This opinion is nonprecedential except as provided by Minn.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 A23-1142
In re the Marriage of:
Sarah Mae DeVille, petitioner, Respondent,
vs.
Darren Lee Hickey, Appellant.
Filed May 13, 2024 Affirmed Kirk, Judge *
Hennepin County District Court File No. 27-FA-19-1064
John E. Roach, RAM Law, P.L.L.C., Roseville, Minnesota (for respondent)
Darren Lee Hickey, Mound, Minnesota (pro se appellant)
Considered and decided by Johnson, Presiding Judge; Cochran, Judge; and Kirk,
Judge.
NONPRECEDENTIAL OPINION
KIRK, Judge
In this post-marital-dissolution dispute, appellant-father argues that the district court
erred by (1) granting respondent-mother’s motion for conduct-based attorney fees;
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10. (2) denying father’s motion to remove the parenting consultant; (3) denying father’s
motion to remove the parenting-consultant process from the dissolution judgment and
decree; and (4) denying father’s motion to divide child-related tax benefits between the
parties. We affirm.
FACTS
Appellant-father Darren Lee Hickey and respondent-mother Sarah Mae deVille 1
were married in 2017 in Hennepin County and have two minor children. Mother petitioned
for dissolution of marriage in February 2019. In November 2020, the parties stipulated to
an order appointing a parenting consultant (PC) to help them resolve disputes regarding
the children. Under the stipulated order, the district court authorized the PC to “interpret
unclear provisions in the parents’ stipulations and/or court orders;” decide parenting issues
not considered by a prior or existing court order; decide changes to the parenting time
schedule; and “decide revisions to previously decided parenting issues as needed to meet
changing circumstances.” 2 If either parent was in disagreement with a decision of the PC,
the stipulated order provided that the party bring a motion to contest the decision. The
parties agreed that the PC would serve a three-year term, and that if a different PC was
1 The case caption in the district court identified respondent-mother as “Sarah Mae Deville.” But respondent is identified her appeal brief as “Sarah Mae deVille,” and the order for judgment identifies her as “Sarah Mae DeVille.” The caption of this opinion conforms to the caption used in the district court’s order for judgment. See Minn. R. Civ. App. P. 143.01. But we use respondent’s preferred name throughout the body of the opinion. 2 On appeal, neither party is contesting the PC’s authority to make such decisions.
2 needed because the selected one was unavailable, did not agree to serve, or was removed
by written agreement of the parents or by court order, then a new PC would be appointed.
By May 2021, the PC determined the parties remained high conflict and could not
communicate or make decisions effectively. The PC awarded sole legal custody to mother
in a decision dated August 29, 2021. In her decision, the PC noted that father had little
willingness to co-parent with mother. In January 2022, the PC withdrew because father
stopped paying his portion of her retainer fee.
In March 2022, father moved the district court to find mother in contempt of court
based on the parties’ inability to effectively communicate about the children’s medical and
psychological care. Mother filed a responsive motion asking, among other things, that the
district court deny father’s motion as a whole, and that the district court order father to pay
his portion of the retainer for the PC and cooperate with continued retention of the PC for
the entirety of the PC’s term. Mother also requested costs and attorney fees incurred due
to father unreasonably contributing to the length and expense of the proceedings.
Father filed a responsive motion in August 2022. Father moved the district court to
order mother to “comply in selecting” a new PC and to award him $7,705 in conduct-based
attorney fees and costs “pursuant to Minn. Stat. § 518.14.”
Shortly after, the parties stipulated to appointing the new PC. The parties agreed
that she would serve a two-year term “from the date the PC signs the Fee Agreement” and
that the term could be extended by executing a new fee agreement at the end of the term.
The stipulation provided that either party “may file a motion in district court for the
removal of the PC.” But the district court would only grant the motion “if a parent shows
3 good cause for the removal.” The parties agreed to be equally responsible for the PC’s
retainer and any fees incurred in the process.
The district court held a hearing on the parties’ motions in August 2022, and then
set another review hearing for September. Following the September 2022 hearing, the
district court filed findings of fact and an order denying both parties’ motions for conduct-
based attorney fees and “any other pending motion not addressed by” the order.
In mid-December 2022, mother moved to hold father in contempt of court and to
compel him to sign the new PC’s intake forms and pay his half of the new PC’s retainer
fee. The district court addressed the matter at a hearing at the end of January 2023, and
then ordered that father complete the intake forms.
Soon after, the district court entered findings of fact, conclusions of law, order for
judgment and judgment and decree, dissolving the parties’ marriage. The district court
awarded sole legal custody of the children to mother and granted joint physical custody to
both parties. Regarding tax dependency exemptions, the district court determined that
“[t]he most equitable approach [was] to award each parent one of the minor children” and
“[b]ecause [mother] claimed both minor children during these lengthy dissolution
proceedings and the parties did not share the tax refunds and credits [mother] received, the
youngest child [was] assigned to [father].”
In April 2023, mother moved the district court to find father in contempt for failing
to: execute the new PC’s fee agreement, pay the new PC’s retainer fee, and otherwise
cooperate with the appointment and retention of the new PC. Mother requested that the
district court order father to sign and submit the fee agreement and compel father to pay
4 one-half of the new PC’s fee agreement. In the alternative, mother asked the court to enter
a $2,500 money judgment against father for reimbursement of the amount mother would
pay to retain the new PC. Finally, mother asked the court to award “reasonable costs and
[attorney] fees due to [father] unnecessarily and unreasonably contributing to the expense
and duration of litigation,” and any other relief the court deemed necessary and just.
Father filed a responsive motion the next month. Among other things, father moved
to discharge the new PC; modify the judgment and decree to remove the language requiring
the parties to resolve parenting disputes through the PC; and order the parties to evenly
split childcare tax credits and child-related stimulus payments received since the
dissolution proceedings began.
At the June 1, 2023, motion hearing, mother’s attorney informed the district court
that father was not cooperating with the retention of the new PC and had still not paid his
portion of the new PC’s retainer fee. Mother’s attorney also reported that father refused to
electronically sign the new PC’s fee agreement. The total retainer fee was $5,000, with
each party paying half. If father could not pay his half, mother’s attorney requested that the
district court enter a $2,500 judgment against father and hold him in contempt of court for
failing to cooperate with the PC, per the district court’s August 2022 order. Mother’s
attorney asked the district court to confine father to jail if he did not agree to sign the fee
agreement.
Father appeared pro se at the hearing. He argued that, upon receiving the new PC’s
fee agreement, he immediately requested that she send him a printed copy so that he could
suggest changes. A representative from the new PC’s office responded by stating that the
5 new PC would not negotiate the fee agreement. Father alleged that the new PC ignored his
correspondence and was “dismissive” of his concerns. Father argued there was nothing in
the correspondence from the new PC’s office that specified that the fee agreement needed
to be signed electronically. Father assured the district court that he printed, signed, and sent
the fee agreement to the new PC’s office via “certified mail returned receipt” but the new
PC would only accept an electronic signature. The district court agreed to issue an order
directing the new PC to accept father’s printed signature if necessary.
After the hearing, the district court filed findings of fact and order for judgment.
The district court denied mother’s contempt motion based on father’s failure to complete
the new PC’s fee agreement but reserved the motion for contempt based on father’s failure
to pay his share of the new PC’s retainer fee. The district court granted mother’s motion
for a money judgment against father for $2,500—his half of the new PC’s retainer fee. The
district court also granted mother’s motion for reasonable attorney fees and costs incurred
in having to bring the motion for contempt. Finally, the district court denied father’s
motions to remove the PC; amend the judgment and decree; and “split child care tax credits,
stimulus payments and all other payments from either the State and Federal governments.”
Soon after, the district court filed findings of fact and an order for judgment,
awarding mother conduct-based attorney fees in the amount of $1,510.
After entry of a judgment, father appeals.
6 DECISION
I. The district court did not abuse its discretion by awarding mother conduct- based attorney fees because the record supports the finding that father unreasonably contributed to the length and expense of the PC-process.
First, father challenges the district court’s award of conduct-based attorney fees,
arguing that he did nothing to unreasonably contribute to the length of the proceedings.
“A conduct-based attorney-fee award is reviewed for an abuse of discretion.” Sanvik
v. Sanvik, 850 N.W.2d 732, 737 (Minn. App. 2014). “A district court abuses its discretion
by making findings of fact that are unsupported by the evidence, misapplying the law, or
delivering a decision that is against logic and the facts on record.” Bender v. Bernhard, 971
N.W.2d 257, 262 (Minn. 2022) (quotation omitted).
Under Minnesota Statutes section 518.14, subdivision 1 (2022), the district court
“shall award attorney fees, costs, and disbursements in an amount necessary to enable a
party to carry on or contest” a divorce or child-support proceeding provided certain
conditions are met. The district court is not “preclude[d] . . . from awarding, in its
discretion, additional fees, costs, and disbursements against a party who unreasonably
contributes to the length or expense of the proceeding.” Minn. Stat. § 518.14, subd. 1.
“Generally, conduct-based attorney fees are to be based on the party’s behavior
occurring during the litigation process.” Baertsch v. Baertsch, 886 N.W.2d 235, 238 (Minn.
App. 2016) (citation omitted). The party moving for conduct-based attorney fees has the
burden of showing that the other party’s conduct “unreasonably contributed to the length
or expense of the proceeding.” Geske v. Marcolina, 624 N.W.2d 813, 818 (Minn. App.
2001) (citations omitted). The district court must make specific findings on a motion for
7 attorney fees. Cf. Richards v. Richards, 472 N.W.2d 162, 166 (Minn. App. 1999)
(concluding that the district court “erred by failing to make specific findings” on the issue).
“Fee awards under Minn. Stat. § 518.14 may be based on the impact a party’s behavior has
had on the costs of the litigation regardless of the relative financial resources of the parties.”
Dabrowksi v. Dabrowski, 477 N.W.2d 761, 766 (Minn. App. 1991) (citing Holder v.
Holder, 403 N.W.2d 269, 271 (Minn. App. 1987)).
If a party takes positions that are “duplicitous and disingenuous and have had the
effect of further delaying distribution, lengthening [the] litigation, and increasing the
expense of [the] proceedings” then an award of conduct-based attorney fees is appropriate.
Redmond v. Redmond, 594 N.W.2d 272, 276 (Minn. App. 1999).
The district court made specific findings to support its determination that father
unreasonably contributed to the length of the PC-process. The district court found, “Each
step in the [PC]-process has required court intervention to ensure that [father] complies
with implementing the terms of the order that he agreed to while represented by counsel.”
Father’s decision not to participate in the intake process, sign the fee agreement, and pay
the PC fee was “deliberate and occurred over a period of many months (August 2022
through June 2023) and required several court hearings to address.” Father’s inaction
“directly resulted in [mother] incurring attorney fees in the total amount of $1,510.” The
work described in the affidavit from mother’s attorney “was performed and required for
the benefit of and the proper representation of [mother] in this contempt process.”
These findings are supported by the record. The original PC withdrew from service
in January 2022, because father stopped paying his portion of her retainer fee. Then father
8 moved the district court to order mother to comply in selecting the new PC, and shortly
thereafter, the parties stipulated to the appointment. Yet the November 2022 email
correspondence between mother’s attorney and father shows that father repeatedly ignored
counsel’s requests that he complete the intake paperwork provided by the new PC’s office.
This prompted mother to move the district court to hold father in contempt of court and to
compel him to complete the paperwork. The district court addressed the matter at the
January 31, 2023, hearing, and then ordered that father complete the intake forms. But
father did not agree to sign the fee agreement until after mother filed another motion for
contempt in April 2023. The new PC was appointed in August 2022, but father refused to
sign the new PC’s fee agreement until April 2023. Thus, father’s refusal to cooperate with
the PC-process directly contributed to the length of the proceedings.
As a result, it was not an abuse of discretion for the district court to award mother
conduct-based attorney fees.
II. The district court did not abuse its discretion by denying father’s motion to remove the new PC.
Next, father insists that the district court abused its discretion when it denied his
motion to remove the new PC because he alleges that the new PC was “untimely and
uncommunicative with her clients, and through her staff has exhibited actions, attitudes,
and antipathy towards [father] that brings serious question to her ability or willingness to
treat [father] in a fair and just manner.” This argument is unavailing.
“District courts have broad discretion on matters of custody and parenting time.”
Hansen v. Todnem, 908 N.W.2d 592, 596 (Minn. 2018). Appellate review “is limited to
9 whether the district court abused its discretion by making findings unsupported by the
evidence or by improperly applying the law.” Id. (quoting In re Custody of N.A.K., 649
N.W.2d 166, 174 (Minn. 2002)).
Parties to a dissolution are not precluded “from voluntarily agreeing to submit their
parenting time dispute to a neutral third party or from otherwise resolving parenting time
disputes on a voluntary basis.” Minn. Stat. § 518.1751, subd. 4. (2022). The Minnesota
Legislature has yet to define “parenting consultant.” Generally, “the term refers to a
creature of contract or of an agreement of the parties which is generally incorporated into
(or at least referred to in) a district court’s custody ruling.” Szarzynski v. Szarzynski, 732
N.W.2d 285, 293 (Minn. App. 2007). Minnesota Rule of General Practice 310.03(c)(2)
states that “Parenting Consulting is a process defined by the agreement of the parties in
which the Parenting Consultant (PC) incorporates neutral facilitation, coaching and
decision making.” The PC’s authority comes directly from the parties’ agreement. See id.
“Courts favor stipulations in dissolution cases as a means of simplifying and
expediting litigation, and to bring resolution to what frequently has become an acrimonious
relationship between the parties.” Shirk v. Shirk, 561 N.W.2d 519, 521 (Minn. 1997).
“Although considerable weight is given to stipulations intelligently entered with the benefit
of counsel, in determining questions of custody the paramount issue remains the welfare
and best interests of the children. The court must in every case exercise an independent
judgment and is not bound by the stipulation.” Petersen v. Petersen, 206 N.W.2d 658, 659
(Minn. 1973) (citation omitted). “[I]f a stipulation was improvidently made and in equity
and good conscience ought not stand, it may be vacated.” Shirk, 561 N.W.2d at 522.
10 A PC may be removed “for good cause” when the party can show that the PC was
not acting in the children’s best interest. See Szarzynski, 732 N.W.2d at 293-94 (concluding
that a reversal of the district court’s decision to remove a PC was not warranted when it
was shown that the PC refused to contact the children’s therapist to monitor the
reunification plan and had been hard to work with). And “there can be legitimate reasons
to remove or replace a PC that do not directly bear on the children’s best interests (e.g.,
illness of the consultant).” Id. at 293.
Here, the district court relied on Shirk when it denied father’s motion to remove the
new PC. See 561 N.W.2d at 521 (“Stipulations are . . . accorded the sanctity of binding
contracts.”). The district court found that “[father] was represented by counsel when he
signed the stipulated order, he understood the terms of the agreement, and he had worked
with a parenting consultant previously.” These findings are supported by the record. Father
is the party that moved to court to order mother to comply in selecting the new PC. Shortly
after, the parties stipulated to the new PC’s appointment in an order filed August 8, 2022.
Nothing in the record suggests that the stipulation appointing the new PC was
improvidently made. Nor has father argued or proven that the new PC acted contrary to
children’s best interests, or that there was any other legitimate reason to remove her from
service as PC.
Thus, the district court appropriately exercised its discretion by denying father’s
motion to remove the new PC because father has not shown good cause to do so.
11 III. The district court did not abuse its discretion when it denied father’s motion to remove the PC-process from the dissolution judgment.
Father also argues that the district court abused its discretion when it denied his
motion to remove the PC-process from the dissolution judgment.
The district court’s decision not to reopen a dissolution judgment and decree “will
not be disturbed absent an abuse of discretion.” Kornberg v. Kornberg, 542 N.W.2d 379,
386 (Minn. 1996). “On motion and upon terms as are just, the court may relieve a party
from a judgment and decree, order, or proceeding under this chapter, except for provisions
dissolving the bonds of marriage, annulling the marriage, or directing that the parties are
legally separated . . . .” Minn. Stat. § 518.145, subd. 2 (2022). The district court may order
a new trial or grant other relief as may be just for five reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under the Rules of Civil Procedure, rule 59.03;
(3) fraud, whether denominated intrinsic or extrinsic, misrepresentation, or other misconduct of an adverse party;
(4) the judgment and decree or order is void; or
(5) the judgment has been satisfied, released, or discharged, or a prior judgment and decree or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment and decree or order should have prospective application.
Id. The motion must be filed “within a reasonable time, and for a reason under clause (1),
(2), or (3), not more than a year after the judgment and decree, order, or proceeding was
12 entered or taken.” Id. “The sole relief from [a] judgment and decree lies in meeting the
requirements of Minn. Stat. § 518.145, subd. 2.” Shirk, 561 N.W.2d at 522.
Father has identified no reason under Minnesota Statute section 518.145,
subdivision 2, for the district court to reopen the judgment and decree. The district court
found that “[father] was represented by counsel when he signed the stipulated order, he
understood the terms of the agreement, and he had worked with a [PC] previously.” The
record supports this finding because the parties had first stipulated to appointing the
original PC in November 2020.
The parties continued to work with the first PC until she withdrew from service in
January 2022 due to father refusing to pay his half of the retainer fee. And father is the
party that moved the district court to order mother to agree to appoint the new PC, and he
was represented by counsel when the motion was filed. Nothing in the record conveys that
father signed the stipulation because of mistake, inadvertence, surprise, or excusable
neglect. Nor does father’s appellate brief suggest that there is newly discovered evidence,
fraud, or that the judgment and decree or order is void.
Based on the above facts, the district court did not make findings of fact that are
unsupported by the evidence, misapply the law, or deliver a decision against logic and the
facts on record. See Bender, 971 N.W.2d at 262. Thus, the district court’s denial of father’s
motion to amend the judgment and decree to remove the PC-process from the alternative-
dispute provision, was an appropriate use of discretion.
13 IV. Father’s argument about childcare tax credits and child-related state and federal stimulus payments is forfeited.
Finally, father asserts that the district court abused its discretion when it denied his
motion to split tax dependency exemptions, stimulus payments, and all other child-related
payments from the state or federal governments.
The district court ruled on this issue in February 2023, in its final judgment and
decree dissolving the parties’ marriage. Yet father moved the district court to order the
parties to evenly split the child-related tax credits, stimulus payments, and other payments,
in May 2023. As stated in a previous section, “[t]he sole relief from [a] judgment and decree
lies in meeting the requirements of Minn. Stat. § 518.145, subd. 2.” Shirk, 561 N.W.2d
at 522. Furthermore, “[a]n assignment of error based on mere assertion and not supported
by any argument or authorities in appellant’s brief . . . will not be considered on appeal
unless prejudicial error is obvious on mere inspection.” Schoepke v. Alexander Smith &
Sons Carpet Co., 187 N.W.2d 133, 135 (Minn. 1971).
Here, the district court found that the parties had a 50/50 parenting time schedule
and that both parties contribute significantly to their minor children’s needs. The district
court determined that “[t]he most equitable approach [was] to award each parent one of the
minor children” and “[b]ecause [mother] claimed both minor children during these lengthy
dissolution proceedings and the parties did not share the tax refunds and credits [mother]
received, the youngest child is assigned to [father].”
Father has not shown the existence of any of the five criteria listed in Minnesota
Statutes section 518.145, subdivision 2. Father cites no legal authorities supporting his
14 assertion, nor is there any obvious prejudicial error upon mere inspection. Thus, father’s
argument is forfeited.
Affirmed.