                       This opinion will be unpublished and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                         UNPUBLISHED OPINION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


                                             2
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.”




                                              9
                                     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.




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       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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