district court was in no way compelled to grant the contempt motion.  See Minn. Stat. § 588.02. 

            At oral argument, appellant maintained that the district court applied an incorrect legal standard in deciding whether to hold an evidentiary hearing.  He asserts that the district court denied an evidentiary hearing, mistakenly believing that, as in custody-modification proceedings, appellant had not made the requisite showing that a child was endangered.  See Westphal v. Westphal, 457 N.W.2d 226, 228 (Minn. App. 1990) (stating that “a trial court should not hold an evidentiary hearing in a custody modification proceeding unless the movant makes a prima facie showing that it could satisfy the applicable standard.”); Minn. Stat. § 518.18(d)(iv) (2002) (stating that in custody modification proceeding, district court must retain custody arrangement unless child’s physical or emotional health endangered).  Appellant thus argues that, because this was not a custody modification proceeding, the district court erroneously ruled that an evidentiary hearing was not necessary. 

Although the record does show that the district court mistakenly referred to the endangerment standard, this error does not affect our decision.  Appellant cites no authority, and we are aware of none, that requires a district court to hold an evidentiary hearing before denying a contempt motion.  Existing authority leads us to conclude that such a hearing is not necessary.  See Tatro, 390 N.W.2d at 464 (“there is no requirement for findings when a contempt motion is denied.”)  The district court did not abuse its discretion when it denied the contempt motion without an evidentiary hearing. 

            The district court followed the applicable rules of practice with regard to the contempt motion.  In family law matters, when a contempt motion is filed, the district court must issue an order to show cause.  Minn. R. Gen. Pract. 309.01(a).  The parties must then submit affidavits supportive of their respective positions.  Minn. R. Gen. Pract. 309.01(b).  The rules also require a hearing so that the alleged contemnor has an opportunity to resist the motion.  Minn. R. Gen. Pract. 309.02.  As noted above, the district court issued an order to show cause, received affidavits, and held a hearing at which respondent presented arguments regarding appellant’s allegations.  Because each of these steps occurred, the district court did not abuse its discretion in denying appellant’s contempt motion. 

            In addition to his arguments regarding the merits of this case, appellant has moved this court to strike certain portions of respondent’s brief and appendix, contending that they contain materials outside the record.  See Minn. R. Civ. App. P. 110.01 (stating that “[t]he papers filed in the trial court * * * shall constitute the record on appeal in all cases.”).  An appellate court may consider material only presented to the trial court.  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn.1988).  Specifically, appellant moves to strike documents pertaining to respondent’s health insurance coverage, the children’s grades, dental and medical information, requests for admissions, and letters to respondent from a Dakota County child support specialist.  Contrary to appellant’s argument, these documents are, with limited exceptions, contained in the trial record.  We, therefore, grant appellant’s motion to strike only the letters from the Dakota County child support specialist and respondent’s response to a request for admissions.  We deny the motion to strike as to the remainder of the documents.

Affirmed; motion granted in part and denied in part.