This opinion will be unpublished and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
Sarah Anne Kennedy, petitioner,
Steven Wayne Kennedy,
Filed December 5, 2006
Hennepin County District Court
File No. DC 269638
Louise E. Livesay,
Steven Wayne Kennedy,
Considered and decided by Halbrooks, Presiding Judge; Hudson, Judge; and Dietzen, Judge.
On appeal from the district court’s order determining custody, parenting time, and sanctions, appellant argues that (1) the district court erroneously determined that he withdrew his motion for modification of custody, (2) the parenting-time schedule is not in the best interests of the children, (3) appellant should receive compensatory time and sanctions against respondent, (4) the district court unduly limited appellant’s contact with his children by electronic and long-distance communication, (5) appellant should not be required to release confidential counseling records from 2001 or to provide random urinalysis, (6) the district court failed to consider appellant’s child-support obligations for his child from a previous marriage, (7) the district court failed to address appellant’s motion for an evidentiary hearing regarding respondent’s fraud, (8) the district court should not have sanctioned appellant with an award of attorney fees to respondent, and (9) the district court abused its discretion by imposing court review of appellant’s future motions before scheduling a hearing. We affirm.
Sarah Anne Kennedy and appellant Steven Wayne Kennedy married in 1996;
respondent petitioned for dissolution in 2001.
The district court granted the dissolution in 2003 in a judgment and
decree that provided for joint legal custody of their two children and sole
physical custody to respondent.
Appellant received parenting time and was ordered to pay child support. Before the dissolution judgment, appellant gave
respondent $12,058.46 for child care. Soon
after the judgment, the parties disputed parenting time. Respondent’s noncompliance with the district
court’s order, according to appellant, resulted in his decision to move to
Appellant then began making several motions. He moved to reduce his child-support payments based on changed circumstances and claimed that respondent fraudulently failed to tell the court about appellant’s pre-dissolution child-care payments. The child-support magistrate denied appellant’s request in an order dated March 16, 2004, because he failed to document his changed circumstances. Appellant requested review of the March 16 order under the expedited process by district court. When appellant’s request for review was denied, he appealed the failed request for review to the district court.
In June 2004, appellant filed a motion, signed in late April, to establish parenting time and to have child-support obligations offset by travel expenses. Appellant served respondent’s attorney with the motion, but the hearing was canceled because appellant had not properly filed the motion.
On December 15, 2004, appellant moved for parenting time during the holidays after 18 months’ absence from the children, including a request to establish access, an order to establish a visitation exchange point, and that child support be reduced in the amount of his cost of transportation to exercise his parenting time. The dissolution judgment required such matters to be resolved by mediation instead of by hearing; according to respondent, appellant refused to attend mediation. The district court granted appellant a holiday parenting-time schedule, reserving final determination of parenting-time issues for mediation. Appellant had parenting time in December 2004 and January, February, April, and May 2005. But mediation failed.
On March 23, 2005, appellant moved to modify child support based on reduced costs of health insurance for the children, appellant’s reduced income, and child-support costs for his other child as well as to modify appellant’s parenting time. Respondent contended that it was the same motion that appellant had unsuccessfully made the previous year. When appellant was not prepared for the April 6 hearing, the district court continued the hearing to mid-June.
In May 2005,
appellant moved to modify custody and parenting time, schedule parenting time
for the three summer months at his home in
2005, appellant documented respondent’s alleged failures to comply with the
parenting-time schedule by respondent’s refusing mail addressed to the children,
not responding to voice-mail messages, and being consistently absent for
scheduled parenting time via web camera.
On one instance, appellant arrived in
Appellant also sought reconsideration of the May 27 order. Appellant’s motion sought to strike the district court’s finding that he was ordered to obtain mental and chemical-dependency treatment, claiming treatment was voluntary, and to change a gender error in a pronoun referring to his son. In addition, appellant challenged the limited telephone/video contact of 6:00-6:30 p.m. on Sundays during the parental-access evaluation as being too restrictive because no justification existed for the restriction.
The parenting-access evaluation documented the children’s comfort with appellant. But due to appellant’s long absence from the children, the evaluation recommended that parenting time increase gradually and be granted conditional to appellant’s random urinalysis once a month for six months. The district court accepted the recommendations. The district court denied appellant’s claim of changed circumstances justifying reduced child support, sanctioned appellant with one-half of respondent’s attorney fees, and required that any future motions brought by appellant be reviewed by the district court before scheduling a hearing. This appeal follows.
Appellant claims that the district court
incorrectly determined that he withdrew his motion to modify custody. District courts have broad discretion in granting
custody, and this court’s review “is limited to determining whether the
district court abused its discretion” through unsupported findings or improper
application of law. Lemcke v. Lemcke,
623 N.W.2d 916, 919 (Minn. App. 2001), review denied (
The judgment’s terms provide that the parties have joint legal custody with sole physical custody to respondent. Appellant once had asked for temporary sole legal and physical custody as a sanction against respondent. Because the district court was uncertain as to the nature of appellant’s request, the district court sought clarification. Appellant characterized his motion as one for parenting time for the three summer months. Upon receiving this clarification, the district court then considered appellant’s request as one for a parenting-time modification. In doing so, the district court acted within its discretion.
Appellant challenges the district
court’s parenting-time schedule and claims that the parenting-time limitations
are not in the best interests of the children because they limit the children’s
ability to have a continuing relationship with their half-sister. The district court has broad discretion in
deciding parenting-time issues, and, unless the court abuses that discretion,
this court will not reverse its determination. 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). 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 primary residence.”
Here, appellant’s request for parenting-time modification is based both on his desire to maintain contact with his children to the extent possible due to the distance between Minnesota and Nevada and on his claims that respondent has failed to comply with the established parenting-time schedule. By scheduling parenting time in larger blocks of time during holidays and the summer, appellant contends that he could reduce travel expenses while maintaining contact with his children, who also would benefit from seeing their half-sister, grandparents, and extended family.
In response to parenting-time concerns raised by both parties, the district court ordered a parenting-access evaluation, which found a need for stability in the children’s living arrangements. The evaluation recognized that the children enjoy being around appellant and their half-sister. In the evaluator’s words, “a gradually increasing parenting time schedule . . . would allow [the children] time to get more comfortable with” appellant before allowing for the possibility of parenting time in Las Vegas. The district court’s decision to adopt this recommendation as being in the best interests of the children is well within its discretion.
seeks compensatory time based on respondent’s alleged failure to comply with
previous parenting-time schedules. In
parenting-time decisions, the district court has extensive discretion, limited by
the best interests of the child. Gregory
v. Gregory, 408 N.W.2d 695, 697 (
Appellant contends that compensatory parenting time is warranted because respondent refused mail that he sent to his children, did not respond to voice mail, and was consistently unavailable for scheduled web-camera parenting time. In addition, in anticipation of this parenting time on Father’s Day weekend 2005, appellant sent respondent two letters and three voice-mail messages with no response. But respondent earlier stated in an affidavit filed with the court that the children would be out of town on vacation that weekend. Instead of sanctions, as appellant requested, the district court chose to order a parenting-access evaluation for full re-evaluation of parenting time.
the district court needs to make findings for its decision, the findings may be
obtained “from the four corners of the court’s order.” Gregory, 408 N.W.2d at 698. Nor are findings technically required under
Minn. R. Civ. P. 52.01. Hennessy v.
challenges the district court’s parenting-time schedule that limits contact
with his children by long-distance communications. Appellant’s
parenting time has always included both telecommunications and visitation in
Appellant claims that the district court abused its discretion by ordering him to release confidential medical records from 2001 for the parenting-access evaluation. Appellant claims that the disclosure was unnecessary because the district court found on December 20, 2004, that “no immediate drug or mental health issues . . . pose a danger to the children.” The district court’s order required both parties to “complete all requested authorizations for release of information.” The district court’s order for record disclosure for the parenting-time evaluator’s use was within the court’s discretion.
Appellant contends that the district court inappropriately ordered him to comply with six months of random urinalysis when appellant has not been charged criminally and respondent’s concerns of his substance abuse are unfounded. The record before the district court was that appellant had been hospitalized for mental-health reasons in the preceding three years and had stopped taking his prescribed medication. The terms of dissolution judgment required appellant to complete both mental-health and chemical-dependency treatment. There is no finding that he has done so. We, therefore, conclude that the district court did not abuse its discretion by ordering appellant to provide random urinalysis for a limited time frame.
Appellant raises concerns that his
child-support payments fail to accommodate his child-support payments for his
child from a previous marriage. “It is
well established” that the district court has discretion to modify a
child-support order, and we may reverse only if the district court resolved the
matter in a manner that is against logic and the facts on record. Moylan v. Moylan, 384 N.W.2d 859, 864
Courts may modify child-support payments only for a substantial change in circumstances as described in Minn. Stat. § 518.64, subd. 2 (2004). These changes must have occurred after the initial dissolution judgment, which includes the initial child-support obligations. See Minn. Stat. § 518.57, subd. 1 (2004). The district court is required to make specific findings in determining whether changed circumstances justify modification. Moylan, 384 N.W.2d at 863, 865. In 2004 and 2005, the district court found that appellant had not shown a change in circumstances since the judgment. The record supports the district court’s determination.
Appellant claims that the district court abused its discretion by failing to hold an evidentiary hearing on his motion for a change in custody, a parenting-time schedule, and sanctions for respondent’s alleged violations of the parenting-time schedule. Appellant also claims the district court failed to respond to his application for ex parte relief regarding the children’s absence during Father’s Day weekend 2005. But the parenting-access evaluation, which was adopted by the district court, addressed the custody and parenting-time issues.
that the failure to obtain an evidentiary hearing resulted from his counsel’s failure
to advise him before his withdrawal.
Furthermore, appellant claims that we must hold “allegations of the pro
se complainant . . . to less stringent standards than
formal pleadings drafted by lawyers.” See
Haines v. Kerner, 404
argues that he should not be sanctioned with one-half of respondent’s attorney
fees because he filed his claims in good faith.
The decision to impose attorney fees is almost entirely within the
discretion of the district court, and this court will not alter the decision
absent an abuse of discretion. Crosby v. Crosby, 587 N.W.2d 292, 298
(Minn. App. 1998), review denied
(Minn. Feb. 18, 1999). A district court
may impose attorney fees on a litigant in matters related to marriage
dissolution if a party “unreasonably contributes to the length or expense of
the proceeding.” Minn. Stat. § 518.14,
subd. 1 (2004). This standard, unlike
rule 11, does not require bad faith. Geske v. Marcolina, 624 N.W.2d 813, 818-19
challenges the district court’s decision that granted respondent’s motion that
the district court review his future motions before scheduling a hearing. A district court has great discretion in
determining the procedural calendar of a case, Rice v. Perl, 320 N.W.2d
407, 412 (
argues that the district court failed to find him a frivolous litigant, as
required in a rule 9 or rule 11 hearing, to justify sanctions. While the district court’s order did not
indicate past specific conduct, see Minn. R. Gen. Pract. 9.02(c); Minn.
R. Civ. P. 11.03(c), respondent’s supporting affidavit and statements at
hearing made an ample record. Cf.