MacNabb v. Kysylyczyn

In re the Marriage of: Teresa Corinne MacNabb, petitioner, Respondent, v. John Michael Kysylyczyn, Appellant.

No. A20-1172

Court of Appeals of Minnesota

August 23, 2021

This opinion is nonprecedential except as provided by Minn.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

Ramsey County District Court File No. 62-FA-08-2020

Victoria A. Elsmore, Sarah Peterson, Collins, Buckley Sauntry & Haugh, P.L.L.P., St. Paul, Minnesota (for respondent)

Carl A. Blondin, Oakdale, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Ross, Judge; and Gaïtas, Judge.

ROSS JUDGE

The daughter of John Kysylyczyn and Teresa MacNabb has been the subject of a parenting-time order since the parties' 2010 divorce, but she has refused to spend the designated time with her mother. The district court concluded that Kysylyczyn's failure to discipline the then 17-year-old daughter or take other action to coerce her to go to MacNabb's home as scheduled constituted constructive civil contempt of court and warranted time in jail. Kysylyczyn appeals, arguing that the district court improperly refused to allow the daughter to testify at the contempt hearing and inappropriately held him responsible for the nearly adult daughter's decision to avoid her mother. Since the time of the district court's order, the daughter has become an adult and graduated high school, and is no longer subject to a parenting-time order. We therefore dismiss the appeal as moot and vacate the contempt orders.

FACTS

Appellant John Kysylyczyn and respondent Teresa MacNabb divorced in 2010 under a judgment and decree that assigned them joint legal and physical custody over their children-a daughter born in March 2003 and son born in 2005. The children have been the subject of a consequent parenting-time order. In March 2019 MacNabb moved the district court to hold Kysylyczyn in civil contempt of court for failing to ensure that their daughter adhered to the parenting-time schedule. She asked the district court to order Kysylyczyn to serve time in jail and pay her attorney fees and costs.

The district court held a contempt hearing at which it refused to allow Kysylyczyn to call the daughter to testify. Kysylyczyn testified about the personal conflict between mother and daughter affecting daughter's refusal to spend time with MacNabb and that he encouraged their daughter to discuss her feelings with MacNabb. He told the court that he said or did nothing to discourage daughter from going to her mother's home as scheduled. The district court questioned Kysylyczyn about whether he had punished the daughter for her refusal and expressed disapproval when Kysylyczyn said he had not. The district court held Kysylyczyn in constructive civil contempt of court and ordered him to be confined to jail for 30 days. The district court stayed execution of the confinement conditioned on Kysylyczyn's complying with the parenting-time order.

Five weeks later MacNabb moved the district court to vacate the stay, arguing that Kysylyczyn had failed to satisfy the conditions. The district court held another hearing, where Kysylyczyn testified that he told his daughter about the order, directed her to go to MacNabb's home during her scheduled parenting time, and forbade her from staying in his house during that parenting time. Kysylyczyn said that he believed that, rather than going to her mother's home, the daughter would just go to the nearby home of her grandparents- Kysylyczyn's parents. Again the district court expressed its disapproval of Kysylyczyn's failure to engage in more disciplinary actions to compel the daughter to go to MacNabb's home as scheduled. The district court issued an order for writ of attachment and warrant of commitment. The order directed that Kysylyczyn "may be released from [jail] after he" agrees in writing to various behavior to force the daughter's parenting-time compliance, including

corrective measures and disciplinary efforts against [her], such as restricting or limiting [her] privileges to drive, to use her cell phone, to make recreational use of computer or internet access (including access relating to [her] YouTube channel), to schedule and attend social events with friends, to play with toys or Legos, and to attend extracurricular events (including events related to [her] involvement in scouts, band, music, [the] junior explorers club, among others),

and to "prevent" her from spending time with Kysylyczyn's parents during her scheduled time with MacNabb. Kysylyczyn appeals.

DECISION

During the pendency of this appeal, we asked the parties to update us about the daughter's status as a minor and to address any resulting question of mootness. For the following reasons, we hold that the appeal is mooted by daughter's adulthood, we dismiss the appeal without deciding whether the district court's orders were appropriate, and we vacate the contempt orders.

The questions presented in the appeal are moot. We decide only justiciable controversies, which are those involving a definite and concrete assertion of a legal right threatened in a genuine conflict between parties having adverse interests. McCaughtry v. City of Red Wing, 808 N.W.2d 331, 336-37 (Minn. 2011). If the issues raised fail to continue throughout the case, they become moot. Kahn v Griffin, 701 N.W.2d 815, 821 (Minn. 2005). An appeal of a contempt order is moot when the contemnor purges his contempt or the controversy underlying the contempt ends. See Seaver v. Indep. Sch. Dist. No. 166 of Cook Cty., 281 N.W.2d 198, 199 (Minn. 1979); Clement v. Clement, 204 N.W.2d 819, 819 (Minn. 1973). The controversy underlying the contempt order here ended when the parties' daughter turned 18 and graduated high school.

District courts have the power to enforce parenting-time orders by holding a party in civil contempt of court. Minn. Stat. § 518.175, subd. 6(h) (2020). The purpose of a civil-contempt order is to end a party's ongoing failure to comply with a court order, not to punish the party for past failures. Minn. Stat. § 588.12 (2020); Mahady v. Mahady, 448 N.W.2d 888, 890 (Minn.App. 1989). The district court here began the hearing on MacNabb's motion for contempt explaining to the parties, "[W]e're here today on a contempt motion concerning allegations regarding your daughter [] and [Kysylyczyn's] interfering with [MacNabb's] parenting time." The basis for finding Kysylyczyn in contempt was his failure to encourage or compel the parties' daughter to comply with the parenting-time order. And the order specifically concluded that Kysylyczyn was "in contempt of court for failure to comply with the Parties' March 26, 2018, Stipulated Agreement regarding parenting time." But since then, Kysylyczyn's contempt can no longer occur because the parties' daughter is no longer the subject of either parties' enforceable parenting time.

The parties' daughter can no longer be the object of the parenting-time order. Only a child can be the subject of court-ordered parenting time. See Minn. Stat. § 518.175, subd. 1(a) (2020). For the purposes of such an order, a "child" is a person younger than 18 years, a person who is between 18 and 20 years old and still attending secondary school, or a person who has a mental or physical condition that prevents her from supporting herself. Minn. Stat. § 518A.26, subd. 5 (2020). The parties have informed us that their now 18-year-old daughter graduated from high school shortly after oral argument in this appeal. And the record does not suggest that she is incapable of self-support. She is no longer a child whose habitation is based on the parenting-time order that the district court intended to enforce by jailing Kysylyczyn. A party may not be compelled through a civil-contempt order after the point he no longer has the ability or duty to comply with the underlying order for which he has been found to be in contempt. In re Welfare of Kg.E.H., 542 N.W.2d 658, 662 (Minn.App. 1996). Assuming Kysylyczyn engaged in contempt, his contempt ended when his daughter ceased being a child.

The circumstances here moot the issues Kysylyczyn raises on appeal. He challenges the district court's refusal to allow his daughter to testify at the contempt hearing, its holding him in contempt, and its denial of his motion to amend the warrant-of-commitment order. These decisions no longer affect Kysylyczyn's legal interests.

MacNabb argues against mootness on theories that do not change our mind. She argues that Kysylyczyn remains in contempt because of communication failures the district court identified in its contempt order and purge conditions. But those communication failures relate only to parenting-time issues concerning the parties' daughter. The daughter no longer being the subject of the parenting-time order, Kysylyczyn no longer bears any duty to communicate with MacNabb about parenting time concerning the daughter. MacNabb also argues that the fact that the parties' son remains subject to the parenting-time order prevents us from deeming the appeal moot. But a contempt order cannot preemptively compel a party to avoid speculative, future noncompliance. Minn. Stat. §§ 588.01, subd 3, 588.12 (2020); see Mahady, 448 N.W.2d at 890. The district court's decisions at issue in this appeal arise from a contempt order designed to remedy Kysylyczyn's alleged failure to facilitate MacNabb's parenting time only with the daughter, not the son. And the parties' hearing testimony informs us that MacNabb raised no concerns about her parenting time involving their son.

Conceding mootness, Kysylyczyn urges us not to dismiss the appeal because he will suffer collateral consequences from the challenged orders. An appeal is not moot if the challenged order, remaining intact, creates collateral...