                            This opinion will be unpublished and
                            may not be cited except as provided by
                            Minn. Stat. § 480A.08, subd. 3 (2014).

                                 STATE OF MINNESOTA
                                 IN COURT OF APPEALS
                                       A16-0761

                                     In re the Matter of:
                                Emily M. Pederson, petitioner,
                                         Respondent,

                                              vs.

                                        Scott H. Meyer,
                                          Appellant.

                                  Filed December 19, 2016
                                          Affirmed
                                        Jesson, Judge

                                Olmsted County District Court
                                  File No. 55-FA-14-2050

Jenny L. Nelson, Nelson Peterson Law, Rochester, Minnesota (for respondent)

Scott Meyer, Gainesville, Florida (pro se appellant)

         Considered and decided by Larkin, Presiding Judge; Hooten, Judge; and Jesson,

Judge.

                           UNPUBLISHED OPINION

JESSON, Judge

         In this parenting-time dispute, appellant-father argues that the district court abused

its discretion by (1) refusing to find respondent-mother in contempt of court for interfering

with parenting time; (2) holding appellant in contempt of court for interfering with

respondent’s legal custody of the child; and (3) declining to admit evidence of respondent’s
conduct that occurred prior to April 2013. Appellant also asserts that the district court was

biased against him. We affirm.

                                          FACTS

       Appellant Scott Meyer and respondent Emily Pederson, who were never married,

have an eight-year-old child in common. The parties lived together for a very short time

in California after the child’s birth. Pederson and the child moved to Iowa in 2010 and to

Rochester, Minnesota, in 2012.

       The parties have engaged in litigation about the child’s custody and parenting time

since his birth. The Iowa courts had jurisdiction under the Uniform Child Custody

Jurisdiction and Enforcement Act (UCCJEA) from February 2010 until March 31, 2015.

The Minnesota district court determined that it had jurisdiction under the UCCJEA on

March 31, 2015.

       In the current matter, Meyer alleged that Pederson deprived him of parenting time

granted by the Iowa court. Under the Iowa order, Meyer was granted up to ten days of

visitation during each calendar month. Visitation was to occur during the first ten days of

the month, unless Meyer notified Pederson in writing at least 30 days in advance that he

intended to exercise his ten days of parenting time at a different time during the month.

The Iowa order was based on an oral stipulation between the parties; when the parties failed

to agree to a written stipulation, the Iowa court adopted the oral agreement. This resulted

in an order that lacked clarity. The Iowa court subsequently granted Pederson full legal

custody of the child, but the parenting-time order remained unchanged.




                                             2
       In May 2015, Meyer moved to have Pederson held in contempt, alleging that she

had interfered with his parenting time on three occasions: in July 2014, December 2014,

and in March 2015. In support of his motion, Meyer filed additional motions or requests

for judicial notice of Iowa and California orders; for an evidentiary hearing; to compel

discovery; to compel release of psychological tests taken in 2007; for declaratory judgment,

estoppel, and summary judgment; and for entry of Pederson’s deposition into evidence.

       In response, Pederson moved to have Meyer held in contempt for violating her sole

legal custody of the child by seeking medical and dental care, and by removing the child

from school without her consent.

       An evidentiary hearing was held on October 7, 2015, before a district court referee.

The referee summarily denied Meyer’s motions for declaratory judgment, estoppel, and

summary judgment. Prior to the hearing, the referee denied Meyer’s motion to compel

Pederson to release her psychological testing documents.

       The referee found that Meyer had given Pederson more than 30 days’ notice that he

intended to exercise visitation on other than the first ten days of the month in March 2015,

as set forth in the parenting-time order, but that Meyer failed to prove that Pederson

violated the order as to July 4, 2014, and the Christmas holidays in 2014. The referee found

Pederson in constructive civil contempt for the March 2015 violation.

       The referee found that Meyer violated the order granting Pederson sole legal

custody by keeping the child out of school, taking him to a different dentist while not

permitting Pederson to take the child to a scheduled dental appointment, and not informing

her of the recommended treatment. The referee found Meyer in constructive civil contempt


                                             3
for violating Pederson’s rights of legal custody. The referee found that conditional

confinement of the parties was reasonably likely to produce compliance.

       Based on these findings, the referee held both parties in contempt, sentenced each

of them to thirty days’ confinement, stayed execution of the sentences provided the orders

were complied with, and fined each party $250. A district court judge approved the orders.

Meyer filed a motion for district court review, and Pederson filed a responsive notice of

review.

       The district court held a review hearing in March 2016, and filed an order on

April 14, 2016, affirming the referee’s order. Meyer appeals from this order. Pederson

filed, but later withdrew, a notice of related appeal.

                                       DECISION

I. The district court did not abuse its discretion by invoking its contempt power.

       A court may invoke the remedy of civil contempt to “induce future performance of

a valid court order.” Newstrand v. Arend, 869 N.W.2d 681, 692 (Minn. App. 2015)

(quotation omitted), review denied (Minn. Dec. 15, 2015). A person may be held in civil

contempt when he or she fails to obey a court order. In re Cascarano, 871 N.W.2d 34, 37

(Minn. App. 2015). If a person disobeys a court order in the presence of the court, the

court may issue a summary punishment. Id. But if the disobedience of an order occurs

outside of the courtroom, it is constructive contempt, for which there are additional

procedural safeguards. Id. at 37-38.

       “This court reviews a district court’s decision to invoke its contempt power under

an abuse-of-discretion standard. Factual findings of a contempt order will be reversed only


                                              4
if they are clearly erroneous.” Crockerall v. Crockerall, 631 N.W.2d 829, 833 (Minn. App.

2001) (citations omitted), review denied (Minn. Oct. 16, 2001). In order for a person to be

held in civil contempt, the court must find that that person has “acted contumaciously, in

bad faith, and out of disrespect for the judicial process.” Newstrand, 869 N.W.2d at 692

(quotation omitted). The purpose of civil contempt, which is an “extreme remedy,” is “to

induce future performance of a valid court order, not to punish for past failure to perform.”

Id. (quotations omitted).

       Before finding a party in civil contempt, the district court considers the factors set

forth in Hopp v. Hopp, 279 Minn. 170, 156 N.W.2d 212 (1968). The Hopp case set forth

eight requirements for a court’s exercise of its civil contempt power: (1) the court must

have subject matter and personal jurisdiction; (2) the acts a party is required to perform

must be clearly defined; (3) the contemnor must have notice of the court’s decree and

sufficient time to comply; (4) the party alleging contemptuous behavior must apply to the

court and specify the grounds for the complaint; (5) the contemnor is entitled to a hearing

with due notice at which he can show compliance or explain his failure to comply; (6) after

the hearing, the court must determine if the party has failed to comply with a court order

and whether conditional confinement will compel compliance; (7) the court may not

compel a person to perform something he is wholly unable to do but the contemnor has the

burden of showing inability; and (8) the contemnor must be given an opportunity to effect

his release by complying with or agreeing to comply with the order. Id. at 174-75; 156

N.W.2d at 216-17.




                                             5
A. Contempt decision regarding Pederson

       Meyer argues that the district court abused its discretion by refusing to find Pederson

in contempt for denying his December 2014 parenting-time request. On October 30, 2014,

Meyer told Pederson he wanted the child from December 27, 2014 to January 1, 2015, and

from December 1 to December 6, 2014.

       The parenting order, based on an oral stipulation, provides:

                     [Meyer] shall have maximum continuing contact with
              the child, which contact shall include at least the following: ten
              overnight days per month . . . those ten days shall be exercised
              . . . the first ten days of each month unless the parties
              specifically agree otherwise.

                     ....

                     Provided further, that with respect to those ten days each
              month, the parties will endeavor to mutually agree upon the
              time but that [Meyer] may notify [Pederson] in writing or by
              electronic communication at least 30 days in advance of that
              particular month of his intention to exercise visitation other
              than the first ten days of the month, and if he so gives that
              election, that’s when the parenting time will take place.

Pederson initially refused to agree to Meyer’s proposed schedule because she and the child

had plans for December 27 and 28, but ultimately Pederson agreed to parenting time from

December 27 to January 10, 2015. During the parties’ negotiation by email, Meyer agreed

not to insist on parenting time on December 1 to 6. The district court concluded that

Meyer’s request did not fall within the terms of the parenting-time order.

       Because no transcript of the hearing was provided, this court’s review “is limited to

determining whether the findings support the district court’s conclusions of law.” Bormann

v. Bormann, 644 N.W.2d 478, 481 (Minn. App. 2002).


                                              6
       The district court made the following findings:

                      57. [Meyer’s] claim that he was denied parenting time
              during the winter break 2014 when he did not get the days and
              dates he wanted while [Pederson] and the child were in Florida
              does not clearly fall within the “technical” terms specified, the
              first 10 days of the month or 30 day notice without including
              Christmas Day which is always to be [Pederson’s] holiday.

                     58. [Pederson] claims when [Meyer] first told her the
              dates he wanted and she told him it would not work for her
              because of her holiday plans to be visiting relatives in Florida.
              [Meyer] did not request any other dates so they did not
              mutually agree to any other parenting time. If [Meyer] had
              asked for different dates, [Pederson] claims she would have
              agreed to something else.

                     ....

                     61. [Meyer] did not provide enough credible evidence
              for the court to find that [Pederson] knowingly violated the
              custody decree as pertaining to . . . the Christmas 2014 holiday
              schedule.

       The district court’s findings do not support a conclusion that Pederson acted

contumaciously or out of disrespect for the court’s parenting-time order. The district court

did not abuse its discretion by refusing to hold Pederson in constructive civil contempt for

the December 2014 incident.

B. Contempt decision regarding Meyer

       Meyer argues that the district court should not have found him in contempt because

“[t]he rights and responsibilities of a parent exercising parenting time who does not have

legal or physical custody are not clearly outlined anywhere.” The district court included a

Hopp analysis in its conclusions of law.




                                             7
       The district court, first finding that Pederson had sole legal custody of the child,

made the following findings:

                     64. Legal custody means the right to determine the
              child’s upbringing, including education, health care, and
              religious training. By modifying legal custody to sole
              [custody] with [Pederson], the court restricted [Meyer] from
              participating in decisions regarding the child in the areas of
              education, health care and religious upbringing.

                     65. During his parenting time in February 2015
              [Meyer] admitted to unilaterally and without notice to
              [Pederson] making decision(s) to (1) keep the child home from
              school, (2) not allow [Pederson] to take the child to a dental
              appointment she made with his regular doctor, (3) make
              another dental appointment with a different (not his regular
              doctor) dental specialist, (4) take the child to the dental
              appointment he scheduled, (5) only later telling [Pederson] that
              he had already had the minor child evaluated and the
              appointment that [Pederson] earlier made for the same
              afternoon was no longer necessary and then (6) argued with
              [Pederson] as to what course of treatment was the most
              appropriate.

                      66. [Meyer] attempted to justify his actions by
              explaining that because [the child] was with him for his
              parenting time, what he did was “routine daily care” and the
              decisions he made were day to day decisions he was entitled to
              make even as a non legal custodial parent. [Meyer] claims that
              his employment and experience as a neurosurgeon change the
              definition of what is a “day to day issue” versus an “emergent
              issue.” [Meyer’s] justifications to excuse or make his behavior
              and actions acceptable were not credible.

                    67.     [Meyer’s] actions were intended to deny
              [Pederson’s] legal custodial rights under the Iowa Judgment
              and Decree dated August 31, 2012.

       Although Meyer argues that the concept of legal custody is too vague to inform him

of his rights, Minn. Stat. § 518.003, subd. 3(a) (2014), defines it in the terms used by the



                                             8
district court: “‘Legal custody’ means the right to determine the child’s upbringing,

including education, health care, and religious training.”

       Meyer argues that the district court is punishing him for his actions in February

2015, but it is clear that Meyer considers it appropriate to continue to make healthcare and

education decisions during his parenting time in violation of Pederson’s right of legal

custody. The district court’s conditional contempt order will ensure that Meyer complies

with the court’s order. Because she has sole legal custody, Pederson makes the decisions

about healthcare, and Meyer’s failure to consult with her about the dental visit suggests

that he is trying to circumvent that right. The findings support the district court’s decision

to hold Meyer in contempt.

       Meyer raises other arguments in opposition to the contempt order. First, he argues

that his constitutional rights were violated because he was not given sufficient preparation

time to rebut Pederson’s contempt motion.         Pederson served the motion papers on

September 18, 2015, by mailing them to Meyer and filed the papers on September 21, 2015,

for an October 7 hearing. The district court found that the papers were served in a timely

fashion. In its April 2016 review order, the district court said that the documents were

served on September 29; this is an apparent error, because the motion papers were filed

with the court on September 21 and the affidavit of service states that the papers were

mailed to Meyer on September 18.

       Second, Meyer argues that his contempt motion against Pederson was filed in April

2016, but the district court inexplicably delayed the hearing to October 7, 2016, to permit

Pederson to file a counter motion. The district court record shows that Meyer’s motion


                                              9
was filed on May 5, 2015 for a hearing on June 25, 2015. The motion was served on

Pederson on May 20, 2015. For reasons not explained in the record, the hearing was

rescheduled for August 25, 2015. Meyer served additional documents on Pederson on

June 8, 2015, including a request for an evidentiary hearing. On June 30, 2015, the district

court rescheduled the hearing for October 7, 2015. The record does not explain why the

hearing was rescheduled, but it follows Meyer’s request for a half-day evidentiary hearing.

Nothing in the record suggests that the district court deliberately delayed the hearing to

benefit Pederson.

       Third, Meyer argues that he was deprived of his constitutional right to assistance of

legal counsel. The district court rejected this charge, noting that counsel must be appointed

for indigent parties only when there is a possibility of confinement for contempt. The

district court stated that because this was an initial contempt hearing, confinement was not

a real possibility. See Cox v. Slama, 355 N.W.2d 401, 403-04 (Minn. 1984) (holding, in

civil contempt proceeding, that counsel must be provided to an indigent party facing the

real possibility of incarceration for contempt). The district court also found that because

Meyer is a neurosurgeon, it was unlikely that he would qualify as indigent.1

       We conclude that the district court’s findings and the law support its conditional

contempt order. Further, Meyer’s constitutional rights were not violated by the service of

Pederson’s documents or by the continuance of the hearing to October 2015, which was

done to accommodate Meyer’s request for an evidentiary hearing. Finally, Meyer’s claim


1
  Meyer has requested in forma pauperis status several times and has been denied that
status.

                                             10
that he was deprived of his right to counsel lacks merit because he was not facing a real

possibility of incarceration for his contempt.

II. The district court did not abuse its discretion by refusing to admit evidence that
    was not relevant.

       Meyer argues that the district court abused its discretion by refusing to admit

“Spreigl evidence.” Meyer requested that the district court admit evidence of Pederson’s

alleged misconduct from 2007-2013 or order discovery of documents from this time period.

Included in these requests were a psychological exam performed when Pederson was

applying to be an egg donor in 2007; a custody evaluation ordered by the Iowa court in

2009; and documents filed in California court proceedings shortly after the child’s birth.

The district court refused to compel discovery and admitted orders only from the Iowa

court proceedings.

       Spreigl evidence, or evidence admissible under Minn. R. Evid. 404, generally is

used in criminal proceedings. See Minn. R. Evid. 404 (a), (b) (referring to character of

accused or victim; setting forth use of rule 404 evidence in a criminal trial). In civil

proceedings, this court reviews the district court’s ruling on the admissibility of evidence

for an abuse of discretion, and will reverse only if the district abused its discretion and

thereby prejudiced the objecting party. Melius v. Melius, 765 N.W.2d 411, 417 (Minn.

App. 2009). Here, the district court ruled that the earlier documents were not relevant to

the issues in the contempt proceeding, which dealt with behavior occurring during a certain

time frame. The district court’s ruling is not an abuse of discretion.




                                             11
III. The district court was not biased against Meyer.

       Meyer argues that the district court is biased against him. Primarily, Meyer asserts

that the bias is demonstrated by the district court’s order stating that Pederson had

requested mediation of parenting time disputes when Meyer had actually requested

mediation. Meyer also points to correspondence from the district court that (1) clarified

court rules that prohibit ex parte communications between one party and the court;

(2) summarily described court rules regarding service of correspondence; (3) returned

documents that were not filed with the court; and (4) declined to offer legal advice.

       “No judge shall sit in any case if that judge is interested in its determination or if

that judge might be excluded for bias from acting therein as a juror.” Minn. R. Civ. P.

63.02. Disqualifying bias “must stem from an extrajudicial source and result in an opinion

on the merits on some basis other than what the judge learned from his participation in the

case.” In re Estate of Lange, 398 N.W.2d 569, 573 (Minn. App. 1986). A party must

establish actual prejudice. Olson v. Olson, 392 N.W.2d 338, 341 (Minn. App. 1986). Mere

adverse prior rulings or minor deviations are not sufficient to demonstrate bias. Id.

       A judge must disqualify himself if his impartiality is reasonably subject to question.

State v. Cleary, 882 N.W.2d 899, 904 (Minn. App. 2016). “Impartiality is defined as the

absence of bias or prejudice in favor of, or against, particular parties or classes of parties,

as well as the maintenance of an open mind in considering issues that may come before a

judge.” Id. (quotation omitted). The standard for determining judicial bias is whether a

reasonable or objective layperson with full knowledge of the matter would question the

judge’s impartiality. Id.


                                              12
       Meyer argues that the court is biased because it stated that Pederson has requested

mediation several times, but, in actual fact, he has. Meyer omits the fact that he refuses to

engage in mediation or alternative dispute resolution about parenting time unless the parties

can also mediate the issue of custody. The other documents properly outline the court’s

duty to refuse to engage in ex parte communications with a party, to accept unfiled

documents, and to offer legal advice.

       Our review of the district court file does not substantiate Meyer’s claim of bias. We

note that Meyer has consistently raised the question of judicial bias when rulings

unfavorable to him are made by a court.

       Affirmed.




                                             13
