This opinion will be unpublished and

may not be cited except as provided by

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







In re the Marriage of:

Steven Kenneth Behnke, petitioner,





Deidre Lee Green-Behnke, n/k/a Deidre Mosser,





Jori Whitehead,

Guardian ad Litem,




County of Dakota,




Filed March 2, 2004

Affirmed in part, reversed in part, and remanded

Halbrooks, Judge



Dakota County District Court

File No. F4-96-7217



Ronald B. Sieloff, Sieloff & Associates, P.A., Yankee Square Office III, Suite 214, 3460 Washington Drive, Eagan, MN 55122 (for respondent)


Michael D. Dittberner, Kissoon, Clugg, Linder & Dittberner, Ltd., 3205 West 76th Street, Edina, MN 55435-5244 (for appellant)

            Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Deidre Lee Green-Behnke, n/k/a Deidre Mosser, challenges the district court’s order awarding respondent Steven Kenneth Behnke sole physical and legal custody of the parties’ four minor children, arguing that the district court erred or abused its discretion by (1) granting respondent temporary custody of the minor children pending an evidentiary hearing to determine permanent custody; (2) modifying the children’s permanent custody without holding an evidentiary hearing; (3) imputing income to her for the purpose of calculating her child-support obligation; (4) ordering her to pay respondent’s attorney fees; and (5) prohibiting her from discussing religion with the minor children.  As to the first four issues raised by appellant, we affirm the district court’s order.  As to the fifth issue, we reverse and remand so that the district court may refashion that provision of the order concerning appellant’s religious discussions with the children so as to prevent violation of appellant’s right to free exercise of her religion as guaranteed by the First Amendment to the United States Constitution.


            The parties were married in 1982 and had five children before their dissolution in 1997.  The oldest child was born in 1985 and is now emancipated.  Upon the parties’ dissolution, the district court granted appellant sole legal and physical custody of all five children, subject to respondent’s reasonable visitation.  In the dissolution judgment and decree, the district court found that appellant was being treated with therapy and medication for an adjustment disorder and a personality disorder.  The court specifically stated that appellant’s failure to continue with her medications and therapy as indicated by her physician could constitute a significant change in circumstances warranting a re‑evaluation of custody and visitation.  The decree also acknowledged that the parties’ oldest child had made unconfirmed allegations of sexual abuse against respondent. 

            In 1999, appellant remarried; in 2000 she gave birth to twins.  In June 2002, appellant, her husband, and their seven children moved to Herman, Minnesota, approximately 180 miles from respondent’s home in the Twin Cities. 

            In November 2002, in part in response to the logistical problems appellant’s relocation posed to the visitation schedule, respondent moved for an order (1) modifying parenting time, telephone parenting time, and parenting time transportation; (2) granting him compensatory parenting time for incomplete and missed visits since the relocation; (3) authorizing him to select a counselor for the oldest child to resolve lingering issues related to the allegations of sexual abuse; (4) requiring appellant to provide him with documentation concerning the education of the children, whom appellant was home schooling; (5) prohibiting appellant from interfering with or restricting his parenting time; (6) prohibiting appellant’s husband’s interference with respondent’s communications with his children; and (7) requiring appellant to be punctual for visitation drop-offs and pick-ups.  The motion did not request a change of custody. 

In an affidavit accompanying the motion, respondent alleged that appellant was interfering with his parenting time by (1) telling the children that it was their choice as to whether they want to continue visitation with respondent; (2) refusing to let respondent have scheduled visitation with the children on Sunday unless he took them to services at one of two Catholic churches designated by her priest; (3) refusing to give respondent her address or answer the phone when respondent called; and (4) failing to timely arrive at scheduled drop-offs and pick-ups of the children.  The affidavit stated respondent’s belief that appellant’s behavior was in part attributable to her adherence to a fundamentalist Catholic sect that rejects the liturgical reforms of the Second Vatican Council.  

Appellant appeared pro se at the hearing on respondent’s motion and made submissions in opposition to the motion.  During the hearing, the court remarked to respondent’s counsel that the “the only thing that’s going to solve this [custody] problem in the long run is for [respondent] to seek a change of custody.”  Respondent’s counsel agreed; appellant remained silent.  The record indicates that the district court thereafter treated the matter as a custody-modification proceeding.  

On November 27, 2002, the district court issued an order granting respondent compensatory visitation of the children from that day through December 29.  The court appointed a guardian ad litem (GAL) to investigate the matter and submit recommendations prior to December 29 regarding the propriety of a modification of custody.  The court stated that once such recommendations were ready, the GAL could schedule a hearing before the court on “[o]ne day’s notice” in order “to determine whether a prima facie case for modification of custody exists, and to [allow the court to] order appropriate relief pending any evidentiary hearing.”  In the accompanying memorandum, the court stated that “[appellant] remains personality disordered, intransigent in her fallacious belief that [respondent] is evil, and totally dedicated to the denigration and destruction of the parent-child relationship between [respondent] and the children.”  The court described appellant as “manipulative, paranoid, emotionally charged, and reclusive,” as harboring “delusional beliefs,” and as “well on her way to accomplishing total parental alienation between [respondent] and the children.”  The court observed that appellant admitted that she was no longer treating her mental illness with medication or therapy. 

On December 23, the GAL notified appellant’s counsel that a hearing was scheduled for December 27 to determine whether there had been a prima facie showing of endangerment warranting an evidentiary hearing.  The GAL’s letter of notice stated that the children were “demonstrating distress” at the idea of returning to live with appellant and confirmed that appellant, whose mental health had not improved, was not seeking any treatment for her mental disorders. 

The GAL testified at length at the December 27 hearing and was cross-examined by appellant’s counsel, who appeared on appellant’s behalf.  The GAL stated that based on her investigation – which included interviews with all family members, observation of family interactions, and an analysis of the record from the dissolution proceeding – she believed that the children were currently endangered by appellant’s unilateral refusal to continue treatment for her mental illness and her denial of, and interference with, respondent’s access to the children.  The GAL also testified to her belief that the children’s circumstances had changed due to appellant’s relocation to a remote rural location, her decision to home school the children, and her decision to remove the oldest child from therapy. 

After the December 27 hearing, the district court issued an order (1) finding that respondent had made a prima facie case for modification of custody and scheduling an evidentiary hearing for March 18, 2003 and (2) awarding respondent temporary sole physical and legal custody of the children, subject to supervised visitation by appellant.  The court also ordered that appellant “shall . . . submit to the Court and counsel a current, sworn itemization of her monthly expenses and income” and “shall sign releases to allow counsel and the GAL access to her medical and mental health care records.” 

On January 16, 2003, respondent served interrogatories and requests for production of documents on appellant’s attorney.  No responses were ever received.  On February 13, 2003, respondent served requests for admissions on appellant’s attorney.  No responses were ever received.  There is no evidence in the record that appellant ever complied with the district court’s order to provide the court and counsel with a current, sworn itemization of her monthly expenses and income or signed releases to allow opposing counsel and the GAL access to her medical and mental health-care records. 

On March 19, 2003, the district court issued an order continuing the evidentiary hearing to June 23 and again ordered appellant to submit her financial information to the court by April 4, barring which the court would impute income to appellant and set child support accordingly. 

In April 2003, respondent moved for summary judgment on the issues of permanent legal and physical custody and child support.  In support of his motion, respondent argued that appellant had violated court orders to release information concerning her finances and mental health.  Respondent also argued that pursuant to Minn. R. Civ. P. 36.01, all unanswered requests for admissions served on appellant must be deemed admitted and requested attorney fees.  Appellant did not respond to respondent’s motion or ask for an extension of time to respond to respondent’s discovery requests or to comply with the court-ordered disclosures. 

Following a hearing, the district court issued an order granting respondent sole legal and physical custody of the children subject to supervised visitation by appellant.  The court found that appellant had violated its orders to release financial and medical information.  The court then deemed admitted all requests for admissions unanswered by appellant and concluded that there were no issues of material fact and that respondent was entitled to summary judgment as a matter of law. 

The court specifically found that appellant had repeatedly interfered with and obstructed respondent’s parenting time; that appellant had violated the 1997 decree by discontinuing treatment for her mental disorders before being advised to do so by her therapist; that appellant has a personality disorder and experiences visions; that appellant had not once contacted the children by telephone since November 27, 2002, when they were placed with respondent; that appellant had not attempted to arrange supervised in-person visitation with the children since the December 2002 order authorizing her to do so; that appellant had not arranged for the children to receive necessary therapy, dental care, and medical care; that appellant refused to provide respondent with information concerning the children’s education; and that appellant insisted that respondent only take the children to worship at a Catholic church of her choice. 

The court made its custody determination after addressing the best interests of the children according to the factors set forth in Minn. Stat. § 518.18(d) (2002).  The court also ordered appellant to pay respondent $3,000 in attorney fees as a sanction for her failure to answer discovery and $7,000 in attorney fees as a sanction for her failure to comply with the parenting-time provisions in the 1997 decree, which caused respondent to incur the costs of litigating the matter.  The court also imputed income to appellant of 150% of the federal minimum wage and imposed a monthly child-support obligation of approximately $477.  Finally, the court ordered that “[appellant] shall not initiate or discuss with the children matters relating to church attendance or religious beliefs.”

Appellant did not move for reconsideration or a new trial or amended findings of fact before appealing the district court’s order to this court.     


When, as here, a party fails to raise an issue before the district court in a motion for amended findings or a new trial, review on appeal is limited to whether the evidence supports the court’s findings of fact and whether those findings support the conclusions of law.  Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976).


Appellant argues that the district court abused its discretion by awarding respondent temporary custody of the children in its December 27, 2002 order.  Appellant contends that she received insufficient notice of the December 27 hearing and that the district court’s order was not supported by sufficient findings.  We disagree.

            First, the district court’s December 27 order was a temporary order made pursuant to Minn. Stat. § 518.131 (2002), and as such is not appealable.  See J.W. ex rel. D.W. v. C.M., 627 N.W.2d 687, 696 (Minn. App. 2001) (declining to address as unappealable a temporary order), review denied (Minn. Aug. 15, 2001); Hennepin County v. Griffin, 429 N.W.2d 283, 284 (Minn. App. 1988) (stating that an order denying temporary custody is not a final, appealable order); see also Minn. R. Civ. App. P. 103.03 (addressing appealable judgments and orders).  Appellant’s challenge to the temporary order is also moot insofar as the district court’s subsequent order granting respondent permanent custody superseded the temporary order.  See In re Paternity of B.J.H., 573 N.W.2d 99, 104-05 (Minn. App. 1998) (stating that an appeal of an issue will be dismissed as moot if the harm has been alleviated or it is impossible to award relief).

            As to notice, appellant argues that serving her notice on December 23 of a December 27 hearing was insufficient.  See Minn. R. Civ. P. 6.04 (stating that a written motion and notice thereof must be served no later than five days before the hearing).  But here, the district court’s November 27, 2002 order required the guardian ad litem (GAL) to submit her report by December 29 and specifically stated that the GAL could schedule a hearing on as little as one day’s notice to counsel “due to the time constraints presented by the facts of this case.”  Appellant was therefore aware as of November 27 that a hearing would take place on December 29 at the latest.  Furthermore, appellant’s counsel did not raise or object to the lack of notice at the December 27 hearing and has, therefore, waived the issue on appeal.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that generally, issues not argued before the district court are waived on appeal). 

            “Failure to comply with the Rule 6.04 notice requirement is not a jurisdictional defect but may be enforced if prejudice is shown.”  Sudheimer v. Sudheimer, 372 N.W.2d 792, 794 (Minn. App. 1985).  Appellant argues that she was prejudiced here because she had no notice that the district court would address temporary custody at the December 27 hearing.  But the court’s November 27 order clearly states that the purpose of the December hearing would be “to order appropriate relief pending any evidentiary hearing.”  Minn. Stat. § 518.131, subd. 1(a), specifically provides that temporary custody is appropriate relief in a custody proceeding “pending the final disposition of the proceeding.”  We therefore conclude that appellant was on notice that the district court could well address temporary custody at the December hearing.

            Appellant also argues that the December temporary modification of custody impermissibly denied her parenting time without holding an evidentiary hearing or making the necessary findings.  See Minn. Stat. § 518.131, subd. 2(a) (providing that a temporary order shall not “[d]eny parenting time to a parent unless the court finds that the parenting time is likely to cause physical or emotional harm to the child”).  As to the evidentiary hearing, Minn. Stat. § 518.131, subd. 8, provides that unless either party specifically requests oral argument, “[t]emporary orders shall be made solely on the basis of affidavits and argument of counsel.”  Appellant did not request oral argument.  As to the evidence, the November 27 order found that appellant was actively attempting to alienate the children from respondent, whom she believed to be “evil,” and had unilaterally decided to stop treating her ongoing mental-health issues in direct violation of the 1997 decree.  These findings compel an explicit finding of endangerment justifying the temporary modification of custody.  See Warwick v. Warwick, 438 N.W.2d 673, 677-78 (Minn. App. 1989) (stating that missing explicit finding can be inferred on appeal where the record compels it).    

            We conclude that even were the December 27, 2002 temporary order susceptible to appeal by appellant, her challenges to that order are without merit.


            Appellant argues that the district court abused its discretion by awarding respondent sole legal and physical custody of the minor children.  Our review of a custody determination is limited to determining whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.  Frauenshuh v. Giese, 599 N.W.2d 153, 156 (Minn. 1999).  We consider a district court’s findings of fact in the light most favorable to the findings and will not reverse the findings unless they are clearly erroneous, id., but “need not defer to the [district] court in reviewing questions of law.”  Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993).  “On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.”  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). 

            Appellant contends that the district court erred by failing to hold an evidentiary hearing, and correctly cites to Hummel v. Hummel, 304 N.W.2d 19, 20-21 (Minn. 1981), Splinter v. Landsteiner, 414 N.W.2d 213, 214 (Minn. App. 1987), and Clark v. Clark, 358 N.W.2d 438, 441 (Minn. App. 1984), for the proposition that a district court commits reversible error by modifying a custody award after denying either party’s request for an evidentiary hearing.  But here, the district court’s December 2002 order scheduled an evidentiary hearing for March 2003 after determining that a prima facie case for modification existed; the hearing was subsequently continued to June.  The court never denied appellant the opportunity to present evidence, and respondent never argued that appellant should be denied an evidentiary hearing.  The record demonstrates that both the court and respondent made repeated efforts to elicit evidentiary submissions from appellant. 

Appellant challenges the district court’s decision to deem the matters raised in respondent’s requests for admissions admitted due to appellant’s failure to respond or object to the requests.  The district court has broad discretion in ruling whether to admit evidence, and its decision will not be overturned unless it is based on an erroneous interpretation of the law or constitutes an abuse of discretion.  Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).  No such error or abuse is present here.

Minn. R. Civ. P. 36.01 provides that each matter that is the subject of a written request for admission served upon another party is deemed “admitted unless within 30 days after service of the request . . . the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party’s attorney.”  “Any matter admitted pursuant to this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.”  Minn. R. Civ. P. 36.02.

            Here, appellant never responded to respondent’s January 2003 written requests for admissions.  Appellant never objected to the requests, requested an extension of time to file responses, or moved to set the admissions aside.  See Minn. R. Civ. P. 36.02 (providing if a party files a motion for the withdrawal or amendment of the admission, the party who obtained the admission must then show that the withdrawal would prejudice its presentation of the case on the merits).  At the March 2003 hearing on respondent’s summary-judgment motion, appellant’s counsel did not address the issue.  In its order granting respondent summary judgment, the district court, citing Minn. R. Civ. P. 36.01, deemed all of the matters raised in respondent’s requests for admissions admitted. 

            Appellant correctly cites to Dahle v. Aetna Cas. & Sur. Ins. Co. for the proposition that “the admission that otherwise would result from a failure to make a timely answer should be avoided when to do so will aid in the presentation of the merits of the action and will not prejudice the party who made the request.”  352 N.W.2d 397, 402 (Minn. 1984) (quotation omitted).  But Dahle specifically and exclusively addressed the effects of a party’s failure to timely file admissions, not a party’s refusal to participate in discovery.  See id. (stating that “[t]his case does not involve a failure to answer requests for admission – it only involves an untimely response”).

It is true that here, the requested admissions go directly to the merits of the case and that “admission of such requests by fiat without prejudice to the opposing party is not favored.”  Id.  But appellant cites no authority to support the argument that summary judgment on the basis of deemed admissions is per se improper.  Cf., e.g., W. Horizontal Drilling, Inc. v. Jonnet Energy Corp., 11 F.3d 65, 70 (5th Cir. 1994) (holding that deemed admissions may serve as the basis for summary judgment).  It is unclear whether respondent would be prejudiced should he be required to resubmit the requests rather than having the matters raised therein deemed admitted; although the requests concern matters within appellant’s knowledge that are, therefore, discoverable in theory, the record demonstrates her continuing practical refusal to cooperate in discovery.  See Frederickson v. Alton M. Johnson Co., 390 N.W.2d 786 (Minn. App. 1986) (holding that prejudice in this context means the difficulty a party would have in proving its case because of the unexpected and sudden need to obtain evidence to prove the matter that had previously been deemed admitted under rule 36), modified on other grounds, 402 N.W.2d 794 (Minn. 1987). 

“[A]llowing an extension in these circumstances is within the discretion of the [district] court.”  Dahle, 352 N.W.2d at 402.  We conclude that the district court did not abuse its discretion when, by operation of rule, it deemed respondent’s requests admitted because appellant did not respond or object to them.  Appellant does not argue that any issues of material fact as to custody remained after the responses to respondent’s requests for admissions were deemed admitted.  We therefore conclude that the district court did not abuse its discretion by granting respondent sole physical and legal custody of the children.


Appellant argues that the district court abused its discretion by imputing income to her and ordering her to pay child support.  The district court has broad discretion in deciding whether to impute income.  See Putz v. Putz, 645 N.W.2d 343, 353 (Minn. 2002).

Minn. Stat. § 518.551, subd. 5b(e) (2002), provides that if there is insufficient information to determine an un- or underemployed party’s actual income or to impute income, “the court may calculate support based on full-time employment of 40 hours per week at 150 percent of the federal minimum wage.”  Here, the district court issued orders in December 2002 and March 2003 specifically requiring appellant to submit her financial information to the court.  In the latter order, the court stated that should she fail to comply, the court would impute income to her and set child support accordingly.

Appellant never submitted her financial information.  The court did not abuse its discretion by imputing income to appellant at 150% of the federal minimum wage and calculating child support accordingly.


Appellant argues that the district court abused its discretion by ordering her to pay a part of respondent’s attorney fees.  This court will not reverse a district court’s award of attorney fees unless the factual basis for the fees is clearly erroneous or the court abused its discretion with regard to the margin involved in the allowance.  Shepard v. City of St. Paul, 380 N.W.2d 140, 143 (Minn. App. 1985); see also Jadwin v. Kasal, 318 N.W.2d 844, 848 (Minn. 1982) (providing that the district court has broad discretion in awarding attorney fees).

A district court may award attorney fees when (1) they are necessary for a party to assert his or her rights, (2) the party seeking the award does not have the means to pay the fees, and (3) the other party has the ability to pay.  Minn. Stat. § 518.14, subd. 1 (2002).  The court has discretion to award additional fees “against a party who unreasonably contributes to the length or expense of the proceeding.”  Id.  

Here, the district court imposed attorney fees on appellant as a sanction for (1) disregarding court orders to produce financial and medical information; (2) failing to comply with scheduling and pretrial orders; and (3) violating the original decree, thereby obligating respondent to bring litigation.  The record demonstrates that the court acted well within its discretion in imposing the sanctions.

We further observe that, contrary to respondent’s argument, the issues of attorney fees and child support were part of the district court’s order entered into judgment and are therefore properly before us on appeal.


Appellant argues that the district court violated her right to freely exercise her religion, as guaranteed by the First Amendment to the United States Constitution, by ordering that during her visitations with the children she “not initiate or discuss with the children matters relating to church attendance or religious beliefs.” 

The First Amendment prohibits states from interfering with the free exercise of religion.  U.S. Const. amend. I; Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 903 (1940).  “The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires.”  Employment Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 877, 110 S. Ct. 1595, 1599 (1990).  The free exercise of religion includes the right to profess one’s faith, but it does not include the right to engage in religious conduct, such as proselytizing, that violates an otherwise valid law.  Id. at 877-79, 110 S. Ct. at 1599-600.  A law of general application that is not intended to regulate religious beliefs or conduct does not contravene the Free Exercise Clause if it incidentally infringes on religious practices.  See id. at 890, 110 S. Ct. at 1606 (holding that members of Native American religion who smoked peyote as part of ritual ceremony are not exempt from general criminal ban on substance).

Minn. Stat. § 518.003, subd. 3(a) (2002), confers on respondent, as the children’s sole legal custodian, the exclusive “right to determine the child[ren]’s upbringing, including education, health care, and religious training.”  This provision is a valid law of general application that regulates neither religious beliefs nor conduct; the provision’s purpose is to secure the custodial parent’s right to choose the religion of the children.  The district court therefore possesses discretion to fashion reasonable restrictions to protect that right, which would have little meaning without protection from subversion. 

Here, limiting appellant’s religious conduct is not the object of the visitation restriction, but the incidental effect of securing respondent’s right under the custody statute to choose the children’s religion.  The record demonstrates that although the parties are both practicing Catholics, appellant believes that respondent’s form of practice is insufficient at best and that appellant would prefer that the children worship exclusively at churches designated by her own priest.  Appellant’s conversations and actions with respect to the children’s religious activities have been part of a course of conduct that has interfered with respondent’s choice of religion for the children and therefore violated respondent’s rights as guaranteed by Minn. Stat. § 518.003, subd. 3(a).

But here, the district court prohibited appellant from discussing with the children all “matters relating to church attendance or religious beliefs.”  The court did not limit its prohibition to religious discussions that might cause the children to reject respondent’s choice of religion or to appellant’s attempts to impose her religious views on the children.  The prohibition was not limited as to scope or duration and was not narrowly fashioned to protect respondent’s rights under Minn. Stat. § 518.003, subd. 3(a).  Cf. Lange v. Lange, 502 N.W.2d 143, 147 (Wis. App. 1993) (holding that a visitation restriction prohibiting a non-custodial parent from imposing his religious views on the children does not violate his right to the free exercise of his religion under the United States Constitution where the restriction is limited in scope and duration and does not absolutely prohibit religious discussion with the children). 

We therefore conclude that to the extent that the district court’s order impermissibly violates appellant’s free exercise of her religion by restricting activity that will not interfere with respondent’s right to determine the children’s religion, the order must be reversed and remanded to the district court.  On remand, the district court shall refashion that provision of the order concerning appellant’s religious discussions with the children in order to state more precisely what religious professions appellant may not make to the children rather than prohibiting all such professions.

Because appellant does not ask us to test the restriction against her right of free speech under the First Amendment, we do not reach that issue.  See In re Welfare of C.L.L., 310 N.W.2d 555, 557 (Minn. 1981) (declining to address, for the first time on appeal, constitutional issues that were not raised in the district court).

            Affirmed in part, reversed in part, and remanded.