This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1166

 

In the Matter of:
Deidre Lee Mosser, o/b/o Elizabeth Frances Behnke, Steven Francis Behnke,
Christian Benedict Behnke and Madeleine Jane Behnke, petitioner,
Appellant,

vs.

Steven Kenneth Behnke,
Respondent,

and

In re the Marriage of:
Steven Kenneth Behnke, petitioner,

Respondent,

 

vs.

 

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

Appellant,

 

and

 

Jori Whitehead,

Guardian ad Litem.

 

Filed May 23, 2006

Affirmed in part and reversed in part

Wright, Judge

 

Dakota County District Court

File Nos. F4-96-7217, F7-05-13263

 

John E. Mack, Mack & Daby, P.A., 26 Main Street, P.O. Box 302, New London, MN  56273 (for appellant)

 

Steven Behnke, 13913 West Preserve Boulevard, Burnsville, MN  55337 (pro se respondent)

 

Jori Whitehead, 2412 117th Street East, Burnsville, MN  55337 (Guardian ad Litem)

 

            Considered and decided by Dietzen, Presiding Judge; Wright, Judge; and Worke, Judge.

U N P U B L I S H E D  O P I N I O N

WRIGHT, Judge

 

            Appellant challenges the district court’s decision denying her petition for an order for protection (OFP) and modification of custody and finding her in constructive criminal contempt.  Appellant argues that (1) the district court lacked subject matter jurisdiction because it improperly combined the OFP petition with dissolution proceedings between respondent and appellant; (2) the district court’s findings were inadequate to support its order; (3) the district court was biased against appellant; and (4) the district court erred by failing to follow the necessary contempt procedures.  We affirm in part and reverse in part.

FACTS

            Appellant Deidre Mosser[1] and respondent Steven Behnke dissolved their marriage in 1997.  At the time of the dissolution, Mosser alleged that Behnke had sexually abused their oldest child, Edward, and exposed him to pornography.  Edward is now an adult.   These allegations were thoroughly reviewed by the county and the appointed guardian ad litem (GAL).  Both concluded that the allegations were groundless.  In 1997, both the GAL and the custody evaluator recommended that Behnke be awarded custody based on concerns about Mosser’s mental health.  Despite these concerns, the district court awarded Mosser sole legal custody of the parties’ five children but stated that Mosser’s failure to continue therapy and to take her medication would be perceived as “a significant change in circumstances warranting reevaluation of custody and visitation.”

            In November 2002, Behnke moved for compensatory visitation.  Mosser and her new husband moved from the Twin Cities to Herman, about 180 miles from Behnke’s residence.  She withdrew the children from public school and began homeschooling them.  After the move, problems with visitation became more frequent.  Edward, then 17, refused to visit Behnke.  Mosser permitted or encouraged the other children to skip visitation or failed to make them available for visitation.  In 2002, Behnke was denied more than 20 days of visitation.  The parties also argued about church attendance.  Mosser refused to permit weekend visitation unless Behnke agreed to take the children to a Roman Catholic church of her choice, rather than to the Catholic church Behnke attended.

            At the hearing in November 2002, in response to a question from the district court, Behnke indicated that he would be interested in a modification of custody.  The district court ordered compensatory visitation from November 27 to December 29, 2002, reappointed the former GAL and instructed her to submit a recommendation about modification of custody, ordered Behnke to enroll the children in school during the month of visitation, and indicated that another hearing would occur before December 29.  The district court order signed by Judge Patrice K. Sutherland required that all future “request[s], by either party, related to the children, must be presented to the undersigned.”  The order stated that failure to comply with this arrangement would be deemed contempt of court.

            On December 27, 2002, a hearing was held to determine whether there was prima facie evidence of endangerment that would warrant an evidentiary hearing for modification of custody.  The GAL recommended modification of custody because (1) Mosser endangered the children by refusing to treat her mental illness; and (2) there was a substantial change in circumstances based on Mosser’s relocation, her decision to homeschool the children, and the decision to remove Edward from therapy.  The district court ordered a temporary modification of legal and physical custody to Behnke, subject to supervised visitation by Mosser; ordered Mosser to sign releases for medical and mental health records and to disclose financial records; and set the matter on for hearing on March 18, 2003.

            Mosser was served with interrogatories and a request for admissions but failed to reply.  She also failed to disclose her financial status or sign releases.  A new hearing date was set for June 23.  But in April 2003, Behnke moved for summary judgment, based on Mosser’s failure to respond to the request for admissions.  At the summary judgment hearing, the district court concluded that, by failing to respond, Mosser had admitted the requests and had violated the district court’s orders to sign releases and disclose financial information.  The district court also found that Mosser repeatedly interfered with visitation, violated the 1997 order to continue mental-health treatment as a condition of custody, failed to visit or call the children after the December 2002 order, failed to provide Behnke with medical and school information, and continued to insist that Behnke take the children to a Roman Catholic church of her choice.  The district court concluded that the best-interests factors favored custody modification and awarded Behnke legal and physical custody of the four children.  Mosser was ordered to pay $3,000 in attorney fees for failure to respond to discovery and a sanction of $7,000 for failure to comply with visitation provisions in the 1997 decree.  After imputing income to Mosser, the district court ordered her to pay child support.  The district court also ordered Mosser to refrain from discussing church attendance or religious beliefs with the children.

            Mosser appealed, and we affirmed the decision except as to the prohibition against discussion of religion, which we held to be an improper infringement of constitutional rights.  Behnke v. Green-Behnke, No. A03-1039, 2004 WL 376984, at *10 (Minn. App. Mar. 2, 2004), review denied (Minn. May 26, 2004).  Mosser appealed that decision to the Minnesota Supreme Court, which denied review.

            On April 19, 2005, Mosser appeared before Judge Joseph Carter of Dakota County and petitioned for an OFP.  Mosser alleged that all four children had “disclosed sexual abuse to me or at least hinted at it.”  She stated that a sexual abuse expert had examined Edward and concluded that he had been sexually abused by Behnke.  Mosser stated that this expert had examined her and found her to be mentally healthy.  Judge Carter issued an ex parte OFP and ordered the sheriff to remove the children from their schools without notice to Behnke.  The children were removed and brought to the home of a friend of Mosser. 

            On April 20, Behnke appeared ex parte before Judge Sutherland, who noted that she had ordered all further proceedings related to the children to be brought before her.  Coincidentally, Mosser and her husband were in the courthouse at the same time.  They were brought into the courtroom and isolated to prevent them from calling the friend watching the children.  Judge Sutherland issued a summary order directing the sheriff to pick up the children and return them to Behnke.  Judge Sutherland also scheduled a hearing before her on the OFP petition for April 25, 2005.

            The hearing scheduled on April 25 was captioned under both the OFP case number and the dissolution case number.  At the hearing before Judge Sutherland, Mosser relied on the testimony of her expert, Merrilyn McDonald, a social worker with a master’s degree, who has written a research article disputing that many of the claims of sexual abuse raised in dissolution proceedings are in fact false claims.  Edward also testified about alleged abuse by Behnke.  The hearing was continued to May 6 so that the reappointed GAL could interview the children.  The GAL was given a list of questions from the parties to address with the children. 

            The GAL concluded, based on her interviews of the children, that they were happy and healthy at their father’s home.  They enjoyed and were participating in school.  The four children, who then ranged in age from 11 to 17 years, vehemently denied any sexual contact with their father.  The four children reported that they were dismayed at being removed from Behnke’s home and were relieved to return. 

            The district court found that McDonald’s testimony was not credible.  Based on various expert reports, the district court concluded that Edward’s claims of abuse had been influenced by Mosser.  The district court reviewed reports from the supervised visitation center and determined that incidents that Mosser relied on to support her OFP petition were not supported by the visitation center, whose representative stated that the incidents had in fact not occurred.  The district court also reviewed the psychological reports filed in 1997 and the investigation of sexual abuse that took place in 1997 and found that the sexual abuse allegations were unfounded.  The district court concluded that Mosser had not sustained her burden of proof on the OFP petition and found her in contempt for bringing the petition before Judge Carter instead of Judge Sutherland.  The OFP petition was dismissed, the custody and visitation schedule was resumed, and the imposition of sanctions for contempt was reserved.  This appeal followed.

D E C I S I O N

A.

            Mosser asserts that the district court did not have jurisdiction over the consolidated dissolution and OFP actions because the district court failed to follow the statutory mandates for consolidation.  Questions of subject matter jurisdiction are reviewed de novo.  Johnson v. Murray, 648 N.W.2d 664, 670 (Minn. 2002).   

            In support of her jurisdiction challenge, Mosser argues that the language of Minn. Stat. § 518B.01, subd. 6(c) (2004), forbids vacation or modification of an OFP in a proceeding for dissolution of marriage, except upon notice of motion and motion.  Section 518B.01 provides in relevant part: 

            An order [restraining a party from committing domestic abuse] may not be vacated or modified in a proceeding for dissolution of marriage or legal separation, except that the court may hear a motion for modification of an order for protection concurrently with a proceeding for dissolution of marriage upon notice of motion and motion.  The notice required by court rule shall not be waived.  If the proceedings are consolidated and the motion to modify is granted, a separate order for modification of an order for protection shall be issued.

 

Minn. Stat. § 518B.01, subd. 6(c).  The language of subdivision 6 cited above, however, refers to an OFP granted after notice to the adverse party and a hearing.  The ex parte order obtained by Mosser is governed by subdivision 7, which does not contain the same limiting language.  Id., subd. 7 (2004).  The type of order referred to in subdivision 6 was never issued in this case because the district court determined that Mosser failed to sustain her burden of proof.

            Further, the language Mosser relies on in subdivision 6(c) is specifically limited to vacation or modification of an order “restrain[ing] the abusing party from committing acts of domestic abuse.”  Id., subd. 6(a)(1) (2004).  An order granting temporary custody in an OFP action is governed by Minn. Stat. § 518B.01, subd. 6(a)(4), not by Minn. Stat. § 518B.01, subd. 6(c).  Accordingly, the procedural requirements of subdivision 6(c) have no bearing on the district court’s ex parte order or its decision to deny the OFP petition. 

            The effect of the ex parte OFP was a modification of custody.  In light of the recent custody proceedings on this heavily contested issue, the district court made a practical choice to examine the question in the context of the dissolution action, where custody considerations were thoroughly explored.  Based on the statutory language of Minn. Stat. § 518B.01, subd. 6(c), we conclude that there was no jurisdictional defect.

B.

            Mosser next argues that the evidence and the district court’s findings are inadequate to support its order denying her motion to modify custody.  A party challenging the district court’s findings of fact must show that the evidence, when viewed in the light most favorable to the district court’s findings, does not sustain the findings.  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).  In our review of the district court’s findings, we defer to the district court’s credibility determinations.  Id. at 472.

            Mosser argues that the district court relied on stale evidence from the 2003 modification of custody and ignored more recent evidence from the OFP action.  We disagree.  The OFP petition relies on the alleged sexual abuse of Edward, an issue in the dissolution and modification proceedings.  The evidence and the findings address the concerns raised in the OFP petition as to the younger children.  The district court specifically found that the testimony of Edward and of Mosser’s expert, McDonald, was not credible.  Mosser offered an evaluation performed by Dr. Thomas Alberg, a psychologist, but this report was two years old and limited in nature.  Although no other medical expert opinion was offered, the GAL questioned the children and the employees at the visitation center, who did not confirm Mosser’s allegations of sexual abuse and exposure to inappropriate sexual material.  Thus, when viewing the evidence in the light most favorable to the findings of fact with deference to the district court’s assessments of witness credibility, there is sufficient evidence in the record to support the district court’s findings of fact.

C.

            Mosser also alleges that the district court was biased against her.  In support of her contention, Mosser maintains that the district court’s order denying the petition for an OFP and custody modification lacked “objectivity and credibility.”  Mosser also asserts that the April 20, 2005 ex parte order returning the children to Behnke and the order requiring all further proceedings to be scheduled before Judge Sutherland evince judicial bias.

            “A judge may not preside in a case if he or she has an interest in its determination or if he or she might be excluded for bias.”  In re Welfare of D.L., 479 N.W.2d 408, 415 (Minn. App. 1991) (citing Minn. R. Civ. P. 63.02), review granted (Minn. Feb. 27, 1992), aff’d, 486 N.W.2d 375 (Minn. 1992).  To be disqualifying, bias or prejudice “must stem from an extrajudicial source and result in an opinion on the merits on some other basis other than what the judge learned from her participation in the case.”  Id.  “The decision whether to grant a new trial [for judicial bias] . . . rests within the sound discretion of the trial court and will be reversed only for a clear abuse of that discretion.”  In re Welfare of D.L., 486 N.W.2d 375, 382 (Minn. 1992) (alteration in original) (quotation omitted). 

            The district court may make an ex parte order in a dissolution proceeding concerning any matter that could be included in a temporary order.  Minn. Stat. § 518.131, subd. 3 (2004).  The district court may not make an ex parte restraining order granting custody of minor children except on finding immediate physical harm.  Id.  A request for an ex parte order in family court must be made by motion supported by an affidavit.  Minn. R. Gen. Prac. 303.04(a).  The motion and affidavit must be filed with the order for purposes of service.  Minn. R. Gen. Prac. 303.04(c). 

            The situation here is somewhat unusual because both the affiant, Behnke, and the party to be served, Mosser, appeared personally before the district court.  In its custody modification order dated June 2, 2003, the district court found that “[t]he circumstances of the minor children while in [Mosser’s] care constitute serious physical and emotional endangerment to the minor children and impair the minor children’s emotional development within the meaning of Minn. Stat. section 518.18.”  The record establishes that, in the 2005 proceedings, the district court, fully aware of the issues raised in the earlier custody modification proceedings, relied on relevant evidence from the current proceedings to determine whether the petition should be granted.  From our review, we conclude that the district court’s decision to deny the petition is based not on bias against Mosser, but rather a careful assessment of the evidence presented and a correct application of the law. 

We also conclude that the order directing that all proceedings be scheduled before a single judge is not evidence of bias.  Familiarity with the issues and parties in this type of complex and longstanding proceeding can expedite matters and prevent judge-shopping by a party dissatisfied with a previous outcome. 

D.

            Mosser next challenges the district court’s decision finding her in contempt.  Specifically, she asserts that the district court committed procedural errors in doing so.  “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.  Erickson,385 N.W.2d at 304.  We will not disturb the district court’s ruling on a contempt motion absent an abuse of discretion.  See id. (acknowledging district court’s “inherently broad discretion” to enforce its orders by means of contempt power). 

            The law recognizes two types of contempt—civil and criminal.  Hopp, 279 Minn. at 173, 156 N.W.2d at 216.  Civil contempt power is used to secure future compliance with a court order; criminal contempt is invoked as punishment for past misconduct.  Id.  Here, the district court did not specify the type of contempt invoked.  But the record suggests that the nature of the contempt was criminal in that the district court sought to sanction Mosser’s disregard of the district court’s order requiring Mosser to bring the OFP action before Judge Sutherland. 

            Criminal contempt may be direct or constructive.  Minn. Stat. § 588.01, subds. 2, 3 (2004).  Direct contempt occurs in the presence of the district court.  Id., subd. 2.  Constructive contempt is neither committed in the presence of the district court nor with the district court’s direct personal knowledge.  Id., subd. 3.  Constructive criminal contempt includes disobeying a lawful court order.  Id., subd. 3(3).  A direct contempt can be summarily punished.  Minn. Stat. § 588.03 (2004).  But to sanction a party for constructive contempt, certain procedures must be followed, including the issuance of a warrant, or notice, or an order to show cause.  Minn. Stat. § 588.04 (2004).  The party charged with contempt has the right to a hearing on the charge.  Minn. Stat. § 588.09 (2004).  In addition to these statutory requirements, there must be a determination that the underlying order that was violated is valid.  Robbinsdale Clinic, P.A. v. Pro-Life Action Ministries, 515 N.W.2d 88, 91 (Minn. App. 1994), review denied (Minn. June 15, 1994). 

            Because of the multiple defects in the contempt process, including the lack of notice, a hearing, and a determination of the validity of the underlying order, the district court abused its discretion by finding Mosser in contempt.  We therefore reverse this aspect of the district court’s order.

            Affirmed in part and reversed in part.



[1] Mosser was known as Deidre Lee Green-Behnke in the dissolution action.