This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
In re the Matter of J.E.K.;
Elizabeth Kocina, petitioner,
Erin A. Kjos,
Filed March 14, 2000
Goodhue County District Court
File No. F899363
David K. Meier, 1937 Woodlane Drive, #202, Woodbury, MN† 55121 (for respondent)
Ronald L. Whitehead, Jori L. Whitehead, 2500 West County Road 42, Suite 100, Burnsville, MN† 55337 (for appellant)
††††††††††† Considered and decided by Willis, Presiding Judge, Kalitowski, Judge, and Halbrooks, Judge.
U N P U B L I S H E D†† O P I N I O N
The district court granted respondent visitation rights pursuant to the grandparent-visitation statute, Minn. Stat. ß 257.022, subd. 3a (1998).† Appellant contends the district court erred in determining that grandparent visitation was in the childís best interests and that visitation would not interfere with the parent-child relationship.† Appellant also raises constitutional issues and alleges the district court failed to join a necessary party.† We affirm.
A district court may grant grandchild-visitation rights to a grandparent who is the parent of a child whose parental relationship was terminated if (1) it is in the grandchildís best interests; and (2) visitation will not interfere with the parent-child relationship.† Minn. Stat. ß 257.022, subd. 3a (1998).† The district court has extensive discretion in deciding visitation questions and will not be reversed absent an abuse of discretion.† Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).
Appellant Erin A. Kjos and David Duarte had a child, J.E.K., on March 29, 1992.† Respondent Elizabeth Kocina is the mother of Duarte and the grandparent of J.E.K.† Appellantís relationship with Duarte ended in 1996 and she subsequently married Christopher Kjos.† In 1998, Duarteís parental rights were terminated by default and Kjos adopted J.E.K.† Between 1992 and 1996, respondent had several contacts with J.E.K. including overnight visits.† Respondentís last meaningful contact with J.E.K. before the court granted visitation rights was at Easter in 1996.† Respondent initiated proceedings for visitation rights and the district court granted her motion for visitation on May 28, 1999.
Appellant first argues that the district court abused its discretion in determining the childís best interests because it did not reference the factors from the statute for determining best interests in the context of custody determinations, Minn. Stat. ß 518.17, subd. 1(a) (1998).† But in determining grandparent-visitation rights, the district court is not required to make the detailed findings required in a custody case.† Olson, 534 N.W.2d at 550 & n.5.† Moreover, the district courtís order indicates that it carefully considered the best interests of J.E.K.† Specifically, the court considered the amount of personal contact between respondent and J.E.K., the time elapsed since the last contact, the reasons for the recent lack of contact, and respondentís motivations for seeking visitation.† The court also briefly addressed concerns regarding respondentís alcohol use.† We conclude the district courtís findings were sufficient.
We also conclude that substantial evidence supports the district courtís determination that visitation is in J.E.K.ís best interests.† Respondent, between 1992 and 1996, had significant contact with J.E.K.† During these years, respondent occasionally babysat J.E.K. and appellant and J.E.K. frequently stopped by respondentís home.† J.E.K. spent holidays and other special days with respondent and appellant and J.E.K. vacationed with respondent.† Several persons attested to respondentís beneficial relationship with her other grandchildren.† No evidence suggested that respondentís desire for contact was not genuine or that respondent intended to facilitate contact between her son and J.E.K.† Moreover, this case turned on the credibility of the parties and we defer to a district courtís credibility determinations.† See Minn. R. Civ. P. 52.01 (stating that ď[f]indings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneousĒ and that due regard must be given to the district courtís opportunity to judge the credibility of witnesses).
We reject appellantís argument that the district court erred by considering the prior personal contact between respondent and J.E.K. in determining the childís best interests.† See Olson, 534 N.W.2d at 550 (holding that the statutory language directing the court to consider the prior contacts is part of determining the childís best interests for purposes of subdivision 2 of the grandparent-visitation statute).† We also reject appellantís argument that under In re Santoro, 594 N.W.2d 174, 178 (Minn. 1999),† the district court erred in granting visitation in light of respondentís delay in petitioning for visitation.† Santoro is distinguishable from this case because:† (1) the grandparents in Santoro waited over seven years after their last contact with the children before they petitioned for visitation, and did not even try to send letters to the children for four years after contact ceased; (2) the children in Santoro were opposed to visiting the grandparents and one child allegedly ran away in order to evade visiting them; and (3) Santoro involved older children, whose preference regarding visitation is given greater weight than the preference of a child as young as J.E.K.† Id. at 176, 178.
Finally, in consideration of respondentís lack of current contact with J.E.K., the district court granted a very limited visitation schedule, to be reviewed after six months.† We conclude that the combination of the limited visitation schedule and the district courtís continuing jurisdiction addresses appellantís concerns regarding ďsafeguardsĒ to protect J.E.K.ís best interests. The district court did not abuse its discretion in concluding that visitation was in J.E.K.ís best interests.
The district court also did not abuse its discretion in determining that visitation would not interfere with the parent-child relationship.† Because the ordered visitation is for a limited period of time each month and is subject to review after a short period of time, the visitation schedule causes minimal interference.† The evidence also suggests that respondent has not interfered with the decision to terminate her sonís parental rights or other parental decisions.
††††††††††† Appellant argues that the district court placed an improper burden of proof on her in violation of her due process rights.† But appellant waived this claim because she did not raise this issue in her motion for amended findings or at any other time before the district court.† See Tyroll v. Private Label Chems., Inc., 505 N.W.2d 54, 56 (Minn. 1993) (holding that matters such as trial procedure, evidentiary rulings and jury instructions are subject to appellate review only if there has been a motion for a new trial in which such matters have been assigned as error); State v. Williams, 568 N.W.2d 885, 889 (Minn. App. 1997) (declining to address due-process claim because it was not raised to or considered by the trial court), review denied (Minn. Nov. 18, 1997).
††††††††††† Appellant also argues that her constitutional rights were violated because she did not receive an evidentiary hearing.† But appellant never requested an evidentiary hearing.† Rather, appellant asked that respondentís motion, in which respondent requested a hearing, be denied in its entirety.† Appellant thus waived this argument.† See Majestic Inc. v. Berry, 593 N.W.2d 251, 254-55 (Minn. App. 1999) (stating that due process rights to a hearing prior to civil judgment may be waived), review denied (Minn. Aug. 18, 1999).
††††††††††† Finally, appellant argues that the court failed to join a necessary party, her husband Christopher Kjos.† But because neither appellant nor Mr. Kjos requested that he be joined, appellant also waived this argument.† See† Minn. R. Civ. P. 12.08 (stating that the defense of failure to join a party required by rule 19 may be made in any pleading permitted or ordered, in a motion for judgment on the pleadings, or at the trial on the merits); Oldewurtel v. Redding, 421 N.W.2d 722, 726 (Minn. 1988) (stating joinder issues may not be raised for the first time on appeal).