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UNPUBLISHED CIVIL OPINIONS FROM THE MINNESOTA COURT OF APPEALSIn re the Marriage of:Blanca Margarita Zaldivar, petitioner, Respondent, vs. Luis Roberto Rodriguez Zaldivar, Appellant. LANSING, Judge Luis Zaldivar appeals the district court's denial of his motions to modify child custody and to reopen his dissolution judgment. We affirm the denial of the modification motion without a hearing because the affidavits and supplemental material do not establish prima facie evidence of a change in circumstances that endangers the child's physical or emotional health. We do not reach Zaldivar's challenge to the dissolution judgment because he failed to address it in the text of his appellate brief and, on the face of the record, we perceive no error in the district court's determination. = = = = A06-343 Lance Edward Link, Respondent, vs. Christina Clark, Appellant. LANSING, Judge The district court denied Christina Clark's custody-modification motion without holding an evidentiary hearing. On appeal, we affirm the denial because the affidavits and supplemental material submitted with the motion did not provide prima facie evidence of a change in circumstances that endangered the child's physical or emotional health. We deny Lance Link's motion to strike portions of Clark's appellate brief. = = = = A06-122 The Loan Store, Appellant, vs. Latanya McConnell, Respondent. RANDALL, Judge This appeal results from a judgment based on the district court's finding that the parties agreed to an oral modification of a contract. On appeal, appellant argues that the district court failed to take into consideration the statute-of-frauds writing requirement for credit agreements stated in Minn. Stat. ? 513.33, subd 2 (2000). We affirm on all issues. = = = = A06-577 In re the Matter of: Craig H. Hansen, petitioner, Appellant, vs. James Wennblom, Respondent. PETERSON, Judge This appeal is from a judgment dismissing appellant's case because appellant failed to comply with a discovery order and failed to prosecute. We affirm. = = = = A06-386 Terra Firma Estates, Inc., Relator, v. Department of Employment and Economic Development, Respondent. PETERSON, Judge In this appeal from a decision of an unemployment-law judge (ULJ) that services performed for relator by two individuals were performed in employment rather than as independent contractors, relator argues that the ULJ erred in concluding that (a) roofing materials are a main expense related to the roofing work that the two individuals performed for relator; and (b) the evidence does not support the ULJ's determination that the individuals do not meet all nine statutory conditions required to show that they are independent contractors. We affirm. = = = = A05-2531 In re the Marriage of: Lisa Kay Liveringhouse, petitioner, Respondent, vs. Mark Lyle Liveringhouse, Appellant. WILLIS, Judge Pro se appellant argues that the district court (1) miscalculated his income for child-support purposes by understating his allowable deductions and clearly erred in calculating his share of childcare costs; (2) abused its discretion by awarding permanent spousal maintenance to respondent because it based its finding of his expenses on the wrong exhibit and failed to account for his support obligation from another relationship; (3) exceeded its authority by requiring him to secure his obligations with life insurance and failed to make findings supporting the insurance requirement; (4) erred by determining that certain payments from his mother were gifts to the parties; and (5) abused its discretion by awarding need-based attorney fees to respondent without evidence of need and with insufficient findings to support the award. Because the record does not establish that the district court abused its discretion in the determination of the child-support, maintenance, life-insurance, and gift issues, or by awarding attorney fees; and because the finding of appellant's income based on the wrong exhibit did not prejudice appellant; we affirm. We modify the judgment, however, to reflect a corrected calculation of childcare-cost apportionment. = = = = A06-300 In re the Marriage of: Mary Melissa Martin, petitioner, Respondent, vs. Kurt Wayne Martin, Appellant. HALBROOKS, Judge Appellant, a self-employed business owner, moved to decrease his child-support obligation. A child support magistrate (CSM) denied appellant's motion, finding that it was not possible to determine appellant's income and that, therefore, appellant did not meet his burden of producing sufficient information to warrant a modification. Appellant sought district court review of the CSM's ruling, and the district court affirmed the CSM. Appellant now argues that (1) the district court is legislating from the bench by requiring verifiable proof of income from tax returns rather than statements of gross receipts and expenses, (2) the district court did not make adequate findings of fact, and the findings that were made were insufficient or contradicted by the evidence, (3) the conclusions and order are not supported by adequate findings, (4) the district court made an unfounded challenge of an alleged business expense and depreciation deduction after the close of the record, and (5) Crow Wing County has de facto established appellant's proffered evidence of income as credible by citing to it in its memorandum of law after the district court failed to acknowledge and recognize the evidence. Appellant also appeals the district court's order granting Crow Wing County's motion to impose stayed contempt sanctions against him. We affirm. = = = = A05-2549 Nina G. Gorokhova, Appellant, Vladimir A. Barkhudarov, Appellant, vs. Frank Irwin Kirshbaum, M.D., et al., Respondents. HALBROOKS, Judge On appeal from the district court's judgment dismissing their claims without prejudice, appellants allege that (1) the district court failed to comply with rules of court in scheduling respondents' motions, (2) the district court made incorrect findings of fact, (3) the district court incorrectly characterized the nature of appellants' claims as medical malpractice, (4) the district court erred in dismissing appellants' medical-malpractice claims for failure to comply with Minn. Stat. ? 145.682, subd. 2(1) (2004), and (5) appellants' claims have merit. We affirm as modified. = = = = A05-2397 Sarah Anne Kennedy, petitioner, Respondent, vs. Steven Wayne Kennedy, Appellant. HALBROOKS, Judge On appeal from the district court's order determining custody, parenting time, and sanctions, appellant argues that (1) the district court erroneously determined that he withdrew his motion for modification of custody, (2) the parenting-time schedule is not in the best interests of the children, (3) appellant should receive compensatory time and sanctions against respondent, (4) the district court unduly limited appellant's contact with his children by electronic and long-distance communication, (5) appellant should not be required to release confidential counseling records from 2001 or to provide random urinalysis, (6) the district court failed to consider appellant's child-support obligations for his child from a previous marriage, (7) the district court failed to address appellant's motion for an evidentiary hearing regarding respondent's fraud, (8) the district court should not have sanctioned appellant with an award of attorney fees to respondent, and (9) the district court abused its discretion by imposing court review of appellant's future motions before scheduling a hearing. We affirm. = = = = A06-445 Wendell Daluge, Respondent, vs. Fortis Insurance Company, Respondent, Schiller Insurance Agency, et al., Appellants. STONEBURNER, Judge Appellants, an insurance agent and agency, challenge summary judgment enforcing an indemnity agreement between appellants and respondent insurer for the amount of a settlement paid by respondent on an insured's claims against the agent, agency, and insurer. Appellants argue that (a) the settlement and release between the insured and insurer resolved all issues; (b) the district court misapplied controlling law; (c) the settlement was collusive; (d) the insurer failed to properly defend the case; (e) the indemnity agreement between appellants and respondent was a one-sided contract of adhesion; (f) appellants were free of wrong doing and were entitled to attorney fees; (g) the comparative fault of the insured and insurer raises material fact issues to be resolved at trial, and (h) the insurer breached the insurance contract and should be estopped from denying coverage. We affirm. = = = = A06-269 SkyTech, Inc., et al., Appellants, vs. Scientific Learning Corporation, Respondent. STONEBURNER, Judge On this appeal from a judgment of dismissal, appellants challenge the district court's rulings granting respondent's motion to compel arbitration in California, dismissing appellants' claims, and ordering appellants to pay the district court filing fee. Appellants also challenge the district court's implication that counsel's conduct in filing a complaint as well as cross-claims between plaintiffs was unethical. Because we clarify that the dismissal of SkyTech's claims was without prejudice, but otherwise observe no error in the district court's rulings, we affirm as modified. = = = = A05-2141 Spiros Zorbalas, d/b/a S1322, Inc., Relator, vs. City of Minneapolis, Respondent. STONEBURNER, Judge Relator challenges respondent city's revocation of a rental dwelling license as based on errors of law. Relator asserts that the city erred by failing to follow notice and service provisions contained in its ordinance and by basing the revocation decision on allegations not formally charged without giving relator the opportunity to be heard. Because we conclude that notice was sufficient under the circumstances of this case, relator was not denied the opportunity to be heard, and the record demonstrates that revocation was based on issues of which relator had notice, we affirm. = = = = A06-182 In re the Marriage of: Renita LaNette Ray, petitioner, Respondent, vs. David Gerald Ray, Appellant. MINGE, Judge Appellant claims that the district court abused its discretion in refusing to retroactively suspend his spousal maintenance payment. We affirm. = = = = A06-1013 A06-1020 In the Matter of the Welfare of the Child of: H.E.P. and M.L.S., Parents. HUDSON, Judge In these consolidated appeals from a termination of the parental rights of father but not mother, the county challenges the district court's refusal to terminate mother's parental rights (A06-1013), and father challenges the termination of his parental rights (A06-1020). The findings supporting the refusal to terminate mother's parental rights are not clearly erroneous, and we affirm that decision. But because no statutory basis for terminating father's parental rights was identified, we remand for the district court to readdress whether to terminate his parental rights. = = = = A06-249 American Business Forms, Inc., d/b/a American Solutions for Business, Respondent, vs. Rass Trading Corp., et al., Appellants. DIETZEN, Judge Appellants challenge the district court's default judgment against them and a subsequent order vacating the default judgment on the condition that appellants post a bond, arguing that the district court (1) erred by not requiring respondent to post a bond to obtain a default judgment as required by Minn. R. Civ. P. 55.01(d), and (2) abused its discretion in its second order by requiring appellants to post a bond as a condition of vacating the default judgment. We affirm in part, reverse in part, and remand to the district court to make additional findings regarding the amount of bond required to vacate the default judgment. = = = = A06-142 In re the Marriage of: Kevin Brian Donovan, petitioner, Respondent, vs. Anne Donovan, n/k/a Anne Marie, Appellant. DIETZEN, Judge In this post-dissolution proceeding, appellant challenges the district court order granting respondent's motion to reopen the judgment for the purpose of making further findings. Because the district court failed to address the requirements of Minn. Stat. ? 518.145, subd. 2 (2004), we reverse and remand. Respondent's motion for attorney fees is denied. = = = = A05-1841 In re the Marriage of: Marsha Carol Sewell, f/k/a Marsha Carol Danielson Borth, petitioner, Respondent, vs. Verdell Fredrick Borth, Appellant. DIETZEN, Judge In this post-dissolution proceeding, appellant challenges the district court orders (1) denying his motion to reopen the judgment to consider new evidence; (2) denying his motion to modify spousal maintenance; and (3) awarding conduct-based attorney fees to respondent. Because the district court properly applied the law and did not abuse its discretion, we affirm. = = = = A06-700 In the Matter of the Welfare of the Children of: B.K., M.C., J.N., and D.S. STONEBURNER, Judge Appellant-mother challenges the termination of her parental rights, arguing that (a) the record does not support the district court's finding that reasonable services failed to correct conditions that led to a determination of the children's need for protection or services; (b) the record does not support the district court's finding that she is palpably unfit to be a party to the parent and child relationship; and (c) that the district court failed to address whether termination of parental rights is in the best interests of the children. Because appellant challenges only two of the four statutory grounds for termination of parental rights found by the district court, the district court did not err in concluding that clear and convincing evidence supports grounds for termination of parental rights under Minn. Stat. ? 260C.301, subd. 1(b) (2004). But because neither the record nor the district court's findings address the paramount consideration of whether termination of parental rights is in the best interests of each child, we remand for further findings on the children's best interests. |
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Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights
Reserved. Minnesota Lawyer representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims. Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance. |
