This opinion will be unpublished and

may not be cited except as provided by

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






Stanley Kwapick, et al.,





DuWayne Gunderson, et al.,



Filed September 11, 2001

Reversed and remanded

Randall, Judge


Pine County District Court

File No. FX 00172


Mark W. Benjamin, Parker, Satrom, O'Neil & Benjamin, P.A., 123 South Ashland, Cambridge, MN 55008 (for appellants)


Considered and decided by Anderson, Presiding Judge, Randall, Judge, and Schumacher, Judge.


R. A. RANDALL, Judge

Appellants-grandparents petitioned the district court for visitation with their grandchildren, and the district court's initial order granted their request based on a visitation stipulation between the parties. Respondents-parents later moved the court to deny visitation, and the court granted that motion, reasoning that appellants lacked standing to petition for visitation under Minn. Stat. 257.022, subd. 2 (2000). Because the district court did not adjudicate the first order void or voidable, we conclude that the district court has two orders in effect that contradict each other. We reverse and remand.


Appellants Stanley Kwapick and his wife (the Kwapicks) petitioned the district court for visitation with their grandchildren, whose parents are respondents DuWayne Gunderson and his wife (the Gundersons). After the Kwapicks petitioned for visitation, the parties entered into a stipulation in which the Gundersons agreed to allow the Kwapicks to visit the children. The district court found that the stipulation was fair and equitable and in the children's best interests and issued an order based on the stipulation. The Gundersons did not abide by the order so the Kwapicks sought further relief from the court. In response, the court issued temporary visitation schedule orders until it could hold an evidentiary hearing. The Gundersons then acquired representation and moved the court to deny the Kwapicks visitation, asserting that the Kwapicks lacked standing to initially petition for visitation under Minn. Stat. 257.022, subd. 2 (2000). The court agreed and granted the Gundersons' motion. The Kwapicks appeal from this order. Because the Gundersons did not file a timely brief, this case is proceeding under Minn. R. Civ. App. P. 142.03.




I. Standing

Standing addresses the existence of a cause of action, and it is a legal issue that a reviewing court may determine when the facts are undisputed. Joel v. Wellman, 551 N.W.2d 729, 730 (Minn. App. 1996). Applying a statute to the undisputed facts of a case is a question of law, and the district court's decision is not binding on a reviewing court. O'Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn. 1996).

In all proceedings for dissolution, custody, legal separation, annulment, or parentage, * * * the court may, upon the request of the parent or grandparent of a party, grant reasonable visitation rights to the unmarried minor child.


Minn. Stat. 257.022, subd. 2 (2000) (emphasis added).

The Kwapicks argue that the parties' stipulation supercedes Minn. Stat.  257.022, subd. 2, because their visitation rights were established when they entered into the stipulation with the Gundersons. They further argue that once the district court reviewed the stipulation, reduced it to an order, and granted visitation to the Kwapicks, the court's later orders only addressed enforcement and modification of their already established rights rather than "creating" their visitation rights.

This issue is difficult to analyze due to the interplay of three factors: (1) the stipulation between the Gundersons and the Kwapicks, in which the Gundersons agreed to allow the Kwapicks to visit the children, (2) the district court's initial order, in which the court determined that the stipulation was fair and equitable and in the children's best interests, and (3) the district court's later order, which granted the Gundersons' motion to deny visitation because the Kwapicks lacked standing under Minn. Stat. 257.022, subd. 2. We conclude that the district court's orders conflict with each other and need clarification. Thus, we do not, at this time, address the merits of whether the Kwapicks have standing.

II. Dual Orders

The Kwapicks argue that they were seeking to "modify" or "enforce," rather than petition for, visitation. But the order that they challenge does not address enforcement or modification. Instead, the court issued its order in response to the Gunderson's motion to deny visitation to the Kwapicks.

It is unclear how the district court could have denied visitation to the Kwapicks when the court had already granted them visitation. This is a particular problem because the district court neither addressed this issue nor indicated whether its original order was void or voidable. Without such a determination, there are currently two orders in effect that contradict each other.

Although the district court may not enforce a void judgment, the court may enforce a voidable judgment until it is found erroneous. See State v. Andrasko, 454 N.W.2d 648, 649-50 (Minn. App. 1990) (stating order for protection, though voidable because erroneously issued, is punishable under statute when it was violated before order was voided), review denied (Minn. June 25, 1990). A judgment is void if the court lacks subject-matter jurisdiction. Id. at 650. The United States Supreme Court stated:

[a]n order issued by a court without jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceeding.


Id. (quoting United States v. United Mine Workers, 330 U.S. 258, 393, 67 S. Ct. 677, 696 (1947)).

The original order that granted visitation to the Kwapicks must be adjudicated void or voidable, if that is what the district court intended, before the court's later order denying visitation to the Kwapicks can take effect. As the Kwapicks correctly point out, the Gundersons never moved the court to vacate its original order under Minn. R. Civ. P. 60.02 (allows a court to relieve a party from final judgment based upon a variety of reasons, including a void judgment).

Reversed and remanded.