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New Ruling from Minnesota Court of Appeals on Modification of Custody

New Ruling from Minnesota Court of Appeals on Modification of Custody

Minnesota Court of Appeals Holds that Granting the Non-Custodial Parent the Summer Break Is Not a Modification of Custody Nor a Restriction on Parenting Time When Done in Response to the Custodial Parent’s Move

In Suleski v. Rupe, #A13-2031, (Minn. Ct. App. Oc. 20, 2014), the Minnesota Court of Appeals held that an order modifying parenting time so that the non-custodial parent has more time with the child over the summer break than the custodial parent is not considered a modification of the child’s primary residence absent a specific indication from the court that the order is intended to modify custody or change the primary residence of the child when the custodial parent has more time with the child during the school year. Further, such a change in parenting time is not considered a restriction of the custodial parent’s time, as the custodial parent has more time with the during the school year. However, the court did reverse the district court in part, holding that a court must provide an explanation if it modifies a parenting time schedule for holidays that gives the non-custodial parent exclusive parenting time on all school breaks as well as Thanksgiving, Christmas, and New Year’s Even.

Specifics of the Case

In this case, the initial 2008 custody order gave the parents joint legal custody with the mother having sole physical custody of their eight-year-old child and the father having parenting time on Monday and Tuesday evenings during the school year and during the summers from Sunday to Tuesday, and every other weekend throughout the year, with the holidays being divided and each party having two weeks of uninterrupted vacation time during the summer.

That schedule worked until the mother remarried and moved from Dundas to Ramsey in Anoka County, which is 64 miles from the father’s location and about 75 miles from her prior home. With travel time of more than an hour from the school to the father’s home, providing the father with parenting time during the school week became impractical. Therefore, the mother moved to modify parenting time and transportation so that the father’s weekday parenting time would be eliminated, giving the father alternating weeks during the summer, splitting the holidays, and retaining the two weeks of vacation time. She also proposed splitting the transportation; the prior order had provided for the father to provide transportation if he moved out of the original hometown, Northfield.


In response, the father also asked for modifications. He asked that, instead of splitting transportation, the child live with the mother during the school year, with parenting time for the father every other weekend, and during the summer, the child would live with the father and the mother would have the child every other weekend, and that the holidays be divided between the parties.


Court Denies Mother’s Motion


At the hearing, held in June 2013, by which time the child was approximately thirteen, the court denied the mother’s motion and granted the father’s motion. The mother appealed, contending that could have allowed the father to custody had been modified without the required evidentiary hearing and sufficient findings as required by Minn. Stat. Section 518.18(d).


The court held that the district court did not modify custody or change the child’s primary residence but instead just modified parenting time in response to the mother’s move with the child. The court emphasized that the father was still required to provide child support during the summer; if the father had physical custody, the court could have allowed the father to suspend child support payments during the summer. Minn. Stat. Section 518A.26, subdivision 14.


Further, the family law statutes do not define primary residence. The court found the mother’s home continued to be the child’s primary residence as the child lives with her mother and attends school in her mother’s school district nine months of the year.


This case reveals the risks inherent in moving to modify custody. The mother filed the motion to modify yet the father wound up prevailing on his cross-motion.   Both the Minnesota Court of Appeals and the district court found her position, that the father’s parenting time should be reduced during the school year without any corresponding increase during the summer, was unfair to the father, given that the change was needed because the mother moved.   She did win on the holiday time because the court found that giving the father all the holidays and school vacations without any explanation was unfair.

Minnesota’s 2014 Child Custody and Parenting Time Amendments

Minnesota’s 2014 Child Custody and Parenting Time Amendments

On May 15, 2014, Governor Mark Dayton signed into law amendments to Minnesota’s child custody and parenting time laws, and these amendments became effective August 1, 2014. Chapter 197 of the 2014 Minnesota Session Laws displays greater acceptance of shared custody arrangements such as joint custody simply by providing neutrality toward joint physical custody. The Minnesota State Bar’s official publication, the Bench & Bar of Minnesota, in a recent article titled Custody and Parenting Time: Minnesota Amendments Codify Compromises predicted that these new amendments would likely lead courts that previously favored sole custody to be more willing to approve alternative arrangements.

While one factor to be considered when joint custody is sought is the ability of the parents to cooperate in child-rearing, presumably on the theory that joint custody is most workable when the parents cooperate in child-rearing, the amendments explicitly provide that disagreeing over whether custody is joint or sole is not considered an inability to cooperate in child-rearing. Thus, a parent cannot veto joint custody simply by arguing for sole custody.

Additional Factors to Be Considered

In addition to the ability of parents to cooperate on child-rearing, there are three other factors the court is required to consider in determining whether to award sole or joint custody:

  • Methods for resolving disputes regarding major decisions about the child, and the parties’ willingness to use those methods;
  • Whether one parent having sole authority over the child would be detrimental to the child;
  • Whether there has been domestic abuse, as defined in Minnesota Statute Section 518B.01, between the parents.

When the parties disagree on sole or joint custody, the court must make detailed factual findings on each of these factors and explain how those findings led to its decision as to whether joint or sole custody is in the best interests of the children.

Perhaps the most significant changes are the changes in modifications of parenting time, which may well promote continued litigation over child custody. Thus, Minnesota Statutes 2012, section 518.175, subdivision 5 (a), was amended to provide that considering a child’s best interest “includes a child’s changing developmental needs.” This amendment may promote additional litigation on child custody, as parents may argue that existing custody arrangements are no longer suitable because the child’s developmental needs have changed. `

That same statute, subdivision 1, was amended to provide that when issuing a parenting time order, the court “may reserve determination as to the future establishment or expansion of a parent’s parenting time,” and that the best interest standard applies to subsequent motions to establish or expand parenting time.

The statute was also amended to provide that a modification of a parent’s percentage of parenting time to between 45.1 to 54.9 percent parenting time “is not a restriction of the other parent’s parenting time.” Minnesota Statutes 2012, section 518.175, subdivision 5(b). This change is significant because the provision limits restrictions on parenting time, so this provision makes it easier for courts to modify parenting time when the parenting time is shared in a relatively equal way.

Do You Have Family Law Questions or Concerns?

If you are considering a custody agreement or modifications to an existing custody or parenting time order, consulting with an experienced family law practitioner may be useful. Jeffrey R. Arrigoni is available to help you with your family law matters in Minnesota.

Modifications of Parenting Time

Modifications of Parenting Time

In Dawson v. Taylor, A14-0220 (Sept. 15, 2014), the Minnesota Court of Appeals upheld a district court’s order granting modification of parenting time without an evidentiary hearing. This case involved a child born in 2002 to unmarried parents. The father’s paternity was legally established in early 2005, and the court awarded them joint custody, with the mother having sole physical custody, and a visitation schedule that gave the father parenting time on ten days during a four-week period. In 2013, when the child was about eleven, the mother moved to modify the schedule, requesting a school-year schedule of school nights (Monday to Thursday) with her, with the father having the child at his home for dinner on Wednesdays and overnight every Friday and half of all Saturdays and Sundays and a vacation schedule of Wednesday. The father instead proposed a 5-2-2-5 schedule; the child would spend Mondays and Tuesdays with mother, Wednesdays and Thursdays with father and alternate weekends (Friday through Sunday).

The Court’s Ruling

The court held that the district court did not modify the parenting time without an evidentiary hearing. While Minnesota statute section 518.175, subd. 5 provides that a court may not restrict parenting time without finding, after a hearing, that parenting time is likely to harm the child or the parent has chronically and unreasonably failed to comply with court-ordered parenting time, the court found that reducing parent time is not the same as restricting parenting time.

The appeals court considered de novo whether the change in parenting time amounts to a restriction, considering the reasons for the change and the amount of reduction. First, neither party had asked for an evidentiary hearing or alleged one of the conditions that would justify restricting parenting time following a hearing. Instead, both parents asserted that each had a proposal that would promote consistency and predictability for the child, the mother by eliminating the father’s mid-week overnights and the father with an equalized schedule that would give the child “more regular, longer stretches of time with each parent but eliminated one of mother’s weekly overnights.” The schedule did reduce the mother’s parenting time from 65% to 50% by moving one overnight per week from the mother to the father. The court found that this reduction in the mother’s parenting time was not a restriction, and, therefore, upheld the district court’s decision to modify parenting time without an evidentiary hearing.

Minnesota Laws on Parenting Time

In 2014, the Minnesota statute on parent time modifications was amended by Chapter 197 of the 2014 Minnesota Session Laws. Under the new statutory language, a modification of parenting time that increases the other parent’s time so that it is between 45.1% and 54.9% of the time is not considered a restriction of parenting time for the parent whose time is reduced.

The court also held that the district court did not abuse its discretion by excluding evidence from the parties’ efforts at mediation. Under Minnesota Rule of Evidence 408, evidence from settlement negotiations is not admissible to prove a claim. The court noted that the district court had credited the mother’s testimony that the parties had difficulty communicating with each other, but found the district court dealt with that concern with a parenting schedule that required limited direct communication parties, requiring the parties to avoid disparaging the other parent in the child’s presence, and providing for an online communication tool. The court of appeals thus found that the statements and text messages excluded by the district court were “cumulative,” meaning that they did not add anything important.

In this case, the mother represented herself while the father was represented by counsel. A parent who is seeking a modification of custody is well advised to consult an attorney.

Modifying Custody Agreements under Minnesota Law

Modifying Custody Agreements under Minnesota Law

Under Minnesota Statute Section 581.18(d), when a court has jurisdiction to determine custody orders, the court may not modify a custody order that specifies the child’s primary residence unless, since the prior order, there has been “a change in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child.” The Minnesota Court of Appeals recently explained the standards for determining both “a prior order” and “change in circumstances.” In Spanier v. Spanier, A13-2175 (Minn. Ct. App. Aug. 18, 2014), the Court of Appeals held that an order changing parenting time was not a prior order regarding custody, and that a parent who was enlisted in the military and received orders to deploy to another state was not a change in circumstances when the parent was living in another state because of military service at the time of the initial custody decision.

Specifics of the Case

At issue in Spanier was an original divorce decree that had granted the father, who lived in Minnesota, sole physical custody of the children. At that time, the mother was enlisted full-time in the Navy Reserve and resided in San Diego, California, with orders to deploy abroad. Subsequently, in 2010, after she learned she would be was stationed in Minnesota as of January 2011, she moved to modify the custody and parenting time. The parties resolved the motion by agreement, with the father maintaining sole physical custody and the mother having equal parenting time while she lived in Minnesota.

That agreement apparently worked well while both parents lived in Minnesota, but the mother then received orders to deploy to Virginia effective March 2014. She moved to modify the custody order so that her children would move with her to Virginia, and she lost both in the district court and on appeal.

First, the Minnesota Court of Appeals found that the order modifying parenting time so that the mother had equal parenting time was not a prior order regarding custody. Thus, an order that does not modify physical or legal custody is not a “prior order” under section 518.18(d). The result was that the prior order in this case was the original order, which granted the father sole custody, with the children residing in Minnesota while the mother was residing in California.

Second, the Minnesota Court of Appeals held that there was no relevant change of circumstances to warrant a change in custody. The court held that the circumstances – that the mother was deployed by the Navy and living in another state – were the same circumstances that existed at the time of the prior custody order. The court noted that the mother was well aware that her military service could result in her being deployed to locations apart from her children, and that the move to Virginia resulted from her employment, and her employment had not changed since the original custody order. The court also noted that the mother could be deployed anywhere; in fact, she had been deployed to Jordan from August 2009 to March 2010

An Attorney Can Help You with Your Case

This case makes clear that an original custody order can have long-lasting consequences because a change in circumstances is a necessary element of a motion to modify custody. Thus, it is useful to consult with an experienced family law attorney in resolving custody disputes. Jeffrey R. Arrigoni, Attorney at Law can help you solve any of your family-law related problems.



On July, 9, 2014, the Minnesota Supreme Court held that the Minnesota Uniform Fraudulent Act (MUFTA), Minnesota Statute, Section 513.44, applies to uncontested marital dissolution decrees (Citizens State Bank Norwood Young America v. Brown). The court further affirmed the judgment that set aside the transfers and allows the Bank to satisfy its judgment from the assets that were fraudulently conveyed.

Specifics of the Case

In this case, the bank had tried, without success, to collect on a judgment for more than $290,000 against the ex-husband; he had also had debts in excess of eight million dollars. The bank then filed a fraudulent conveyance action against both former spouses, arguing that the ex-husband had conveyed “substantially all of his assets” to his ex-wife. In the marital-termination agreement, Gordon Brown retained nearly nine million dollars in debt, including his person guarantee obligations of $8.8 million as well as more than $270,000 in joint debt, while he transferred about two million in assets to Judy Brown.

The court noted that MUFTA, like fraudulent conveyance statutes going back to 1571, relied on “badges of fraud,” namely suspicious circumstances, to determine whether a conveyance was fraudulent. Under MUFTA, badges of fraud include transfers to “insiders” and transfers of “substantially all of the debtor’s assets.”

The Minnesota Supreme Court first found that MUFTA applies to transfers of assets made according to an uncontested marital dissolution decree. The court noted that there was no exception for transfers made pursuant to an uncontested marital dissolution decree. The court did not reach the question of whether MUFTA applies to contested marital dissolution decrees.

Although the Browns were not spouses at the time of the transfer because the transfer did not occur until the district court entered the dissolution judgment and decree and dissolved the Browns’ marriage, the Minnesota Supreme Court nonetheless found that Judy Brown was an insider under MUFTA. The court emphasized that the ex-spouses continued to have a close relationship, noting that they still lived together after the marriage. The court rejected the Browns’ argument that economic factors often “make it impossible for divorced spouses to live separately.” The court noted that, after the dissolution decree, Gordon Brown owned the marital home, and Judy Brown had more than two million dollars, with the result that there were no facts in the record indicating any economic difficulty preventing the ex-spouses from living separately.

The Minnesota Supreme Court also affirmed the finding that Gordon Brown transferred substantially all of his assets. The court rejected the Browns’ argument that Gordon Brown retained the marital home, valued at $421,290 and a 401(k) account with more than $100,000 because assets under MUFTA do not include property exempt from creditors’ claims such as homesteads valued up to $360,000 and pension accounts.

The court further affirmed that Gordon brown did not receive reasonably equivalent value for the assets he transferred, as he transferred about $1.5 million in assets to Judy Brown while the only asset she transferred to him was the home, which was largely exempt from creditors’ claims, and he retained the joint marital debt. Because his net worth was negative after the transfers, he was insolvent. Further, the transfer took place nine months after Gordon Brown had been sued on his personal guarantee.

The Minnesota Supreme Court held that, because there were several badges of fraud, fraud was inferred, and, here, the Browns did not rebut the inference of fraud. The court did reverse the part of the decision that allowed the Bank to levy on Judy Brown’s savings account, as that account was in her name before the dissolution and, therefore, was not transferred by the marital-termination agreement.

An Experienced Attorney is of the Utmost Importance

Given this decision, when parties to the marriage have debts or have been sued by creditors or even threatened with suit by creditors, they should consult with an experienced family law attorney. Jeffrey R. Arrigoni, Attorney at Law can help ensure that you follow all necessary procedures to help you avoid allegations of fraud.

Change in Circumstances Needed to Modify Awards of Spousal Maintenance

Change in Circumstances Needed to Modify Awards of Spousal Maintenance

Under Minnesota law, Minn. Stat. 518A, Section 39, subd. 2., a court may order a modification in a spousal maintenance order if there has been a change in circumstances that makes the order now unreasonable. The court may do this because of any of the following:

  1. Increased or decreased gross income of the obligor or obligee;
  2. Substantially increased or decreased need of the obligor or obligee;
  3. Receipt of welfare benefits;
  4. Change in the cost of living, based on the Bureau of Labor Statistics;
  5. A child’s extraordinary medical costs;
  6. A change in the availability of health insurance coverage or a substantial increase in its cost;
  7. The addition or an increase or decrease in work-related or education-related child care expenses; or
  8. Emancipation of a child.

It is important to note that an ex-spouse’s refusal to obtain employment is not a change in circumstances that requires making a temporary award of spousal maintenance permanent.  

In Van Steenburgh v. Clyma, A13-1318 (Minn. Ct. App. Mar. 3, 2014), the Court of Appeals rejected an ex-spouse’s motion to make a temporary spousal award of $10,000 per month permanent. The court noted the dissolution court had determined that his reasonable monthly budget was substantially less at $7691.35.

The court also found that evidence showing that the ex-husband had refused to rehabilitate himself and find employment was sufficient to support the denial of the motion. An ex-spouse who receives temporary maintenance is required to make a good faith effort to rehabilitate and find employment. Here, an employment expert had opined that the ex-spouse could be earning a salary of $80,000 or more after three or five years of employment. Also, he had received $138,000 more than his expenses as temporary maintenance, and, with the assets that had been distributed following the divorce, he had the resources to support himself.

The evidence that he had not sufficiently tried to rehabilitate himself included: (1) a long time period when he did not apply for any jobs; (2) taking just one community college course during the period of temporary spousal support; (3) only focusing on a narrow set of jobs and refusing retraining and not considering employment opportunities outside his area of expertise.

An ex-spouse’s decrease in housing expenses, based on the sale of the former marital home and purchase of a less expensive home, is not a substantial change in circumstances that requires modification of a spousal maintenance order.

In Thomas v. Thomas, A13-905 (Minn. Ct. App. Mar. 3, 2014), the original divorce decree provided that the ex-husband, a self-employed dentist, would pay his ex-wife permanent spousal maintenance of $7,440 per month, which was to be lowered to $5,200 when the parties’ youngest child was emancipated. After the youngest child was emancipated in June 2012, the ex-wife sold the former marital residence (which had become her property) and relocated to a condominium in Florida.

After losing in the district court, the ex-husband appealed, arguing that the substantial decrease in housing expenses and increase in voluntary expenses, such as vacations and a car payment, made the spousal-maintenance agreement unfair because it made him support her in a lifestyle that was higher than the marital standard of living. The Minnesota Court of Appeals found his argument that the expenses did not reflect the marital standard of living lacked merit, as the parties lived very well on his income during the marriage, driving nice cars and taking vacations. Furthermore, the court emphasized that the parties had agreed on the permanent spousal maintenance obligation, and that agreement is given great weight in motions to modify maintenance. The court emphasized that the ex-husband receives a tax benefit from paying spousal-maintenance. Even though the wife was relatively young and cohabitating with a significant other, the court found that there was no change in circumstances that required modification of spousal maintenance.

If you believe that a change in spousal maintenance is needed, whether an increase or a decrease, you should consult Jeffrey R. Arrigoni Attorney at Law immediately.

Dividing a House Can Create Problems

Dividing a House Can Create Problems

Dividing the family home, usually the family’s largest asset, after the divorce can result in years of conflict and litigation, as noted by a recent article in the Minnesota Lawyer. The court order that divides the property is final and, therefore, cannot be modified. Thus, all the court can do with an order dividing property is “implement, enforce or clarify the provisions of the decree, as long as it does not change the parties’ substantive rights.” Redmond v. Redmond, 594 N.W.2d 272, 275 (Minn. Ct. App. 1999).

Permissible court orders to implement property division may include orders:

  • Granting one partner the power to choose the real estate agent;
  • Putting one partner in control of the sale;
  • Setting the listing price if a party has not sold the home by a deadline set in the order dividing the property;
  • Reducing the listing price to attract buyers;
  • Requiring a party to accept an offer within a specific price range;
  • Directing a party to vacate the home where that party’s presence in the home has obstructed efforts to sell the property; and
  • Transferring title from one party to another.

But once a court order has divided property, a court cannot modify that division, and even orders that are otherwise permissible cannot alter the division of the property.

Thus, in Alexandra-Knight v. Knight, A07-2181 (Minn. Ct. App. Nov. 25, 2008), the Minnesota Court of Appeals held that the district court abused its discretion in ordering the title to the marital home be transferred from the ex-husband to the ex-wife so that she could sell the house. In that case, the divorce decree granted the ex-husband title to the marital home with a lien in favor of the ex-wife, and the lien was to be paid within 75 days of entry of judgment, with interest accruing after the 75th day. The ex-husband was also required to refinance or release the ex-wife’s name from the mortgage within eight months after the divorce decree was entered, and if he failed to meet his obligations, he was required to sell the home “immediately.”

Because he did not meet his obligations or sell the home, the district court had ordered the title transferred to the ex-wife for her to sell the house. The Court of Appeals found that that order significantly changed the ex-husband’s property rights in several ways, including (1) having an unidentified realtor, rather than the parties, set the sales price; (2) not requiring that proceeds in excess of the lien be provided to the ex-husband; and (3) denying the ex-husband his title to the home and any equity he was entitled to. Thus, the court said that an order for title transfer and sale could be an appropriate means to implement a divorce decree, but, in this case, the court order did not preserve the ex-husband’s equity in the home and, therefore, the order was an abuse of discretion.

Contact a Family Law Attorney for Help

If you and your spouse own a home or other property together, you should consult a family law attorney to assist in drafting a settlement agreement that will reduce the opportunities for mischief in dividing the property. And if you have an order dividing property and your ex-spouse is not complying with the order, you should consult Jeffrey R. Arrigoni Attorney at Law for help today.



In a recent case, the Minnesota Court of Appeals made clear that Karon waivers divest courts from jurisdiction over motions to modify spousal maintenance. Thus, in Gossman v. Gossman, A13-1095 (Minn. Ct. App. June 2, 2014), the court held that once an agreement includes a Karon waiver, any subsequent order that attempts to change spousal maintenance is void and unenforceable.

Specifics of the Case

In the Gossman case, the parties agreed that the ex-husband would pay his former spouse $5,000 per month for five years, and the district court would lack jurisdiction to modify that award. Nonetheless, the parties agreed to modify the maintenance award, and the district court, pursuant to their agreement, issued orders that stated that the maintenance award would be changed. The ex-wife later moved to vacate the modification orders; she wanted to enforce the original maintenance award. The Court of Appeals held that the motion to vacate the modification orders was correctly granted by the district court but that the district court should have also fully enforced the original maintenance award.

In this case, the ex-wife had been represented by counsel at the time of the divorce while the ex-husband was unrepresented. The parties’ marital termination agreement included a Karon waiver; that waiver stated “Except as provided above, neither party is awarded spousal maintenance (alimony) from the other past, present, or future, and that the same is hereby forever waived. The Court is divested of jurisdiction to modify the maintenance provisions herein.”

In approving the marital termination agreement, the district court specifically found that the written agreement disclosed the parties’ financial situations finally and that the agreement was fair and equitable and supported by adequate consideration.

Despite the parties’ agreement in this case, five months after the dissolution and degree, the parties agreed to reduce the ex-husband’s maintenance obligation by $1,600, to $3,400 per month. Neither party was represented by counsel, although the court opined that the stipulated order appeared to have been prepared by a legal professional.

About nine months later, the parties agreed to reduce the ex-husband’s spousal maintenance obligation by $1000, to $2,400 per month, although the order apparently was not entered due to inadvertence. Then, four months later, the parties agreed to reduce the ex-husband’s maintenance to $1,360 per month for seven months, and $1,160 for the remainder of the five years.

Change in Heart

About seven months later, the ex-wife moved to vacate the orders, asserting they were void because the original judgment and decree included a valid Karon waiver, so the district court did not have jurisdiction to modify the original award, even though the parties had agreed to the modifications. She asked for the original maintenance to be reinstated and for her ex-husband to pay the unpaid balance, which by then totaled $59,170.

Although by statute, each party has a right to seek modification of a spousal maintenance award at a future date, Minn. Stat. Section 518A.39, the courts are without jurisdiction to award a future modification if the parties have waived their rights to them. A valid Karon waiver must satisfy four factors: (1) there must be a contractual waiver of the parties’ rights to modify maintenance; (2) the agreement must expressly divest the district court of jurisdiction over maintenance modifications; (3) the agreement must be incorporated into the final judgment and decree; and (4) the court must find that the agreement is both fair and equitable and is supported by consideration and that the parties have fully disclosed their finances.

The court held that, because the Karon agreement divested the court of jurisdiction, the parties cannot modify the Karon agreement. The court stated, “II]f a district court has divested itself of jurisdiction over a particular matter, the district court’s jurisdiction may not be restored by the parties’ mutual agreement.”

The court also held that the district court was required to enforce the ex-husband’s maintenance obligation because failing to enforce the maintenance obligation was the same as modifying the original maintenance agreement. Thus, even though the ex-wife had agreed to reduced maintenance for an extended period of time, the court rejected the argument that she waived the right to collect the full amount of spousal maintenance. As a result, the ex-husband will now need to pay the balance of the original maintenance amount.

This case illustrates the importance of consulting with an experienced family law attorney before entering into an agreement to waive rights regarding maintenance.

Minnesota Supreme Court Holds 50 Year Order of Protection Does Not Violate The First Amendment and Other Constitutional Guarantees

Minnesota Supreme Court Holds 50 Year Order of Protection Does Not Violate The First Amendment and Other Constitutional Guarantees

The Minnesota Supreme Court held that the district court could extend an order of protection in favor of a victim of domestic abuse for up to 50 years, rejecting the argument that such a lengthy order of protection violated the First Amendment and other constitutional guarantees. The case, Rew v. Bergstrom, A10-2145 (Minn. April 30, 2014), centered around Bergstrom, an ex-husband, who allegedly committed domestic violence against his then-pregnant wife.

Minnesota Statutes Section 518B.01, subdivision 6a(a) provides that an existing order of protection can be extended or a new one issued upon a showing that:

  1. The individual has violated a prior or existing order of protection;
  2. The petitioner is reasonably in fear of physical harm from the individual;
  3. The individual has engaged in stalking under Minnesota criminal law; or
  4. The individual was recently incarcerated or is incarcerated and will shortly be released.

The statute also provides that an order of protection can be extended for as long as 50 years, per the provisions of Minnesota Statutes Section 518B.01, subdivision 6a(b), if the court finds that the individual has either (1) violated a prior or existing order of protection two or more times or (2) been the subject of two or more orders for protection.

Ex-Husband the Center of Case

In this case, the district court granted the 50-year extension solely based on evidence that the ex-husband had been recently released from prison and had violated prior orders for protection after holding a hearing that both parties attended with counsel representing them. The order of protection barred the ex-husband from coming within 120 yards of the ex-wife’s residence but also added two new locations: her workplace and her church. It also continued the suspension of his parenting time until he succeeds on a motion to restore his parenting time after completing at least three months of therapy and after the children complete six months of therapy. The order also bars him from entering, calling or coming within 120 yards of the children’s school and childcare locations, and sets up a new buffer zone in public places, requiring him to stay at least 50 yards from the ex-wife and children.

The Minnesota Supreme Court held that the statute does not require a finding of domestic abuse before extending an order for protection. The Court also held that the order of protection was not an unconstitutional prior restraint of his speech and therefore was not barred by First Amendment of the United States Constitution, and the free speech protections of the Minnesota state constitution did not bar the extension of an order of protection. The court held that the order of protection does not prohibit an individual from expressing his or her ideas; it merely requires the individual to express them to others than those protected by the order of protection. Thus, the order of protection merely restrained the ex-husband from expressing his views to his ex-wife and children, not anyone else. Further, the order for protection was based on his prior unlawful conduct, not on the content of the message.

The Minnesota Supreme Court held that the prevention of domestic violence and protecting domestic-abuse victims and the members of their households and family are “significant government interests,” and that an order of protection services those significant interests by protecting domestic-abuse victims and members of their household and family from a perpetrator of domestic violence, who may present dangers to them. It also found that a lengthy order of protection, even up to 50 years, provides victims of domestic violence with a long-term remedy that avoids the need for them to appear in court repeatedly and see their abusers. The court noted that the statute only subjected “the most persistent abusers” to the 50-year order of protection.

Order of Protection Did Not Burden Speech

The court found that there was sufficient evidence that the 50-year order for protection did not burden more speech than necessary to serve the state interest in protecting domestic violence victims; that evidence included violating prior orders for protection, pushing his ex-wife down the stairs when she was eight-months pregnant, and threatening not to return the children after visitation, among other things. The court found that his agreement to the issuance of an order of protection in 2008 established an admission that he committed domestic abuse against her.

Because the order repeatedly referred to minor children, the court interpreted the order to apply only until each child turns 18 and is no longer a minor. Because the court found was no evidence he committed domestic abuse against the minor children apart from pushing the pregnant mother down the stairs, the court reversed the lower court decision and remanded the case to the district court for findings as to whether the provisions regarding Bergstrom’s speech to his children serve a significant state interest. Chief Justice Gildea dissented from this part of the opinion; he would have held that the order of protection restricting contact with the children until they turned 18 was valid, noting evidence of threats to the children as well as violating orders for protection involving them. He noted that the threat not to return the children was a threat to kidnap them.

The Minnesota Supreme Court also held that the 50-year order of protection did not violate procedural due process and double jeopardy, and the order was not an ex post facto law.

Doyle v. Gianlorenzi

Doyle v. Gianlorenzi

In Doyle v. Gianlorenzi, A-13-0773 (Minn. Ct. App.Mar.3, 2014), the court addressed the mandatory requirement for using a parenting consultant as well as reduction of child support when a child is emancipated.

The District Court Properly Decided the Parenting Issues Although the Parties’ Agreement Called for a Parenting Consultant to Decide Disputes

When the parties divorced, they had agreed that any conflicts regarding custody and the parenting schedule would be submitted to a parenting consult that both agreed on and that they would thus resolve these issues without going to court.         The parties subsequently disputed Sunday night parenting time, their vacation schedule, and the mother’s allegedly disparaging comments toward the father, and the parties’ visitation schedule. At this point, the mother was unable to afford to pay her share of the parenting consultant. The father sought to empower the parenting consultant to make decisions without the mother’s participation, but the district court refused to do so and instead decided the issues.

The court relied on Minnesota Statute 518.145, subd.2 (5), which provides for reopening a judgment “if it is no longer equitable that the judgment or decree or order should have prospective application.” Although the mother had not made a formal motion for relief of the motion, she had explained that the dispute stemmed from her inability to pay the parenting consultant.   Because the mother was pro se (without a lawyer), the court had a duty to provide reasonable accommodations provided there was no prejudice to the opposing party. The court found no prejudice from the mother’s informal request, and, in fact, the husband’s lawyer had said that the court should rule on the parenting issues. The court held that the district court did not abuse its discretion by granting the mother relief from the agreement providing for use of the parenting consultant. The court held that it would be inequitable to require the parties to use the parenting consultant if that meant that only one parent, the father, would be able to make an argument to the parenting consultant. The-tie Minnesota Court of Appeals then affirmed the district court’s decision on parenting time, finding the district had the best interests of the child in mind in its resolution.

The Order Reducing Child Support Was Reversed and Remanded for Findings of Fact

The father asked the district court to reduce the child support obligation for his twenty year old daughter, as she was not a minor anymore and was living in a local mental health treatment facility. He asked the court modify the child-support obligation retroactively, going back to the date she was emancipated. The father argued that the mother was not paying for the child, so he should not owe any child support. The mother did not respond with any proof that she was providing any financial support for her daughter, with the result that the district court that the daughter was emancipated and ordered that the father’s child support for her end effective August 2, 2012.

On appeal, the Minnesota Court of Appeals reversed because the district court did not make any factual findings as how it selected the effective date of the child-support modification.