                        This opinion will be unpublished and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
                                   A14-0776
                                   A14-1160
                                   A14-1336

                              In re the Custody of T.F.
                           Shawn Kostrzewski, petitioner,
                                     Respondent,

                                         vs.

                       Amy L. Frisinger, n/k/a Amy L. Budeau,
                                     Appellant.

                              Filed February 2, 2015
                       Affirmed in part and reversed in part
                                    Ross, Judge

                             Clay County District Court
                             File No. 14-FX-01-000471

                           Marshall County District Court
                             File No. 45-FA-14-349


Michael M. Mattocks, Charlson & Jorgenson, P.A., Thief River Falls, Minnesota (for
respondent)

Amy L. Budeau, Grand Junction, Colorado (pro se appellant)


      Considered and decided by Ross, Presiding Judge; Smith, Judge; and Harten,

Judge.



 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

ROSS, Judge

       The district court in this child-custody dispute between parents Amy Budeau and

Shawn Kostrzewski denied Budeau’s motion seeking sole custody of the parties’

daughter, ordered Budeau to pay Kostrzewski’s attorney fees for Budeau’s cost-

enhancing litigation tactics, and restricted future filing by Budeau after finding that she is

a frivolous litigant. Budeau appeals each decision. We affirm the district court’s decision

denying Budeau’s motion to modify custody because the challenge rests on credibility

determinations and fact findings, and we defer to the district court’s assessment on these

things. We affirm the district court’s decision to award conduct-based attorney fees

because the record supports the district court’s exercise of discretion. But we reverse the

district court’s frivolous-litigant sanction because the underlying finding is substantially

contradicted by the undisputed fact that Budeau brought her motion in part responding to

the child’s serious custody-related threat to harm herself.

                                          FACTS

       Amy Budeau and Shawn Kostrzewski are parents of daughter T.F., born in 1999.

Kostrzewski and Budeau were never married. They entered a custody agreement in 2001

giving them joint legal custody and giving physical custody to Budeau subject to

Kostrzewski’s parenting time. That arrangement continued until 2008, when the district

court granted Kostrzewski’s modification motion and awarded him sole physical custody

subject to Budeau’s parenting time. Budeau moved to modify custody and parenting time

in April 2011, seeking sole physical custody in her home in Colorado. The district court


                                              2
denied Budeau’s motion in August 2011. Two months later, Budeau moved the district

court to hold Kostrzewski in contempt and to grant her an evidentiary hearing on her

request to modify custody. The district court denied Budeau’s motion in February 2012,

but it did modify the parenting-time schedule.

      Three months later, Budeau filed her third motion to modify custody, and that

motion is the subject of this appeal. Budeau supported the motion with numerous

allegations. She alleged that T.F. had considered harming herself and did not want to live

with her father. She also alleged that Kostrzewski drank excessively, drove drunk with

T.F. in the car, smoked cigarettes in the home, and constantly rescheduled Budeau’s

phone calls with T.F. Kostrzewski opposed the motion and sought attorney fees.

      The district court held an evidentiary hearing. Budeau testified that Kostrzewski

had rescheduled her phone calls with T.F. 60 times since January 2013. She opined that

Kostrzewski is an alcoholic who has driven drunk with T.F. in the car. She expressed

concerns about T.F.’s grades. Budeau’s husband, Robert Budeau, also testified,

complaining that Kostrzewski has not allowed him to talk to T.F. on the telephone unless

Amy Budeau is present.

      Kostrzewski testified that many calls were indeed rescheduled, but he explained

that the rescheduling was necessary to accommodate T.F.’s participation in volleyball,

basketball, and track and that he has left the rescheduling to T.F. to manage. Kostrzewski

opined that T.F. should be allowed to talk with Budeau and Budeau’s family at any time,

and he said he encouraged T.F. to call Budeau every other day. He testified that although

he had been convicted of drunk driving in 1999, he has never been diagnosed as an


                                            3
alcoholic and would willingly undergo a chemical dependency evaluation. Kostrzewski

said he drinks two or three times a week, which is less than he drank before the February

2012 custody order.

       Budeau’s attorney presented a letter addressed to the district court judge ostensibly

penned by T.F. in August 2012. The letter indicated that T.F. had been hurt when she

had to leave her mother and that she had considered cutting herself. It said that she

wanted to live with her mother and that she believed her father has a drinking problem.

She describes that although he tries to quit, he “won’t drink for a couple of days but then

he would.” The letter also expressed that she loves her father and stepmother. It ends with

an assurance that her mother did not force her to write the letter and declares, “I really

want to be able to live with my mom.” Kostrzewski testified that he knew about the letter

but that T.F. told him that Budeau made her write it. He also opined that some of the

letter did not appear to be written in T.F.’s handwriting.

       T.F. testified in chambers with neither parent present. She told the judge that she

preferred to live with her mother. She expressed concern about her father’s drinking,

described it as occurring “mostly every day,” and said that he had driven drunk once with

her in the car but that she could not recall when it was. She explained that she has thought

about cutting herself when her parents fight, but she has never acted on the thought. She

told the judge that she wrote the letter herself without anyone’s help.

       The district court left the record open after the hearing. It ordered Kostrzewski to

complete a chemical dependency assessment within 30 days. Kostrzewski complied,

participating in an alcohol and drug evaluation in July 2013 with addiction counselor


                                              4
Pamela Quinn. Quinn filed an evaluation report with the district court in September 2013.

The report concluded that Kostrzewski was not chemically dependent. Budeau objected

to the report and sought to cross-examine Quinn. The district court reopened the record

for additional evidence solely on the question of Kostrzewski’s alleged alcohol abuse.

      The follow-up evidentiary hearing occurred in February 2014. Quinn testified that

she has conducted chemical dependency evaluations since 1984. She met and evaluated

Kostrzewski in person, administering the American Society of Addiction Medicine’s

questionnaire designed to evaluate chemical dependency. She also interviewed

Kostrzewski’s wife and spoke with Marshall County Social Services to determine

whether any relevant report had been filed regarding Kostrzewski. Budeau’s lengthy

cross-examination emphasized that the evaluation depended on Kostrzewski’s self-

reporting and that anyone subjected to the questionnaire could respond falsely.

      Budeau also cross-examined Kostrzewski’s wife, Tara. She testified that she had

never fought with her husband about his drinking and had never seen him drink in the

car. She also said that she had seen him drink at most two to three times a week.

      T.F. testified in front of her parents. She said that she had seen her father drink

about four times weekly. She does not like him to drink because “he’s harming his body,”

but she is not frightened of him when he drinks. She testified that she feels Kostrzewski

has reduced his drinking and that her mother had told her that Kostrzewski “drinks to

wet,” meaning that “when he drinks too much, he pees.” T.F.’s attorney introduced

numerous photographs taken by T.F. of beer cans around Kostrzewski’s home. T.F. told




                                            5
the court that Budeau had asked T.F. to send her anything that T.F. thought was evidence

of Kostrzewski’s drinking.

       The district court denied Budeau’s motion to modify custody. It did so finding no

significant change in circumstances since the last order. It observed, “[Budeau] has

repeatedly brought up the same [alcohol usage] concerns in every motion since the 2008

Order that changed custody to Mr. Kostrzewski. Each time, the Court has considered her

allegations and found that it was not significant enough to warrant modification.” The

district court also found that rescheduling the phone conversations did not amount to a

persistent and willful denial of parenting time. It weighed the 13 best-interest factors, see

Minn. Stat. § 518.17, subd. 1(a) (2012), and found that it was not in T.F.’s best interest to

modify the custody order. The district court also found that Budeau failed to identify any

danger to T.F.’s physical or emotional development, and it specifically found that

“changing custody at this point would likely lead to emotional harm to the child.”

       The district court addressed attorney fees. Kostrzewski’s attorney submitted an

affidavit indicating that Kostrzewski incurred $14,159 in costs and fees to respond to

Budeau’s motion. Kostrzewski asked the court to find Budeau to be a frivolous litigant

under Minnesota Rule of General Practice 9 and to restrict her in filing any future

motions. The district court granted the motion and prohibited Budeau from filing any

motions for one year without its approval. It ordered Budeau to pay $6,000 in attorney

fees. Budeau appeals.




                                             6
                                      DECISION

       Budeau appeals the district court’s refusal to modify custody, its award of attorney

fees, and its restrictions on her ability to file motions. We address each in turn.

                                              I

       Budeau asks us to reverse the custody order. We will not overturn a district court’s

custody-modification decision unless it reflects an abuse of discretion either based on

findings unsupported by the evidence or on the improper application of law. Goldman v.

Greenwood, 748 N.W.2d 279, 284 (Minn. 2008). Because of our deference to the district

court’s fact-finding role, we review the record in a light favorable to the findings, Sharp

v. Bilbro, 614 N.W.2d 260, 263 (Minn. App. 2000), review denied (Minn. Sept. 26,

2000), and we will not set the findings aside unless they are clearly erroneous. Goldman,

748 N.W.2d at 284.

       Budeau contends that the district court erred by treating Quinn as an expert under

Minnesota Statutes section 148F.18 (2014). This statute pertains to the licensing of drug

and alcohol counselors. Even if the legislature could qualify classes of witnesses in

judicial proceedings without violating the constitutional separation of powers between the

branches of government, nothing in section 148F.18 attempts to do so. The statute does

not suggest that the district court should reject opinion testimony from a witness who is

not licensed as a drug and alcohol counselor. And Quinn did not provide an opinion about

chemical dependency counseling but rather about a chemical dependency evaluation.

Budeau fails to make the case that Quinn was so unqualified to evaluate Kostrzewski’s

chemical dependency that the district court acted outside its discretion by allowing her to


                                              7
testify about the results of her evaluation and by affording the testimony whatever weight

it chose to give it.

       Having addressed the witness dispute, we turn to the district court’s decision not to

modify custody. Generally, a party may not move to modify custody within two years

after a previous motion was resolved on the merits. Minn. Stat. § 518.18(b) (2014). This

general rule has two exceptions: when “there is persistent and willful denial or

interference with parenting time” and when “the child’s present environment may

endanger the child’s physical or emotional health or impair the child’s emotional

development.” Minn. Stat. § 518.18(c) (2014). Budeau attempts to make the case for

both endangerment and interference with her parenting time. Neither argument is

convincing.

       We reject Budeau’s argument that a change in circumstance endangered T.F. To

successfully move to modify custody based on endangerment, the party seeking

modification

               must establish four elements to make a prima facie case for
               modification: (1) circumstances have changed involving the
               child or custodial parent; (2) the modification would be in the
               best interests of the child; (3) the child’s physical or
               emotional health or emotional development is endangered by
               his or her present environment; and (4) that harm associated
               with the proposed change in custody would be outweighed by
               the benefits of the change.

Frauenshuh v. Giese, 599 N.W.2d 153, 157 (Minn. 1999), superseded in part on other

grounds, 2000 Minn. Laws ch. 444, art. 1, § 5, as recognized in Goldman, 748 N.W.2d at

289; see also Minn. Stat. § 518.18(d) (2014).



                                             8
       Budeau made her claim of an endangering change in circumstances based on

Kostrzewski’s alcohol use. But the district court found that “there has not been a

significant change in circumstances” since the time of the most recent amended custody

order “or a danger related to Mr. Kostrzewski’s alcohol usage.” These findings rest on the

evidence and on the competing claims of Budeau (that Kostrzewski is an alcoholic) and

Kostrzewski (that he is not an alcoholic). The district court took evidence from both

parties. The conflicting evidence included photographs of beer cans in Kostrzewski’s

home and T.F.’s impression of Kostrzewski’s consumption frequency, as well as

testimony from Kostrzewski, his chemical dependency evaluator, and his wife. The

district court is in the best position to weigh conflicting evidence. Pechovnik v.

Pechovnik, 765 N.W.2d 94, 99 (Minn. App. 2009). The district court was not persuaded

by the evidence that Kostrzewski is an alcoholic, that he drinks daily, or that he drives

drunk with T.F. in the car. Budeau directs us to nothing to support our second-guessing of

these findings.

       The district court was in the best position to weigh the evidence presented, and the

conclusion it reached is supported by facts in the record. Quinn concluded that

Kostrzewski is not an alcoholic or addict. T.F. testified that her father drinks three to

four times a week, that he has reduced his drinking over time, and that the only reason

she wishes he would stop is for his health. The district court did not clearly err by

refusing to consider Kostrzewski’s drinking to be an endangering change in

circumstances. Indeed, the district court reflected on the record of Budeau’s previous

motions and concluded that Kostrzewski’s drinking was not a new or changed


                                            9
circumstance at all. The district court appropriately recognized that Budeau has not

proved an endangering substantial change in circumstances.

      The evidence also supports the district court’s finding that Kostrzewski’s

rescheduling of phone calls between T.F. and Budeau did not “rise to the level of

persistent and willful denial of parenting time.” Kostrzewski explained that because T.F.

participates in three after-school sports, she often needs to reschedule planned telephone

time with her mother. He also testified that he has directed T.F. to manage the schedule

herself and that he encourages her to call her mother frequently. This testimony,

presented without disputing evidence, supports the district court’s finding that

Kostrzewski has not persistently and willfully interfered with Budeau’s parenting time.

                                            II

      We next consider Budeau’s charge that the district court erred by ordering her to

pay Kostrzewski $6,000 toward his attorney fees. A district court has the discretion to

award attorney fees against a party “who unreasonably contributes to the length or

expense of the proceeding.” Minn. Stat. § 518.14 (2014). We will uphold a district

court’s award of attorney fees absent an abuse of that discretion. Becker v. Alloy

Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn. 1987). The party moving for

conduct-based attorney fees must establish that the adverse party’s conduct during the

litigation process justifies an award. Geske v. Marcolina, 624 N.W.2d 813, 818 (Minn.

App. 2001).

      Budeau filed three motions between August 2011 and May 2013 seeking to

modify custody. That averages one custody motion every year. The motion now at issue


                                           10
took ten months to resolve and included multiple intermediate briefing and hearings. The

district court found that Budeau contributed to the length of this proceeding in part

because of the manner in which she contested the chemical dependency evaluation. After

insisting on cross-examining the evaluator, her cross-examination of Quinn was highly

repetitive and ineffectual; it went on so long that the district court had to continue the

hearing to allow the remaining witnesses to testify on another date. At the continued

hearing, Budeau’s attorney attempted to offer more than a dozen photographs of beer

cans taken throughout Kostrzewski’s home (photos that Budeau had directed her

daughter to take despite knowing that T.F. was deeply saddened and burdened by the

parental dispute). The district court sustained a cumulative objection to most of the

photographs. But it eventually received all of them at once because, despite their limited

probativeness, Budeau’s attorney kept attempting to enter them on various grounds.

These circumstances support the district court’s determination that Budeau’s actions “had

the effect of lengthening the litigation and increasing the cost to both parties.” The

district court did not abuse its discretion by awarding Kostrzewski $6,000 in attorney fees

out of the $14,159 he requested.

       Budeau also contends that the district court erred by denying her request to release

a $10,000 parenting-time bond that she posted to comply with the district court’s 2008

modification order granting Kostrzewski sole physical custody. She cites no authority for

her position other than the statute authorizing the district court to order a cost bond. See

Minn. Stat. § 518.175, subd. 6(d) (2014). We therefore hold that the district court did not

abuse its discretion by denying Budeau’s request to release the bond.


                                            11
                                             III

         Budeau challenges the district court’s sua sponte determination that she is a

frivolous litigant under rule 9 of the Minnesota Rules of General Practice and its

consequent order prohibiting her from filing any motions for one year without prior court

approval. A district court may impose preconditions on a frivolous litigant’s future filing

even on its own initiative. Minn. R. Gen. Pract. 9.01. The district court must follow the

procedures in rule 9, which require the court to consider a set of factors outlined in rule

9.02(b) and make findings supporting its determination under rule 9.02(c). We review a

district court’s determination that a party is a frivolous litigant applying an abuse-of-

discretion standard. Szarzynski v. Szarzynski, 732 N.W.2d 285, 290, 295 (Minn. App.

2007).

         Under the unique circumstances of this case, we cannot hold that the district court

acted within its discretion by imposing the filing limitation. This is a very close call. We

are mindful of the inappropriate frequency of Budeau’s modification motions and the

lack of significant support for them. And we appreciate the district court’s reasoned effort

to avoid or minimize Budeau’s repetitive litigation. But we are convinced that T.F.’s

undisputed references to harming herself physically in context of her stated desire to

move back with her mother puts Budeau’s present effort outside the “frivolous” category.

We recognize that T.F. told the district court that it was the weight of her parents’

dispute, not her desire to move back with her mother (as her mother had implied), that

drove T.F. to declare her self-harming ideations. But despite the lack of evidence of the

endangerment necessary to support the motion, we are satisfied that, in this situation,


                                             12
sanctioning Budeau because she brought the motion is not consistent with the rule’s

objective to prevent clearly frivolous litigation. T.F. made the alarming statement to her

mother, and although renewing the litigation to modify custody was not an effective

response to it, it was not frivolous as we understand the rule. We therefore reverse only

the district court’s finding that Budeau is a frivolous litigant under the rule and its

consequent decision to impose the filing limitation.

       Affirmed in part and reversed in part.




                                            13
