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Rice v. Rice

United States District Court, D. Minnesota

September 19, 2017

Annelise C. Rice, Plaintiff,
v.
Brent Roger Rice; Hennepin County et al.; Carver County et al.; Carole Cole, Carver County Family Court Division; Nicole Mercil, Carver County Family Court Division; Bethany Koch, Carver County Family Court Division; Sarah Kulesa, Carver County Family Court Division; Jean Peterson, Hennepin County Family Court Division; Judith Hoy, Hennepin County Family Court Division; Susan Olson, Hennepin County Family Court Division; Richard Witucki, Hennepin County Family Court Division; Michael Garelick, Hennepin County Family Court Division; Jolene Lukanen, Hennepin County Family Court Division; Cory D. Gilmer; Brenda K. Dehmer, Carver County Family Court Division; Michael Borowiak, Hennepin County Family Court Division; John Doe I; John Doe II; and John Doe III, Defendants.

          Annelise C. Rice, pro se.

          David J. Lenhardt, Esq., Gries Lenhardt Michenfelder Allen, P.L.L.P., St. Michael, MN, on behalf of Defendant Brent Roger Rice.

          Beth A. Stack, Assistant Hennepin County Attorney, Hennepin County Attorney's Office, Minneapolis, MN, on behalf of Defendants Hennepin County et al.; Richard Witucki, Hennepin County Family Court Division; and Jolene Lukanen, Hennepin County Family Court Division.

          James R. Andreen, Esq., Erstad & Riemer, P. A., Minneapolis, MN, on behalf of Defendants Carver County et al.; Carole Cole, Carver County Family Court Division; Nicole Mercil, Carver County Family Court Division; and Sarah Kulesa, Carver County Family Court Division.

          James T. Martin, Esq., Gislason Martin Varpness & Janes, PA, Edina, MN, on behalf of Defendants Bethany Koch, Carver County Family Court Division. Andrew Tweeten, Assistant Minnesota Attorney General, Minnesota Attorney General's Office, St. Paul, MN, on behalf of Defendants Jean Peterson, Hennepin County Family Court Division; Susan Olson, Hennepin County Family Court Division; and Brenda K. Dehmer, Carver County Family Court Division.

          R. Daniel Rasmus, Esq., Hovland and Rasmus, PLLC, Edina, MN, on behalf of Defendant Judith Hoy, Hennepin County Family Court Division.

          Bryan R. Feldhaus, Esq., and Phillip A. Cole, Esq., Lommen Abdo, PA, Minneapolis, MN, on behalf of Defendant Cory D. Gilmer.

          Meaghan C. Bryan, Esq., Cousineau, Van Bergen, McNee & Malone, PA, Minnetonka, MN, on behalf of Defendant Michael Borowiak, Hennepin County Family Court Division.

          MEMORANDUM OPINION AND ORDER

          ANN D. MONTGOMERY U.S. DISTRICT JUDGE

         I. INTRODUCTION

         This matter is before the undersigned United States District Judge for a ruling on eight Motions to Dismiss [Docket Nos. 13, 17, 38, 45, 57, 102, 110, 124] and one Motion to Dismiss / Motion for Summary Judgment [Docket No. 94] brought on behalf of all Defendants in this case. Also before the Court is Plaintiff Annelise C. Rice's ("Annelise[1]") Application to Proceed in District Court without Prepaying Fees or Costs [Docket No. 54] ("IFP Application"). For the reasons set forth below, the Defendants' Motions are granted and Rice's IFP Application is denied as moot.

         II. BACKGROUND

         This 42 U.S.C. § 1983 action arose from the aftermath of the protracted and contentious 2004 marriage dissolution of Defendant Brent Roger Rice ("Brent") and his ex-wife, Caroline Rice ("Caroline").[2] Annelise, the youngest of Brent and Caroline's five children, alleges that custody and parenting time decisions made during the dissolution proceeding violated her constitutionally protected familial rights.

         A. The Marriage Dissolution

         Annelise's parents began divorce proceedings in 2004 in Hennepin County, Minnesota. Compl. [Docket No. 1] at 6; Rice v. Rice. 27-FA-292618 (Fourth Judicial District 2004). The district court dissolved Brent and Caroline's marriage on December 28, 2004, but reserved several issues, including custody of the five minor children, for trial on December 6 and 7, 2005. Rice v. Rice. A06-1648 (Minn.Ct.App. 2008); Stack Decl. [Docket No. 21] at 3-13. Annelise was seven years old when the marriage was dissolved.

         On January 4, 2005, Hennepin County Family Court Referee David Piper ("Referee Piper") ordered the Department of Court Services to perform a custody and parenting time evaluation. Stack Decl. Ex. 1 [Docket No. 22]. Pursuant to that order, in April 2005, Defendant Jean Peterson ("Peterson"), was appointed as Guardian ad Litem for the minor children. Stack Decl. Ex. 2 [Docket No. 24] at 4.

         On August 10, 2005, Hennepin County Family Court Evaluators Jolene Lukanen ("Lukanen") and Richard Witucki ("Witucki") submitted their parenting time evaluation. Id. The evaluation-derived from meetings with Brent, Caroline, each of the five children, and a lengthy list of collateral contacts including teachers, doctors, and faith leaders-offered 13 custody and parenting time recommendations. Id. The evaluation was received into evidence during the December 2005 custody trial.

         After trial, in a March 2006 order, Referee Piper awarded Brent sole physical custody of Annelise and two of her siblings, and ordered Brent and Caroline to share legal custody of these three children. Stack Decl. Ex. 3 [Docket No. 26] ("Referee Piper Order") at 19. Caroline was awarded sole legal and physical custody of the two other children. Id.

         Caroline appealed, arguing that Referee Piper abused his discretion in awarding Brent sole physical custody over three of the children, including Annelise. Rice, A06-1648, at 1-2. Caroline contended that it was clearly erroneous not to award her physical custody of all five of the children when "she was clearly the primary parent and caregiver" and that it was "clearly erroneous to split the children without considering their interrelationships with one another." Id. at 2-3. A unanimous Minnesota Court of Appeals disagreed and affirmed Referee Piper's Order in its entirety. Id. at 2.

         B. Other Proceedings

         The Complaint[3] also refers to events that occurred after the dissolution proceeding, including a juvenile protection proceeding and a criminal proceeding that commenced in October 2008 and June 2009, respectively. Compl. ¶¶ 12-17; In re Welfare of Children of Caroline Rice & Brent Rice. No. 10-JV-08-645 (Minn. Dist. Ct.); State v. Rice. No. A12-0855, 2013 WL 4404231, at *1 (Minn.Ct.App. Aug. 13, 2013). A January 16, 2008 family court order references an order for protection ("OFP"), which was later dismissed, that Caroline served against Brent on behalf of Annelise. Bryan Aff [Docket No. 46] Ex. 1. At that time, Defendant Susan Olson ("Olson") was appointed Guardian ad Litem to Annelise. Id.

         On April 7, 2008, Hennepin Family Court Referee Tsippi Wray ("Referee Wray") held a hearing to address Olson's recommendation that Caroline's contact with Annelise be suspended because Caroline's behavior "continued to not be in the best interests of the minor children, specifically Annelise." Bryan Aff. Ex. 2 at ¶ 2. Referee Wray directed that Caroline's contact with Annelise would be suspended outside of therapeutic sessions. Id. ¶ 3. Shortly thereafter, Olson informed Referee Wray that Caroline "has ignored the oral order of this court and has continued to see Annelise." Id. ΒΆ 4. In a May 9, 2008 Order, Referee Wray stated that Caroline was "in flagrant violation ...


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