This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-00-949

 

In Re the Marriage of:
Francis Dianne Knutson,
n/k/a Francis Dianne Alva, petitioner,
Respondent,

vs.

Edward Charles Knutson,
Appellant.

 

Filed January 30, 2001

Affirmed in part, reversed in part, and remanded

Stoneburner, Judge

 

St. Louis County District Court

File No. F898600874

 

 

Francis Dianne Alva, 702 North 16th Avenue East, Duluth, MN 55812 (respondent       pro se)

 

Brian J. Peterson, Brian J. Peterson, P.A., Suite 102, 7101 Northland Circle, Minneapolis, MN 55428 (for appellant)

 

 

          Considered and decided by Stoneburner, Presiding Judge, Lansing, Judge, and Peterson, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

STONEBURNER, Judge

Appellant Edward Charles Knutson contends that the district court abused its discretion by (1) denying his motion for modification of his visitation schedule; (2) denying his mother’s motion for visitation; (3) failing to appoint a guardian ad litem or a visitation expediter; and (4) awarding attorney fees to respondent Francis Diane Alva.  Knutson also alleges the district court erred by entering judgment on and accelerating repayment of his obligation for a second mortgage/home equity line of credit.  Because we find no abuse of discretion in the visitation decisions, including the attorney fees award, we affirm, but because entry of judgment and acceleration of Knutson’s mortgage debt constitutes a modification of the property division, we reverse in part and remand for entry of an amended judgment pursuant to the terms of the decree.

FACTS

Appellant Edward C. Knutson and respondent Francis Dianne Alva married in 1992.  Alva petitioned for a marital dissolution in 1996.  The parties had one child, N.A.K., born in May 1993.  Alva has two children from a previous marriage, a 15-year-old son and a 20-year-old daughter.

Following a contested dissolution hearing in July 1999, the district court issued a dissolution decree that granted the parties joint legal custody of N.A.K., and Alva physical custody.  The decree granted Knutson “reasonable” visitation, defined to include every other weekend from Friday at 5:00 p.m. until Sunday at 7:00 p.m.; alternating major holidays; Wednesday evenings from the end of school until 7:00 p.m.; Father’s Day; phone contact twice a week; and three separate one-week periods of time during the summer.

The decree awarded Alva the homestead subject to the parties’ first mortgage, which became her sole responsibility, and made Knutson solely responsible for the parties’ second mortgage/home equity line of credit.  The decree provided:

Should [Alva] sell the home prior to the second mortgage/ home equity line of credit being paid in full, and the second mortgage/home equity line of credit therefore being satisfied when [Alva] sells her homestead, [Knutson] shall indemnify and hold [Alva] harmless from said obligation by continuing to make the $400.00 per month second mortgage/home equity line of credit payment directly to [Alva] until paid in full.

 

The decree also required Knutson to pay $2,500 toward Alva’s attorney fees.  Neither party appealed.

When the balloon payment came due on the first mortgage, Knutson offered to co-sign a two-year mortgage extension only if Alva accepted his demands for a change in the visitation schedule.  The parties failed to reach an agreement and Alva was unable to make the balloon payment.  The mortgage was foreclosed and the homestead sold.  Proceeds from the sale in the amount of $26,320.62 were used to satisfy the second mortgage/home equity line of credit.

In March 2000, Knutson moved the court for an order modifying the visitation schedule to (1) grant him visitation on the first and third weekends of every month instead of alternating weekends; (2) specify “major holidays” as including all national holidays, all school breaks, Halloween, and N.A.K.’s birthday; (3) provide that visitation during a “major holiday” would override regularly scheduled weekly visitation; (4) provide for visitation on his birthday; (5) provide for daily telephone contact; (6) allow Knutson visitation during summer vacation for any three weeks at his option and provide an additional week of visitation with N.A.K. for his mother; (7)  require Alva to give him “first option” to care for the parties’ minor child on all occasions where Alva was unable to have the child under her direct care and supervision; and (8) modify child support accordingly.  In the alternative, Knutson requested a guardian ad litem for the child and a mediator or visitation expediter “to resolve and define holiday visitation.”  Knutson alleged that a change of circumstances had occurred because Alva had started to work outside the home.

Alva filed a cross-motion requesting judgment against Knutson for the amount of the second mortgage/home equity line of credit paid from proceeds of the homestead sale; judgment for  $2,500 that Knutson was ordered to pay in the dissolution action for her attorney fees; dismissal of Knutson’s visitation-modification motion; and an award of attorney fees and expenses.  In an accompanying affidavit, Alva set forth her proposed definition of “major holidays.”[1]

In an April 7, 2000 order, the district court found that there was “no ‘substantial change of circumstances’ that made the terms of the decree ‘unreasonable or unfair,’”  adopted Alva’s definition of “major holidays,” denied all of Knutson’s motions, and ordered the court administrator to enter a judgment against Knutson for (1) the full amount of the second mortgage/home equity line of credit because it was entirely paid from the proceeds of the homestead sale and for (2) the $2,500 still owed to Alva under the decree.  The district court also awarded Alva $250 for attorney fees incurred in connection with the motions.

A few days later, Knutson’s mother filed a motion requesting the court to grant her an annual period of visitation, “not to exceed one week,” with N.A.K. pursuant to Minn. Stat. § 257.022, subd. 2 (1998).  The district court denied the grandmother’s motion.  This appeal followed.[2]

D E C I S I O N

1.  Visitation

Knutson argues that the district court abused its discretion in failing to grant his request to modify his visitation schedule.  Under Minnesota law, a district court “shall modify an order granting or denying visitation rights whenever the modification would serve the best interests of the child.”  Minn. Stat. § 518.175, subd. 5 (1998).[3]  The district court must consider all relevant factors in determining the best interests of the child.  Minn. Stat. § 518.17, subd. 1 (1998).   The court has extensive discretion to determine what is in the best interests of the child in the area of visitation and its determination will not be reversed absent an abuse of discretion.  Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1997).  The party seeking modification bears the burden of establishing that such modification is in the child’s best interests.  See Griffen v. Van Griffen, 267 N.W.2d 733, 735 (Minn. 1978) (placing burden of persuasion on party seeking to re-establish visitation).

The “interaction and interrelationship of a child with a parent” is a factor that the district court must consider in determining the best interests of a child.  Minn. Stat. § 518.17, subd. 1(a)(5) (1998).  Knutson claims that Alva’s post-decree decision to work full-time outside the home constitutes a “substantial change of circumstances” which has adversely impacted N.A.K.’s contact with her mother.  The record reflects that since Alva began working full-time outside the home, N.A.K. has spent one hour in a latchkey program in December 1999 and has been taken to the school bus stop by her 15-year-old half-brother and picked up from school by her 20-year-old half-sister, both of whom have lived with N.A.K. since her birth.  The record contains no other evidence that Alva’s full-time employment has adversely affected N.A.K.’s interactions with Alva.  The record contains affidavits by a licensed psychologist and Knutson arguing in support of specificity and stability in visitation schedules.  The psychologist’s affidavit does not express an opinion as to which proposed visitation schedule plan would be in N.A.K.’s best interest.  And while Knutson’s affidavit details his belief that the current schedule is unfair and unreasonable to him, it fails to advance any evidence that his schedule would be in N.A.K's best interests.  Knutson has not satisfied his burden of establishing that the proposed modification is in N.A.K’s best interests.  The district court did not abuse its discretion in denying Knutson’s request to modify the visitation schedule.

          Knutson argues that he should be given the “first option” to care for N.A.K. “on all occasions where [Alva] is unable to have the child under her direct care and supervision.”  On such occasions, Alva “only need request and [Knutson] says yes or no at that point and can spend more time if it’s possible.”  Knutson argues it is in the best interests of N.A.K. for him to have this option to care for her “when he is willing and able to do so” because “it is clearly in [N.A.K.]’s best interest for her to be able to spend time with [Knutson] instead of placing her into latch key programs, or involving family members or friends to baby-sit the minor child” and because N.A.K. “is otherwise deprived of having [Knutson] care for [N.A.K.].”  But the district court is required to consider all relevant factors in determining the bests interest of a child, including “the interaction and interrelationship of the child with * * * siblings, and any other person who may significantly affect the child’s best interests,” as well as the stability of the child’s environment.  Id., subd. 1(a)(5), (a)(7) (1998).  N.A.K.’s routine schedule is maintained with the help of her half-siblings.  Knutson has failed to establish that the uncertainty that would be introduced by his proposed “first care” option is in the child’s best interests.  The district court did not abuse its discretion in denying Knutson’s request to modify the visitation schedule to give him “first option” to provide child care.

          Knutson asserts that the district court did not make adequate findings to support its failure to modify his visitation rights.  Knutson based his motion on an allegation of substantial change of circumstances.  The district court found that “there is no ‘substantial change of circumstances’ that makes the terms of the decree ‘unreasonable or unfair.’”  The court more clearly defined “major holidays” but otherwise did not alter the visitation set out in the decree.  As noted above, the standard for determining a motion to modify visitation is best-interests, not substantial change of circumstances, but we read the district court’s finding not as setting an improper standard in this case, but rather as explaining why the district court’s findings regarding the best interests of N.A.K. made in the recently issued decree are not altered.  Under the circumstances of this case any error would be harmless and reliance on the findings in the decree is adequate.[4]  See Minn. Stat. §§ 518.17, subd. 1(a) (enumerating factors court must consider in determining best interests of child), 518.175, subd. 5 (requiring modification of visitation-rights order to serve best interests of child).

2.  Grandmother’s visitation

          Knutson appeals the denial of his mother’s request for visitation with N.A.K.  Minnesota law provides that a court

may, upon request of the parent or grandparent of a party,  grant reasonable visitation rights to the unmarried minor child * * * if it finds that (1) visitation rights would be in the best interests of the child and (2) such visitation would not interfere with the parent-child relationship.  The court shall consider the amount of personal contact between the parents or grandparents of the party and the child prior to the application.

 

Minn. Stat. § 257.022, subd. 2 (1998).  A 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 at 550.  The court noted that this motion “comes only days after the previous visitation motion was heard and determined” and found that there was no difference between grandparent and non-custodial-parent visitation in this situation,  indicating that the grandmother’s motion did not raise any issues not already addressed in denial of the previous motion.  The court found that (1) the child’s annual visits with her grandmother, who traditionally comes to Minnesota every summer, were likely to continue, (2) that the statute does not mandate separate grandparent visitation, and (3) that it should be allowed only if the court found it to be in the best interests of the child.  The court found those interests would not be met by starting a precedent with the potential of resulting in “five separate sets of visitation rights, with a non-custodial parent and two sets of grandparents”   The district court did not abuse its discretion in denying separate visitation to the grandmother.

3.  Guardian ad litem / visitation expediter

          Knutson also appeals the district court’s denial of his request for the appointment of a guardian ad litem.  Under Minnesota law, a district court may appoint a guardian ad litem to represent the interests of a child, but is required to do so in a dissolution proceeding where visitation is an issue only if “the court has reason to believe that the minor child is a victim of domestic abuse or neglect.”  Minn. Stat. § 518.165, subds. 1, 2 (1998).  There is no evidence of domestic abuse or neglect in the record.  Finding that “both parents clearly love [N.A.K.] * * * [b]oth parties are in good physical and mental health and both parties have the capacity and disposition to give love, affection and guidance to [N.A.K.],” the district court did not abuse its discretion in failing to appoint a guardian ad litem.

Knutson also argues that the appointment of a visitation expediter “to resolve and define holiday visitation” was appropriate.  A visitation expediter may be appointed by the court “to resolve visitation disputes that occur under a visitation order * * * after a decree is entered.”  Minn. Stat. § 518.1751 (Supp. 1999).  The statute provides:

The purpose of a visitation expediter is to resolve visitation disputes by enforcing, interpreting, clarifying, and addressing circumstances not specifically addressed by an existing visitation order and, if appropriate, to make a determination as to whether the existing visitation order has been violated.

 

Id., subd. 1b.  By defining what constituted “major holidays” in its April 7, 2000 order, the district court removed the need for a visitation expediter and did not abuse it’s discretion. 

4.  Mortgage

Knutson appeals the district court’s order for entry of judgment against him in the amount of the pay-off of the second mortgage/home equity line of credit from proceeds of the homestead sale, on the ground that the order accelerated payment on this debt.  A district court may not modify a division of property unless the court finds the division involves fraud, mistake, or inadvertent neglect, or other conditions that justify reopening a judgment.  Minn. Stat. § 518.64, subd. 2(d)(1) (Supp. 1999); see also Kerr v. Kerr, 309 Minn. 124, 126, 243 N.W.2d 313, 314 (1976).  But a district court may clarify and construe a dissolution judgment so long as the parties’ substantive rights are not changed.  Potter v. Potter, 471 N.W.2d 113, 114 (Minn. App. 1991); Thompson v. Thompson, 385 N.W.2d 20, 22 (Minn. App. 1986).  The trial court’s implementation of the decree is reviewed under an abuse-of-discretion standard.  See Potter, 471 N.W.2d at 114. 

By reducing the amount of Knutson’s obligation on the second mortgage to judgment in favor of Alva, the district court accelerated collection contrary to the terms of the decree.  The district court commented that

Knutson’s own failure to comply with the decree resulted in the bank declaring the balance due in full on the note.  Foreclosure proceedings were the result.

 

But the decree made Alva solely responsible for the first mortgage: Knutson was not required to assist her in making the balloon payment.  Knutson’s failure to assist does not justify modification of the decree’s repayment provision for Knutson’s obligation for the second mortgage/home equity line of credit.  Acceleration of repayment constitutes an unwarranted modification of the property division.  We reverse the district court’s entry of judgment and acceleration of payment and remand for entry of an amended judgment that limits Knutson’s current obligation to Alva for the second mortgage to $400 monthly payments pursuant to the terms of the decree.

5.  Attorney fees

Knutson challenges the district court’s award of $250 attorney fees to Alva.  A district court’s decision on attorney fees will only be reversed for an abuse of its discretion.  Davis v. Davis, 306 Minn. 536, 538, 235 N.W.2d 836 (1975).  The district court determined in the dissolution action that Alva was entitled to assistance with attorney fees.  Knutson’s failure to pay the fees originally awarded, forcing Alva to seek enforcement, coupled with evidence of the foreclosure is more than sufficient to support the modest fees awarded. 

          Affirmed in part, reversed in part, and remanded.

 

 



[1] Alva’s list of the major holidays was: Christmas Eve, Christmas Day, New Year’s Eve, New Year’s Day, Easter Sunday, Memorial Day, 4th of July, Labor Day, and Thanksgiving Day.

[2] Knutson filed a timely notice of appeal and appellate brief.  Because Alva failed to file a brief within the time provided for by law, this court ordered that the matter would be heard on the merits pursuant to Minn. R. Civ. App. P. 142.03 and that Alva could not participate in oral argument pursuant to Minn. R. Civ. App. P. 128.02, subd. 2.

[3] In 2000, the legislature changed Minnesota law to provide for parenting plans and parenting time, rather than visitation rights.  See 2000 Minn. Laws ch. 444, arts. 1, § 2 (providing for parenting plans and parenting time), 2, §§ 26-31 (conforming terminology).  Because the changes to the statutes of issue in this case became effective January 1, 2001 we review the district court’s decision under the former statute.  See 2000 Minn. Laws ch. 444, arts. 1 § 8, art. 2 §50; see also McClelland v. McClelland, 393 N.W.2d 224, 226-27 (explaining that former law is to be applied where applying the law in effect at the time of the decision would alter matured rights), review denied (Minn. Nov. 17, 1986).

[4] The district court found that “[Alva] has clearly been the primary parent of [N.A.K.].  * * * [Alva] has suggested that the parties be awarded joint legal custody, with physical custody in [her], subject to reasonable visitation by [Knutson].  [Knutson] has suggested that he be awarded sole physical custody and that he move back into the home to care for [N.A.K.] and that [Alva] and her children from a previous marriage move out and live elsewhere.  [N.A.K.] is not of a suitable age to express a preference.  [N.A.K.] clearly loves both of her parents and, likewise, both parents clearly love [N.A.K.]  [N.A.K.] has lived in a stable, satisfactory environment with her mother as her physical custodian and it is desirable to maintain that continuity.  Both parties are in good physical and mental health and both parties have the capacity and disposition to give love, affection and guidance to [N.A.K.].”