In re the Matter of: Kristin Holly Scherman, on behalf of minor child, A. S. v. Tad Gregory Scher

• Court: Court of Appeals of Minnesota
• Decided: June 15, 2015
• Docket: A14-1029
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn.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 A14-1029

In re the Matter of: Kristin Holly Scherman, on behalf of minor child, A. S., petitioner, Appellant,

vs.

Tad Gregory Scherman, Respondent.

Filed June 15, 2015 Affirmed; motion denied Ross, Judge

Dakota County District Court File No. 19AV-FA-12-230

Mark A. Olson, Olson Law Office, Burnsville, Minnesota (for appellant)

Lucas J.M. Dawson, Tifanne E.E. Wolter, Mundahl Law, P.L.L.C., Maple Grove, Minnesota (for respondent)

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

Ross, Judge.

UNPUBLISHED OPINION

ROSS, Judge

Kristin Scherman obtained a one-year order for protection forbidding her former

husband, Tad Scherman, from contacting their daughter, based on the district court’s

finding that he had unspecified sexual contact with the girl. The district court extended that order an additional year but denied Kristin’s request to extend it to a third year.

Kristin appeals that denial. Because the district court’s findings are not clearly erroneous

and because the court did not abuse its discretion, we affirm.

FACTS

Kristin Scherman and Tad Scherman were married in 1999, and their daughter,

A.S., was born in 2007. The couple divorced in 2010 under a judgment and decree that

declared Kristin as A.S.’s sole physical custodian. Kristin petitioned the district court for

a one-year order for protection in March 2012, prohibiting Tad from contact with A.S.

The district court conducted an evidentiary hearing and summarized the testimony

and opinion of psychologist Sandra Hewitt, who believed that A.S.’s behaviors were

consistent with sexual abuse and that A.S. had been exposed to sexualized contact. Based

primarily on that opinion, the district court found that Tad had engaged in inappropriate

sexual contact with A.S., and it issued the order for protection.

Kristin sought a one-year extension of the order in 2013. At the time, Tad and

Kristin were litigating custody and parenting time in family court. Tad agreed to the

extension, and the district court’s order granting the extension included no new findings.

It stated that the order could be “modified, amended or dismissed by the Court in the

family court matter,” and it specifically referred to potential contact between Tad and

A.S. for therapy, counseling, or parenting time.

Kristin sought another extension in 2014. This request did not succeed. The

district court conducted an evidentiary hearing. Kristin made three allegations supporting

her request: that Tad violated the previous order by failing to be psychosexually

2 evaluated by Dr. Hewitt; that A.S. may be harmed if Tad had any access to her; and that

Tad failed to acknowledge his misconduct and receive treatment.

The district court denied the motion for an extension into a third year. The district

court, whose presiding judge had presided in each of the protective-order proceedings,

reflected that, at the time of the first request, it “felt that it had no choice but to issue the

OFP.” Without making an actual finding on the issue, the district court pointed out

substantial evidence that indicated that Tad had never molested A.S. The evidence

included Tad’s consistent denials, an evaluation that did not suggest Tad was

psychologically disturbed or sexually deviant, and expert criticism of Dr. Hewitt’s 2012

expert evaluation, which had not included an interview with Tad.

The district court found that Tad never violated the prior order for protection. It

found that he never contacted or attempted to contact the child, even during periods in

which he believed the order had expired. And it found that, even though Tad never

completed a psychosexual evaluation with Dr. Hewitt, that circumstance was justified

because Dr. Hewitt had retired soon after the 2012 hearing and Tad completed the

required evaluation with Dr. Paul Reitman. The district court also found that Kristin’s

alleged fear of A.S.’s being in Tad’s presence was not reasonable. Extensive

investigation, including an investigation by Dakota County Child Protection, had not

substantiated Kristin’s allegations of sexual abuse, and Tad was never criminally

charged. And although A.S. is actually afraid of her father, an expert report indicated that

the child developed her anxiety from her mother, not from Tad.

3 The district court concluded that “extending the OFP is not necessary to protect

anybody involved in this case” and that the existing order was impeding the court-

ordered reunification in the parties’ family court file. The court denied Kristin’s

extension request but ordered Tad to “only have contact with the minor child as

recommended by the parties’ reunification therapists and in compliance with the Court’s

Orders in the family file.”

Kristin appeals.

DECISION

Kristin raises five arguments to challenge the district court’s decision denying her

request to extend the order for protection into a third year. She argues that the district

court and Tad infringed on her right to due process of law. She contends that some of the

district court’s findings are clearly erroneous. She maintains that the district court’s 2012

finding of abuse bound the court perpetually to extend the order for protection until Tad

admitted to the misconduct and received treatment. She argues too that because Tad

violated a prior order and she reasonably fears his contact with A.S., the district court

abused its discretion by not extending the order. And she asserts that the district court had

no authority to define Tad’s access to A.S. once it decided not to extend the order.

I

Kristin argues that Tad brought “inappropriate legal actions” and that the district

court made “inappropriate legal determinations” that created a “procedural quagmire,”

denying her right to due process. The argument is incomprehensible and appears to have

no support in the law; but we do not attempt to address it on the merits because it is new

4 on appeal. Kristin never raised a due process argument in the district court. See Thiele v.

Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding that we will not consider matters

which were not presented to and decided by the district court).

II

Kristin contests as clearly erroneous several of the district court’s fact findings.

We review the record in the light most favorable to the findings, and “we will reverse

those findings only if we are left with the definite and firm conviction that a mistake has

been made.” Pechovnik v. Pechovnik, 765 N.W.2d 94, 99 (Minn. App. 2009) (quotation

omitted). We will not reverse merely because we perceive conflicting evidence or issues

of witness credibility. Id.

Kristin argues that the district court clearly erred by finding that Tad’s failure to

receive a psychosexual evaluation from Dr. Hewitt was not a violation of the March 2012

order. The argument has two infirmities. First, determining whether Tad substantially

complied with the district court’s order was a matter of district court discretion. The

district court was aware that Tad did not undergo an evaluation by Dr. Hewitt, so its

finding of compliance was effectively a holding that Tad’s conduct substantially

complied with the order. And second, the evidence supports the underlying fact findings

on which the district court made its compliance determination. Testimony supports the

finding that Dr. Hewitt retired in 2012, and documents and testimony support the finding

that Tad underwent a psychosexual evaluation with a qualified expert. The district court

did not clearly err in the underlying fact findings. And it acted within its discretion by

5 holding that Tad’s conduct in engaging with a substitute psychologist was sufficient to

satisfy its order for a psychosexual evaluation.

Kristin also contends that the district court clearly erred by finding that neither

Kristin nor A.S. had a reasonable fear of Tad. She relies on her own testimony, and she

relies on parts of Tad’s testimony by lifting it out of its context. It is true that Tad

testified that he believes that A.S.’s fears of him are reasonable, but he explained that he

believes this only because Kristin has fostered anxiety in the child by leading her to

believe that he harmed her. It is also true that Tad stated that he believes that Kristin is

fearful of him, but he added that her fears are not reasonable and arise from “general

anxiety and issues surrounding [their] divorce.” The district court acknowledged that

Kristin’s fear was real, but it found her fear unreasonable. The court based its finding of

no reasonable fear mainly on the lack of evidence that Tad posed any danger. The district

court considered whether the fear arose from Tad’s conduct or some other source. It

observed that Tad was never criminally charged despite the lengthy period for the

investigation; that a child-protection investigation had also never substantiated the abuse

allegation; and that the child-protection case had ended. Tad had no contact with A.S. for

more than two years, and no one made any recent allegations of abuse. Tad’s

psychological evaluation did not suggest any psychosexual concern. And evidence

suggested that the child’s anxiety resulted from Kristin’s exposed feelings rather than

from any misconduct by Tad. The finding of no reasonable fear is not clearly erroneous.

Kristin challenges as erroneous the district court’s finding that granting her request

to extend the order for protection would hinder court-ordered reunification efforts in the

6 family court file. She asserts that no reunification order exists. She overlooks the fact that

the family court indeed ordered reunification therapy to commence immediately in

September 2012 and again in July 2013. And the district court’s November 2013 custody

order had reminded the parties to cooperate with the reunification therapy process.

Kristin relies on our rules to obscure the family court file, arguing that we cannot look

beyond the appellate record to discover whether an order for reunification therapy

actually existed. But she included the September 2012 order in her addendum, and the

district court was free to take judicial notice of the order issued in another proceeding in

the same court. Minn. R. Evid. 201(b) (allowing courts to take judicial notice of

adjudicative facts “capable of accurate and ready determination by resort to sources

whose accuracy cannot reasonably be questioned”); In re Welfare of Clausen, 289

N.W.2d 153, 157 (Minn. 1980) (holding that “[j]udicial notice of records from the court

in which a judge sits” satisfies the requirement of rule 201(b)).

Kristin has similarly moved us to strike portions of Tad’s brief and addendum. We

generally may not base our decision on matters that were not received into evidence by

the district court and that are outside the record on appeal. Thiele, 425 N.W.2d at 582–83.

Because we rely only on the record, we deny Kristin’s motion as moot.

Kristin references other evidence and findings and asserts that they are irrelevant,

but she does not support the assertion with any analysis. We will not address these issues.

See State, Dep’t of Labor and Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480

(Minn. 1997) (declining to reach an inadequately briefed issue); see also State v. Modern

Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (holding that assignment of

7 error unsupported by argument or assertion is waived unless error and prejudice are

obvious).

Kristin finally objects to the district court’s recitation of evidence suggesting

doubt about the court’s original finding in 2012 that Tad had sexually abused A.S. She

argues that collateral estoppel bars any relitigation of the 2012 finding. But “[c]ollateral

estoppel is an equitable doctrine, . . . and courts do not apply it rigidly but focus instead

on whether an injustice would be worked upon the party upon whom the estoppel is

urged.” Barth v. Stenwick, 761 N.W.2d 502, 508 (Minn. App. 2009) (quotation omitted).

Without addressing whether collateral estoppel is the right doctrine here, if collateral

estoppel is available, the district court has discretion whether to apply it. Pope Cnty. Bd.

of Comm’rs v. Pryzmus, 682 N.W.2d 666, 669 (Minn. App. 2004), review denied (Minn.

Sept. 29, 2004). But as we discuss below, we need not determine whether the district

court abused its discretion here because the court made no finding on the matter and no

finding was necessary.

III

Kristin argues that Tad is precluded from having custody of or access to A.S. as a

matter of law. She contends that because the district court in 2012 found that Tad had

sexually abused A.S., Tad can never have custody under any circumstances and cannot

have access to A.S. until he acknowledges his offenses and has been rehabilitated. We do

not address Kristin’s custody argument because the only decision on appeal is the district

court’s refusal to extend the order for protection. Custody was not decided in that order

and the issue is not before us.

8 Kristin relies on a custody decision, In re Welfare of Bergin, 299 Minn. 218, 218

N.W.2d 757 (1974), to support her no-access argument. Her reliance on Bergin is both

misplaced and misleading. It is misplaced because Bergin addresses physical custody, not

access or contact. And it is misleading because she fails to present the full and relevant

decision in that case. In Bergin, the supreme court addressed the custody of a father who

had sexually molested two daughters. The Bergin court initially remanded the case,

making the sweeping statement that the “gravity of the [father’s] offenses disqualifies

him as a custodial parent.” Id. at 219, 218 N.W.2d at 758. Kristin points us only to this

statement about an abuser’s supposed custody disqualification. She fails to mention,

however, that the supreme court amended its remand order, stating instead that the father

was not disqualified from having custody under the right circumstances after treatment.

Id. at 220, 218 N.W.2d at 758–59.

Nothing in Bergin stands for the holding that a father accused of abusing his child

must admit to the allegation and submit to treatment before having any access to the

child. And such a holding would likely conflict with the controlling statute. Even if a

parent seeking custody or parenting time has been convicted of certain crimes, including

some sex crimes, he can prevail by providing clear and convincing evidence that the

request is in the child’s best interests. Minn. Stat. § 518.179, subd. 1 (2014). Most

difficult for Kristin’s argument is the fact that the district court judge in this case

reflected on his prior finding of abuse with apparent concern about its accuracy in light of

the circumstances of the finding and the investigations that followed. The district court

implied that its early finding of abuse rested almost entirely on a psychologist’s

9 suppositions from speculative circumstances, and it implied also that it now doubts that

the finding would stand based on more complete information. If the law somewhere

supports Kristin’s proposition that the original protective-order findings are galvanized

and controlling forever on the question of whether to extend an order for protection, she

has not brought that legal authority to our attention.

IV

Kristin ultimately argues that the district court abused its discretion by denying the

motion to extend the order for protection. The district court may extend relief granted in

an existing order for protection if the respondent has violated the order or the petitioner

reasonably fears physical harm. Minn. Stat. § 518B.01, subd. 6a(a)(1), (2) (2014). The

district court has the discretion whether to grant the relief. Mechtel v. Mechtel, 528

N.W.2d 916, 920 (Minn. App. 1995). And we review its decision for abuse of discretion.

Geske v. Marcolina, 642 N.W.2d 62, 67 (Minn. App. 2002).

Kristin contends that the district court’s decision constitutes an abuse of discretion

based on issues we have already addressed. She maintains that Tad violated the terms of

the existing order by not undergoing a psychosexual evaluation with Dr. Hewitt. Again,

the district court did not clearly err or abuse its discretion by rejecting that argument. She

also relies on her allegedly reasonable fear that Tad will harm A.S. As we have said, the

district court had a sufficient base of evidence on which it found that Kristin’s fears are

not reasonable and that the child’s fear results from Kristin’s reactions, not Tad’s

conduct. We add that Kristin’s fears are mitigated by the district court’s order allowing

10 Tad to have contact with A.S. only as recommended by a reunification therapist and

under the authority of the family court.

V

Kristin argues that once the district court denied her motion to extend the order, it

lacked the discretion to limit Tad’s conduct in the fashion just stated. The proposition is

confusing, but we do not consider it because it is devoid of legal argument or citation to

applicable legal authority.

Affirmed; motion denied.