This opinion will be unpublished and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
In Re the Marriage
(Now Dissolved) of:
Sarah J. Kissner, n/k/a
Sarah J. Koltveit, petitioner,
Jeffrey Robert Kissner,
Filed August 28, 2001
Cottonwood County District Court
File No. F-89-423
Suzanne E. Grandchamp, Keith E. Ekstrom, Robin & Thompson, 1000 Superior Boulevard, Suite 300, Wayzata, MN 55391 (for appellant)
Jeffrey Robert Kissner, 701 Redding Avenue, Windom, Minnesota 56101 (pro se respondent)
Considered and decided by Shumaker, Presiding Judge, Amundson, Judge, and Parker, Judge.*
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
In this visitation-modification proceeding, respondent moved for unsupervised visitation and appellant filed a counter-motion for continued supervised visitation or, alternatively, for the appointment of a guardian ad litem. The district court granted respondent’s motion for unsupervised visitation and denied appellant’s motion for a guardian ad litem. We reverse and remand.
The marriage of Sarah J. Kissner, now Sarah J. Koltveit, (Koltveit) and Jeffrey R. Kissner (Kissner) was dissolved on March 28, 1994. Koltveit was awarded legal and physical custody of the parties' two children.
In May 1993, Kissner was involved in a motor vehicle accident that resulted in the death of three people. He was subsequently convicted of three counts of vehicular homicide and various related offenses. Kissner's son, who was not restrained in a child seat as required by law, was seriously injured in the accident.
Kissner was imprisoned, but released in September 1999 and remains on supervised release until March 2002. As a condition of his parole, he was required to undergo chemical dependency treatment and was discharged from that treatment on December 24, 1999, with a prognosis of “good.” He was subsequently arrested and charged with driving while intoxicated, pleading guilty to that offense, and receiving a sentence that included a prohibition against using alcohol and requirement for random testing. He was again ordered to complete a treatment program for chemical dependency from which he was discharged with a prognosis of “fair”.
In addition to random urinalysis, the supervised release program included two face-to-face interviews per month. All testing was negative for both alcohol and other controlled substances. Kissner's second chemical dependency treatment program included six months of aftercare and no instances of relapse were reported during that period.
On July 12, 2000, Kissner moved for unsupervised visitation. Koltveit filed a counter-motion for continued supervised visitation or, alternatively, for the appointment of a guardian ad litem. She also moved to compel Kissner to attend parenting classes and to consume no alcohol for 24 hours prior to any visits. A hearing was held on the motions on July 31, 2000. At the hearing, no evidence was produced about Kissner's driving while intoxicated conviction. Kolveit first learned of the conviction after the hearing and sent a letter to the district court forwarding a copy of the notice of conviction published in the newspaper and arguing that the court grant her counter-motion. The district court granted Kissner’s motion to allow unsupervised visitation and set forth a visitation schedule.
After entry of the district court's order, Koltveit obtained new counsel and filed a motion based on alleged new evidence requesting that the district court appoint a guardian ad litem and stay visitation. Kissner then filed a motion to compel the visitation ordered by the district court. A second hearing was held and, during that hearing, Kolveit argued for an amended order based on the DWI offense. Thereafter Kissner filed a motion to show cause for not complying with the first order and, with the court's permission, submitted affidavits from friends supporting his motion. Kolveit filed a response to those affidavits. The district court denied Koltveit's motion for a guardian ad litem, for a stay, and to amend the visitation order.
Kolveit filed a notice of appeal and moved this court to appoint a guardian ad litem for an evidentiary hearing and to restrict respondent's visitation. This court denied Kolveit's motion for a guardian ad litem or to summarily restrict visitation and granted a request for a temporary stay of the order for unsupervised visitation until the district court ruled on whether to grant a stay pending appeal of its order. The district court subsequently denied the stay pending appeal. We now address the merits of the appeal.
The 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 547, 550 (Minn. 1995). A district court's factual findings upon which a visitation decision is based will be upheld unless they are clearly erroneous. Crosby v. Crosby, 587 N.W.2d 292, 295 (Minn. App. 1998), review denied(Minn. Feb. 18, 1999).
Kolveit argues that the district court erred by denying her request to appoint a guardian ad litem. She argues that the evidence shows that Kissner is an alcoholic who continues to drink and is therefore a danger to the children. Generally, the appointment of a guardian ad litem is discretionary. Minn. Stat. § 518.165, subd. 1 (2000). But, “if the court has reason to believe that the minor child is a victim of * * * neglect,” the appointment of a guardian ad litem is mandatory. Minn. Stat. § 518.165, subd. 2. A guardian ad litem is required after a showing of a “threshold level of circumstantial evidence, or reason to believe” that a child is being subject to neglect. J.A.S. v. R.J.S., 524 N.W.2d 24, 27 (Minn. App. 1994). “Neglect” is defined as, inter alia, “chronic and severe use of alcohol or a controlled substance by a parent * * * that adversely affects the child's basic needs and safety.” Minn. Stat. § 626.556, subd. 2(c) (8) (2000).
Here, Kolveit has made a threshold showing of chronic and severe alcohol abuse that requires the appointment of a guardian ad litem. Kissner was convicted of three counts of vehicular homicide arising from a 1993 motor vehicle accident involving alcohol. He was required to complete a chemical dependency treatment program for alcohol abuse after his supervised release from prison. While on parole, and eight days after his treatment ended, he was convicted of driving while intoxicated. He failed to report that conviction at the subsequent hearing on the motion for visitation. As a result of that conviction, Kissner was again required to undergo a chemical dependency treatment program, after which his prognosis was downgraded to “fair” from his previous assessment of “good.” Furthermore, Kissner has not submitted evidence that he is not drinking.
Because a threshold showing of neglect has been made, the district court was required by statute to appoint a guardian ad litem before making any factual findings. We therefore remand this case to the district court so that a guardian ad litem can be appointed and a hearing held on the motion for visitation taking into account the guardian ad litem’s recommendations.
Reversed and remanded.