In re the Marriage of: Jonathan Conneely v. Hannah Stancek, f/k/a Hannah Conneely ( 2014 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A13-1375
In re the Marriage of:
Jonathan Conneely, petitioner,
Respondent,
vs.
Hannah Stancek, f/k/a Hannah Conneely,
Appellant.
Filed July 14, 2014
Affirmed
Smith, Judge
McLeod County District Court
File No. 43-F4-04-001010
Lymari J. Santana, Mack & Santana Law Offices, P.C., LLC, Minneapolis, Minnesota
(for respondent)
Kathleen M. Newman, Zachary P. Marsh, Kathleen M. Newman & Associates, P.A.,
Minneapolis, Minnesota; and
Brooke A. Asiatico (pro hac vice), Asiatico & Associates, Richardson, Texas (for
appellant)
Considered and decided by Halbrooks, Presiding Judge; Smith, Judge; and
Klaphake, Judge.*
*
Retired judge of the Minnesota Court of Appeals, serving by appointment under Minn.
Const. art. VI, § 10.
UNPUBLISHED OPINION
SMITH, Judge
We affirm the district court’s order granting respondent’s motion to modify legal
and physical custody because the district court’s factual findings support its
determination that circumstances had changed since the original custody decree and were
not clearly erroneous. We also conclude that the district court did not abuse its discretion
by considering evidence from a parallel custody proceeding, by holding appellant in
constructive civil contempt for failure to pay custody evaluation fees, or by denying
appellant’s motion for need-based attorney fees.
FACTS
Appellant Hannah Stancek and respondent Jonathan Conneely were married in
Oklahoma in 2000. A.C. was born in 2001. In 2002, Stancek took A.C. on a visit to
Minnesota to visit Stancek’s family. She soon notified Conneely that she intended to
remain in Minnesota, alleging that Conneely had been physically and emotionally
abusive toward her. She sought orders of protection in Oklahoma and Minnesota, but
only the Oklahoma district court granted her request.
Conneely filed an emergency motion in the Oklahoma district court, alleging that
Stancek had permanently taken A.C. to Minnesota without his consent. The Oklahoma
district court ordered Stancek to return to Oklahoma with A.C. and that A.C. be placed in
Conneely’s care. After Conneely told the district court that his mother would assist him
in caring for A.C., Stancek reiterated claims that Conneely had abused her, adding an
accusation that Conneely and his mother had an improper relationship that threatened to
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harm A.C. An assessor determined that Conneely’s mother posed no threat to A.C. In
spite of that determination, Stancek continued to express fears about Conneely’s
relationship with his mother and potential for harm to A.C.
In late 2002, Conneely consented to A.C.’s relocation to Minnesota. Stancek had
demanded this consent as a precondition to reconciliation, but she cut off all
communication with Conneely after he fulfilled the precondition. As authorized by a
court order, Conneely drove to Minnesota every other weekend to visit A.C.
In December 2003, Stancek sought the assistance of Dr. Sandra Hewitt to advise
her regarding a parenting schedule for Conneely and to address behavioral problems that
she perceived in A.C. and that she believed resulted from visits with Conneely. She told
Dr. Hewitt that she was concerned about the relationship between Conneely and his
mother. Dr. Hewitt did not meet or communicate with Conneely.
Stancek and Conneely divorced in March 2004, and Stancek married Nathan
Stancek later that same month. By June 2004, while meeting with Dr. Hewitt, A.C. was
referring to Conneely as “Oklahoma daddy” and to Nathan Stancek as “daddy.”
When the Oklahoma district court dissolved Stancek and Conneely’s marriage, it
awarded Stancek “exclusive care, custody and control of [A.C.] subject to [Conneely’s]
right of reasonable visitation.” It ordered a visitation schedule primarily featuring
alternating weekends in Minnesota and Oklahoma.
Two months later, after a regularly scheduled visit with Conneely in Minnesota,
A.C. told Stancek that she had taken a bath with her father after they had been swimming
in a hotel pool together. Stancek reported the incident to Dr. Hewitt as potential sexual
3
abuse. Without consulting Conneely, Dr. Hewitt developed “guidelines” regarding
“personal boundaries” that she believed Conneely should adhere to during future
visitation periods. Stancek informed Conneely that she would withhold his parenting
time unless he agreed to comply with Dr. Hewitt’s guidelines. Conneely refused
Stancek’s demand, and Stancek stopped allowing him to visit A.C.
Stancek also filed a motion in Minnesota district court, alleging that Conneely had
sexually abused A.C., and asking the Minnesota court to assume jurisdiction and modify
the parenting-time provisions to protect A.C. from Conneely. Stancek also alleged other
behaviors by A.C. that she alleged supported her concerns about sexual abuse. The
Minnesota district court assumed emergency jurisdiction, appointed a guardian ad litem
for A.C., and ordered that A.C. be assessed for potential sexual abuse. The assessor
determined that Conneely there was “absolutely no evidence of nudity exposure or sexual
abuse by [Conneely],” and opined that A.C.’s other behaviors were “within the normal
range of early childhood exploration.”
The Minnesota district court returned jurisdiction to Oklahoma under the terms of
the Oklahoma dissolution order. Stancek, however, repeatedly refused to travel to
Oklahoma to allow visitation as required by the dissolution order. At the end of May
2005, the Oklahoma district court declined further jurisdiction, ruling that Minnesota was
a more convenient forum.
From 2005 to 2008, Conneely continued to request that Stancek bring A.C. to
Oklahoma for visitation as required by the dissolution order, but Stancek rarely complied.
During one visit in 2007, Conneely discovered that A.C. was writing her last name as
4
“Stancek,” and he complained to Stancek about it. Stancek did not reply. By mid- to
late-2008, Conneely was no longer able to obtain any parenting time with A.C., and he
was unable to afford an attorney to enforce his parenting-time rights.
In February 2009, Conneely again requested parenting time, and Stancek did not
respond. When Conneely offered to come to Minnesota to get A.C. so that A.C. could be
present at his wedding, Stancek waited two months to respond. Conneely finally ceased
his efforts to obtain parenting time because he lacked the financial resources to continue
and because he felt that the contentiousness of the situation might harm A.C.
In summer 2010, Conneely received a telephone call from Nathan Stancek.
Nathan Stancek was in the process of divorcing Stancek, and he wanted to apologize to
Conneely for his role in helping Stancek cut Conneely out of A.C.’s life. Nathan Stancek
gave Conneely a copy of a custody evaluation from the Stanceks’ dissolution proceeding
that reported that A.C. was being negatively affected.
The custody evaluation from the Stanceks’ dissolution matter revealed that
Stancek had engaged in a pattern of behavior towards Nathan Stancek that mirrored her
behavior toward Conneely: Stancek had falsely accused Nathan Stancek of sexually
inappropriate behavior toward their children, attempted to impose a set of “boundaries,”
and encouraged the children to report violations of her rules. Because of the effect of her
behavior on their children, the district court in the Stancek dissolution matter awarded
sole legal and physical custody to Nathan Stancek.
Conneely filed a motion in Minnesota district court in November 2011, seeking
sole legal and physical custody of A.C. The district court ordered that he receive
5
parenting time immediately, but denied his motion for an immediate custody change.
That same month, after their first meeting in several years, Conneely and A.C. exchanged
numerous text messages and telephone calls. This flurry of communication abruptly
ended in December. After Conneely petitioned the district court to intervene, it awarded
him parenting time over the Christmas holiday.
In February 2012, the district court ordered the appointment of a guardian ad litem
to make recommendations regarding Conneely’s custody-change motion. It also ordered
the appointment of a custody evaluator, who began work in July after lengthy
negotiations “regarding his contract and scope of his investigation, which [Stancek] was
seeking to limit.” The contract required that Conneely and Stancek each pay 50% of the
custody evaluator’s fees, but also included an addendum stating that the custody
evaluator was not authorized to travel to Oklahoma unless Conneely paid for the
expenses associated with such a trip “up front.” The addendum allowed, however, that
the district court would have the ultimate decision over allocating payment of any fees
associated with the custody evaluator’s travel to Oklahoma. The contract also authorized
the custody evaluator to access custody evaluations from the Stanceks’ dissolution
matter.
Conneely continued to have difficulty obtaining parenting time in 2012. Stancek
would often delay responding to Conneely’s parenting time requests or would not
respond at all. After Stancek refused to consent to parenting time during spring break
and Conneely’s and Stancek’s attorneys could not negotiate a resolution, the district court
ordered that he receive parenting time during spring break. Conneely was forced to
6
obtain assistance from the guardian ad litem to schedule extended parenting time with
A.C. during the summer months. When Conneely requested parenting time in
September, Stancek did not respond for several weeks. When she did respond, she
refused to allow parenting time and explained the delay by claiming that her e-mail
account had been down. Evidence later revealed that this claim was false.
During the summer-2012 parenting time, Conneely noticed that A.C. would
change how she signed her name depending on whether she was writing to Conneely’s
family or Stancek’s, and that A.C. appeared to believe that she was prohibited from
establishing any permanent ties with Conneely or his family.
Trial was originally set for August 2012, but the district court granted
continuances to allow time for the custody evaluator to complete his report. Conneely
filed a contempt motion, alleging that Stancek was refusing to pay her agreed-upon half
of the custody evaluator’s fees. The district court issued a show-cause order, but the
parties ultimately agreed to defer resolution of the motion until trial. Although it did not
rule on the contempt motion, the district court issued an order officially appointing the
custody evaluator in December 2012. It found that the custody evaluator’s “decision to
travel to and work in the State of Oklahoma . . . was reasonable and necessary.”
In December 2012, the guardian ad litem issued his report. He recommended that
Conneely be awarded sole legal and physical custody, subject to Stancek’s “liberal and
reasonable” parenting time. The guardian ad litem noted a continuing pattern of Stancek
working to block contact between Conneely and A.C. He concluded that “it became
apparent that there has been a long established pattern, whereby [A.C.] has not been able
7
to enjoy a free and open relationship with her father, which is contrary to her best
interests.” He acknowledged that a “change in custody has the potential for [A.C.] to
suffer some emotional harm,” but concluded that “the long-term benefit of this change
outweighs the potential harm caused by the change.”
The custody evaluator submitted his report in January 2013. He analyzed the
statutory best-interests factors and, based on an extensive set of interviews and
documents, recommended that Conneely “should be awarded sole physical and sole legal
custody of [A.C.]” He opined, “I simply do not have any confidence that [Stancek]
genuinely understands the damage done [to A.C.] as a result of her actions and,
consequently, have little faith that, once the Court is no longer involved, . . . the
relationship with [Conneely] will be honored and nurtured from afar.”
The district court convened an extended bench trial in February and March 2013,
receiving voluminous documentary evidence and extensive testimony. It stated that it
spent “weeks” reviewing the record. It found that A.C.’s emotional health and
development were endangered because Stancek’s actions did not “permit [A.C.] to have a
normal parent-child relationship with Mr. Conneelly.” It weighed the testimony of
competing experts before concluding that “nothing these experts offered show that any
harm will come to [A.C. that] outweighs the immense benefit, and relief, a change in
custody will provide to this child.” It individually evaluated the best-interests criteria
listed in Minn. Stat. § 518.17 and the statutory criteria addressing the appropriateness of
joint legal and physical custody. It concluded that “an award of sole legal custody and
8
sole physical custody of [A.C.] to Mr. Conneely is in the best interests of the minor
child.” It also established a detailed parenting-time schedule.
The district court also addressed Conneely’s still-pending contempt motion for
Stancek’s nonpayment of her portion of the custody evaluator’s fees. It noted that
Stancek claimed an inability to pay the fees while admitting that her parents pay her legal
bills. It also referenced Stancek’s ability to pay for two additional expert witnesses and
to hire a lawyer for A.C. Based on these observations, the district court found that her
nonpayment of the custody-evaluator’s fees reflected an “intentional choice” rather than
an inability to pay, and it found her in constructive civil contempt.
The district court finally addressed each of the parties’ motions for attorney fees.
It denied Conneely’s motion for conduct-based attorney fees, and, citing Stancek’s
receipt of assistance from her parents, it denied Stancek’s motion for need-based attorney
fees.
In a memorandum accompanying its order, the district court acknowledged that its
findings were “in large part an adoption of those proposed by [Conneely].” But it
reported that it “has made an independent review of the evidence in a painstaking and
meticulous manner.” And it concluded that Conneely’s proposed findings “correctly set[]
out what is in the child’s best interests.”
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DECISION
I.
Stancek argues that the district court failed to make sufficient findings to justify
granting sole legal and physical custody of A.C. to Conneely. “District courts have broad
discretion to determine matters of custody.” In re Custody of N.A.K., 649 N.W.2d 166,
174 (Minn. 2002). “Appellate review of custody determinations is limited to whether the
district court abused its discretion by making findings unsupported by the evidence or by
improperly applying the law.” Id. A district court’s factual findings will be upheld
unless clearly erroneous. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). “A
finding is ‘clearly erroneous’ if the reviewing court is ‘left with the definite and firm
conviction that a mistake has been made.’” Vangsness v. Vangsness, 607 N.W.2d 468,
472 (Minn. App. 2000) (quoting Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101
(Minn. 1999)). When determining whether findings are clearly erroneous, we view the
record in the light most favorable to the district court’s findings. N.A.K., 649 N.W.2d at
174. And we defer to the district court’s assessment of the credibility of witnesses.
Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).
A district court is barred from modifying a prior custody order unless it finds facts,
“including unwarranted denial of, or interference with, a duly established parenting time
schedule, that have arisen since the prior order . . . , that a change has occurred in the
circumstances of the child or the parties and that the modification is necessary to serve
the best interests of the child.” Minn. Stat. § 518.18(d) (2012). If the district court finds
such a change in circumstances, it may modify the custody arrangement when “the
10
child’s present environment endangers the child’s physical or emotional health or impairs
the child’s emotional development and the harm likely to be caused by a change of
environment is outweighed by the advantage of a change to the child.” Minn. Stat.
§ 518.18(d)(iv). Stancek challenges the sufficiency of the district court’s findings on
each element of these statutory requirements.
Changed Circumstances
Stancek’s counsel agreed at trial that there had been a change in circumstances,
stating, “I don’t think anybody here is contesting that there’s been a change in
circumstances since the time that the original order was entered.” We therefore conclude
that Stancek has conceded the issue. See Urban v. Continental Convention & Show
Mgmt., 244 Minn. 44, 47, 68 N.W.2d 633, 635 (1955) (“It is elementary that on appeal a
case will be considered in accordance with the theory on which it was pleaded and tried,
and a party cannot for the first time on appeal shift his position.”).
Even if Stancek had not conceded it, the district court’s change-of-circumstances
finding was not clearly erroneous. Stancek argues that the district court’s finding that
A.C. was endangered by Stancek’s attempts to cut Connelly out of A.C.’s life are
inadequate because they do not including physical abuse or extreme deterioration in
Stancek’s relationship with A.C., because they address conditions that predate
Conneely’s earlier attempts to obtain custody, and because they rely on contested
testimony from Nathan Stancek. None of these arguments undermines the district court’s
changed-circumstances finding. Section 518.18(d) explicitly provides that a party’s
denial of or interference with an established parenting-time schedule constitutes a change
11
in circumstances. The district court found, with ample justification, that Stancek had
repeatedly denied Conneely parenting time and had employed a false accusation of sexual
abuse to facilitate her efforts. No finding of physical abuse or extreme deterioration in
Stancek’s relationship with A.C. is required.
Similarly, the district court need not limit its consideration to conditions that arose
after Conneely’s previous attempts to enforce his parenting-time rights. The statute
requires only that a change had occurred since the prior order, which in this case refers to
the 2004 dissolution order awarding parenting time. That Conneely had previously
tried—and failed—to enforce his parenting-time rights in the face of Stancek’s
obstruction does not preclude him from trying again.
Best-Interests Factors
Stancek contends that the district court improperly weighed the statutory best-
interests factors by failing to (1) explicitly weigh each factor and explain how its
weighing led to its conclusion, (2) adequately weigh Stancek’s role as A.C.’s primary
caregiver, and (3) sufficiently weigh A.C.’s expressed preference. To justify a change in
custody, the district court must make findings addressing 13 factors relating to a child’s
best interests. Minn. Stat. § 518.17, subd. 1(a) (2012). “The [district] court may not use
one factor to the exclusion of all others.” Id.
In its 97-page order, the district court extensively analyzed the best-interests
factors from section 518.17, subdivision 1(a). With the exception of one factor, Stancek
does not allege that the district court’s analysis is inadequate or clearly erroneous, but
rather she contends that it “failed to note which factors weighed in favor of each parent
12
and how it ultimately came to the conclusion that [A.C.’s] best interests would be served
by a custody modification.” Stancek cites no authority to support her contention that the
district court must explicitly state how each factor was weighed. It is also clear from the
district court’s analysis that it considered at length each factor and its relationship to the
facts. Even when it was generally critical about the impact of Stancek’s behavior on
A.C., the district court did not ignore the aspects of Stancek’s parenting that had a
positive impact. There is no basis to conclude that the district court’s weighing of the
best-interests factors was deficient or clearly erroneous.
Stancek focuses specifically on the district court’s weighing of two factors—her
role as A.C.’s primary caregiver and A.C.’s expressed preference—to support her
argument that the district court’s overall consideration of the best-interests factors was
deficient. The district court recognized that there was no dispute that Stancek had been
A.C.’s primary caregiver. But “the fact that one parent may be the primary caretaker
does not necessarily control who gets custody. All relevant factors must be weighed in
the balance.” Maxfield v. Maxfield, 452 N.W.2d 219, 222 n.2 (Minn. 1990). And
because “there is no articulated, specific standard of law” governing how a district court
must weigh the various best-interests factors, there is “scant if any room for an appellate
court to question the [district] court’s balancing of best-interests considerations.”
Vangsness, 607 N.W.2d at 477.
The district court also must consider a child’s stated preference regarding custody
if it finds that the child is “of sufficient age to express preference.” Minn. Stat. § 518.17,
subd. 1(a)(2). But a district court may decline to consider a child’s expressed preference
13
if it finds that it results from “manipulation” by one of the parties. Geibe v. Geibe, 571
N.W.2d 774, 778 (Minn. App. 1997). The district court acknowledged that A.C. had
“inferred” a preference to stay in Stancek’s custody, and it stated that it “considers and
respects her voice.” It also noted, however, that A.C. had confessed to lying about her
preference during her testimony, and it noted variations in her description of her
relationship with Conneely. Based on these observations, it concluded that “it is likely
that [A.C.’s] voice has been distorted by the significant events in her life and the adults in
her life who want her to remain in Minnesota.” Given the plethora of evidence in the
record documenting Stancek’s efforts to cast Conneely in a negative light and cut him out
of A.C.’s life, the district court’s suspicion that A.C.’s expressed preference to stay with
Stancek might be the result of Stancek’s and others’ manipulation was not clearly
erroneous. Accordingly, its decision not to be bound by A.C.’s expressed preference was
not an abuse of the district court’s discretion.
Endangerment Finding
Stancek also challenges the district court’s finding that A.C. was endangered in
her care. A transfer of custody may be warranted when “the child’s present environment
endangers the child’s physical or emotional health or impairs the child’s emotional
development.” Minn. Stat. § 518.18(d)(iv). “Endangerment requires a showing of a
significant degree of danger” to the child. Geibe, 571 N.W.2d at 778 (quotation omitted).
But “emotional abuse alone may constitute sufficient endangerment” to justify a change
of custody. Id. at 779. And “[r]epeated, concrete efforts to prevent contact [with a
noncustodial parent] could reasonably impact emotional health.” Id. at 780.
14
The district court found that A.C. was endangered in Stancek’s care because
“Ms. Stancek will not permit the child to have a normal parent-child relationship with
Mr. Conneely.” It cited Stancek’s lengthy pattern of interfering with Conneely’s
parenting-time attempts and her attempts to insert A.C. into Stancek’s conflicts with
Conneely. It found that this pattern endangered A.C.’s emotional health. Its conclusion
is supported by both the guardian ad litem and the custody evaluator. The district court’s
endangerment finding was therefore not clearly erroneous.
Stancek cites Dabill v. Dabill, 514 N.W.2d 590 (Minn. App. 1994), to support her
contention that establishing endangerment requires a showing that a custodial parent’s
conduct “must be shown to have an actual, adverse effect on the child” and that
“[u]nwarranted denial of or interference with visitation alone is not enough to modify
custody.” Stancek reads Dabill too broadly. In Dabill, the custodial parent’s interference
with parenting time was episodic, and “[t]here was no evidence that visitation problems
were continuing when the [district] court modified custody.” 514 N.W.2d at 595. Here,
the record extensively documents a long-term pattern of Stancek’s interference with
Conneely’s attempts to exercise his parenting-time rights, including a false allegation of
sexual abuse. Although the district court noted that Stancek’s willingness to allow
parenting time had improved after Conneely moved to change custody, it stated that it
was “deeply skeptical” because the improvement occurred only “while under tremendous
scrutiny.” It concluded that the “profound” “weight of the evidence” indicated that
Stancek would likely revert to obstructing parenting time once she was no longer under
the district court’s scrutiny. Given the duration and severity of Stancek’s pattern of
15
interference with Conneely’s parenting-time efforts, especially when combined with her
similar pattern of conduct towards Nathan Stancek, the district court’s prediction is well-
founded and its conclusion that A.C. was endangered in Stancek’s care was not clearly
erroneous.
Harm from Custody Change
Stancek argues that the district court failed to sufficiently weigh the harm that
A.C. would experience as a result of a custody change. To support a change in custody,
the district court must find that “the harm likely to be caused by a change of environment
is outweighed by the advantage of a change to the child.” Minn. Stat. § 518.18(d)(iv).
She cites Johnson v. Smith, 374 N.W.2d 317 (Minn. App. 1985), review denied (Minn.
Nov. 18, 1985), to support her contention that the district court “arbitrarily discounted”
the harm to A.C. that would result from a change in custody. In Johnson, we held that
the district court abused its discretion when it ordered a child transferred from his eight-
year home with a parent based solely on exaggerated allegations of physical abuse and
the “ambivalent” expressed preference of the child, and where the district court ignored
the child’s loss of his opportunities to compete in sports and acted against the
recommendation of the guardian ad litem. 374 N.W.2d at 321-22.
Johnson is inapposite to the facts here. Rather than ignoring the disruption that
the custody change would inflict on A.C., the district court explicitly acknowledged that
its decision would “separate [A.C.] from her siblings and move [her] to another state.” It
noted, however, that disruption in A.C.’s relationship with her siblings was unavoidable
even without the change in A.C.’s custody because Stancek had lost custody of A.C.’s
16
siblings. See also Stancek v. Stancek, No. A13-0179, 2014 WL 902651, at *14 (Minn.
App. Mar. 10, 2014) (affirming award of sole legal and physical custody of the Stanceks’
children to Nathan Stancek). It also opined that the harm to A.C. would be mitigated by
regular telephone and other electronic contacts with her siblings, and it noted that Nathan
Stancek had committed to helping A.C. remain in contact with them. Also, contrary to
the facts in Johnson, the district court here acted in accord with the recommendations of
the guardian ad litem, who recommended the change in custody in spite of the
acknowledged difficulties it would pose for A.C.
Stancek contends that the district court erred by failing to allow testimony by four
expert witnesses regarding the harm that might result from a custody change. Although
Stancek is correct that the district court declined to consider her experts’
recommendations, the district court adequately explained its reasons for doing so. It
noted that some of those opinions might have been influenced by Stancek’s negative
characterizations of Conneely. The district court also noted that Stancek’s experts lacked
credibility because they lacked expertise in the subjects on which they opined, had
personal biases, and spent insufficient time with A.C. From this record, the district court
did not fail to weigh the opinions of Stancek’s experts; rather, it weighed their credibility
found it wanting, as is its role. See Sefkow, 427 N.W.2d at 210.
In light of the district court’s extensive findings in accord with those of the
guardian ad litem and the custody evaluator, we conclude that the district court’s
consideration of the potential for harm to A.C. resulting from the custody change is not
impermissibly arbitrary or clearly erroneous.
17
II.
Stancek argues that the district court abused its discretion by considering evidence
from her parallel child-custody proceeding involving Nathan Stancek. She alleges that
the district court’s consideration of the evidence violated Minnesota Rule of Evidence
404(b), which bars the admission of other-bad-acts evidence to demonstrate a party’s
character for committing bad acts. We review a district court’s admission of other-bad-
acts evidence for abuse of discretion. State v. Bartylla, 755 N.W.2d 8, 20 (Minn. 2008).
Although generally barred by rule 404(b), other-bad-acts evident may be admissible for
other purposes, including establishing “a common plan or scheme.” Id. “Under the
common plan or scheme exception, [other-bad-acts] evidence is admissible if it has a
‘marked similarity in modus operandi . . .’ that tends to corroborate evidence” in the
present matter. Id. (quoting State v. Ness, 707 N.W.2d 676, 688 (Minn. 2006)). “[T]he
preferred approach is for the [district] court to focus on the closeness of the relationship
between the other [acts] and the [present case] in terms of time, place, and modus
operandi.” State v. Frisinger, 484 N.W.2d 27, 31 (Minn. 1992).
The district court here focused on evidence from the Stanceks’ child-custody
matter precisely because of its marked similarity in modus operandi. Having observed
that Stancek used a false accusation of sexual abuse to obstruct Conneely’s parenting-
time efforts and poison his relationship with A.C., the district court observed that she also
used the same tactic against Nathan Stancek. It concluded that this pattern was evidence
of “continuing trends in Ms. Stancek’s lack of capacity to support her children’s
relationships with their fathers.” This determination was relevant to the district court’s
18
consideration of whether Stancek’s prior behavior toward Conneely was likely to
continue into the future. Cf. Dabill, 514 N.W.2d at 595 (requiring that the district court
consider whether parenting-time problems were continuing at the time of any proposed
custody change). Accordingly, the district court did not abuse its discretion by
considering the evidence.
Even if the district court’s consideration of the evidence had been improper,
reversal would not be warranted. The district court stated that it considered evidence
derived from the Stanceks’ child-custody matter only as a secondary source, and that its
findings regarding Stancek’s interference with A.C.’s relationship with Conneely “are
adequate, in and of themselves, to find that [A.C.] has been emotionally endangered.”
Accordingly, any error was harmless because the evidence was superfluous. See State v.
Coonrod, 652 N.W.2d 715, 720 (Minn. App. 2002) (“The erroneous admission of [other-
bad-acts] evidence can be harmless error if, based on a review of the entire trial record,
there is no reasonable possibility that the wrongfully admitted evidence significantly
affected the verdict.”), review denied (Minn. Jan. 21, 2003).
III.
Stancek contends that the portion of the district court’s order holding her in
constructive civil contempt is not supported by adequate findings. We review a district
court’s decision to invoke its contempt powers for abuse of discretion. Mower Cnty.
Human Servs. ex rel. Swancutt v. Swancutt, 551 N.W.2d 219, 222 (Minn. 1996). “The
factual findings of a contempt order are subject to reversal only if clearly erroneous.” Id.
19
Stancek asserts that, because her refusal to pay a portion of the custody evaluator’s
fees was motivated by her belief that his investigation exceeded the terms of his contract,
the district court erred when it held her in constructive civil contempt for failure to pay
the fees. But the record indicates that the district court repeatedly advised her of her
obligation to pay the fees and that she refused to do so. She cites no authority to support
her argument that, in the face of the district court’s contrary rulings, her continuing belief
that the custody evaluator had exceeded the scope of his contract justified her refusal to
pay the fees.
Stancek also implies that her failure to pay the fees was due to a lack of resources.
The district court found that Stancek had resources available, based on its observations
that her parents were funding her litigation costs and that she was able to expend large
amounts in hiring expert witnesses. Although Stancek asserts that this is insufficient to
show that she or her parents had “endless resources at their disposal,” it is sufficient to
demonstrate that the district court’s conclusion that Stancek had the ability to pay the fees
was not clearly erroneous. We therefore hold that the district court did not abuse its
discretion by holding Stancek in constructive civil contempt.
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IV.
Stancek argues that the district court failed to make sufficient findings when it
denied her motion for need-based attorney fees. The district court must award need-
based attorney fees when it determines
(1) that the fees are necessary for the good faith assertion of
the party's rights in the proceeding and will not contribute
unnecessarily to the length and expense of the proceeding;
(2) that the party from whom fees, costs, and disbursements
are sought has the means to pay them; and (3) that the party to
whom fees, costs, and disbursements are awarded does not
have the means to pay them.
Minn. Stat. § 518.14, subd. 1 (2012). The decision whether to award need-based attorney
fees “rests almost entirely within the discretion of the [district] court and will not be
disturbed absent a clear abuse of discretion.” Jensen v. Jensen, 409 N.W.2d 60, 63
(Minn. App. 1984). “Conclusory findings on the statutory factors do not adequately
support” a district court’s attorney-fees decision. Geske v. Marcolina, 624 N.W.2d 813,
817 (Minn. App. 2001), review denied (Minn. Aug. 20, 2002). But “a lack of specific
findings . . . is not fatal . . . where review of the order reasonably implies that the district
court considered the relevant factors and where the district court was familiar with the
history of the case and had access to the parties’ financial records.” Id. (quotations
omitted).
Here, the district court relied on its considerable familiarity with the history of the
case when it refused Stancek’s motion for need-based attorney fees. It referenced
testimony from Stancek’s father, a pastor, indicating that he, not Stancek, was paying
Stancek’s legal fees. It found that her father’s claim that he was not using financial gifts
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from his congregation to pay Stancek’s fees was not credible. It noted that Stancek
herself offered conflicting testimony about her ability to pay various fees associated with
the litigation, finding that “when Ms. Stancek wants to pay she can muster up the
financial resources.” Based on its review of the testimony it received and the history of
the case, it concluded that “Ms. Stancek is not paying her bill in this case because she
sees Mr. Conneely as a deep pocket to pay her fees.” It also found that “[t]here is no
evidence before the Court that Mr. Conneely has the income or financial resources to
make any contribution” toward Stancek’s attorney fees. These statements indicate that
the district court considered the relevant statutory factors and, relying on its familiarity
with the case, concluded that Stancek was not entitled to need-based attorney fees. Its
conclusion was not an abuse of its discretion.
Affirmed.
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