This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
In re the Marriage of:
Jennifer L. Grinde, f/k/a Jennifer P. Weninger, petitioner,
Scott M. Weninger,
Filed May 30, 2006
Washington County District Court
File No. FX-99-6736
Jennifer L. Grinde,
Scott M. Weninger,
Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Shumaker, Judge.
Pro se appellant challenges the district court’s denial of his motion for joint legal custody of the parties’ child, L.W., and the district court’s order that appellant is responsible for $626 for L.W.’s social-security benefits that were rescinded for one month when appellant was employed. We affirm.
The parties’ three-year marriage was dissolved on December 28, 2000. They have one minor child together, L.W. At the time of the dissolution, respondent Jennifer Grinde, f/n/a Jennifer Weninger, was awarded sole legal and physical custody of L.W. Appellant Scott Weninger’s visitation rights were suspended until he completed four conditions: (1) a chemical-health assessment and any recommended programming; (2) an anger-management assessment and any recommended programming; (3) an evaluation for mood swing and stress-management disorder and any recommended programming; and (4) the Parents Forever program or its equivalent. In the dissolution order, the district court noted that “[appellant] specifically reserves the right to bring a motion for joint legal custody at a future date.”
The parties’ pre-dissolution relationship was acrimonious. On January 6, 2000, the district court issued an order for protection (OFP) against appellant on behalf of respondent. The district court ordered that appellant have visitation with L.W. to be supervised by appellant’s mother. Because of appellant’s violation of the conditions of the OFP, the district court extended the OFP for two additional years, commencing January 25, 2001. As part of the extended OFP, appellant’s visitation rights were suspended, and he was ordered to pursue visitation under the terms of the dissolution decree.
On October 25, 2000, the district court denied appellant’s motion for visitation and ordered appellant to complete anger-management programming and mental-health and chemical-dependency assessments. On March 23, 2001, appellant was charged with gross-misdemeanor violation of the OFP and was sentenced to 365 days, with 320 days stayed for two years.
On August 24, 2001, the district court ordered appellant to refrain from bringing a custody motion until he completed all of the conditions listed in the October 25, 2000 order. On December 7, 2001, the district court denied appellant’s motion for visitation modification because appellant had not completed the conditions of the October 25 order, despite being warned not to bring any additional motions to modify visitation without complying with the conditions.
On September 6, 2002, the district court appointed a guardian ad litem (GAL) and reserved the issue of visitation. In June 2003, appellant began family therapy with Jan Schwartz, a licensed psychologist. Appellant terminated therapy with Schwartz after the second session. Schwartz indicated that she gave appellant another chance but that appellant acted very defensive and angry at a third session, used profanity directed at Schwartz, and left. As a result, Schwartz stated that she would not work with appellant again. Appellant also refused to work with Schwartz and told the GAL that “[e]ither we get a different therapist or I walk away.” In a report dated July 31, 2003, the GAL stated that she was
concerned that [appellant] refused to follow the designated path toward reunification knowing that it could result in not developing a relationship with his daughter. He has shown that he places his needs ahead of his child’s needs. This writer is not optimistic that another therapist would be able to work with [appellant] toward the desired outcome of reunification.
The GAL recommended that the parties no longer pursue the reunification of appellant and L.W. and that she be dismissed.
On November 21, 2003, appellant moved for modification of visitation. On December 1, the district court ordered that appellant, with respondent’s approval, select a new therapist for reunification therapy and that appellant obtain counseling in order to prepare for reunification with L.W.
In June 2004, the parties began reunification therapy with Carole Stafford, LICSW. On December 6, 2004, appellant moved for a modification of custody, requesting joint legal custody. At the motion hearing on February 4, 2005, appellant argued that he was seeking joint legal custody because he wants information about L.W.’s education and medical records. He argued that modification was supported by changed circumstances because he (1) had completed reunification therapy with L.W.; (2) was going to school to improve himself; (3) had been re-diagnosed and, as a result, his mood disorder was being properly treated; and (4) was volunteering at an elementary school. Respondent argued that circumstances had not changed because appellant was still “volatile”; that Stafford had decided to discontinue therapy sessions with the parties; that appellant continued to exhibit stalking behavior; that appellant harassed L.W.’s school principal; and that appellant had had a total of only eight hours of contact with L.W. The district court requested a report from the therapist before ruling on appellant’s motion.
As of February 5,
In its April 8,
2005 order, the district court found
that appellant was “truly sincere in an effort to reunify with [L.W.],” but noted
that appellant’s efforts to “turn over a new leaf” were recent and that a
change in legal custody was not in L.W.’s best interests at that time. The district court ordered the parties to
continue to see
On June 21, 2005, the district court amended the April 8, 2005 order to reflect the fact that respondent’s tax refund had been garnished through revenue recapture to repay the GAL bill that the district court had ordered appellant to pay. As a result, the district court ordered appellant to pay $626 directly to respondent.
This appeal follows.
district court has broad discretion to provide for the custody of the parties’
children. Durkin v. Hinich, 442 N.W.2d 148, 151 (
Section 518.18 provides for modification of a custody order:
[T]he court shall not modify a prior custody order or a parenting plan provision which specifies the child’s primary residence unless it finds, upon the basis of facts, including unwarranted denial of, or interference with, a duly established parenting time schedule, that have arisen since the prior order or that were unknown to the court at the time of the prior order, that a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child. In applying these standards the court shall retain the custody arrangement or the parenting plan provision specifying the child’s primary residence that was established by the prior order unless:
(i) the court finds that a change in the custody arrangement or primary residence is in the best interests of the child and the parties previously agreed, in a writing approved by a court, to apply the best interests standard in section 518.17 or 257.025, as applicable; and, with respect to agreements approved by a court on or after April 28, 2000, both parties were represented by counsel when the agreement was approved or the court found the parties were fully informed, the agreement was voluntary, and the parties were aware of its implications;
(ii) both parties agree to the modification;
(iii) the child has been integrated into the family of the petitioner with the consent of the other party; or
(iv) the child’s present environment endangers the child’s physical or emotional health or impairs the child’s emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.
constitutes changed circumstances for custody-modification purposes is “determined
on a case-by-case basis.” Lilleboe v. Lilleboe, 453 N.W.2d 721,
Here, appellant moved for joint legal custody in December 2004. Appellant asserts that he should be granted joint legal custody of L.W. because it is in L.W.’s best interests that appellant have access to information about her education and her psychological, cognitive, and emotional development. Appellant alleges that respondent has refused to tell him about L.W.’s educational progress or what school she attends. Additionally, appellant alleges that respondent has hindered his progress in therapy with L.W. by failing to schedule sessions every two weeks and by sitting in on sessions and making unproductive comments. Finally, appellant alleges that he suffers from mood disorder, which was misdiagnosed at the time of the dissolution. Appellant claims that two years later, when the correct diagnosis was made and corresponding medication prescribed, his resultant mental stability enabled him to resume his college education. As a result of these changes, appellant asserts that he can now have a positive influence on L.W.
In response to appellant’s motion, respondent argues that circumstances have not changed sufficiently to warrant a modification of custody. She notes that she had an order for protection against appellant that he violated and that in November 2004, appellant took a picture of L.W., went to a school-supply store, asked which school used the uniform depicted in the photograph, then went to the school and demanded a parent-teacher conference from the principal. Respondent also alleges that in November 2004, appellant was very angry and aggressive during a therapy session. When respondent suggested to the therapist that supervised visitation in a safety center should be the next step toward reunification, appellant allegedly stated, “Over my dead body will it be in a Center and will I pay for supervised visitation.” Respondent states that the therapist had to step in to stop appellant’s oral abuse. Respondent also states that she feared for L.W.’s physical and emotional well-being. At the motion hearing, respondent noted that appellant was “harassing” L.W.’s principal by e-mail and that appellant was still “volatile.”
While the district court’s April 8, 2005 order does not explicitly address appellant’s claim of changed circumstances, it does specifically conclude under Minn. Stat. § 518.18 (2004) that a change in the legal custody at this time is not in L.W.’s best interests. The same district court judge has presided over all of the proceedings between these parties—from the January 2000 OFP through the dissolution judgment and all of the subsequent motions. As a result, this district court judge has a very long history with the parties and a thorough understanding of the issues.
In its April 8, 2005 order, the district court made the following findings of fact and conclusions of law, among others:
2. The [c]hange in legal custody is not in the best interest of the child at this time. The Court acknowledges that [appellant] is making great efforts in the reunification process with his daughter and would like to see the reunification continue, however, [appellant] is asking for too much too soon.
3. The Court has a clear view of his past problem with failing to follow Court Orders, failing to follow through with therapy and failing to continue with reunification. The Court does not want to see [appellant] fall back into his previous non-productive habits, which he has followed for a long time.
4. The Court believes that he is truly sincere in an effort to reunify with his daughter, however [appellant’s] effort to “turn over a new leaf” has only been recent and the Court is not comfortable in changing legal custody at this point.
5. All parties agree that continuing the reunification process is necessary and the next step. The Court believes that Carole Stafford, LICSW, has a complete understanding of this situation [and] will continue to be of assistance to the child and the father in the reunification efforts. The Court therefore Orders that the parties continue to see Carol Stafford, LICSW (as much or as little as she requests), as well as start regular sessions of supervised visitation at a child safety center.
6. Carol Stafford, LICSW, shall make the determination as to when father and child are ready to proceed from supervised visitation to short unsupervised visitation and then to long unsupervised visitation.
It is clear from a review of the sequence of district court orders in this case that appellant has not yet demonstrated compliance with and completion of the conditions imposed by the district court. We agree with the district court’s explicit ruling that a custody modification is not in L.W.’s best interests at this time and the district court’s implicit ruling that there has not yet been a substantial change in circumstances. We therefore conclude that the district court acted within its discretion.
second issue that appellant raises concerns the district court’s order that he
pay $626 to respondent to replace the amount of social-security benefits L.W.
had to repay because appellant was employed in May 2004. Reviewing courts affirm the district court’s
child-support determination if that determination has reasonable and acceptable
basis in fact. Strandberg v. Strandberg, 664 N.W.2d 887, 889 (
The dissolution judgment ordered appellant to pay child support in the amount of $701 per month. Appellant subsequently brought a motion to modify child support, which was heard on May 14, 2001. The child-support magistrate (CSM) ordered that because of a substantial change in circumstances, appellant’s obligation to pay child support was temporarily suspended as of April 1, 2001. The CSM found that appellant was unemployed as a result of mental illness, that he had been hospitalized for mental illness, that he had attempted suicide, and that he had been in jail from February 5, 2001, to March 23, 2001. Because of appellant’s inability to work and contribute to her support, L.W. has received social-security benefits. But because appellant worked in May 2004, respondent was notified that she would have to repay the $626 that L.W. received in benefits that month.
Respondent reported the matter to the district court in a letter dated January 27, 2005. She proposed that rather than requiring appellant to pay her the amount outright, the district court should order appellant to pay the outstanding bill for the GAL. The district court agreed with this proposal and incorporated it into its April 8, 2005 order and the June 21, 2005 order.
Appellant contends that the district court abused its discretion in ordering the $626 repayment because appellant has a limited income—$1,175 per month in social-security benefits. Appellant also argues that because respondent never raised the issue in a motion or at the hearing, appellant had no opportunity to comment on respondent’s assertions.
The district court ordered appellant to pay $626 to respondent over an eight-month period, and there is evidence in the record that appellant lives with his parents and has limited expenses. While appellant is correct that he received no opportunity to comment on the arrearage, he does not specify any argument he could have made to dispute the arrearage. It is our understanding from the record that there is no dispute as to the underlying facts. As a result, we conclude that the district court did not abuse its discretion by ordering appellant to pay $626 to respondent.
appellant argues that the district court abused its discretion by declining to
order L.W. to call him on a weekly basis.
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 (
 Apparently, in order to discover where L.W. attends school, appellant took a picture of her in her school uniform, went to the uniform-supply store, and found out which school uses that uniform. Appellant then went to the school and demanded to see L.W.’s records. The principal refused him access because L.W. was in kindergarten and had not yet had school conferences and because appellant had not shown that he had a right to the records.