This opinion will be unpublished and

may not be cited except as provided by

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






Dean Smith, et al., petitioners,





Eldon Raasch,



Filed January 29, 2002


Kalitowski, Judge


Meeker County District Court

File No. F79550163


Gregory R. Anderson, Anderson Larson Hanson & Saunders, P.L.L.P., 331 Professional Plaza, 331 Southwest Third Street, P.O. Box 130, Willmar, MN 56201 (for appellants)


John E. Mack, Mack & Daby P.A., 26 Main Street, P.O. Box 302, New London, MN 56273 (for respondent)


            Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Hanson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellants Dean Smith and Cheryl Smith contend the district court erred by (1) applying Minn. Stat. § 518.175 (2000) in denying their motion to terminate the visitation rights of respondent Eldon Raasch; and (2) failing to grant an evidentiary hearing on appellants’ motion.  We affirm.


            T.D.R. was born in 1994, during the marriage of respondent Eldon Dean Raasch and Cheryl Raasch (n/k/a Cheryl Smith), creating a presumption of paternity in favor of respondent.  Respondent was named the father on T.D.R.’s birth certificate and took care of her as his daughter for the first 21.5 months of her life.  In 1995, appellants filed a petition for determination of parentage and custody.  Respondent brought a counter-petition requesting custody and visitation rights.  In January 1997, the parties entered into a stipulated agreement acknowledging Smith as T.D.R.’s biological father but awarding visitation rights to respondent.  All parties signed the agreement, settling the case.  Based on the stipulation, the district court issued an order finding that the best interests of T.D.R. were served by awarding “reasonable and liberal visitation” to respondent.

            In January 2001, appellants brought a motion to terminate respondent’s visitation with the child.  In its February 2001 order, the district court found that because appellants failed to show that termination of visitation was in the best interests of T.D.R., visitation should be continued pursuant to the 1997 order.  The court stated that visitation rights are subservient to the child’s best interests and noted that both the prior stipulation and its incorporation into a court order “expressly” found that visitation between the child and respondent was in the child’s best interests.  The court also stated “the issue is not what * * * the parties might want, but what is in the child’s welfare.”

            In April 2001, appellants brought another motion to terminate respondent’s visitation.  In May 2001, a different district court judge reaffirmed the February 2001 order, again concluding that appellants failed to establish it was in the best interests of the child to terminate visitation and noting that appellants presented essentially the same evidence that they had presented to the court in February. 



            Appellants contend the district court erred in applying Minn. Stat. § 518.175 (2000) to a requested visitation modification involving a child and a nonrelative.  They assert that because respondent’s visitation rights arose out of a contract they are “fundamentally different” than the rights of a parent and child and that the agreement giving respondent visitation rights is void for public policy reasons.  We disagree.

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); Al-Zouhayli v. Al-Zouhayli, 486 N.W.2d 10, 12 (Minn. App. 1992).

We reject appellants’ argument that the district court erred by applying Minn. Stat. § 518.175 in deciding appellants’ motion to terminate respondent’s visitation rights.  First, respondent’s visitation rights are more than contractual.  The stipulation, which was signed by both respondent and appellants, was incorporated into the district court’s order.  And a stipulation granting visitation that is approved by the district court and incorporated into a judgment creates an enforceable right.  Simmons v. Simmons, 486 N.W.2d 788, 791 (Minn. App. 1992).

We also reject appellants’ argument that respondent’s visitation rights are contrary to public policy because respondent was determined not to be T.D.R.’s biological father.  Respondent was presumed to be T.D.R.’s father under Minn. Stat. § 257.55, subd. 1(a) (2000).  The blood test indicating Smith was the biological father does not cancel respondent’s presumption of paternity and is given no greater weight than the other presumptions listed in Minn. Stat. § 257.55 (2000).  R.B. v. C.S., 536 N.W.2d 634, 637 (Minn. App. 1995).  Thus, in settling his action, respondent gave up his right to assert paternity and seek custody of T.D.R. in exchange for a court order awarding him visitation rights.

            Finally, there is no authority for appellant’s contention that Minn. Stat. § 518.175 is not applicable in resolving visitation rights of a nonparent.  See LaChappelle v. Mitten, 607 N.W.2d 151 (Minn. App. 2000) (applying Minn. Stat. § 518.175 in custody dispute between biological mother and lesbian partner), review denied (Minn. May 16, 2000), cert. denied, 531 U.S. 1011 (2000).  Under Minn. Stat. § 518.175, subd. 5, the court shall modify an order granting or denying visitation rights whenever modification would serve the best interests of the child.  But the court may not restrict visitation rights without a finding of endangerment or the noncustodial parent’s chronic and unreasonable failure to comply with court-ordered visitation.  Minn. Stat. § 518.175, subds. 5(1), (2). 

The district court in February and May 2001 properly gave primary consideration to the child’s best interests.  Twice the district court denied appellants’ motion to terminate respondent’s visitation rights finding appellants failed to meet their burden of showing it was in the best interests of the child.  In the February 2001 order, the district court found appellants’ chief reason for wanting to terminate visitation was that appellants no longer wanted respondent in their lives, but that the issue is not what the parties want, but what is in the child’s best interests.  Also in that order, the court noted that the 1997 court order expressly found visitation was in the child’s best interests, and that no evidence was presented to show there had been a change.  We conclude that the district court applied the correct statute for modification of visitation, appropriately gave careful consideration to the child’s best interests, and therefore did not abuse its discretion in denying appellants’ motion.


            Appellants contend the district court erred in denying an evidentiary hearing on their April 2001 motion to terminate respondent’s visitation rights.  We disagree.

            Appellants failed to present new evidence and therefore the merits of this claim have already been addressed. Appellants are thus bound by the prior order in this proceeding.  See Loo v. Loo, 520 N.W.2d 740, 743-44 (Minn. 1994) (noting that while res judicata and collateral estoppel do not apply to family cases “in a technical sense, the underlying principle that an adjudication on the merits of an issue is conclusive and should not be relitigated, clearly applies”) (footnote omitted).

            Here, the district court found that appellants “have offered no evidence of any change in circumstances since [the February 22] order was issued, much less any evidence demonstrating that [respondent’s] visitation is potentially dangerous to the child.”   Because the record supports the district court’s findings, we cannot say that the district court abused its discretion in denying appellants’ motion without an evidentiary hearing.

            Finally, we note with approval that in its May 14, 2001, order, the district court took steps to protect T.D.R. by appointing a visitation expeditor to resolve visitation disputes between the parties and a guardian ad litem to look after the best interests of T.D.R.