This opinion will be unpublished and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:
Larry J. Hoffer, petitioner,
Joni L. Moyer, f/k/a Hoffer,
Filed September 12, 2006
Rice County District Court
File No. F5-02-1281
Larry James Hoffer,
Joni Lei Moyer,
Considered and decided by Halbrooks, Presiding Judge; Hudson, Judge; and Wright, Judge.
On appeal from the district court’s denial of appellant’s motion to increase his parenting time, appellant argues that the district court failed to consider the children’s best interests, that he was denied due process and equal protection of the law, that the district court should have appointed a guardian ad litem, and that the district court erred by failing to order mediation of the parties’ disputes. We affirm.
Appellant Larry Hoffer and respondent Joni Moyer married in 1989. They divorced in 2003 and share joint physical and legal custody of their three children. Respondent’s home was designated in the dissolution judgment as the children’s primary residence. Appellant was awarded parenting time every other weekend and every Wednesday night. At the time of the dissolution, the parties agreed that that schedule was in the children’s best interests.
In August 2005, appellant moved the district court for an order modifying appellant’s parenting-time and child-support obligation and requiring the parties to mediate custody and parenting-time disputes. Appellant requested equal parenting time, so that each parent would have the children 50% of the time. Respondent opposed the motion and moved the court for an order requiring appellant to pay the costs and fees associated with responding to the motion. The district court denied appellant’s motion in its entirety and ordered appellant to pay respondent’s $55 filing fee. The district court reasoned that appellant’s “proposal for increase[d] family [time] is too disruptive for the children [then ages 10, 6, and 5], at this time, while they are attending school.” In denying appellant’s request that all future custody and parenting-time disputes be mediated, the district court noted that appellant had walked out of mediation sessions in the past. This appeal follows.
contends that the district court abused its discretion by denying his motion
for increased parenting time, arguing that the district court failed to
consider the best interests of the children and that the court deprived
appellant of his due-process, equal-protection, and basic civil rights. The district court has broad discretion in
deciding parenting-time questions based on the best interests of the child, and
this court will not reverse the district court absent an abuse of that
discretion. Olson v. Olson, 534
N.W.2d 547, 550 (
district court must grant parenting time to “enable the child and the parent to
maintain a child to parent relationship that will be in the best interests of
the child.” Minn. Stat. § 518.175, subd.
1(a) (2004). Further, a district court
must modify a parenting-time order “[i]f modification would serve the best
interests of the child” and “if the modification would not change the child’s
Here, the stipulated dissolution judgment sets forth a detailed parenting-time plan. The judgment provides that the children’s primary residence is with respondent, but that appellant is entitled to parenting time every Wednesday night and every other weekend. The judgment also provides that the parties are to alternate weeks with the children during the summer and sets forth a schedule indicating parenting-time rights for holidays and special occasions.
Appellant asked the district court to modify the parenting-time schedule so that the parties would always alternate access to the children every other week, effectively extending the summer parenting-time arrangement to also apply during the school year. Respondent opposed the parenting-time modification, arguing that modification would be inappropriate because of the children’s ages and because the children need more stability, particularly during the school year when they already do not get their homework done on nights spent with appellant. Respondent also noted concerns about her son’s safety at appellant’s house. But while Rice County Social Services investigated respondent’s allegations and noted that the child reported being hit and kicked by appellant’s stepson, there was no determination of neglect and no need for protective services. Finally, both parties observed that the transitions between the respective parental homes are difficult.
Appellant argues that the district court did not consider the children’s best interests in making its decision. But there is no indication that the district court failed to consider the children’s best interests in deciding this parenting-time dispute. The record shows that the district court denied appellant’s motion because it concluded that increasing parenting time would be too disruptive to the children at this time. And during the hearing, the court asked the parties whether “anybody [has] looked at psychologically what that does to the children if they’re going to be living in the household every other week.” That question and the district court’s rationale for denying the motion indicate that the court was, in fact, mindful of the children’s best interests in making its decision.
also contends that the current parenting-time arrangement denies him his basic
civil rights, as well as his rights to due process and equal protection. But appellant did not raise these constitutional
arguments in the district court; he argues them for the first time on
appeal. Because this court generally
does not consider matters not argued and considered in the district court, we
do not address appellant’s constitutional arguments here. See Thiele v. Stich, 425 N.W.2d 580,
appellant argues that the district court erred by allowing respondent to
provide allegedly false and misleading testimony and by denying appellant the
opportunity to cross-examine respondent.
But because appellant also raises these issues for the first time on
appeal, we need not address them.
On this record, and mindful of our narrow standard in reviewing district court determinations of parenting-time questions, we cannot conclude that the district court abused its broad discretion in denying appellant’s motion for increased parenting time.
Appellant argues for the first time on appeal that the district court erred by failing to appoint a guardian ad litem. While appellant has requested the appointment of a guardian ad litem in other proceedings before the district court, appellant did not request the appointment of a guardian ad litem in the instant proceeding. Because the appointment of a guardian ad litem was neither requested nor considered at the district court, we do not address the issue here. See id.
contends that the district court erred by denying his motion requesting that
all future custody and parenting-time disputes be mediated pursuant to
the district court did not abuse its discretion by failing to require mediation
for future parenting-time and custody disputes in light of the evidence of
failed past mediation attempts. While
appellant disputes the failure of the previous mediations, it is well settled
that judging the credibility of witnesses and the weight to be given to their
testimony rests within the province of the finder of fact. General v. General, 409 N.W.2d 511,