In re the Marriage of: Robert William Bessenbacher v. Olga Sergeyevna Bessenbacher, Respondent,...

• Court: Court of Appeals of Minnesota
• Decided: December 26, 2023
• Docket: a230480
• Status: Unpublished

Opinion

This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA IN COURT OF APPEALS A23-0480

In re the Marriage of:

Robert William Bessenbacher, petitioner, Appellant,

vs.

Olga Sergeyevna Bessenbacher, Respondent,

Itasca County, Respondent.

Filed December 26, 2023 Affirmed Wheelock, Judge

Itasca County District Court File No. 31-FA-14-2754

Robert William Bessenbacher, Grand Rapids, Minnesota (pro se appellant)

Rachel L.F. Weis, Weis Legal Solutions LLC, Grand Rapids, Minnesota (for respondent Bessenbacher)

Matti R. Adam, Itasca County Attorney, Jacob P. Fauchald, Assistant County Attorney, Grand Rapids, Minnesota (for respondent county)

Considered and decided by Larkin, Presiding Judge; Segal, Chief Judge; and

Wheelock, Judge. NONPRECEDENTIAL OPINION

WHEELOCK, Judge

Appellant challenges the district court’s orders denying his motion to modify

spousal maintenance and granting his motion to modify child support. Appellant also

requests that this court vacate a district court order determining that he is a frivolous

litigant, as well as our decision affirming that order, and requests that this court review the

“necessity of recusal” of the district court judge in this proceeding. We affirm.

FACTS

Appellant Robert William Bessenbacher (husband) married respondent Olga

Sergeyevna Bessenbacher (wife) in 1997; they separated in 2014 and were divorced in

March 2016. They have seven children together, four of whom are now adults. In 2016,

the dissolution decree awarded wife sole legal and sole physical custody of the then-minor

children, granted husband parenting time, and required husband to pay child support and

permanent spousal maintenance. Husband appealed the award of spousal maintenance,

arguing that wife should be required to work rather than receive spousal maintenance, and

we affirmed the award. Bessenbacher v. Bessenbacher, No. A17-0339, 2017 WL 3585124,

at *4, *6 (Minn. App. Aug. 21, 2017). Husband has repeatedly raised the issues of spousal

maintenance, custody, parenting time, and child support since the initial dissolution

decree. 1

1 By the time husband appealed the orders at issue in this case, the district court had issued 13 previous orders beyond the initial dissolution decree in response to husband’s numerous filings and amended filings.

2 In Bessenbacher v. Bessenbacher, No. A18-2152 (Minn. App. Aug. 5, 2019)

(Bessenbacher II), this court affirmed several parenting-related decisions by the district

court but remanded the district court’s determination that husband was a frivolous litigant

because of procedural concerns. In March 2020, the district court regranted wife’s motion

to declare husband a frivolous litigant and imposed monetary and nonmonetary sanctions

on husband, ordering that when bringing any motion related to spousal maintenance,

custody, parenting time, or child support, husband must post a $2,500 bond and present the

motion to the district court for preapproval. During preapproval, the district court

determines whether the motions have sufficient legal merit on their face to proceed.

Husband appealed the March 2020 order (frivolous-litigant order), and we affirmed.

Bessenbacher v. Bessenbacher, No. A20-0371, 2020 WL 7688652, at *4 (Minn. App.

Dec. 28, 2020) (Bessenbacher III). Around this time, husband also moved for removal of

the district court judge, and the district court denied that motion. Husband moved for

reconsideration of that decision, and the chief judge of the district court denied his motion.

In June 2022, husband again moved for modification of spousal maintenance, child

support, and custody. As required, husband posted the bond and sought the district court’s

preapproval of his motion. The district court determined that husband’s motion requesting

modification of spousal maintenance was frivolous and dismissed that portion of his

motion. Husband requested permission to move for reconsideration of the dismissal, but

the district court found no compelling circumstances to support reconsideration and denied

his request. Husband then filed a petition for discretionary review of the denial of his

reconsideration request. In an August 2022 order, a special-term panel of this court denied

3 husband’s petition because the matter did not present issues of unsettled law or legal

questions of broad applicability and the district court’s decision was not a “death knell” to

the case. Bessenbacher v. Bessenbacher, No. A22-1050 (Minn. App. Aug. 30, 2022)

(order).

In December 2022, the district court held a hearing on husband’s remaining motions

to modify child support and custody. After the hearing, the district court issued an order

in which it (1) granted husband sole physical custody of one of the children and adjusted

parenting time accordingly, (2) maintained wife’s sole legal custody of the same child, and

(3) decreased the amount of husband’s child-support obligation.

Husband appeals. 2

DECISION

Husband challenges three district court orders—the frivolous-litigant order, the

order dismissing his motion to modify spousal maintenance, and the order granting his

motion to modify child support. Husband argues that the district court erred in four ways.

First, he argues that the district court erred in March 2020 when it determined that he is a

frivolous litigant. Second, he argues that the district court erred when it determined that

his motion to modify spousal maintenance did not have sufficient legal merit to proceed,

because a substantial change in circumstances occurred in husband’s finances and in wife’s

finances and the district court should impute income to wife. Third, he argues that the

district court erred by not reducing husband’s child-support payments by a greater amount

2 Wife and respondent Itasca County did not file briefs. In July 2023, this court ordered that the appeal proceed on the merits under Minn. R. Civ. App. P. 142.03.

4 because substantial changes in circumstances occurred beyond the emancipation of one

child and the changed physical custody of another. Finally, he requests that we “review

the necessity of recusal” of the district court judge for bias. We are not persuaded by

husband’s arguments and address each in turn.

I. The district court’s 2020 determination that husband is a frivolous litigant is decided and cannot be reheard.

Husband requests that we vacate the district court’s March 2020 frivolous-litigant

order and our opinion affirming the order in Bessenbacher III. Bessenbacher III affirmed

the district court’s March 2020 determination that husband is a frivolous litigant. 2020 WL

7688652, at *4. Husband did not petition the supreme court for review of that decision,

and the time to do so has expired. Minn. R. Civ. App. P. 117, subd. 1(a) (requiring a party

seeking review of a decision of this court to file a petition for review within 30 days of the

decision). Further, husband’s current request that this court grant him relief from the

portion of our opinion in Bessenbacher III affirming the district court’s determination that

husband is a frivolous litigant is, functionally, a request that this court rehear the relevant

portion of that appeal. The rules are clear: “No petition for rehearing shall be allowed in

the Court of Appeals.” Minn. R. Civ. App. P. 140.01; see Smith v. State, 974 N.W.2d 576,

581 (Minn. 2022) (stating that “[t]he law of the case doctrine functions to bar issues that

were previously considered and denied in the same case”); see also Sigurdson v. Isanti

County, 448 N.W.2d 62, 66 (Minn. 1989) (stating that “when the appellate court has ruled

on a legal issue . . . [, t]he issue decided becomes law of the case and may not be relitigated

in the trial court or reexamined in a second appeal”). Husband’s request that we vacate the

5 district court’s March 2020 frivolous-litigant order and our opinion in Bessenbacher III

affirming that order constitutes an impermissible request. We therefore do not consider it.

II. The district court did not abuse its discretion by dismissing husband’s motion to modify spousal maintenance as frivolous.

Husband argues that the district court erred by dismissing his request to modify or

terminate his spousal-maintenance payments, asserting that his motion had sufficient legal

merit on its face to proceed because he asserted that his expenses had increased

substantially and that wife is voluntarily underemployed. Husband also asserts that the

district court erred by going beyond the face of the motion to consider evidence he

submitted with his motion.

The frivolous-litigant order requires husband to present his motions to the district

court for review to determine whether they should be dismissed without further

proceedings. After reviewing husband’s motion, the district court determined that it was

“largely an attempt to re-litigate the same claims he . . . litigated unsuccessfully on several

prior occasions,” and that husband’s “pleadings do not establish a facially viable chance

that he can prove the prior spousal maintenance award [was] unreasonable and unfair.”

Based on these determinations, the district court dismissed husband’s motion to modify

spousal maintenance.

A movant makes a prima facie case for relief by “alleging facts that, if true, would

provide sufficient grounds for modification.” Woolsey v. Woolsey, 975 N.W.2d 502, 507

(Minn. 2022); see Amarreh v. Amarreh, 918 N.W.2d 228, 231 (Minn. App. 2018) (“At the

prima-facie-case stage of the proceeding, [the movant] need not establish anything. [The

6 movant] need only make allegations which, if true, would allow the district court to grant

the relief he seeks.”). But a prima facie case is not made if the allegations are merely

conclusory, “too vague to support a finding,” or not “supported by any specific, credible

evidence.” Szarzynski v. Szarzynski, 732 N.W.2d 285, 292 (Minn. App. 2007) (quotations

omitted); see Miller v. Miller, 953 N.W.2d 489, 494 (Minn. 2021) (requiring the district

court, when addressing a motion to intervene, to accept the movant’s allegations unless

they are “frivolous on their face”).

To make a prima facie case to modify maintenance, the movant must allege a

substantial change in circumstances that renders the existing award unreasonable and

unfair. Minn. Stat. § 518A.39, subd. 2(a) (2022); see Hecker v. Hecker, 568 N.W.2d 705,

709 (Minn. 1997). Appellate courts use an abuse-of-discretion standard to review a district

court’s determination of whether a movant made a prima facie case for the relief sought.

Hecker, 568 N.W.2d at 709. “A district court abuses its discretion in making such a

decision if it makes findings of fact that are not supported by the record, misapplies the

law, or resolves the matter in a manner that is contrary to logic and the facts on record.”

Madden v. Madden, 923 N.W.2d 688, 696 (Minn. App. 2019); see Woolsey, 975 N.W.2d

at 506 (same); Bender v. Bernhard, 971 N.W.2d 257, 262 (Minn. 2022) (same).

Here, we cannot say that husband has shown that the district court abused its

discretion in ruling that he failed to allege facts which, if true, would allow the district court

to modify his maintenance obligation. First, husband’s motion to the district court and his

brief to this court assert that his financial circumstances deteriorated because his expenses

have increased, because his tax benefits have decreased due to the emancipation of some

7 of the children and the increase in his income, and because of overall price inflation. But

husband does not address how (1) the alleged increase in his expenses is distinct from what

he asserts is a separate basis for modification—overall inflation; (2) inflation constitutes a

deterioration in his financial circumstances but not wife’s financial circumstances; (3) the

alleged changes in his financial circumstances are substantial; and (4) the alleged changes

in his financial circumstances render the existing maintenance obligation unreasonable and

unfair, in part because many of the changes that he asserts would also undermine wife’s

financial circumstances.

Second, husband asserted that wife’s financial circumstances changed because her

earning capacity is not limited in the same way it was when the original order establishing

spousal maintenance was issued. But husband does not articulate how her earning capacity

is no longer limited. Nor does husband explain why fewer limits on her ability to work

constitute a substantial change that renders the original award unreasonable and unfair. In

fact, he acknowledges that in the initial dissolution proceedings and the March 2016 decree,

the district court found that wife was able to work as a Russian translator. Husband does

not assert that wife is now able to obtain a job other than as a Russian translator, nor does

he allege other changes in circumstances that would establish a prima facie case for

spousal-maintenance modification.

Here, the district court reviewed husband’s allegedly increased expenses and

determined that the numbers husband provided were unreasonable on their face. See

Miller, 953 N.W.2d at 494. The district court reviews the motion submitted as a whole to

determine whether the facts alleged, if true, would support a finding that husband’s

8 circumstances had changed sufficiently to warrant a modification; here, the district court

determined that husband’s motion did not do so. The district court also observed that the

arguments husband made in his motion to modify spousal maintenance—specifically

regarding his expenses and whether wife should become employed or have income imputed

to her—were the same claims and arguments that he had made several times before and

that the district court had already considered and rejected.

Because the district court provided its reasons and explained how husband’s

allegations, even if true, failed to rise to the level of a substantial change in circumstances

rendering the existing maintenance obligation unreasonable and unfair, we see no abuse of

discretion in the district court’s decision. 3 Thus, the district court did not abuse its

discretion by dismissing the portion of husband’s motion seeking to modify or terminate

spousal maintenance as frivolous and not holding a hearing on that issue. 4

III. The district court did not abuse its discretion by not reducing husband’s child-support obligation by a greater amount.

Husband’s arguments regarding the district court’s alleged abuse of its discretion in

its modification of his child-support obligation are difficult to separate from his arguments

3 Husband also asserts that his bankruptcy filing supports modification of spousal maintenance, but husband did not raise this issue in the district court. We do not consider this argument because a party cannot raise a new issue on appeal or “obtain review by raising the same general issue litigated below but under a different theory.” Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). 4 Husband devotes a significant portion of his brief to arguments about wife’s imputed income and whether wife should be required to work that relate to his motion to modify spousal maintenance. The district court pointed out that husband has repeatedly raised this issue and that it has consistently been rejected. We agree with the district court’s assessment.

9 about spousal maintenance. To the extent we can discern his arguments, we conclude that

the district court did not abuse its discretion in modifying the child-support order and not

reducing husband’s child-support obligation by a larger amount. Because the district court

found that two events occurred that were substantial changes in circumstances that

rendered the existing support obligation unreasonable and unfair, it modified husband’s

child-support obligation by reducing it accordingly, applying the Minnesota Child Support

Guidelines. However, husband also alleged that additional changes in circumstances—

increased expenses, increased cost of living, inflation, and the loss of tax benefits due to

his children reaching the age of majority—existed that required the district court to reduce

his child-support obligation further. He asserts that the district court erred by determining

that these additional changes in circumstances were not a basis to further reduce his

child-support obligation.

We review a district court’s decision to modify child support for an abuse of

discretion. Shearer v. Shearer, 891 N.W.2d 72, 77 (Minn. App. 2017). So long as the

district court’s determination of child support is reasonable and acceptable based on the

facts in the record and is not contrary to logic, we will not disturb the order. See Madden,

923 N.W.2d at 696; Kirby v. Kirby, 348 N.W.2d 392, 394 (Minn. App. 1984). An

obligation calculated pursuant to the child-support guidelines is presumptively reasonable.

Minn. Stat. § 518A.34(a) (2022).

Here, husband does not challenge that the new support obligation set by the district

court is the presumptively appropriate guideline amount based on the district court’s

10 findings, 5 and husband cites no authority showing that that a guideline obligation is

unreasonable given his circumstances. Nor does he make any argument on the point that

was not previously rejected by the district court, or was not rejected above in this opinion,

or both. We therefore conclude that the district court did not abuse its discretion when it

determined that husband’s increased expenses, increased cost of living, inflation, and the

loss of tax benefits due to his children reaching the age of majority are not circumstances

that make the presumptively appropriate guideline child-support obligation set by the

district court unreasonable.

IV. The district court did not abuse its discretion by denying an oral motion for removal of the judge.

Finally, husband requests that we “evaluate the matter of the district court and the

necessity of recusal in this case,” arguing that the judge was required to recuse herself from

these proceedings because the judge acted with “premeditated prejudice” and failed to

follow the directives of this court. Our review of the record shows that husband made one

reference to a request for recusal at the hearing in December 2022 but never filed a formal

request to remove the judge assigned to this case. The district court denied husband’s

request at the hearing.

Assuming that husband followed the proper procedure to seek the judge’s recusal,

appellate relief would not be appropriate here. Specifically, appellate courts review a

5 Husband incorporates his argument that the district court should impute income to wife in his challenge to the child-support determinations; however, the district court rejected husband’s request to revisit the basis for its previous determination that income should not be imputed to wife, and we conclude in this opinion that, in so doing, the district court did not err.

11 district court’s ruling on a request to recuse after that judge has presided in a case for an

abuse of the district court’s discretion. Haefele v. Haefele, 621 N.W.2d 758, 766 (Minn.

App. 2001), rev. denied (Minn. Feb. 21, 2001). To seek to remove a district court judge

who has presided at a motion or any other proceeding of which the party had notice, the

movant must make “an affirmative showing that the judge is disqualified under the Code

of Judicial Conduct.” Minn. R. Civ. P. 63.03. And the Code of Judicial Conduct provides

that “[a] judge shall disqualify himself or herself in any proceeding in which the judge’s

impartiality might reasonably be questioned.” Minn. Code Jud. Conduct Rule 2.11. Prior

adverse rulings, however, do not constitute judicial bias. Greer v. State, 673 N.W.2d 151,

157 (Minn. 2004).

Here, husband argues that the judge demonstrated a pattern of “premeditated

prejudice” and bias that showed an inability to be objective. Husband identifies several of

the judge’s factual findings and rulings that he alleges show bias because they were

unfavorable to him, such as the judge’s calculation of husband’s expenses and her

determination that husband is a frivolous litigant. But, by themselves, such rulings

insufficient under Greer to show the bias necessary to require appellate relief from a district

court’s denial of a motion to remove the judge. 6 673 N.W.2d at 157.

6 Husband also appears to argue that the district court failed to comply with the 2020 and 2022 decisions of this court, but he does not elaborate or explain how the district court erred. Generally, appellate courts do not consider inadequately briefed issues. State, Dep’t of Labor & Indus. by Special Comp. Fund v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997) (declining to address an inadequately briefed issue); Brodsky v. Brodsky, 733 N.W.2d 471, 479 (Minn. App. 2007) (applying Wintz in a family law appeal). And husband appears to misread our opinions based on one sentence that states, “Sanctions do

12 In sum, we conclude that the district court’s determination that husband is a

frivolous litigant in these proceedings is already decided and cannot be reheard, that the

district court did not err by dismissing husband’s motion to modify spousal maintenance,

and that the district court did not abuse its discretion by modifying the child-support order

based solely on those alleged changed circumstances that it determined were substantial

and rendered the original award unreasonable and unfair. Finally, we conclude that

husband provides no basis that would require the judge to recuse herself.

Affirmed.

not prevent appellant from filing further motions.” Bessenbacher III, 2020 WL 7688652, at *3. Husband asserts that this sentence shows that we directed the district court to allow him to file motions about spousal maintenance. But we made that statement in the context of reviewing the effectiveness of prior sanctions imposed against husband and to note that sanctions have not deterred husband from continuing to file frivolous motions.