This opinion will be unpublished and

may not be cited except as provided by

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






In re the Marriage of:

Jacqueline Ruth Swanson,

n/k/a Jacqueline Ruth Ferguson, petitioner,


Rick Lloyd Swanson,


Filed December 18, 2001

Affirmed in part, reversed in part, and remanded

Crippen, Judge



Dakota County District Court

File No. F2972852



James R. Brinegar, 1675 South Greeley Street, Suite 203, Stillwater, MN 55082 (for respondent)


Rick L. Swanson, 6843 Regent Avenue North, Brooklyn Center, MN 55429 (pro se appellant)


            Considered and decided by Crippen, Presiding Judge, Anderson, Judge, and Huspeni, Judge.*


U N P U B L I S H E D   O P I N I O N


Pro se appellant-father Rick Swanson contends that the trial court restricted his visitation rights without findings demanded by statute.  Finding merit in his appeal, we reverse and remand for the court’s determination of whether present changes in visitation are needed to avoid endangerment of the children.  We find no merit in appellant’s additional contention that the court erred in refusing to reduce his child support and childcare obligations.


            The August 1998 judgment divorcing the parties placed physical custody of their two children with respondent-mother Jacqueline Ferguson, subject to “reasonable” visitation by appellant that in fact constituted liberal visitation according to a schedule stated in the judgment. The parties share joint legal custody.  The trial court established appellant’s monthly child support obligation at the guideline amount of $390, and two years later a child support magistrate established a childcare obligation of $142.56 per month.

In February 2001, appellant moved to decrease his support obligations because he had lost his job as of January 31, 2001, and was receiving unemployment compensation.  Respondent then moved to modify visitation, and she opposed altering appellant’s support obligations.  In her supporting affidavit, respondent stated that she had many conflicts with appellant regarding the visitation schedule and that he was verbally abusive toward her, occasionally in front of their children.

 In March, appellant received an offer of employment.  In May, the trial court denied appellant’s motion to reduce his child support obligation but granted respondent’s request to modify the visitation schedule.  The court found that respondent was starting her own in-home day care and reduced appellant’s childcare obligation to $65.76 per month.

The trial court concluded that appellant failed to meet the statutory criteria to support a change in his current child support obligation, except in respect to the childcare payment, and that it was in the best interests of the parties and children to modify the current visitation schedule.



Appellant contests the modification to his visitation schedule, arguing that the changes are substantial and unjustified.  Under the original judgment, appellant had the children every other Friday from 5:00 p.m. through Sunday at 5:00 p.m.  On the alternating weeks, the children visited appellant on Saturdays from 8:00 a.m. to 5:00 p.m. and had additional visitation from Tuesday at 5 p.m. until Thursday morning.

The trial court modified the visitation schedule to exclude the alternating Saturdays and the Tuesday through Thursday time periods (but retaining the every-other-weekend time periods).  In its place, appellant was given visitation time every Tuesday from 5-7 p.m.  In making the modifications to the visitation schedule, the court concluded that “[i]t is in the best interests of the parties and the minor children to modify the current visitation/parenting time schedule.”  No specific findings of fact were made by the court with respect to this conclusion.

Visitation modification ordinarily is governed by the best interests of the child, but the controlling statute provides that the trial court shall not “restrict” visitation rights without a determination that the visiting parent has unreasonably failed to comply with court-ordered visitation or that continuation of previous visitation “is likely to endanger the child’s physical or emotional health or impair the child’s emotional development.” Minn. Stat. § 518.175, subd. 5. (1998).[1]  The trial court’s visitation decision will not be overturned absent an abuse of the trial court’s broad discretion on the subject.  Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).

A modification of visitation that results in a reduction of total visitation time is not necessarily a “restriction” of visitation.  Danielson v Danielson, 393 N.W.2d 405, 407 (Minn. App. 1986).  Mere clarifications or insubstantial modifications of a visitation schedule are within a trial court’s discretion and need not be supported by findings that the modification is in the children’s best interests.  Funari v. Funari, 388 N.W.2d 751, 753 (Minn. App. 1986); see Minn. Stat. § 518.175, subd. 5.  But if the court chooses to “restrict” visitation rights, an action involving substantial reduction of rights, the statutory endangerment standard governs the issue.  Lutzi v. Lutzi, 485 N.W.2d 311, 315 (Minn. App. 1992).

Except for modifications that are necessary due to unique changes in circumstances of the children and parents, which often are associated with residence changes, the question of whether a change in visitation constitutes a restriction is determined by examining the amount of the reduction.  See Anderson v. Archer, 510 N.W.2d 1, 4 (Minn. App. 1993).  Here, the amount of the reduction in appellant’s parenting time is approximately one half and it is evident from the record that the issue does not involve a residence change or other unique changes in circumstances.  As a result, based on an analysis of the amount of the reduction in appellant’s visitation schedule, it must be classified as substantial enough in nature to require application of the endangerment standard.  See Minn. Stat. § 518.175, subd. 5. 

We reverse and remand for a re-determination by the court, supported by adequate findings, as to whether the visitation schedule provided in the judgment posed a danger to the children and must be modified as the court suggested.  Should the court determine that an insubstantial change in visitation is required, this decision must be justified by findings on the best interests of the children.

Child support and childcare obligations

Appellant also challenges the trial court’s decision to deny modification of his child-support obligation.  Generally, the decision to modify child support is discretionary with the trial court.  Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986).  The court’s findings of fact will not be set aside unless clearly erroneous.  Minn. R. Civ. P. 52.01.

            Terms of a support obligation may be modified upon a showing of substantially increased or decreased earnings of a party.  Minn. Stat. § 518.64, subd. 2(a)(1) (1998). The record indicates appellant’s period of unemployment was less than two months.

It is presumed that there has been a substantial change in circumstances if application of the child support guidelines to a party’s current circumstances results in a support award that is at least 20% and at least $50 per month higher or lower than the current support order.  Id., subd. 2(b)(1) (1998).  Here, appellant’s guideline child support obligation under his current income would be only $26.83 (6.5%) less than his current obligation.  The trial court did not abuse its discretion in concluding that appellant failed to meet the statutory criteria to support a change in his current child support obligation.

            Appellant also disputes the trial court’s determination of his childcare obligation, contending that respondent is employing unnecessary childcare.  See Minn. Stat. § 518.551, subd. 5(b)(2)(ii)(E) (1998) (governing the allocation of childcare costs).  Because there is evidence to permit a different view, appellant has failed to show that the trial court abused its discretion in deciding the question.

            Affirmed in part, reversed in part, and remanded.


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

[1] In 2000, the legislature eliminated the term "visitation" in favor of “parenting time.”  See 2000 Minn. Laws ch. 444, art. 1, §§ 1, 3, 4 (providing for parenting plans and parenting time), art. 2, §§ 26-31 (conforming terminology).  Because the changes to the statutes became effective January 1, 2001, and to avoid confusion by using the current statute’s terminology in a context that includes the prior statute, we review the trial court's decision under the former statute.  See 2000 Minn. Laws ch. 444, art. 1 § 8 (effective date of amendments); see also McClelland v. McClelland, 393 N.W.2d 224, 226 (Minn.App.1986) (explaining that former law is to be applied where applying the law in effect at the time of the decision would alter matured rights), review denied (Minn. Nov. 17, 1986).