Opinion
A21-0580
01-03-2022
In re the Marriage of: Linde Anne Sayen, petitioner, Respondent, v. Michael Stephen Sayen, Appellant.
Washington County District Court File No. 82-FA-15-4776
Considered and decided by Frisch, Presiding Judge; Reyes, Judge; and Bratvold, Judge.
ORDER OPINION
Jennifer L. Frisch Judge
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. Appellant-father Michael Sayen and respondent-mother Linde Sayen married in 2012. They have one minor child (daughter), born in 2012. In October 2015, mother filed a petition for legal separation which eventually turned into a petition for dissolution of marriage.
2. Custody evaluators determined that, due to issues related to father, mother should have sole physical and legal custody of daughter. The evaluators recommended that father receive supervised parenting time and that unsupervised time could be appropriate if recommended by therapists. The district court adopted the evaluators' recommendations. The district court also appointed a parenting-time evaluator (PTE).
3. Father has continuously sought to remove the parenting-time restrictions. Father appealed the district court's initial July 2017 custody and parenting-time order. We affirmed, emphasizing the district court's findings that "father's mental health impacted his ability to take care of [daughter] without coaching and assistance." Sayen v. Sayen, No. A17-1173, 2018 WL 1569959, at *5 (Minn.App. Apr. 2, 2018).
4. Thereafter, father has filed dozens of motions seeking modification or removal of parenting-time conditions and two appeals challenging the district court's denial of these motions. We affirmed the district court in both appeals. Sayen v. Sayen, No. A18-1276 (Minn.App. Mar. 1, 2019) (order op.); Sayen v. Sayen, No. A20-0874 (Minn.App. Dec. 29, 2020) (order op.).
In November 2018, the district court granted mother's petition for a harassment restraining order (HRO) against father after father violated the custody agreement. Father appealed the issuing of the HRO, and we affirmed the district court. Sayen v. Sayen, No. A19-0381 (Minn.App. Dec. 16, 2019).
5. In April 2020, the district court ordered father's supervised parenting time to take place through remote technology due to the COVID-19 pandemic. In July, father filed a pro se motion to modify parenting time and filed similar or redundant motions in August, September, and October, all related to achieving in-person or extended visitation. On November 20, 2020, counsel for father filed an amended motion seeking a modification of parenting time. Counsel withdrew shortly after this motion was filed, and father filed a motion seeking modified custody, and also requested that the district court disregard his counsel's previous motion.
6. On December 11, 2020, the district court held a hearing. On January 21, 2021, the district court issued an order which in relevant part denied father's motion to modify custody. Father filed a pro se appeal, making several arguments seemingly related to the constitutionality of the district court's order and the authority that the district court gave to the PTE.
Only father filed a brief in this case. This case proceeded pursuant to Minn. R. Civ. App. P. 142.03.
7. In his brief to this court, father claims to identify five issues on appeal: (1) whether strict scrutiny applies to the district court's order; (2) whether the PTE's role was impermissibly expanded; (3) whether father and daughter's constitutional rights were protected through narrowly tailored restrictions on parenting time; (4) whether the district court's order infringed on father's religious beliefs; and (5) whether consideration of the best interests of the child, without a showing of endangerment, violates a parent's constitutional right to raise their children without government interference.
8. As a threshold matter, father has not adequately briefed any of these issues. We need not address an inadequately briefed argument. State Dep't of Lab. & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997); see Brodsky v. Brodsky, 733 N.W.2d 471, 479 (Minn.App. 2007) (applying Wintz in a family-law appeal). "[O]n appeal error is never presumed. It must be made to appear affirmatively before there can be reversal . . . [and] the burden of showing error rests upon the one who relies upon it." Waters v. Fiebelkorn, 13 N.W.2d 461, 464-65 (Minn. 1944); see Loth v. Loth, 35 N.W.2d 542, 546 (Minn. 1949) (quoting Waters).
9. An assignment of error based on "mere assertion" and not supported by argument or authority is forfeited unless prejudicial error is obvious on mere inspection. Schoepke v. Alexander Smith & Sons Carpet Co., 187 N.W.2d 133, 135 (Minn. 1971); see Braith v. Fischer, 632 N.W.2d 716, 725 (Minn.App. 2001) (citing this aspect of Schoepke in a family-law appeal), rev. denied (Minn. Oct. 24, 2021). A pro se appellant must still "adequately communicat[e] to the court what it is [they want] accomplished and by whom." Carpenter v. Woodvale, Inc., 400 N.W.2d 727, 729 (Minn. 1987).
10. Here, none of father's arguments are supported by adequate legal authority or analysis. Father cites to no legal authority to support his arguments related to issues two, three, and five. Father cites to Troxel v. Granville, 530 U.S. 57 (2000), and SooHoo v. Johnson, 731 N.W.2d 815 (Minn. 2007), to support his arguments related to issue one. But father fails to explain how these cases apply to this case. In addition, father does not specifically cite to any erroneous finding or abuse of discretion by the district court or identify what relief he seeks. And although father cites to cases standing for the uncontroversial proposition that the state cannot infringe on a person's religious liberties, father provides no citation to the record or substantive argument to support his claim that the district court's order infringed on his religious liberties.
11. Even if father had adequately briefed these issues, he forfeited them by not properly raising them to the district court. Generally, we will not address issues not previously presented to and considered by the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). This rule applies to constitutional questions. In re Welfare of C.L.L., 310 N.W.2d 555, 557 (Minn. 1981). Nor will we address an issue presented to and considered by the district court if the appellant is presenting that issue on appeal on a theory not presented to the district court. Thiele, 425 N.W.2d at 582.
12. Here, father did not properly raise any of these issues before the district court. As such, the district court did not consider these arguments when issuing its order. Accordingly, father forfeited these issues on appeal.
IT IS HEREBY ORDERED:
1. The district court's order is affirmed.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.