This opinion will be unpublished and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

CX-00-1290

 

In re the Marriage of:

Kelly Ann Martin,

n/k/a Kelly Ann Ryan, petitioner,

Respondent,

 

vs.

 

Gregory John Martin,

Appellant.

 

Filed March 20, 2001

Affirmed

Toussaint, Chief Judge

 

 

Dakota County District Court

File No. F59713425

 

Jori L. Whitehead, Ronald L. Whitehead, Whitehead Law Office, 2500 W. Cty. Rd. 42, Suite 100, Burnsville, Minnesota 55337 (for respondent Kelly Ann Ryan) 

 

Eric Carlisle Nelson, Flour Exchange Building, 310 Fourth Avenue South, Suite 507, Minneapolis, Minnesota 55415 (for appellant Gregory John Martin)

 

 

            Considered and decided by Toussaint, Chief Judge, Hanson, Judge, and Huspeni, Judge.*

 

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Because of visitation-related disputes arising after respondent Kelly Martin changed the residence of the parties’ children to Missouri, appellant Gregory Martin moved, among other things, to modify visitation, child support, and the apportionment of visitation expenses.  He also sought to terminate his medical support obligation and now challenges what he alleges is the district court’s unexplained denial of his motions.  Because the record supports the district court’s decision, we affirm. 

D E C I S I O N

I.

            Visitation “shall” be modified whenever doing so would be in the children’s best interests.  Minn. Stat. § 518.175, subd. 5 (2000); see Minn. Stat. § 645.44, subd. 16 (2000) (stating “‘[s]hall’ is mandatory”); see also Manthei v. Manthei, 268 N.W.2d 45, 45 (Minn. 1978) (stating district court has “extensive” discretion in addressing visitation matters).  If visitation is modified, findings are required to explain the modification. Moravick v. Moravick, 461 N.W.2d 408-09 (Minn. App. 1990).  When visitation rights are not modified, or when they are modified only insubstantially, findings are not required.  See Funari v. Funari, 388 N.W.2d 751, 753 (Minn. App. 1986) (stating clarifications or insubstantial modifications of visitation are within a district court’s discretion and need not be supported by findings that such modification is in the children’s best interests). 

Here, the denial of appellant’s motion to modify visitation did not affect the visitation schedule.  The visitation schedule proposed by appellant was rejected by the district court.  The record, the district court’s admonitions from the bench, and its oral and written recommendations that one party seek sole legal custody of these children, demonstrate the parties’ lack of cooperation regarding visitation.  The district court concluded that doing anything to increase the opportunity for dispute is contrary to the children’s best interests.  See Minn. R. Civ. P. 52.01 (stating it is sufficient if the district court’s findings are “stated orally and recorded in open court” or appear in a memorandum accompanying decision); cf. Warwick v. Warwick, 438 N.W.2d 673, 677-78 (Minn. App. 1989) (inferring finding of bad faith where referee, on transcript, stated child support obligor’s failure to pay was “egregious,” “outrageous,” in contempt of court, and sentenced obligor to workhouse).  Because appellate made no showing that modification of visitation would be in the children’s best interests and because the visitation schedule was not modified, a lack of findings on the children’s best interests does not render the order defective. 

II.

            A prior order allowed respondent to remove the children to Missouri, reduced appellant’s monthly support obligation by $300 “to defray the increased visitation travel costs” and made appellant “responsible for all visitation travel expenses”.  Because the portion of the prior order addressing these questions was not appealed, these determinations are not before us.  See Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370, 147 N.W.2d 100, 103 (1966) (stating “[e]ven though the decision of the trial court in the first order may have been wrong, if it is an appealable order it is still final after the time for appeal has expired”).

In the current litigation, appellant moved to decrease his support obligation an additional $200 per month for visitation costs and for child support to be suspended during the summer when the children reside with him.  Whether to modify support, including modification of visitation-related costs, is discretionary with the district court. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986) (referring to modification of child support, generally); Stewart v. Stewart, 373 N.W.2d 856, 858 (Minn. App. 1985) (referring to modification of child support for visitation-related costs).  In a support modification proceeding, the moving party must show the existence of substantially changed circumstances rendering the existing support obligation unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2(a) (2000). 

Appellant’s brief to this court argues “new” visitation expenses have increased the cost of monthly visitation but the record does not identify those “new” expenses.  Review of the evidence submitted to the district court shows that only 13 months passed between the order allowing removal and appellant’s motion to reduce support.  It also shows that the first affidavits appellant filed in this matter addressing visitation costs do not refer to new or increased visitation costs.  Instead, those affidavits assume that each party should pay half of the visitation costs, that the apportionment of visitation costs in the prior order did not accurately reflect those costs, and hence that the prior order did not equally divide those costs.  Those affidavits also show inconsistencies in appellant’s allegations regarding visitation costs.  Under these circumstances, we cannot say that appellant has shown either substantially changed circumstances or that any change in circumstances renders his existing support obligation unreasonable and unfair as required by Minn. Stat. § 518.64, subd. 2(a). 

III.

            Appellant challenges the portion of the district court’s order denying his request to terminate his obligation to reimburse respondent $50 per month for part of the cost she incurs in providing medical and dental insurance for the children.  The court “shall” order the parent with the better group-dependant health insurance to cover the children with that parent’s health insurance plan.  Minn. Stat. § 518.171, subd. 1(a)(2) (2000).  At the hearing, appellant testified that he could, through his employment, insure the children at no out-of-pocket cost.  The parties, however, made conflicting arguments about whether appellant would let the children’s insurance lapse.  We cannot assume that the district court erred.  Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949).  Therefore, we will not alter the district court’s implicit determination that appellant was not credible when he alleged that he would not let the children’s insurance lapse.  See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating appellate courts defer to district court credibility determinations).  The record supports the district court’s decision.

            Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.