This opinion will be unpublished and 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 

A15-1684 

Serena Rae Sullivan, petitioner, 

Respondent, 

vs. 

Robert John Sladek, 

Appellant. 

Filed June 20, 2016 

Affirmed 

Connolly, Judge 

St. Louis County District Court 

File No. 69HI-FA-09-163 

Kimberly J. Corradi, Corradi Law Office, LLC, Hibbing, Minnesota (for respondent) 

Bill L. Thompson, Law Office of Bill L. Thompson, Duluth, Minnesota (for appellant) 

 Considered and decided by Connolly, Presiding Judge; Stauber, Judge; and Kirk, 

Judge. 

U N P U B L I S H E D O P I N I O N 

CONNOLLY, Judge 

Appellant challenges the denial of his motion to modify custody of the parties’ 

children, arguing that the district court erred in considering allegations in respondent’s 

affidavit and in failing to grant an evidentiary hearing and abused its discretion in 
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determining that appellant failed to make a prima facie case for modification of custody, 

not giving appellant the statutory 25% of parenting time, and awarding attorney fees to 

respondent sua sponte. Because we see no error and no abuse of discretion in the district 

court’s decisions, we affirm. 

FACTS

 Appellant Robert Sladek and respondent Serena Sullivan were married in 2004. 

Their son, P., is now 11 and their daughter, M., is 10. They separated in 2009, and their 

marriage was dissolved in 2010. The parties stipulated that respondent, who lives in 

Minnesota, would have physical custody of the children, and appellant, who lives in 

Illinois, would have parenting time of four weeks in the summer in 2010, increasing to six 

weeks in 2012, and alternate holidays. 

In response to appellant’s motions, the district court issued orders concerning 

parenting time in 2013 and 2014. In March 2015, appellant filed a motion for modification 

of physical custody to him and filed several other motions, as well as an affidavit that the 

district court “found to be unreasonable, intimidating, and threatening” and “credible and 

concerning.” In May 2015, the district court denied appellant’s motion to modify physical 

custody on the ground that appellant failed to meet his prima facie burden, denied several 

other motions, and concluded that appellant’s difficulties with parenting time “have been 

to a significant degree the result of his own behavior that has been rude, insulting, 

belligerent, and bullying.” 

In August 2015, appellant filed another motion for modification of physical custody 

and related relief, with an affidavit asking the district court “to remove itself from this case” 
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and seeking compensatory parenting time, but not addressing the requisites of a motion to 

modify custody. Respondent moved for a finding that appellant was in civil contempt of 

court, for a modification of parenting time, and for related relief. 

Following a hearing on the parties’ motions, the district court issued an order 

denying an evidentiary hearing on appellant’s motion for physical custody as well as the 

motion itself and providing a detailed parenting-time schedule whereby appellant has 

parenting time in Illinois of two three-week periods in the summer and in Hibbing, 

Minnesota, of one weekend per month and four 72-hour weekday visits per year, as well 

as alternate holidays and time for special occasions. Respondent was granted $1,000 in 

attorney fees. 

Appellant challenges the order, arguing that the district court erred in considering 

allegations in respondent’s affidavit and in failing to grant an evidentiary hearing and 

abused its discretion in determining that appellant failed to make a prima facie case for 

modification of custody, in giving appellant less than the statutory 25% of parenting time, 

and in awarding attorney fees to respondent sua sponte. 

D E C I S I O N 

1. Use of the Parties’ Affidavits 

On appeal from a district court’s denial, without an evidentiary hearing, of motions 

to modify custody and motions to restrict parenting time, this court first “review[s] de novo 

whether the district court properly treated the allegations in the moving party’s affidavit as 

true, disregarded the contrary allegations in the nonmoving party’s affidavits, and 
4 

considered only the explanatory allegations in the nonmoving party’s affidavits.” Boland 

v. Murtha, 800 N.W.2d 179, 185 (Minn. App. 2011). 

 Appellant argues that the district court “failed to consider [his] affidavits as true” 

and “gave all credibility to [r]espondent and ignored any assertions made by [him]”; he 

says this court “[i]n reviewing the affidavits de novo, . . . should clearly see that the District 

Court had a pre-disposition to go against [a]ppellant and the assertions he was making.” 

Our review of the portions of the affidavits pertaining to appellant’s allegations that 

respondent provided M. with inadequate medical care and denied appellant parenting time 

over the Memorial Day weekend does not support this argument. 

As to M.’s medical care, appellant said in his affidavit that: (1) when he received 

the children for parenting time, M. was on crutches and her foot was wrapped, (2) he 

learned that her foot had been injured 11 days earlier; (3) he unwrapped the foot and found 

“a huge puncture wound” that was “severely infected,” (4) he immediately took M. to a 

doctor; (5) “numerous appointments[] and follow-ups” were necessary, the last of which 

was scheduled for a date after appellant’s parenting time had expired, and (6) he had asked 

respondent to delay the children’s return so M. could attend the appointment. 

Respondent in her affidavit said: (1) M. had an abrasion on her foot resulting from 

riding a go-cart, (2) respondent had taken M. to the emergency room in Hibbing, where she 

had been treated and seen for follow-up care two days before appellant’s parenting time 

began; (3) respondent had told appellant that M.’s foot should be seen again by a doctor 

about a week later, when the children would be with him; (4) if the injury was infected, it 

became infected while M. was with appellant; (5) the doctor to whom appellant took M. 
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was appellant’s father-in-law, (6) respondent told appellant she would obtain follow-up 

medical care for M.; (7) appellant had kept the children for an additional week so M. could 

attend the final appointment, and (8) when respondent asked law enforcement to check on 

the children because they had not been returned, the children were located at the doctor’s 

vacation home. 

In his responsive affidavit, appellant said: (1) M.’s injury occurred while she was 

with respondent, not while she was with him; (2) respondent had asked him to have his 

father-in-law, a doctor, look at M.’s foot; (3) respondent’s “failure to properly treat the 

injury led to the infection”; (4) if he (appellant) had not noticed the infection, M. might 

have needed treatment such as skin grafting, wound cultures, and surgery; (5) respondent 

was blaming him for M. needing follow-up treatment; (6) respondent was now discrediting 

the doctor after asking appellant to have the doctor look at M.’s foot, and (7) appellant 

attempted to get an ex parte order from the district court changing the date of the children’s 

return to respondent, but the district court would not sign the order. 

The district court reviewed the three affidavits and found that appellant “knowingly 

and intentionally failed to return the children at the date and time ordered after his most 

recent period of summertime visitation, in direct violation of the court’s order relative 

thereto” and explained that the reason it “did not consider or sign the proposed ex parte 

order extending [appellant’s] summer parenting time was the total failure of [the] motion 

to comply with legal notice requirements.” 

 The district court also found that: 
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considering [appellant’s] claims to be completely true][ and in 

the light most favorable to his position [that respondent’s] 

medical neglect [w]as a factual basis to support a prima facie 

finding leading to a trial for change of custody, this court must 

find that [respondent] in fact exercised reasonable care as the 

physical custodian relative to [M.’s] injured foot, and that any 

further care that would be necessary after the end of 

[appellant’s] three-week visit could most certainly have been 

equally handled in Hibbing as in the Chicago area. Therefore, 

[appellant’s] unilateral determination to violate this court’s 

[parenting-time] order based on a purported medical 

emergency is totally unreasonable and provides no basis for a 

finding of a prima facie case. 

The district court declined to adopt appellant’s conclusion that respondent had been guilty 

of physically neglecting M., nor did it adopt respondent’s version of the facts. 

 As to appellant’s parenting time over Memorial Day weekend, he claimed that: 

(1) M.’s school had invited him to chaperone a field trip on Wednesday, May 20; (2) about 

a month ahead of time, he asked respondent for parenting time from that day through 

Monday, May 25 (Memorial Day); (3) respondent did not reply until 4:00 p.m. Friday, 

May 22; (4) by then the field trip was over and it was too late for appellant to make the tenhour drive to Hibbing, and (5) he wanted compensatory time for the lost weekend and the 

lost field-trip opportunity. 

 Respondent claimed that: (1) she objected to the children being with appellant in a 

hotel on school nights (May 20-21 and 21-22) and offered parenting time of 5:00 p.m. 

Friday, May 22, to 5:00 p.m. Monday, May 25; (3) appellant was not satisfied with her 

offer and did not come to Minnesota for parenting time. 

 In his responsive affidavit, appellant claimed that: (1) respondent’s e-mail 

confirming that he could have parenting time did not arrive until “into the weekend” 
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because it went to appellant’s attorney, who had already left for the weekend; and (2) even 

had appellant received it on time, he would not have been able to get to Hibbing until after 

midnight on Friday. 

The district court found that “it is beyond dispute from the record that [appellant] 

has in fact received what the current orders have provided for, and what the visitation 

expeditor has attempted to facilitate,” and appellant does not dispute this finding in his 

affidavit. The record refutes appellant’s argument that the district court impermissibly 

relied on respondent’s affidavits rather than on appellant’s affidavits. 

2. Prima Facie Case for Modification 

 The district court’s conclusion that appellant had not made a prima facie case for 

modification of custody is reviewed for an abuse of discretion. Boland, 800 N.W.2d at 

185. 

Appellant moved for modification in July 2015, two months after his previous 

motion had been denied in May 2015. There is a two-year limitation on a subsequent 

motion for modification of custody after the disposition of a prior motion on its merits, but 

this limitation does not apply “if the court finds that there is persistent and willful denial 

or interference with parenting time, or has reason to believe that the child’s present 

environment may endanger the child’s physical or emotional health or impair the child’s 

emotional development.” Minn. Stat. § 518.18(c) (2014). The district court admitted that, 

when appellant filed a second motion to modify custody within two months of the decision 

on his first motion, he alleged that “(1) [respondent] has substantially interfered with his 

parenting time; and (2) [respondent] has neglected their daughter’s medical needs.” 
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But evidence does not support either allegation: nothing in the parenting-time order 

then in force entitled appellant to have the children for the two school days preceding the 

Memorial Day weekend, and respondent procured and followed up with medical treatment 

for M.’s injured foot. On this record, the district court did not abuse its discretion in 

determining that appellant failed to make a prima facie case for modification of custody. 

3. Evidentiary Hearing 

 “We review de novo whether the district court properly determined the need for an 

evidentiary hearing.” Boland, 800 N.W.2d at 185. “A district court is required under 

[Minn. Stat. §] 518.18 (d) to conduct an evidentiary hearing only if the party seeking to 

modify a custody order makes a prima facie case for modification.” Goldman v. 

Greenwood, 748 N.W.2d 279, 284 (Minn. 2008). Because the district court did not abuse 

its discretion in concluding that appellant had not made a prima facie case for modification, 

it was not required to hold an evidentiary hearing. 

4. Statutory Parenting Time1

A district court has broad discretion in deciding parenting-time issues and will not 

be reversed absent an abuse of this discretion. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 

1995). There is a rebuttable presumption that a parent is entitled to at least 25% of 

 

1

 We address this issue in the interests of completeness, but we note that it is not properly 

before us because appellant did not raise or argue it to the district court. See Thiele v. Stich, 

425 N.W.2d 580, 582 (Minn. 1988) (this court generally addresses only matters presented 

to and considered by the district court); Hagen v. Schirmers, 783 N.W.2d 212, 217 (Minn. 

App. 2010) (“[A] district court [should] demonstrate an awareness and application of the 

25% presumption when the issue is appropriately raised and the court awards less than 

25% parenting time.”) (emphasis added). 
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parenting time, or 92 overnights per year, under Minn. Stat. § 518.175, subd. 1 (g) (2014) 

(providing that “the percentage of parenting time may be determined by calculating the 

number of overnights that a child spends with a parent”). “[T]he statute gives district courts 

flexibility in weighing the evidence and the presumption.” Hagen v. Schirmers, 783 

N.W.2d 212, 219 (Minn. App. 2010). 

 We note that appellant’s parenting time is very close to the presumed 25%, or 92 

nights per year. His Illinois parenting time is: three weeks beginning on the second 

Monday in June and three weeks beginning on the first Monday in August (42 nights); 

Memorial Day weekend in odd years, and July 4 and Labor Day weekends in even years 

(an average of 4.5 nights); Christmas vacation from the day after school lets out until 

December 31 in odd years, and Easter and Thanksgiving vacations in even years (average 

of 9.5 nights). His Minnesota parenting time is: one weekend per month (24 nights); and 

four 72-hour weekday visits per year (12 nights). Because the sum of these is 92 (42 + 4.5 

+ 9.5 + 24 + 12 = 92), appellant has roughly 92 nights, or the statutory 25% of parenting 

time, annually. In addition, appellant has alternate school holidays and special-occasion 

time (divided with respondent) in Minnesota, as well as special-occasion time for 

weddings, funerals, etc. outside Minnesota. Therefore, appellant’s argument on appeal that 

he is entitled to more than six weeks of summer vacation and the second part of Christmas 

vacation, after December 31, to bring his parenting time closer to, the presumptive 25% 

lacks a basis in fact.2

 

 

2

 Appellant’s argument that the district court’s reference to his “unreasonably demanding, 

intimidating, and threatening behavior towards [respondent]” means that the district court 
10 

Moreover, “parenting time allocations that merely fall below the 25% presumption 

can be justified by reasons related to the child’s best interests and considerations of what 

is feasible given the circumstances of the parties.” Id. at 218. If appellant had been 

awarded significantly less than 25% of parenting time, we agree with the district court that 

“the simple practical difficulty of [appellant] living in the Chicago area, so far away from 

the children” could make such an award “feasible given the circumstances of the parties.” 

See id. The district court’s award of parenting time was not an abuse of discretion. 

5. Attorney Fees 

 In the marriage-dissolution context, a district court has discretion to award “fees, 

costs, and disbursements against a party who unreasonably contributes to the length or 

expense of the proceeding.” Minn. Stat. § 518.14, subd. 1 (2014). The district court found 

that “[appellant’s] present motion to change custody is baseless, frivolous, unnecessary, 

and has cost [respondent] attorney’s fees beyond what would have been necessary to 

simply modify the existing parenting time” and ordered that “[appellant] shall pay 

[respondent] $1,000 as a contribution to [her] attorney fees unnecessarily incurred herein.” 

This award was made sua sponte: respondent did not seek attorney fees. Thus, 

appellant’s argument that respondent did not comply with Minn. R. Gen. Pract. 119.02 

(providing that a motion for an award of attorney fees be accompanied by an affidavit 

describing the work performed, the name of the lawyer or legal assistant who performed 

 

“penalized” him by reducing his parenting time similarly lacks a basis in fact. The district 

court actually awarded him more parenting time than he asked for and at least the statutory 

25%. 
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it, the hourly rate sought, and that person’s normal hourly rate) fails: that rule pertains only 

to situations “in which an attorney seeks the award, or approval, of attorney fees . . . .” See 

Minn. R. Gen. Pract. 119.01. Appellant does not challenge the basis for the district court’s 

fee award, saying “[i]t is abundantly clear that the district court in this matter was upset 

with [appellant] for bringing his motion.” The district court’s award of $1,000 in attorney 

fees incurred in responding to a second motion to modify custody filed two months after a 

previous motion had been denied was not an abuse of discretion. 

Affirmed.