This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






In Re the Marriage of:

Diane Orsello, petitioner,





Paul Orsello,



Filed May 22, 2000


Willis, Judge


Chisago County District Court

File Nos. F391638 & C499746


Diane Orsello, 4154 Lexington Avenue N., 6101, Shoreview, MN  55126 (pro se respondent)


Paul Orsello, 1610 E. Montana, St. Paul, MN  55106 (pro se appellant)


            Considered and decided by Willis, Presiding Judge, Kalitowski, Judge, and Halbrooks

U N P U B L I S H E D   O P I N I O N

WILLIS , Judge

                   Paul Orsello appeals pro se from an order for protection preventing him from having contact with respondent Diane Orsello and the parties’ minor children, except for supervised visitation with the children.  Appellant also seeks review of a post-decree order denying his motions for modification of custody, unsupervised visitation, and maintenance.   We affirm.


The parties’ November 1992 dissolution decree granted respondent Diane Orsello sole legal and physical custody of the parties’ three children.  The children are K.O., now age 14, A.O., now age 12, and R.O., now age 11.  The decree granted appellant unsupervised visitation and required that he attend domestic-abuse counseling. 

In June 1992, respondent sought and received a harassment restraining order prohibiting appellant from contacting her.  In May 1993, appellant was convicted of violating the harassment restraining order.  Appellant’s contacts with respondent continued, and in 1994 he was convicted of stalking. [1]

By 1994, the district court had issued no fewer than seven orders denying appellant’s posttrial motions. In a June 1994 order, the district court ruled that (a) appellant had brought “repeated motions on identical issues”; (b) appellant’s motion for maintenance was frivolous; and (c) in the event of future motions by appellant, the court would decide whether to require respondent to do more than submit a written response.  Appellant challenged this order on the ground that the district court did not have discretion to limit future litigation by appellant in this manner.  This court affirmed, concluding that district court reasonably limited prospective vexatious litigation and that “appellant’s extreme conduct justifie[d] the district court’s award of costs.” Orsello v. Orsello , No. C7-94-1320, 1995 WL 15142, *1 (Minn. App. 1995).  

In February 1996, the district court ordered that appellant’s visitation with the children be supervised because he inadequately supervised the children, provided them with inadequate bathroom facilities, showed poor judgment in caring for them, and attempted to turn them against their mother.  Appellant has not visited with the children in the four years since supervised visitation was ordered, claiming that he cannot pay the supervised-visitation fees.  He also has continued to file repeated motions regarding custody and maintenance. 

On February 9, 1999, appellant moved the district court to:  (1) grant him an evidentiary hearing on modification of custody of the parties’ minor children; (2) in the alternative, grant him unsupervised visitation with the children; (3) appoint a guardian ad litem for the children; (4) inform the children of “their visitation rights”; and (5) grant him maintenance.  Also on February 9, 1999, appellant moved for temporary relief, requesting that the district court:  (1) order Ms. Orsello to undergo psychological evaluation; (2) grant him temporary joint physical and legal custody of the children; (3) grant him temporary child support; (4) in the alternative, grant him unsupervised visitation with the children; (5) appoint a guardian ad litem for the children; (6) inform the children of “their visitation rights”; (7) grant him temporary maintenance; (8) order Ms. Orsello to pay his attorney fees and expenses; (9) order that the parties not annoy, molest, harass, or interfere with one another in any way during these proceedings; and (10) order that the government not annoy, molest, harass, or interfere with the parties in any way during these proceedings.   

            On March 1, 1999, the district court held a hearing on appellant’s motions.  Because the district court decided the issues raised by appellant without further proceedings, it denied his motion for temporary relief.  The district court granted appellant’s request for the appointment of a guardian ad litem and directed the guardian ad litem to analyze the “visitation problems” and make suggestions for resolving them.  The district court also ordered that the parties not annoy, molest, harass, or interfere with one another during the proceedings and ordered that neither Chisago County nor St. Paul government entities may annoy, molest, harass, or interfere with the parties during the proceedings.  The district court declined to rule on the other portions of appellant’s motion pending receipt of the guardian ad litem’s report.  On March 30, 1999, the guardian ad litem filed her report with the district court, and on April 23, 1999, the district court denied the balance of appellant’s motion.

On June 4, 1999, respondent petitioned for a harassment restraining order.  In her petition, respondent alleged that appellant went to A.O.’s and R.O’s elementary school and requested to have lunch with them.  The principal denied appellant’s request and produced court orders showing that appellant was prohibited from contacting the children.  Appellant proceeded to K.O.’s middle school where he requested to have lunch with K.O.  The assistant principal denied appellant’s request, also producing court orders showing that appellant was prohibited from contacting the children.  On June 18, 1999, the district court issued a harassment restraining order that prohibited appellant from contacting respondent or their children, except as authorized in the court’s previous order, which allowed only supervised visitation with the children.  This appeal is taken from both the April 23 and June 18, 1999, orders.


I.            Motion for Temporary Relief

            Appellant challenges the district court’s denial of his motion for temporary relief.  But temporary-relief orders in dissolution cases are generally not appealable.  Rigwald v. Rigwald , 423 N.W.2d 701, 705 (Minn. App. 1988).  And, here, the district court decided the issues on the merits without further proceedings, thereby obviating the motion for temporary relief.

 II.            Modification of Custody and Unsupervised Visitation

A.            Denial of Evidentiary Hearing for Modification of Custody

Appellant moved the district court to “order the commencement of a custody proceeding.”  The district court interpreted this as a request for an evidentiary hearing on the issue of custody and ruled that appellant had not demonstrated that such a hearing was warranted.  This court has applied an abuse-of-discretion standard to a district court’s dismissal of a modification petition without an evidentiary hearing.  See, e.g., Geibe v. Geibe , 571 N.W.2d 774, 777 (Minn. App. 1997).  The evidence is reviewed in the light most favorable to the district court’s findings.  See Ayers v. Ayers , 508 N.W.2d 515, 521 (Minn. 1993). 

To obtain an evidentiary hearing on a motion for modification of custody based on endangerment, the moving party must establish four elements for a prima facie case:

(1) a change in the circumstances of the child or custodian; (2) that a modification would serve the best interests of the child; (3) that the child’s present environment endangers her physical or emotional health or emotional development; and (4) the harm to the child likely to be caused by the change of environment is outweighed by the advantage of a change. 


Geibe , 571 N.W.2d at 778 ( citing Abbott v. Abbott , 481 N.W.2d 864, 868 (Minn. App. 1992)).  The party seeking a modification of custody must submit an affidavit asserting the facts on which the motion is based. Minn. Stat. § 518.185 (1998).  The district court must accept the facts in the moving party’s affidavit as true. Geibe , 571 N.W.2d at 777.  If the affidavit does not allege facts establishing a change of circumstances and endangerment that, if true, would provide sufficient grounds for a modification, the court need not grant an evidentiary hearing.  Roehrdanz v. Roehrdanz , 438 N.W.2d 687, 690 (Minn. App. 1989), review denied (Minn. June 21, 1989).

Here, appellant’s relevant allegations are that

[t]hese children have had stitches and black and blue marks on them * * * [Diane] locks the children in their room for hours and makes them miss supper. She also cannot discipline the children very well. * * * She also serves food in the past and forgets to cook it. * * * Also Diane is denying the children love and affection from [their] father.


At the motion hearing, appellant admitted that he had not visited the children since before the court ordered supervised visitation in February 1996. Based on its finding that appellant has not seen the children since before February 1996, the district court concluded that appellant has “no direct knowledge of [the children’s] environment or of their or Ms. Orsello’s daily activities.”  Thus, appellant failed to show a “change” in the children’s circumstances that would provide sufficient grounds for modification.  Additionally, the district court found that none of appellant’s allegations indicates that respondent is responsible for injuring the children or that her care of the children reflects significant endangerment.  The record supports the district court’s denial of custody modification without an evidentiary hearing.  

B.            Motion to Inform Children of Their Rights to Visitation

            Appellant moved the district court to inform the children of “their rights to visitation” pursuant to Minn. Stat. § 518.175, subd. 2 (1998).  Under section 518.175, subdivision 2, the district court “may” inform any child of the parties of the rights of the child and the noncustodial parent under the decree.  The district court denied appellant’s request, finding that “[t]he children are aware that their father could visit them at the Safety Center but chooses not to.”  This finding is based on the guardian ad litem’s March 30, 1999, report.  

The district court’s denial of appellant’s request is proper on two grounds:  First, Minn. Stat. § 518.175, subd. 2, uses “may,” which is permissive and therefore does not require the district court to inform the children of their rights.  Minn. Stat. § 645.44, subd. 15 (1998) (stating that “may” is permissive).  Second, the district court’s finding that the children are aware that their father can visit them at the Safety Center is supported by the record.  The district court did not abuse its discretion in denying appellant’s motion to inform the children of visitation rights under the decree. 

C.            Maintenance

            Appellant alleges that the district court is “prejudiced” and denied his request for maintenance because he is a disabled man who is currently unemployed.  But appellant did not raise that issue below.  And this court will generally not consider matters not argued and considered in the court below.  Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988).  We decline to consider this issue because it is raised for the first time on appeal, but we note there is nothing in the record to support appellant’s allegation of prejudice.

            D.             Unsupervised Visitation

            Appellant challenges the district court’s denial of his motion for unsupervised visitation.  Under Minn. Stat. § 518.175, subd. 5 (1998), “[t]he court shall modify an order granting or denying visitation rights whenever modification would serve the best interests of the child.” 

The district court appointed a guardian ad litem for the purpose of analyzing visitation issues and making a recommendation to the court.  After interviewing the parties, their children, the family therapist, and others, the guardian ad litem recommended against unsupervised visitation based on appellant’s “beliefs and state of mind.”   Specifically, the guardian ad litem reported that appellant told her that

[he] refuses to see his children under the current Court imposed restrictions, because the government is controlling the situation * * *.   [I]f he participates, it will create an illusion for Diane Orsello that “this is real when it isn’t.”  Mr. Orsello apparently refused to sign documents (at a visitation center) which made him “give up his rights.” 


The district court adopted the guardian’s recommendation, finding that unsupervised visitation would not be in the best interests of the children. 

On appeal, a district court’s findings of fact are not set aside unless clearly erroneous.  Minn. R. Civ. P. 52.01.  A finding is “clearly erroneous” only if the reviewing court is “‘left with the definite and firm conviction that a mistake has been made.’” Fletcher v. St. Paul Pioneer Press , 589 N.W.2d 96, 101 (Minn. 1999) ( quoting Gjovik v. Strope , 401 N.W.2d 664, 667 (Minn. 1987)).  Appellant has produced no evidence to refute the guardian ad litem’s report and has not demonstrated that the district court clearly erred in denying him unsupervised visitation. 

III.            Harassment Restraining Order

Appellant claims that he is appealing from the district court’s July 18, 1999, harassment restraining order. [2]   But where “assignment of error [is] based on mere assertion and not supported by any argument or authorities in appellant’s brief, [the issue] is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection.”  Schoepke v. Alexander Smith & Sons Carpet Co. , 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971). Here, appellant states no basis for his appeal from the order, and prejudicial error is not obvious on mere inspection.  Therefore, appellant has waived appeal from the June 18, 1999, harassment restraining order.


[1] The Minnesota Supreme Court overturned appellant’s conviction in State v. Orsello , 554 N.W.2d 70 (Minn. 1996).

[2] The harassment restraining order is dated June 18, 1999.