This opinion will be unpublished and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 the Matter of the Welfare of:
Z.T.N., a minor child.
Filed May 30, 2000
Steele County District Court
File No. F3-96-098
Tore Simonsen, Calhoun Square, Suite 309B, 3001 Hennepin Avenue South, Minneapolis, MN† 55408 (for appellant Todd R. Nelson)
Catherine Brown Furness, Premier Bank Building, 209 East Main, Suite D, P.O. Box 603, Owatonna, MN† 55060 (for respondent Tamara Esplan)
††††††††††† Considered and decided by Davies, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.
††††††††††† This appeal is from a judgment granting respondent Tamara Esplan additional visitation time with appellant Todd R. Nelsonís minor son.† We affirm.
††††††††††† In June 1992, Esplan moved in with Nelson and his two-year-old son, Z.T.N.† Nelson was awarded physical custody of Z.T.N. during a dissolution proceeding with Z.T.N.ís mother.† Esplan, Nelson, and Z.T.N. lived together for three years.† In July 1995, the relationship between Esplan and Nelson ended.† Nelson initially permitted Esplan to visit with Z.T.N.† But in December 1995, Nelson became involved with another woman and refused to allow Esplan to have any further contact with Z.T.N.
††††††††††† Esplan petitioned to establish visitation rights with Z.T.N.† On March 15, 1996, after a default proceeding, the trial court granted Esplan visitation with Z.T.N. every other weekend, every Wednesday evening, alternating holidays, two weeks in the summer, and part of winter school break.†
††††††††††† Nelson moved to vacate the visitation award, alleging that he had not been served with the petition to establish visitation.† On April 15, 1996, the trial court denied the motion to vacate but modified the visitation schedule to provide that Esplan would have visitation only one weekend per month from 9:00 a.m. Saturday until 5:00 p.m. Sunday.
††††††††††† In June 1996, Nelson moved for a change of venue, or alternatively for an evidentiary hearing to be held on Esplanís visitation petition.† Esplan filed a counter-motion, requesting (1) a finding holding Nelson in civil contempt because she had not been allowed any visitation with Z.T.N.; (2) compensatory visitation due to the denial of visitation; and (3) an order modifying the visitation schedule established by the April 15, 1996, order to conform with the guardian ad litemís recommendation for increased visitation.†
††††††††††† In a July 23, 1996, order, the trial court (1) denied the motion to change venue; (2) denied the motion to hold an evidentiary hearing on the visitation petition; and (3) granted Esplan an evidentiary hearing on her request for additional visitation.†
††††††††††† Nelson appealed to this court, seeking review of the March 15, 1996, default order granting Esplan visitation with Z.T.N., the April 15, 1996, order refusing to vacate the March 15, 1996, order, and the July 23, 1996, order denying Nelsonís motion for a change in venue and for an evidentiary hearing to determine whether Esplan was entitled to visitation.† This court dismissed Nelsonís appeal, concluding (1) that an appeal from the March 15, 1996, order for judgment was premature because judgment had not been entered; (2) the appeal from the April 15, 1996, order denying appellantís motion to vacate was untimely; and (3) the order denying Nelsonís motion for an evidentiary hearing was not appealable because the order, in effect, refused to vacate the April 15, 1996, order.†††††††††
††††††††††† In February 1997, an evidentiary hearing was held on Esplanís motion for additional visitation.† At the conclusion of the hearing, Nelson requested and was granted an opportunity to present the deposition testimony of Dr. Eric Milliner.† Esplan requested and was granted permission to retain Dr. Penny Zwecker to examine Z.T.N. and submit a report to the court.††
††††††††††† After a series of delays, the hearing for the expert testimony occurred on May 27, 1999.† Zweckerís testimony and both an initial and an updated report were admitted.† Nelson did not introduce Millinerís deposition testimony, and Milliner did not testify.† But there were some earlier reports that Milliner had prepared already in evidence and the complete Mayo Clinic records for Z.T.N. dated February 2, 1998, were admitted at the hearing.
††††††††††† On September 16, 1999, the trial court issued an order for judgment, which concluded:
††††††††††† The relationship between Tammy Esplan and [Z.T.N.] continues to be in his best interest.† The continued stability, continuity and bond between Tammy and [Z.T.N.] can only be best for him.† There was no evidence introduced that the visitation has interfered with the father-son relationship between Todd Nelson and [Z.T.N.]
The order modified Esplanís visitation with Z.T.N. to include every third weekend per month from 9:00 a.m. Saturday until 6:00 p.m. Sunday and two weeks during the summer from August 1 through August 14.† Judgment was entered pursuant to the order.††
D E C I S I O N
††††††††††† By arguing that the establishment and expansion of Esplanís visitation rights are not in the best interests of Z.T.N. and interfere with the parent-child relationship, Nelson attempts to obtain review of both the trial courtís initial grant of visitation rights and the later increase in visitation.† But the September 16, 1999, amended judgment from which this appeal is taken did not establish visitation rights; it only expanded the visitation schedule by adding one hour to the weekend visits and granting visitation for two weeks during the summer.†
††††††††††† Visitation rights were established by the March 15, 1996, default order.† Nelsonís motion to vacate the default order was denied, this court dismissed as untimely Nelsonís appeal from the order denying the motion to vacate, and there was no further review by the supreme court.† Consequently, the only issues that we may now, even arguably, review with respect to the establishment of visitation are those issues that could be raised on appeal from the default order.
††††††††††† ď[A]ppellate review is limited to the record.Ē† Thorp Loan & Thrift Co. v. Morse, 451 N.W.2d 361, 362 (Minn. App. 1990), review denied (Minn. Apr. 13, 1990).
††††††††††† It is a well-settled principle of law that a party is not entitled to raise a question for the first time on appeal.† Based on this premise, our supreme court has ruled that on appeal from a default judgment, a party in default may not deny facts alleged in the complaint when such facts were not put into issue below.† By the same token, a party in default may not assert facts on appeal which were not asserted below.
Id. at 362-63 (emphasis in original).
††††††††††† The default order granted Esplan visitation rights pursuant to Minn. Stat. ß 257.022, subd. 2b (1994), which provides:
††††††††††† If an unmarried minor has resided in a household with a person, other than a foster parent, for two years or more and no longer resides with the person, the person may petition the district court for an order granting the person reasonable visitation rights to the child during the childís minority.† The court shall grant the petition if it finds that:
††††††††††† (1) visitation rights would be in the best interests of the child;
††††††††† (2) the petitioner and child had established emotional ties creating a parent and child relationship; and
††††††††† (3) visitation rights would not interfere with the relationship between the custodial parent and the child.
††††††††††† Nelson contends that the establishment of Esplanís visitation rights was an abuse of the trial courtís discretion.† But he does not explain how the record before the trial court when it issued the default order fails to support the courtís findings of fact or its conclusion of law that Esplan is entitled to visitation rights pursuant to Minn. Stat. ß 257.022, subd. 2b.† An assignment of error based on mere assertion and unsupported by argument or authority is waived unless prejudicial error is obvious on mere inspection.† State by Humphrey v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).†
††††††††††† Nelson also contends that he was not afforded an opportunity to act on the matter of visitation and that the trial court abused its discretion by failing to vacate the order that established visitation.† But as we have already indicated, Nelson appealed from the order denying his motion to vacate the order that granted visitation and this court dismissed his appeal as untimely.† In this appeal, Nelson merely reiterates his claim that the trial court should have granted his motion to vacate without explaining how his previously untimely appeal is now timely.†
††††††††††† Visitation is to be granted and modified to the extent it is in the childís best interests.† Minn. Stat. ß 518.175, subd. 1, 5 (1998) (standards for granting and modifying visitation).† The authority of a trial court to award and enforce visitation rights involves questions of law.† Simmons v. Simmons, 486 N.W.2d 788, 790 (Minn. App. 1992).† This court is not bound by the trial courtís legal conclusions.† Id.† But the trial court has broad discretion to determine what is in the best interests of a child regarding visitation, and its determination will not be overturned absent an abuse of discretion.† Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).† In reviewing a trial courtís order for an abuse of discretion, our inquiry is limited to whether the trial court made findings unsupported by the evidence or erred by improperly applying the law.† Kulla v. McNulty, 472 N.W.2d 175, 183 (Minn. App. 1991), review denied (Minn. Aug. 29, 1991).
Best Interests of the Child†
††††††††††† Nelson argues that continued visitation between Esplan and Z.T.N. is not in Z.T.N.ís best interests.† He challenges the trial courtís credibility determinations by contending that the trial court misplaced its trust upon statements of individual witnesses.† ďTrial courts stand in a superior position to appellate courts in assessing the credibility of witnesses * * * .Ē In re Welfare of M.D.O., 462 N.W.2d 370, 374-75 (Minn. 1990); see also Minn. R. Civ. P. 52.01 (due regard shall be given to opportunity of trial court to judge credibility of witnesses).
††††††††††† There was evidence presented that indicates visitation has been traumatic for Z.T.N., that visitation ignored Z.T.N.ís need for a structured environment, that visitation interfered with Z.T.N.ís therapy, and that after returning from visitation, Z.T.N. is disruptive and hard to handle and has trouble adjusting to his routine.† But there was also evidence that Esplan and Z.T.N. have a warm and loving relationship akin to that of a mother and her natural child, that this relationship is good for Z.T.N.ís well being, and that because Esplan has been the only consistent mother figure that Z.T.N. has known, he would suffer if visitation were terminated.
††††††††††† Given this conflicting evidence, and recognizing that the trial court is in a superior position to judge the credibility of the witnesses, we conclude that the trial court did not abuse its discretion when it concluded that a modest expansion of visitation with Esplan is in Z.T.N.ís best interests.
Interference with Relationship Between Custodial Parent and Child
††††††††††† Nelson contends that the trial court should have denied Esplanís request for expanded visitation because he established by a preponderance of the evidence that visitation is interfering with the relationship between him and Z.T.N.† Nelson testified that visitation deprives him of the opportunity to spend quality time with Z.T.N. on weekends and that Z.T.N.ís biological mother has been pushed out of Z.T.N.ís life by the expansion of Esplanís involvement with the child.†
††††††††††† It is true that the dissolution decree for Nelson and Z.T.N.ís biological mother granted her visitation two weekends per month, and Z.T.N. will be with Nelson only one weekend per month if both Esplan and Z.T.N.ís mother exercise their visitation rights.† But Z.T.N.ís mother has not regularly exercised her visitation rights.† And the trial court expressly recognized in its September 16, 1999, order that if Z.T.N.ís mother begins exercising visitation pursuant to the decree, her actions will constitute a substantial change in circumstances enabling either Esplan or Nelson to move for modification of the visitation order.† Consequently, under the current circumstances, Z.T.N. is with Nelson during all but one weekend per month.
††††††††††† The trial courtís findings are supported by the evidence, and the trial court did not commit an error of law or abuse its discretion when it expanded Esplanís visitation with Z.T.N. to include one additional hour during weekend visits and two weeks during the summer.