This opinion will be unpublished and

may not be cited except as provided by

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






In Re the Matter of:

Michelle Marie Hinz, n/k/a

Michelle Marie Saiko, also

f/k/a  Michelle Marie Corcoran, petitioner,





Zachary Roger Hinz,



Marcia Hinz, Intervenor,




Filed November 5, 2002

Reversed and remanded

Toussaint, Chief Judge


Dakota County District Court

File No. F79813050


Todd R. Counters, 4660 Slater Road, Suite 250, Eagan, MN 55122 (for respondent Michelle Marie Hinz)


Zachary Roger Hinz, 6513 14th Avenue, Richfield, MN 55423 (pro se respondent)


Ronald B. Sieloff, Kent B. Gravelle, Sieloff and Associates, PA., Yankee Square Office III, 3460 Washington Drive, Suite 214, Eagan, MN 55121 (for appellant)


            Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Minge, Judge.


U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge


            Appellant Marcia Hinz challenges the district court’s denial of her motion for visitation with her grandson, J.K.H.  Appellant claims that the district court erred when it (1) failed to consider additional evidence she submitted pursuant to her motion for amended findings and new trial; (2) concluded that it was not in the best interests of J.K.H to have visitation with appellant; (3) failed to address whether grandparent visitation would interfere with the parent-child relationship; and (4) failed to make its decision on the merits.  Because the district court erred by not considering the new evidence introduced by appellant in her motion for amended findings and new trial, we reverse and remand.


            Appellant claims that the district court erred in not considering the additional evidence she submitted with her motion for amended findings and new trial.  We agree.

            On January 28, 2002, appellant filed a motion for amended findings and new trial and submitted new evidence for consideration.  The district court denied the motion, reasoning that “[a] ruling pursuant to Rule 52.02 of the Minnesota Rules of Civil Procedure prohibits the court from considering new evidence.”  While this is a generally correct statement of law, it was erroneously applied to the facts of this case.

            Minnesota law establishes that a motion to amend findings pursuant to Minn. R. Civ. P. 52.02 cannot be based upon newly discovered evidence, but must instead “be based upon the files, exhibits and minutes of the court.”  Minn. R. Civ. P. 52.02; Otte v. Otte, 368 N.W.2d 293, 299 (Minn. App. 1985).  However, where a Rule 52.02 motion for amended findings is combined with a Rule 59 motion for a new trial, new evidence can be considered.  Chin v. Zoet, 418 N.W.2d 191, 195 n.2 (Minn. App. 1988); see David F. Herr and Roger S. Haydock, 2 Minnesota Practice § 52.18 (1998) (“A combined motion provides the court with the opportunity to review the former evidence and consider any new evidence.”).

            Here, because appellant filed a motion for amended findings and a new trial, the district court should have considered the new evidence.  However, the district court did not do so, overlooking the fact that the Rule 52.02 motion was combined with a Rule 59 motion for a new trial.  Because appellant’s joint motion required the district court to consider the new evidence, we reverse and remand to the district court. 

            On remand, the district court’s analysis should be twofold.  First, the district court should determine whether the evidence that appellant submitted with her motion for amended findings and new trial was “newly discovered.”  If so, the district court should next determine whether the new evidence is sufficient to establish a prima facie case as to each of the factors of Minn. Stat. § 257.022, subd. 2a (2000), thereby entitling appellant to an evidentiary hearing on whether visitation is in the child’s best interests.  See Kulla v. McNulty, 472 N.W.2d 175, 181 (Minn. App. 1991) (providing that petitioner is entitled to an evidentiary hearing regarding grandparent visitation, pursuant to section 257.022, subd. 2a, only after she has shown a prima facie case as to each element), review denied (Minn. Aug. 29, 1991).

            Because we are reversing and remanding the district court’s decision not to consider the new evidence, we need not address appellant’s other issues on appeal.

            Reversed and remanded.