This opinion will be unpublished and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-00-1757

 

 

In Re the Marriage of:

Anastasia M. Farman, petitioner,

Appellant,

 

vs.

 

David C. Farman,

Respondent.

 

 

Filed July 10, 2001

Affirmed in part, reversed in part, and remanded

G. Barry Anderson, Judge

 

Hennepin County District Court

File No. 225721

 

 

Karl A. Oliver, Oliver & Associates, PLC, 1935 West County Road B2, Suite 415, Roseville, MN 55113 (for appellant)

 

John R. Jesperson, Jesperson Law Office, 1012 Grain Exchange Building, 400 South Fourth Street, Minneapolis, MN 55415 (for respondent)

 

 

            Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and G. Barry Anderson, Judge.


U N P U B L I S H E D   O P I N I O N

G. BARRY ANDERSON, Judge

            Appellant Anastasia M. Farman and respondent David C. Farman both filed post-dissolution motions concerning visitation and child support issues.  Mother contends that the district court erred by awarding father compensatory visitation, retroactively waiving child support arrearages, improperly ordering mother to give her address and phone number to father, and denying mother’s requests for a continuance and to proceed in forma pauperis.  We affirm in part, reverse in part, and remand.

FACTS

            The parties dissolved their marriage in 1998.  The parties have two children, D.F. (born in 1992) and K.F. (born in 1994).  Father lives in Minnesota, and mother and children live in Florida.

Father has a history of violence and anger towards mother.  Domestic abuse occurred during the marriage in front of the children.  Hennepin County court services  recommended that mother be granted sole physical and legal custody of the children and recommended that father (1) have supervised visitation for periods of no more than four hours; (2) complete a parenting education program; and (3) participate in an anger management program.

The dissolution judgment awarded sole physical and legal custody of the children to mother and ordered father to pay child support in the amount of $435 per month.  Due to mother’s impending move to Florida, the parties stipulated to a schedule alternating visitation between Florida and Minnesota.  The judgment provided that visitation was to occur on the third weekend of each month, from 10:00 a.m. to 7:00 p.m. on Saturday and Sunday, with no overnights.  One month, mother was responsible for bringing the children to Minnesota and paying transportation costs for herself and the children.  The next month, father would travel to Florida and pay his own transportation costs.  If father failed to travel to Florida one month, mother was relieved of the obligation to travel to Minnesota the following month.  If mother failed to produce the children for a scheduled visit in Florida, father could deduct from the next month’s child support “the cost of his airfare plus one weekend motel and car rental for his visit with the children in Florida, provided he verifies those costs with receipts * * *.” 

The judgment also provided that neither party could be under the influence of drugs or alcohol while with the children, neither party could talk negatively to or about the other party to the children or in front of the children, and that mother was not required to disclose her address or telephone number to father.  Father was to contact mother and the children through a third party, whose name, address, and telephone number were provided in the decree.

The current dispute arose out of father’s trip to Florida in December 1999 to visit the children.  Father met with the children for two hours on December 24, 1999, and claims he was wrongfully denied visitation thereafter, although he remained in Florida for a week.  Mother claims she denied visitation because father was under the influence of alcohol and threatened her.  Father requests reimbursement of $1,631.90 for his travel expenses, including air fare, a one-week hotel stay, and car rental.

The parties both filed motions seeking multiple forms of relief and the district court scheduled a July 25, 2000 hearing.  Mother requested a continuance of the hearing, claiming she could not afford to travel to Minnesota.  The court asked the parties to submit a joint request for a continuance.  A joint request was not received, and the hearing proceeded on the scheduled date. 

The court awarded father compensatory visitation consisting of one week in Minnesota, including overnights, at father’s residence; ordered mother to immediately disclose her home street address and phone number to father and permit reasonable phone contact between father and the children; and ordered father’s child support account credited in the amount of $1,631.90 as reimbursement for his travel expenses.

Mother filed an application and affidavit for proceeding in forma pauperis with the district court in connection with the appeal to this court.  The district court denied the in forma pauperis application without making findings or issuing an order.

D E C I S I O N

I.

 

Mother contends that the district court erred in awarding compensatory visitation to father and allowing overnight visitation.  A court may order compensatory visitation if a party has been deprived of court-ordered visitation.  Minn. Stat. § 518.175, subd. 6(b) (2000); Doren v. Doren, 431 N.W.2d 558, 561 (Minn. App. 1988).  If compensatory visitation is awarded, the additional visits must be at least the same type and duration as the deprived visit, and at the court’s discretion, may be in excess of or of a different type than the deprived visit.  Minn. Stat. § 518.175, subd. 6(b)(1) (2000). 

Father claims he was deprived of court-ordered visitation when he traveled to Florida on December 24, 1999.  Mother contends the court-ordered visitation would have been the third weekend of the month, which was December 18-19, and not December 24.  Mother, however, allowed father to visit the children for two hours on December 24 but denied further visitation, claiming father was under the influence of alcohol and was verbally abusive toward her.  While the judgment prohibits either party from being under the influence of alcohol or speaking negatively to or about the other party in front of the children, the judgment does not permit withholding of future visitation on the basis of such conduct.  Since father traveled to Florida, mother agreed to let him visit the children, and then withheld further visitation, the district court did not abuse its discretion in awarding compensatory visitation. 

Compensatory visitation “may be in excess of or of a different type than the deprived parenting time.”  Minn. Stat. § 518.175, subd. 6(b)(1).  While the district court had discretion to allow more visitation or a different type of visitation, the court essentially modified the existing order by granting father overnight visits not allowed under the order.  “If modification would serve the best interests of the child, the court shall modify * * * an order granting or denying parenting time, if the modification would not change the child’s primary residence.”  Minn. Stat. § 518.175, subd. 5 (2000).  In analyzing the best interests of the child, one factor to be considered is “the effect on the child of the actions of an abuser, if related to domestic abuse * * * that has occurred between the parents * * *.”  Minn. Stat. § 518.17, subd. 1(12) (2000).  Overnight visitation was prohibited by the judgment, in part because of the history of abuse in the marriage.  Because the district court modified visitation rights under the order without considering the best interests of the children, we remand for findings regarding the nature of the compensatory visitation.  But on this record, we make no judgment as to the ultimate award of compensatory visitation.

II.

Mother contends that the district court erred by retroactively waiving father’s support arrears without making adequate findings, by ordering father’s child support account credited in the amount of $1,631.90 as reimbursement for his travel expenses.

The parties’ decree provided that

[i]n the event [mother] fails to produce the children for a scheduled visit, then the following month [father] may deduct from his child support the cost of his airfare plus one weekend motel and car rental for his visit with the children in Florida.

 

Travel expenses may be deducted from future child support payments under the agreement, but the agreement does not provide for deductions from past-due child support.  “Forgiveness of [child support] arrearages is a retroactive modification of child support.”  Darcy v. Darcy, 455 N.W.2d 518, 524-25 (Minn. App. 1990) (citation omitted).  By crediting father’s child support arrearages with the amount of travel expenses, the court improperly retroactively modified child support. 

In addition, the district court may have erred in determining the amount of the credit.  Here, the district court held mother responsible for father’s airfare plus seven days of hotel and car rental expenses.  Father was entitled to recover airfare plus expenses for one weekend only.  When allocating transportation expense, the district court must make specific findings to allow the appellate court meaningful review.  Ballard v. Wold, 486 N.W.2d 161, 162 (Minn. App. 1992).  We reverse the retroactive modification and remand to the district court for specific findings regarding the proper amount of father’s travel expenses to be credited against future child support. 

III.

Mother contends that the district court improperly ordered her to disclose her home address and phone number to father despite a history of abuse and a court order requiring nondisclosure.  The dissolution judgment states that “[mother] is not required to provide her address or telephone number to [father].”  Father was ordered to contact mother and the children through a third party.  Father claims that despite the order, mother did provide her address and phone number to him, but she has since moved and changed her phone number and left him with no way to contact her or the children.  Mother’s present posture in refusing to disclose this information is inconsistent with her past practice of providing her address and phone number to father and thus disclosure may very well be appropriate. 

The district court, however, failed to consider the history of domestic abuse or the provisions of the judgment and decree, stating only that “[father] is entitled to and should have visitation and contact with his children.”  We reverse and remand to the district court for findings addressing whether the judgment and decree should be modified to require mother to disclose her home address and phone number to father.

IV.

Mother contends that the district court abused its discretion by denying a continuance and denying her request to proceed in forma pauperisThe granting of a continuance is within the discretion of the district court, and its ruling will not be reversed absent a showing of clear abuse of discretion.  Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977).  The district court asked the parties to submit a joint request for a continuance.  Mother claimed she and father agreed to continue the hearing, but nothing in the record confirms such an agreement.  We find no abuse of discretion in the district court’s refusal to grant a continuance.   

The district court also denied mother’s request to proceed with the appeal in forma pauperis.  Minn. Stat. § 563.01, subd. 3 (2000) provides that:

Any court of the state of Minnesota or any political subdivision thereof may authorize the commencement or defense of any civil action, or appeal therein, without prepayment of fees, costs and security for costs by a natural person who makes affidavit stating (a) the nature of the action, defense or appeal, (b) a belief that affiant is entitled to redress, and (c) that affiant is financially unable to pay the fees, costs and security for costs.

 

Upon a finding by the court that the action is not of a frivolous nature, the court shall allow the person to proceed in forma pauperis if the affidavit is substantially in the language required by this subdivision and is not found by the court to be untrue.  Persons meeting the requirements of this subdivision include * * * a person * * * who has an annual income not greater than 125 percent of the poverty line established under United States Code, title 42, section 9902(2) * * * *.

 

Id.

The district court has broad discretion in determining whether expenses should be paid under Minn. Stat. § 563.01, subd. 3.  Thompson v. St. Mary’s Hosp. of Duluth, 306 N.W.2d 560, 563 (Minn. 1981).  Mother’s affidavit claimed income below 125% of the federal poverty line.  If the application is not found to be frivolous, then the court “shall allow the person to proceed in forma pauperis,” provided the affidavit is in the correct form and the information given is not found to be untrue.  We have no findings to guide us as to whether the district court found the application frivolous or the affidavit untrue.  We therefore remand for findings regarding the district court’s denial of the in forma pauperis application.  See Maddox v. Dep’t of Human Servs., 400 N.W.2d 136, 139 n.1 (Minn. App. 1987) (“[I]t has been the practice of the Minnesota Supreme Court and [the court of appeals] to refer motions to proceed in forma pauperis on appeal back to the trial court for findings.”)

            Affirmed in part, reversed in part, and remanded.