This opinion will be unpublished and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

C1-01-1026

 

Mark A. Green, petitioner,

Respondent,

 

Angelique M. Green,

Respondent,

 

County of Dakota,

Respondent,

 

vs.

 

George Beaumaster, et al.,

Appellants.

 

Filed December 18, 2001

Affirmed

Robert H. Schumacher, Judge

 

Dakota County District Court

File No. F39812316

 

Elizabeth Anderson Holt, Holt and Anderson, Ltd., 110 Anchor Bank Building, 14665 Galaxie Avenue, Post Office Box 240194, Apple Valley, MN 55124 (for respondent Mark Green)

 

Angelique M. Green, Post Office Box 118, Lakeville, MN 55044 (pro se respondent)

 

James C. Backstrom, Dakota County Attorney, James M. Crow, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent Dakota County)

 

Lawrence H. Crosby, Crosby & Associates, 630 Roseville Professional Center, 2233 Hamline Avenue North, St. Paul, MN 55113 (for appellants Beaumaster)

 

David A. Jaehne, 60 East Marie Avenue, Suite 109, West St. Paul, MN 55118 (guardian ad litem)

 

 

Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

In the current dispute regarding the children of respondents Angelique M. Green (mother) and Mark M. Green (father), appellants maternal grandparents George and Mabel Beaumaster challenge the suspension of their visitation rights. Because grandparents have not shown the district court's findings to be clearly erroneous and because the district court did not incorrectly apply the law, we affirm.

FACTS

Mother has three children; one is not father's biological child, one is father's biological child, and whether the other is father's biological child seems disputed. Grandparents, seeking visitation with their grandchildren, intervened in the dissolution of mother and father's marriage. The relationships among mother, father, and grandparents have been acrimonious and have produced numerous district and appellate court proceedings.[1] The nature and extent of the litigation caused the district court to order that all district court proceedings involving the children were to be heard by a particular judge.

At the time relevant to this appeal, mother and grandparents shared custody of the child that was not father's child and father had custody of the other two. Based on false statements, mother obtained an ex parte order for protection awarding her temporary custody of the children in father's custody from a judge other than the one assigned to hear the proceedings related to the children. Mother then absconded with the children. About five weeks later, she was apprehended in southern Texas, "heading for the Mexico border." Believing grandparents were complicit in mother's absconding, respondent guardian ad litem David A. Jaehne then moved to suspend the visitation of grandparents as well as mother's visitation. The district court judge who was assigned to hear proceedings involving the children issued an order suspending mother's visitation and denying grandparents motion for visitation. Grandparents appeal.

D E C I S I O N

1. "[W]hat is at issue in grandparent visitation cases is 'the right of the child to * * * know her grandparents,' and not the interests of the grandparents." Olson v. Olson, 534 N.W.2d 547, 549 (Minn. 1995) (quoting Roberts v. Ward, 493 A.2d 478, 482 (N.H. 1985)).[2] When addressing grandparent visitation, the court's "paramount commitment [is] to the best interests of the children." Id. Visitation is governed by Minn. Stat.  518.175 (2000). While Minn. Stat.  518.175, subds. 1-5 "clearly address visitation by noncustodial parents[,]" Minn. Stat.  518.175, subd. 7 addresses grandparent visitation.[3] Foster v. Brooks, 546 N.W.2d 52, 54 (Minn. App. 1996).

[S]ince there is a subdivision directed specifically to grandparent visitation, provisions included in the subdivisions only tangentially related to subdivision 7 cannot be engrafted onto it.

 

Id. Thus, Minn. Stat.  518.175, subd. 5, which addresses modification of a noncustodial parent's visitation, does not govern modification of grandparent visitation. See id. (rejecting argument that limitation of grandparent's visitation without satisfying Minn. Stat.  518.175, subd. 5 was defective).

Under Minn. Stat.  518.175, subd. 7, a district court "may" award grandparent visitation under Minn. Stat.  257.022, subd. 2 (2000). Section 257.022, subd. 2, however, does not address modifying grandparent visitation. When awarding grandparent visitation under that provision the district court must address, among other things, whether the visitation would be in the child's best interests and whether the visitation will interfere with the parent-child relationship. Olson, 534 N.W.2d at 549. Here, the district court found that grandparents "participated in the fraudulent taking of the children" and that visitation between grandparents and the children "is not in the children's best interests" and "will continue to interfere with the parent-child relationship."

Grandparents allege the district court failed to consider the statutory best-interests criteria in making its best-interests determination. Grandparent visitation, however, is "a less critical decision" than custody and "the same level of factfinding required in custody determinations" is not required. Id. at 550 n.5; see id. at 550-51 (refusing to remand for additional best-interest findings). Thus, the question becomes whether grandparents have shown the findings indicating grandparent visitation is not in the children's best interests are clearly erroneous under Minn. R. Civ. P. 52.01.

Findings of fact are clearly erroneous

if the reviewing court is left with the definite and firm conviction that a mistake has been made. When determining whether findings are clearly erroneous, the appellate court views the record in the light most favorable to the trial court's findings. Also, appellate courts defer to trial court credibility determinations.

 

Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000) (citations and quotations omitted). Moreover, "[t]hat the record might support findings other than those made by the trial court does not show that the court's findings are defective." Id. at 474 (citations omitted). To successfully challenge a district court's findings of fact, the

party challenging the findings must show that despite viewing [the] evidence in the light most favorable to the trial court's findings (and accounting for an appellate court's deference to a trial court's credibility determinations and its inability to resolve conflicts in the evidence), the record still requires the definite and firm conviction that a mistake was made. Only if these conditions are met, that is, only if the findings are "clearly erroneous," does it become relevant that the record might support findings other than those that the trial court made.

 

Id.

To argue that the district court's best-interests analysis is defective, grandparents cite comments made by the district court and testimony given at a hearing. That hearing, however, predates (a) mother's circumvention of the order requiring all proceedings involving these children to be heard by one judge when she obtained an ex parte order for protection based on her false statements; (b) mother's absconding with the children; (c) grandparents' request for prohibition in this court which failed to indicate that mother and the children were then missing; (d) the guardian ad litem's motion to suspend grandparents' visitation; and (e) the order currently appealed, which recites the facts described in the various affidavits and reports that lead the district court to find that grandparents "participated in the fraudulent taking of the children and had to have known [mother's] representations [in the order for protection proceeding] were false."

The crux of the ruling currently on appeal is the district court's inference that grandparents did not conduct themselves in good faith. Whether a party acts in good faith is a credibility determination. Tonka Tours, Inc. v. Chadima, 372 N.W.2d 723, 728 (Minn. 1985). We defer to district court credibility determinations. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). On this record, we will not deviate from that policy.

The finding that grandparents' visitation "will continue to interfere with the parent-child relationship" is a prediction regarding grandparents' future conduct, which is based on both the district court's view of grandparents' prior conduct and its inferences from that conduct. Because grandparents have not shown the finding regarding their past conduct to be clearly erroneous, we cannot say that the district court's prediction regarding their future conduct is defective.

2. Grandparents allege that the district court's findings were made without benefit of an evidentiary hearing. But noncontempt motions "shall be submitted on affidavits, exhibits, documents subpoenaed to the hearing, memoranda, and arguments of counsel unless otherwise ordered by the court for good cause shown." Minn. R. Gen. Pract. 303.03(d). Here, because grandparents did not request, or show good cause for, an evidentiary hearing, the lack of a hearing is not fatal to the visitation modification. Foster, 546 N.W.2d at 55.

3. Grandparents allege that the district court erred in penalizing them for mother's absconding with the children. Grandparents misread the district court's order. The district court did not penalize grandparents for mother's conduct; it believed grandparents affirmatively assisted mother in abducting the children and that it was not in the children's best interests to allow grandparents to continue to exercise visitation.

4. Grandparents, in their reply brief, ask this court to strike (a) father's brief, for failing to cite the record and because statements in the brief are allegedly inaccurate; and (b) portions of father's appendix, as beyond the record on appeal. Generally, relief from this court is to be sought by motion, with the party opposing the motion being given an opportunity to respond to the request. Minn. R. Civ. App. P. 127.

Having reviewed the record, father's brief, and father's appendix, and noting that grandparents have failed to identify any specific prejudice resulting from the alleged defects in father's submissions, we decline to strike any of the items identified by grandparents. See, generally, Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (stating, to prevail on appeal, appellant must show both error and prejudice); Rigwald v. Rigwald, 423 N.W.2d 701, 704 n.5 (Minn. App. 1988) (considering district court ruling made in case parallel to appeal where consideration of ruling was "critical to identification of the issues" in appeal); cf. Minn. R. Civ. P. 61 (harmless error is ignored).

Affirmed.



[1] See Beaumaster v. Green, No. C7-00-1571 (Minn. App. Sept. 26, 2000) (order); Green v. Green, No. C6-99-1652 (Minn. App. May 23, 2000); Green v. Green, No. C1-98-2021 (Minn. App. July 20, 1999); Green v. Green, No. CX-99-780 (Minn. App. June 22, 1999) (order).

[2] Citing this language, grandparents assert that the children in father's custody have a right to know grandparents and the child in the custody of mother and grandparents. Grandparents do not, however, explain how or why they have standing to assert these claims on behalf of the children in light of the fact that it was the children's guardian ad litem who moved to suspend grandparents' visitation.

[3] In 2001, the legislature directed that Minn. Stat 518.175, subd. 7 be renumbered as Minn. Stat 518.1752. 2001 Minn. Laws ch. 51, 17.