This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







In re: Brenda Lea Hanenberger,






James Douglas Ryder,




Filed February 25, 2003


Anderson, Judge


Olmsted County District Court

File No. F3973263


Gail D. Baker, 1530 Greenview Drive SW, Suite 210, Rochester, MN  55902 (for respondent)


James D. Ryder, 1334 Fourth Avenue SE, Apt. 4, Rochester, MN  55904-7477 (pro se appellant)


            Considered and decided by Wright, Presiding Judge, Anderson, Judge, and Stoneburner, Judge.


U N P U B L I S H E D  O P I N I O N




            Appellant and respondent were married in 1994.  In July 1996, a daughter, M.A.R. was born of this marriage.  In 1997, the parties separated, and in 1999, their marriage was dissolved.  Following separation, respondent was awarded sole physical custody of M.A.R. and appellant had scheduled parenting time, as agreed upon by the parties.  In the two years following their separation, both parties have moved the court to modify the parenting-time schedule numerous times.  In response to these motions, the district court has modified the schedule on a number of occasions. 

Most significant, and most relevant to this appeal, is the modification in the district court’s January 16, 2002 order.  In that order, the district court modified appellant’s parenting time—changing a midweek overnight visit to a four-hour early-evening visit based on reports that M.A.R. was often very tired at school following the midweek overnights—and required that appellant provide verification, each month, that his rent had been paid.  Appellant was ordered to provide proof of rent payment because in the past he had been intermittently homeless, without a suitable place for M.A.R. to stay on overnight visits. 

On March 29, 2002, appellant moved the district court to vacate portions of the January 16 order and modify the parenting-time schedule.  Respondent moved for clarification of the previous order, attorney fees, and to have appellant classified as a “frivolous litigant.”  The district court granted respondent’s motions for attorney fees and for clarification of the previous order, but denied all other motions.

Appellant, acting pro se, filed an appeal with this court on May 30, 2002.  Appellant also moved to proceed in forma pauperis, to expedite his appeal, and to submit an informal brief.   This court granted appellant’s requests to expedite and to submit an informal brief, and the district court ultimately permitted appellant to proceed in forma pauperis.

By order of this court, this appeal is construed to be from the district court’s orders of January 16, 2002 and April 17, 2002, including specifically the portion of the latter order awarding respondent attorney fees.  By the same order, respondent’s motion to strike portions of appellant’s brief was granted and those portions of appellant’s brief asserting or relating to constitutional challenges have been stricken because these issues were not raised before the district court.  See In re Welfare of C.L.L., 310 N.W.2d 555, 557 (Minn. 1981) (appellant cannot raise, for the first time on appeal, constitutional issues that were not raised in the trial court).


I.  The January 16, 2002 order

Appellant asserts that the district court erred by failing to make specific findings of fact, pursuant to Minn. R. Civ. P. 52.01, in its January 16 order.  When a district court modifies custody, it must make specific findings that the custodian’s circumstances have changed, making modification necessary to serve the child’s best interests.  Rogge v. Rogge, 509 N.W.2d 163, 165 (Minn. App. 1993), review denied (Minn. Jan. 28, 1994).  The custody arrangement established in the prior order must be retained unless the present environment is a danger to the child physically or emotionally or serves to impair her physical or emotional growth.  Id.

Respondent has had sole physical custody of M.A.R. since the parties separated in 1997.  Although appellant has made numerous motions requesting custody modification, custody of M.A.R. has never been modified.  The January 16 order simply clarifies and adjusts appellant’s parenting-time schedule.  Insubstantial alterations of a parenting-time schedule are within the district court’s discretion, and they need not be supported by findings that such modifications are in the best interests of the child.  Funari v. Funari, 388 N.W.2d 751, 753 (Minn. App. 1986).  Here, the relevant modification to appellant’s parenting-time schedule is insubstantial.  The only change concerning appellant’s parenting time was that M.A.R.’s overnight visit every other week was modified to an evening visit, from 4:00 p.m. to 8:00 p.m., because M.A.R. was often very tired in school following the mid-week overnight visits.[1]

Although Minn. Stat. § 518.175, subd. 5 (2002), requires that an evidentiary hearing be held prior to “restricting” visitation rights, it does not require a hearing prior to making a minor alteration of visitation.  See Lutzi v. Lutzi, 485 N.W.2d 311, 316-17 (Minn. App. 1992) (noting that ordinary adjustments in visitation may be made without an evidentiary hearing).  A “restriction” occurs only when a reduction of parenting time will impair the parent-child relationship.  Clark v. Clark, 346 N.W2d 383, 385-86 (Minn. App. 1984), review denied (Minn. Jun. 12, 1984).  Appellant has been “deprived” of roughly 12 hours of visitation time (8:00 p.m. to 8:00 a.m.) every other week.  The child would, presumably, be asleep during most of that “parenting” time.    Otherwise, the order simply clarifies prior ambiguities in the parties’ respective understandings of the parenting-time schedule.  Custody has not been changed, and the district court committed no error in clarifying and making insubstantial alterations to the prior order.  There is no evidence in the record, and the district court made no findings, that this modification will impair appellant’s relationship with M.A.R.   The minor changes to the parenting-time arrangement were within the discretion of the district court and will not be reversed absent an abuse of that discretion.  Nolte v. Mehrens, 648 N.W.2d 727, 731 (Minn. App. 2002).  No such abuse is present here.

II.  The April 17, 2002 Order

Appellant next challenges the district court’s order of April 17, 2002.  Specifically, appellant challenges the district court’s finding of fact stating that the issues appellant asserted in his March 29, 2002 motion had already been litigated before the district court and that appellant was simply attempting to relitigate those issues.   Whether based on oral or documentary evidence, the district court’s findings of fact will not be reversed unless clearly erroneous.  Minn. R. Civ. P. 52.01.  Due regard will be given to the district court’s opportunity to judge the credibility of witnesses in making such factual findings.  Id.

The district court not only concluded that the issues had already been litigated, but also noted that appellant was outside the 60-day window to appeal the order.  Although he complains about the absence of findings in the January 16 order, appellant does not deny that he failed to appeal the order within 60 days or that the issues raised in his March 29 motion had already been litigated.  The district court’s finding was correct, and we see no reason to disturb it.

III.       Attorney fees

Appellant challenges the district court’s award of $500 in attorney fees to respondent.  The district court stated that it was awarding respondent attorney fees due to the “protracted proceedings in this case and the admission of [appellant] that he” appeared before the court to reargue issues he failed to timely appeal.  The court further stated that the fees were appropriate under Orman v. Orman, 364 N.W.2d 836 (Minn. App. 1985), review denied (Minn. May 31, 1985) (affirming award of attorney fees in part because party was attempting to relitigate issues already decided leading to unnecessary protraction of the suit), and Minn. Stat. § 518.14, subd. 1 (2002).  Such an award will not be reversed absent a clear abuse of discretion.  Kirby v. Kirby, 348 N.W.2d 392, 394 (Minn. App. 1984).

At the time of the April 15, 2002 hearing, these parties had been in and out of court for almost five years.  Appellant has filed numerous motions making repeated, often baseless, accusations in his attempt to modify the custody and parenting-time arrangements regarding M.A.R.  There is no dispute that in his March 29 motion and the subsequent hearing, appellant reargued previously litigated issues.  We conclude that the district court was within its discretion in awarding respondent attorney fees in the amount of $500.  See Minn. Stat. 518.14, subd. 1; Orman, 364 N.W.2d at 838.




[1] Appellant was also ordered to be no more than 15 minutes early when picking M.A.R.  up, or 15 minutes late when dropping her off before and after appellant’s scheduled parenting-time visits, and to notify respondent by a set date, as to when he would exercise his two-week vacation visit with M.A.R.  In addition, due to past periods of homelessness, appellant was ordered to provide proof of rent payment each month in order to maintain his weekend overnight parenting-time visits.  We note that these are conditions necessary for appellant maintaining his parenting time, not modifications to scheduled parenting time.