                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A14-0723

                                   In re the Matter of:

                            Jill Marie Newstrand, petitioner,
                                       Respondent,

                                           vs.

                                 Jamison Robert Arend,
                                       Appellant.

                               Filed September 14, 2015
                                       Affirmed
                                   Schellhas, Judge

                              Ramsey County District Court
                                File No. 62-FA-11-1273

Allison Maxim, Maxim Law, PLLC, St. Paul, Minnesota (for respondent)

Kellen T. Fish, KTF Law Firm, PLLC, Minneapolis, Minnesota (for appellant)

      Considered and decided by Hudson, Presiding Judge; Cleary, Chief Judge; and

Schellhas, Judge.

                                    SYLLABUS

      A court-ordered psychological evaluation under Minn. Stat. § 518.131, subd. 1

(2014), does not violate a parent’s constitutional freedom of conscience when the order is

based on concerns about the parent’s mental health and fitness and no less-restrictive

means exist to determine the parent’s mental health and fitness.
       A district court may restrict parenting time under Minn. Stat. § 518.175, subd.

1(a), (b) (2014), without making findings on the best-interest factors in Minn. Stat.

§ 518.17, subd. 1(a) (2014).

                                      OPINION

SCHELLHAS, Judge

       Appellant challenges a judgment that imputes income to him for child-support

purposes, without imputing income to respondent, and restricts his parenting time with

his youngest child. Appellant argues that the district court’s application of Minn. Stat.

§ 518.131, subd. 1, violated his constitutional freedom of conscience and that the court

made inaccurate and insufficient best-interest findings under Minn. Stat. § 518.17, subd.

1(a). Appellant also argues that the court abused its discretion by declining to find

respondent in constructive civil contempt of court. We affirm.

                                          FACTS

       Appellant Jamison Arend (father) and respondent Jill Newstrand (mother) never

married but have three children: J.J.-M.A., born October 16, 1996; J.J.-I.A., born

August 19, 2000; and J.J.I.A., born October 4, 2005. The parties signed recognitions of

parentage for each child. On April 27, 2011, mother petitioned the district court to

establish custody of the children. The district court appointed a guardian ad litem (GAL)

to represent the children’s best interests, granted mother temporary sole legal and sole

physical custody of the children, and granted father temporary parenting time. Over the

course of the proceedings, the court revisited its initial order several times and eventually




                                             2
ordered the parties to obtain psychological evaluations and parenting assessments.

Mother complied with the order; father refused based on his Rastafarian religious beliefs.

       During a three-day evidentiary hearing, the parties resolved several issues by

stipulation, including the following: (1) father would have sole legal and sole physical

custody of J.J.-M.A. and J.J.-I.A.; (2) mother would have parenting time with J.J.-M.A.

and J.J.-I.A. based on an agreed schedule; (3) mother would have sole legal and sole

physical custody of J.J.I.A.; and (4) all of the children would have supervised time

together. The parties submitted to a district court referee the unresolved issues of child

support, father’s parenting time with J.J.I.A., and contempt allegations. Adopting the

referee’s recommended findings and order, the district court imputed income to father

and ordered him to pay $376 per month in basic child support plus a portion of J.J.I.A.’s

child-care costs, granted father supervised parenting time with J.J.I.A., and found neither

party in constructive civil contempt.

       This appeal follows.

                                         ISSUES

I.     Did the district court err by imputing income to father and not imputing income to
       mother when calculating child support?

II.    As applied, does Minnesota Statutes section 518.131, subdivision 1, violate
       father’s constitutional freedom of conscience?

III.   Did the district court abuse its discretion in establishing father’s parenting time
       with J.J.I.A.?

IV.    Did the district court abuse its discretion by declining to find mother in
       constructive civil contempt?




                                            3
                                       ANALYSIS

I.     The district court did not err by imputing income to father and not imputing
       income to mother when calculating child support.

       The first issue that father raises in his brief is his child-support obligation. “To

determine the presumptive child support obligation of a parent, the court shall . . .

determine the gross income of each parent . . . .” Minn. Stat. § 518A.34(a), (b) (2014).

“[G]ross income includes . . . potential income under section 518A.32.” Minn. Stat.

§ 518A.29(a) (2014). “If a parent is voluntarily unemployed, underemployed, or

employed on a less than full-time basis, . . . child support must be calculated based on a

determination of potential income. . . . [I]t is rebuttably presumed that a parent can be

gainfully employed on a full-time basis.” Minn. Stat. § 518A.32, subd. 1 (2014).

                    Determination of potential income must be made
              according to one of three methods, as appropriate:

                     (1) the parent’s probable earnings level based on
              employment potential, recent work history, and occupational
              qualifications in light of prevailing job opportunities and
              earnings levels in the community;
                     (2) if a parent is receiving unemployment
              compensation or workers’ compensation, that parent’s income
              may be calculated using the actual amount of the
              unemployment compensation or workers’ compensation
              benefit received; or
                     (3) the amount of income a parent could earn working
              full time at 150 percent of the current federal or state
              minimum wage, whichever is higher.

Id., subd. 2 (2014).

       A court’s determination of income must be “based in fact” and will stand unless

“clearly erroneous.” Schisel v. Schisel, 762 N.W.2d 265, 272 (Minn. App. 2009).



                                            4
Furthermore, “[w]hether a parent is voluntarily unemployed is a finding of fact, which

[appellate courts] review for clear error.” Welsh v. Welsh, 775 N.W.2d 364, 370 (Minn.

App. 2009). “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) (quotations omitted).

       The district court imputed income to father equal to “150% of minimum wage

($7.25 an hour), or $10.88 per hour[,] . . . which is $1,885 gross per month.” Father

argues that the district court’s income imputation was error. We disagree. The record

reflects that father worked as a drywall taper for many years, earning approximately $850

per week. Mother testified that father chose not to continue that work and that he told her

that he would work “miniscule” hours, delivering pizza or “whatever,” to avoid paying

child support. This evidence supports the court’s finding that father is voluntarily

unemployed, underemployed, or employed on a less than full-time basis. Based on

father’s earnings history, we conclude that the court did not err by imputing income to

father, as allowed under Minn. Stat. § 518A.32, subd. 2(3).

       Father also argues that the district court erred by not imputing income to mother.

Mother testified that she was working 20 to 30 hours per week and that, when things with

the children stabilized and after upcoming surgery, she intended to “go back to school

and work as much as possible.” A parent is not voluntarily unemployed, underemployed,

or employed on a less than full-time basis if “the unemployment, underemployment, or

employment on a less than full-time basis is temporary and will ultimately lead to an




                                             5
increase in income.” Minn. Stat. § 518A.32, subd. 3 (2014). On this record, we conclude

that the court did not err by not imputing income to mother.

II.    As applied, Minnesota Statutes section 518.131, subdivision 1, does not violate
       father’s constitutional freedom of conscience.

       The district court made the following finding:

                     Despite the recommendations of the [GAL] and the
              orders of the Court, [father] has consistently refused to
              participate in a psychological evaluation, in a parenting
              assessment, and even in completing a co-parenting course.
              The Court notes that [father]’s in-court demeanor has been
              surly and defiant. His testimony on critical issues has not
              been credible.

                     [Father]’s refusal to cooperate with these
              recommendations and directives of the Court is based upon
              religious convictions. More than once, [father] was informed
              by the Court that his refusal to comply with the directive to
              complete a psychological evaluation would result in the Court
              drawing negative inferences as to his mental health—which
              the Court has done.
                     ....
                     Parenting time is governed by the best interests of the
              child. One of the statutory “best interests” factors is the
              mental health of the parties. [Father] has refused to undergo a
              mental health evaluation, for religious reasons. His exercise
              of conscience does not obviate the statutory factor of his
              mental health. While [father] has exercised his First
              Amendment right to religious freedom, the Court cannot
              abandon [J.J.I.A.]’s right to have the legal protections
              afforded by examination of all factors in determining his best
              interests.

The court denied mother’s request that the court find father in constructive civil contempt

for his “refusal to cooperate with a psychological evaluation, a parenting assessment, and

completion of a co-parenting course,” stating




                                            6
              [T]he Court has invoked the less-harsh remedy of drawing
              negative inferences, and there is no need to coerce [father] to
              comply with the directives for a mental health evaluation, a
              parenting assessment, and completion of the co-parenting
              class.

       Father argues that the order requiring him to obtain a psychological evaluation

under Minn. Stat. § 518.131, subd. 1, forced him to violate a tenet of his religion or suffer

negative consequences on his parenting time with J.J.I.A. That statute provides as

follows:

                     In a proceeding brought for custody, dissolution, or
              legal separation, or for disposition of property, maintenance,
              or child support following the dissolution of a marriage,
              either party may, by motion, request from the court and the
              court may grant a temporary order pending the final
              disposition of the proceeding to . . . :
                     ....
                     (j) [r]equire one or both of the parties to perform or to
              not perform such additional acts as will facilitate the just and
              speedy disposition of the proceeding, or will protect the
              parties or their children from physical or emotional harm.

Minn. Stat. § 518.131, subd. 1. Father challenges the constitutionality of the statute, as

applied to him, under the Minnesota Constitution. “[Appellate courts] review as-applied

challenges to the constitutionality of statutes de novo.” Schatz v. Interfaith Care Ctr., 811

N.W.2d 643, 657 (Minn. 2012). Article I, section 16, of the Minnesota Constitution states

that

              The right of every man to worship God according to the
              dictates of his own conscience shall never be infringed; . . .
              nor shall any control of or interference with the rights of
              conscience be permitted . . . ; but the liberty of conscience
              hereby secured shall not be so construed as to excuse acts of
              licentiousness or justify practices inconsistent with the peace
              or safety of the state . . . .


                                             7
“[S]ection 16 precludes even an infringement on or an interference with religious

freedom.” State v. Hershberger, 462 N.W.2d 393, 397 (Minn. 1990). In evaluating the

constitutionality of statutes that are challenged based on violations of freedom of

conscience, the supreme court has “retain[ed] the compelling state interest balancing

test.” Hill-Murray Fed’n of Teachers v. Hill-Murray High Sch., 487 N.W.2d 857, 865

(Minn. 1992). “This test has four prongs: whether the objector’s belief is sincerely held;

whether the state regulation burdens the exercise of religious beliefs; whether the state

interest in the regulation is overriding or compelling; and whether the state regulation

uses the least restrictive means.” Id.

       Under the first prong of the Hill-Murray test, we must determine whether father’s

belief is sincerely held. See id. Father is Rastafarian and claims that the tenets of that

religion prohibit him from obtaining a psychological evaluation. The district court did not

question the sincerity of father’s belief, and mother does not dispute the sincerity of

father’s belief on appeal. The record supports a determination that father’s belief is

sincerely held.

       Under the second prong of the Hill-Murray test, we must determine whether

Minnesota Statutes section 518.131, subdivision 1, as applied to father, burdened the

exercise of his religious belief. See id. The district court informed father that “his refusal

to comply with the directive to complete a psychological evaluation would result in the

Court drawing negative inferences as to his mental health—which the Court [did draw].”

Father argues that the district court’s application of Minnesota Statutes section 518.131,



                                              8
subdivision 1, unconstitutionally burdened the exercise of his beliefs by forcing him to

violate a tenet of his religion by undergoing a psychological evaluation or suffer a

restriction of his parenting time with J.J.I.A.

       “[T]hose challenging the application of a law have the burden of establishing that

challenged provisions infringe on their religious autonomy or require conduct

inconsistent with their religious beliefs.” Edina Cmty. Lutheran Church v. State, 745

N.W.2d 194, 204 (Minn. App. 2008), review denied (Minn. Apr. 29, 2008). “To

constitute such a burden, the challengers must establish that the risk of interference with

religious beliefs or practice is real and not remote.” Id. (quotation omitted). We turn to

caselaw for guidance in analyzing father’s argument. Based on the facts in this case, we

conclude that the burden placed on father was real and not remote, potentially interfering

with his father-child relationship. See Murphy v. Murphy, 574 N.W.2d 77, 81 (Minn.

App. 1998) (stating in child-support case that “ordering [Amish parent] to pay a support

obligation that he will be unable to pay without taking a secular job will impose on his

exercise of religious beliefs or cause him to risk penalties for nonpayment of support”);

cf. In re Welfare of Child of R.D.L., 853 N.W.2d 127, 133 (Minn. 2014) (recognizing

“fundamental liberty interest of natural parents in the care, custody, and management of

their child” (quotation omitted)).

       Under the third prong of the Hill-Murray test, we must determine whether the

state’s interest in father undergoing the court-ordered psychological evaluation is

overriding and compelling. See 487 N.W.2d at 865. The government has a compelling

interest in “safeguarding the physical and psychological well-being of children.” R.D.L.,


                                                  9
853 N.W.2d at 134 (quotation omitted). That compelling interest applies in proceedings

over custody and parenting time. State ex rel. Flint v. Flint, 63 Minn. 187, 189, 65 N.W.

272, 273 (1895) (stating, in custody proceeding, that “the primary object of all courts, at

least in America, is to secure the welfare of the child, and not the special claims of one or

the other parent”); Geske v. Marcolina, 642 N.W.2d 62, 68 (Minn. App. 2002)

(recognizing, in parenting-time proceeding, that state has compelling interest in

children’s best interests).

       Father argues that the state’s interest is not compelling in this case “because of the

specific circumstances and facts in this matter.” Father first emphasizes that the district

court made the negative inference regarding his mental health “nearly two and one-half

years after the initiation of the case.” Father argues that, during that time, the court “had

the ability to take testimony of [father] on numerous occasions, take testimony of

witnesses, and otherwise observe [father] throughout the proceedings.” He summarizes

his state’s-interest arguments as follows:

              From a timeline standpoint, the case went on for over two
              years before the Court took a negative inference regarding
              [father]’s mental health. Additionally, [father] worked with
              the [GAL] extensively that allowed the Court to get input and
              feedback as to [father]’s mental fitness to parent. Finally, the
              District Court awarded custody of the two older children to
              [father] without [father]’s submission to the psychological
              test.

We are not persuaded by father’s arguments that the state’s interest is not compelling in

this case. Father fails to mention the district court’s findings about its concerns regarding




                                             10
father’s courtroom demeanor, father’s mental health and fitness to parent, and the GAL’s

concerns about father’s mental health. The GAL testified as follows:

              I’m concerned that [father] has not followed the order of the
              court to address—to seek a parenting assessment and
              psychological evaluation. I’m concerned that potential unmet
              mental health needs by [father] may be a part of that desire to
              negatively influence the children towards their mother.

              ....

              When I spoke with [J.J.-I.A.] about his religious beliefs, he
              said he didn’t really know too much about it, but that it was
              about not talking to therapists or social workers—I don’t
              remember the exact word that he used—and about smoking
              weed. He said he knew that was the case because that was
              what [father] told him.

       Minnesota courts have rejected many constitutional challenges to the state’s

efforts to safeguard the physical and psychological well-being of children. See, e.g., In re

Welfare of J.W., 391 N.W.2d 791, 792–93, 795 (Minn. 1986) (rejecting argument that

sanctions violated parents’ rights to due process where “[t]he safety and well-being of

[the children we]re at issue”); Geske, 642 N.W.2d at 68, 70 (rejecting First Amendment

challenge to injunction against publication of pictures of children, reasoning we “ha[ve]

previously justified infringements of other fundamental rights by finding the best

interests of the children to be a compelling state interest”). Here, the record contains

substantial evidence that supports the district court’s findings regarding its concern and

the GAL’s concern about father’s abusive treatment of mother and his successful,

ongoing efforts to alienate the children from mother. On one occasion, father forced

mother to be present with the children while he disparaged her and blamed her for the



                                            11
family’s problems. As for the district court’s adoption of the parties’ stipulation that

father would have physical custody of the two older children, the record reflects that the

older children refused to remain in mother’s care as a result of father’s successful

alienation efforts. The court made findings about the alienation and about its concerns

regarding the unmet behavioral and mental-health needs of the older children and father’s

mental health and fitness to parent. The record amply supports these findings. Father’s

argument that the state has no compelling interest in protecting the best interests of the

children in this case is entirely inconsistent with the court’s findings.

       The fourth prong is whether the state regulation uses the least-restrictive means.

Hill-Murray, 487 N.W.2d at 865. “In the event it is possible to achieve [the state’s]

compelling interests through less restrictive, alternative means, article I, section 16

dictates the use of that alternative.” Id. at 867 (citing Hershberger, 462 N.W.2d at 399).

       Father argues that the state has not used the least-restrictive means available to

verify his mental capacity to parent J.J.I.A. He states that his counsel requested of the

district court alternatives to psychological evaluations, referencing a hearing on August 2,

2011. On that date, the following colloquy occurred:

              THE COURT: Counsel, any questions? Mr. Fish?
              FATHER’S COUNSEL: The only [question] I would have
              would be just with regard to the requirements for my client
              regarding psychological evaluation and the coparenting time
              class, unfortunately, I did not do the research beforehand, but
              would the court be open to any type of alternative, knowing
              that before I even speak with my client, there will be
              hesitations in participation, but wanting to comply with the
              court order. Are there other options that the court would be
              available to if I were to find some options?



                                              12
              THE COURT: You will have time between now and Friday
              to talk with [father]. I’ll take up your question on Friday. I’ll
              meet with counsel in chambers and we’ll talk about that
              matter on Friday.
              ....
              THE COURT: . . . Yes, I am open to what you might have to
              suggest. Yes.

Neither father’s brief nor the record informs us about what information, if any, father or

his counsel provided the court soon after that hearing. Instead, the brief next references a

hearing on March 8, 2013, at which father claims that “Counsel for [father] went on to

list the other options available for determining [father]’s fitness to parent, including

having others meet with [father], and/or the children, to witness [father]’s capacity to

parent.” Father specifically cites the following statements by his counsel at that hearing:

              FATHER’S COUNSEL: There are other members of the
              community that aren’t of the mental health sciences that can
              come and talk with [father] and witness the family to have
              those types of discussions without having to do a full
              psychological evaluation.

But, at the hearing, father did not provide the district court with any specific less-

restrictive alternatives to a psychological evaluation, and father never has provided names

of the “other members of the community” that his counsel mentioned at the hearing on

March 8, 2013. Indeed, father never has identified any specific less-restrictive alternative

to a psychological evaluation.

       Father next discusses in his brief his direct testimony at a hearing on June 20,

2013, at which his counsel asked him whether he would be “willing to participate in a

coparenting class.” Father answered, “Only if a Rastafarian runs it.” Father concludes his

argument that less-restrictive means are available by stating that “[t]here are a variety of


                                             13
ways to determine a parent’s mental fitness to raise their child, none of which were

explored by the State in determining [father]’s mental fitness, despite [father]’s request.”

Father’s vague and conclusory argument regarding the existence of available less-

restrictive alternatives by which the district court could verify his mental capacity to

parent J.J.I.A. is neither helpful nor persuasive.

       The district court neither embraced father’s suggested alternatives nor discussed

them. Based on the record before us, we conclude that none of father’s vague alternatives

for verification of his mental health and fitness to parent was a viable less-restrictive

means to accomplish the state’s compelling interest in protecting the children.

       Both the legislature and the judiciary have recognized the importance of

considering a parent’s mental health to ensure that a child’s best interests are served. See

Minn. Stat. § 518.17, subd. 1(a) (providing that, in custody proceedings, courts must

make findings on child’s best interests including “the mental . . . health of all individuals

involved”); In re Welfare of Kidd, 261 N.W.2d 833, 836 (Minn. 1978) (affirming

termination of parental rights where mother’s conduct stemming from mental illness was

likely to be detrimental to physical and mental health of child); McCabe v. McCabe, 430

N.W.2d 870, 873–74 (Minn. App. 1988) (affirming custody determination predicated in

part on mother’s mental health), review denied (Minn. Dec. 30, 1988); Sinsabaugh v.

Heinerscheid, 428 N.W.2d 476, 477, 479–81 (Minn. App. 1988) (affirming custody

determination where district court considered, among other things, that appellant

“suffered from serious depression and anxiety”). Here, the district court found that

“[father]’s behavior has created clear and unambiguous concern about his mental health.”


                                              14
The record supports this finding, and we therefore conclude that Minnesota Statutes

section 518.131, subdivision 1, as applied, does not impermissibly violate father’s

constitutional freedom of conscience.

III.   The district court did not abuse its discretion in establishing father’s
       parenting time with J.J.I.A.

       “[U]pon the request of either parent,” a district court shall “grant such parenting

time . . . as will enable the child and the parent to maintain a child to parent relationship

that will be in the best interests of the child.” Minn. Stat. § 518.175, subd. 1(a). “In the

absence of other evidence, there is a rebuttable presumption that a parent is entitled to

receive at least 25 percent of the parenting time for the child.” Id., subd. 1(g) (2014). But

“[parenting-time] rights are not absolute and are to be exercised only when in the best

interest of the child.” Manthei v. Manthei, 268 N.W.2d 45, 45 (Minn. 1978).

                     If the court finds, after a hearing, that parenting time
              with a parent is likely to endanger the child’s physical or
              emotional health or impair the child’s emotional
              development, the court shall restrict parenting time with that
              parent as to time, place, duration, or supervision and may
              deny parenting time entirely, as the circumstances warrant.

Minn. Stat. § 518.175, subd. 1(b); accord Al-Zouhayli v. Al-Zouhayli, 486 N.W.2d 10, 12

(Minn. App. 1992). “Appellate courts recognize that a district court has broad discretion

to decide parenting-time questions, and will not reverse a parenting-time decision unless

the district court abused its discretion by misapplying the law or by relying on findings of

fact that are not supported by the record.” Suleski v. Rupe, 855 N.W.2d 330, 334 (Minn.

App. 2014) (citations omitted). “A district court’s findings of fact underlying a parenting-




                                             15
time decision will be upheld unless they are clearly erroneous.” Dahl v. Dahl, 765

N.W.2d 118, 123 (Minn. App. 2009).

       Father argues that the district court failed to make sufficient and accurate best-

interests findings under Minn. Stat. § 518.17, subd. 1(a), to warrant a restriction of his

parenting time with J.J.I.A. But the plain language of Minn. Stat. § 518.175, subd. 1, does

not require the court to make findings regarding the best-interests factors in Minn. Stat.

§ 518.17, subd. 1(a), which addresses custody, rather than parenting time. The parenting-

time statute requires only that the court “grant such parenting time . . . as will enable the

child and the parent to maintain a child to parent relationship that will be in the best

interests of the child,” and allows for restrictions on parenting time when “the court finds

. . . that parenting time with a parent is likely to endanger the child’s physical or

emotional health or impair the child’s emotional development.” Minn. Stat. § 518.175,

subd. 1(a), (b).

       Here, the district court found that the best interests of J.J.I.A. require an

examination of father’s mental health “before his parenting time with [J.J.I.A.] can be

seen as safe without supervision.” The court also found that “[J.J.I.A.]’s welfare

necessitates parenting time in a closely supervised setting to protect [him] from [father]’s

campaign of alienation.” This finding was predicated on other findings regarding father’s

successful efforts to alienate the two older children from mother. Denial of access to a

parent and efforts to paint a parent in a poor light have the potential to endanger a child’s

emotional health or impair his emotional development. Cf. Grein v. Grein, 364 N.W.2d

383, 385–86 (Minn. 1985) (affirming custody modification, stating that “[w]ithout doubt,


                                             16
. . . the trial court relied heavily on appellant’s persistent interference with visitation

rights, and, in our view, rightfully so,” reasoning in part that “[t]he court . . . took note of

appellant’s continued suspicious and accusatory nature which may have an adverse effect

on the child and his relationship with his father”); Clark v. Bullard, 396 N.W.2d 41, 44

(Minn. App. 1986) (“[T]he child was harmed by being denied visitation with his father

for six months.”); Meier v. Connelly, 378 N.W.2d 812, 816 (Minn. App. 1985)

(upholding finding of endangerment where witness testified that “to deprive a child of

access of a parent . . . is detrimental to the child” (quotation marks omitted)). We

conclude that the court’s finding regarding likely endangerment to J.J.I.A.’s emotional

health or impairment to his emotional development was not clearly erroneous.

       Moreover, the district court made numerous other findings relevant to J.J.I.A.’s

best interests, including those pertaining to mother’s role as J.J.I.A.’s primary caregiver

during much of his life; the history of domestic abuse perpetrated by father against

mother; father’s opposition to mental-health services and concerns about his mental

health; and J.J.I.A.’s success in school and therapy attendance while in mother’s care.

The court’s findings demonstrate a reasoned balance between enabling a parental bond

between J.J.I.A. and father and protecting J.J.I.A. from the emotional harm likely to

result from unsupervised parenting time with father. We conclude that the court did not

abuse its discretion by restricting father’s parenting time.




                                              17
IV.    The district court did not abuse its discretion by finding that mother was not
       in constructive civil contempt of court.

       “Civil contempt . . . is failing to obey a court order in favor of the opposing party

in a civil proceeding.” Minn. State Bar Ass’n v. Divorce Assistance Ass’n, Inc., 311

Minn. 276, 285, 248 N.W.2d 733, 741 (1976). “Constructive contempts are those not

committed in the immediate presence of the court, and of which it has no personal

knowledge . . . .” Minn. Stat. § 588.01, subd. 3 (2014).

       “Th[e contempt] power gives the trial court inherently broad discretion to hold an

individual in contempt but only where the contemnor has acted ‘contumaciously, in bad

faith, and out of disrespect for the judicial process.’” Erickson v. Erickson, 385 N.W.2d

301, 304 (Minn. 1986) (quoting Minn. State Bar Ass’n, 311 Minn. at 284, 248 N.W.2d at

740). “In exercising civil contempt powers . . . , the only objective is to secure

compliance with an order presumed to be reasonable.” Hopp v. Hopp, 279 Minn. 170,

173, 156 N.W.2d 212, 216 (1968); see also Zaldivar v. Rodriguez, 819 N.W.2d 187, 196

(Minn. App. 2012) (“The purpose of civil contempt proceedings is to induce future

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

omitted)). The supreme court has characterized contempt as an “extreme remedy,”

Hampton v. Hampton, 303 Minn. 500, 502, 229 N.W.2d 139, 140 (1975), and this court

has instructed that civil contempt powers “must be exercised with caution,” Burgardt v.

Burgardt, 474 N.W.2d 235, 236 (Minn. App. 1991). “The district court’s decision to

invoke its contempt powers is subject to reversal for abuse of discretion.” In re Welfare of

Children of J.B., 782 N.W.2d 535, 538 (Minn. 2010).



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          Father argues that mother was in constructive civil contempt by denying him

parenting time over the 2012 Father’s Day weekend, in violation of a May 2011 order

providing that “[he] shall have parenting time with the minor children every Saturday

from 9:00 a.m. to Sunday at 5:00 p.m.” Mother testified that father’s counsel gave her

counsel approval for her to take the children on vacation as long as father received extra

parenting time. After she received approval from counsel and made plans for the

vacation, father “changed his mind.” Mother submitted an affidavit in which she claimed

that “[father] stated . . . [she] was not to listen to his attorney.” This evidence supports the

district court’s finding that the parenting-time dispute “was the result of

miscommunication and misunderstanding between the parties, through their attorneys.”

Furthermore, even if mother’s action was a violation of the May 2011 order, the evidence

presented indicates that it was not done “contumaciously, in bad faith, and out of

disrespect for the judicial process.” Minn. State Bar Ass’n, 311 Minn. at 284, 248 N.W.2d

at 740.

          Father also argues that mother was in constructive civil contempt for attempting to

limit his access to information about the children in violation of an order in which the

district court denied mother’s motion to prohibit father from accessing information about

J.J.-I.A.’s juvenile delinquency proceeding.

                In addressing the limits on a trial judge’s exercise of civil
                contempt powers, [the supreme court has] stated that one
                essential prerequisite is that the prior decree or order of a
                court sought to be enforced by contempt must clearly define
                the acts to be performed by the alleged contemnor.




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Mr. Steak, Inc. v. Sandquist Steaks, Inc., 309 Minn. 408, 411, 245 N.W.2d 837, 838

(1976). The supreme court has indicated that an order is not “a sufficient basis for

constructive civil contempt proceedings” if it does not impose “express commands or

prohibitions” upon the alleged contemnor. Id.

       Here, the order that denied mother’s motion to prohibit father from accessing

information about J.J.-I.A.’s juvenile delinquency proceeding did not impose any express

commands or prohibitions upon mother. The order therefore was not a sufficient basis for

constructive civil contempt proceedings. The district court did not abuse its discretion by

declining to find mother in constructive civil contempt of court.

                                     DECISION

       The district court’s application of Minnesota Statutes section 518.131, subdivision

1, in ordering father to obtain a psychological evaluation did not violate father’s freedom

of conscience. The court did not clearly err by imputing income to father and not

imputing income to mother. The court was not required to make best-interest findings

under Minn. Stat. § 518.17, subd. 1(a), before restricting father’s parenting time under

Minn. Stat. § 518.175, subd. 1(a), (b), and did not err by restricting his parenting time.

The court did not err by declining to find mother in constructive civil contempt of court.

       Affirmed.




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