This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Anthony John Van Dyck, petitioner,
Tiffany Nicole Van Dyck Snidarich,
Filed February 20, 2007
Sherburne County District Court
File No. F1-02-1475
Farhan Hassan, Clausen & Hassan, L.L.C., 1295 Bandana Boulevard North, Suite 150, St. Paul, MN 55108 (for appellant)
Tiffany Nicole Snidarich, 55834 Parkway Drive, Parkers Prairie, MN 56361 (pro se respondent)
Considered and decided by Dietzen, Presiding Judge; Worke, Judge; and Crippen, Judge.*
Appellant challenges the district court order granting respondent’s motion to modify parenting time, arguing that the district court abused its discretion in (1) granting respondent’s motion to relocate within the state contrary to the provisions of the agreement of the parties as adopted in the judgment and decree; (2) restricting appellant’s parenting time schedule; and (3) not holding an evidentiary hearing. We affirm.
Appellant Anthony Van Dyck (father) and respondent Tiffany Snidarich (mother) were married in October 2000 and dissolved their marriage by judgment and decree filed in June 2003. The judgment and decree awarded joint legal custody of their minor child to both parents and sole physical custody to mother, subject to father’s right to reasonable and liberal parenting time, and provided that “respondent [mother] may not remove the parties’ minor child from the Elk River area without permission from petitioner [father], or a court order.”
In October 2003, father brought a motion for parenting-time assistance, asserting problems regarding his right to exercise his parenting time. Following mediation, the parties entered into a memorandum of agreement that granted father specific parenting time with the minor child. When disputes arose regarding the interpretation of the memorandum of agreement, the court entered an amended judgment and decree that incorporated the parenting-time schedule set forth in the memorandum of agreement.
In January 2005, mother moved from Elk River to Coon Rapids to live with her boyfriend. Because mother did not obtain father’s consent or a court order, father brought a motion to hold mother in contempt of court for failing to comply with the judgment and decree. Following a hearing, the district court filed a second amended judgment and decree, which provided father with an additional two weeks of parenting time each year and two weeks of compensatory parenting time, but declined to address the issue of mother’s move to Coon Rapids.
In December 2005, mother filed a motion for parenting-time assistance under Minn. Stat. § 518.175 (2004) that requested that she be allowed to move to Parkers Prairie, Minnesota, with her boyfriend and child, that the visitation exchanges of the child occur in Melrose, and that father’s parenting time should be changed to every other weekend starting on Friday at 6:00 p.m. until Sunday at 4:00 p.m. Father opposed the motion.
Following the hearing, the district court filed an order (1) granting the motion to allow mother to move to Parkers Prairie; (2) ruling that visitation exchanges occur in Melrose; and (3) modifying father’s parenting time. This appeal followed.
D E C I S I O N
Father argues that the district court’s diminution of his parenting time amounts to an impermissible “restriction.” Whether a parenting-time modification is a restriction is a question of law, which we review de novo. Anderson v. Archer, 510 N.W.2d 1, 4 (Minn. App. 1993). Respondent did not file a brief, but under Minn. R. Civ. App. P. 142.03 we decide the case on the merits.
Minn. Stat. § 518.175, subd. 5 (2006), sets forth the statutory framework for review of a motion for modification of a parenting plan or parenting time. A court may not “restrict” parenting time unless the child will be endangered without such restriction or the noncustodial parent has unreasonably failed to comply with the court-ordered parenting time. Minn. Stat. § 518.175, subd. 5. A “restriction” occurs when a reduction of parenting time will impair the parent-child relationship. Clark v. Clark, 346 N.W.2d 383, 385-86 (Minn. App. 1984), review denied (Minn. Jun. 12, 1984). A reduction in visiting time is not necessarily a “restriction.” Danielson v. Danielson, 393 N.W.2d 405, 407 (Minn. App. 1986). Whether parenting time is restricted requires looking at both the reasons for the change and the amount of reduction of the parenting-time rights. Archer, 510 N.W.2d at 4. When a modification does not constitute a “restriction” of parenting time under the statute, the best-interests standard applies. Id. at 5. When there is a relocation of the custodial parent, the district court may adjust the existing pattern of visitation to create a “reasonable alternative visitation schedule.” Geiger v. Geiger, 470 N.W.2d 704, 708 (Minn. App. 1991) (holding that a district court’s significant modification of a visitation schedule was reasonable in order to account for custodian’s move, despite a “no move” stipulation in dissolution agreement), review denied (Minn. Aug. 1, 1991). We turn then to the reason for the change.
Here, the district court allowed mother to move to Parkers Prairie and modified the bi-weekly visitation hours from 95 to 46 by eliminating father’s week-day overnight visitation to accommodate the move. The record supports the conclusion that the modified parenting-time schedule was reasonable and does not impair father’s relationship with the child. First, due to mother’s change in location, it is not possible for the child to visit father’s residence during the week. Although father’s total hourly parenting-time loss is significant, much of the time father lost with her is time when daughter would be in school or sleeping. See Archer, 510 N.W.2d at 5 (considering the amount of time children will be in school and sleeping when examining the validity of a parenting-time modification). And father’s weekend parenting time was expanded to accommodate him because of the relocation. See Sefkow v. Sefkow, 372 N.W.2d 37, 47 (Minn. App. 1985) (noting that the freedom to move depends on maintaining visitation which is a “reasonable alternative” to present rights and allows for a good relationship between noncustodial parent and child).
Second, the district court’s conclusion that mother should have some weekend time with the child, especially because she is the physical custodian, is reasonable. See Bear v. Bear, 415 N.W.2d 389, 393 (Minn. App. 1987) (recognizing “the reasonable desire on the part of a working custodial parent . . . to spend some free weekend time with the minor child”). Finally, this parenting-time reduction, by itself, will not impair father and child’s relationship. Clark, 346 N.W.2d at 385-86.
Therefore, the evidence on the record supports the district court’s modification of the parenting-time schedule as reasonable and, therefore, the modification is not a “restriction.” As a result, the best-interests standard applies to the modification of parenting time. Archer, 510 N.W.2d at 4.
Father argues that the district court abused its discretion in failing to hold an evidentiary hearing on restricting his parenting-time schedule and in considering the best interests of the child. We disagree. Evidentiary rulings are within the district court’s discretion and are also reviewed for an abuse of that discretion. Lines v. Ryan, 272 N.W.2d 896, 902 (Minn. 1978).
“Substantial modifications of visitation rights require an evidentiary hearing when, by affidavit, the moving party makes a prima facie showing that visitation is likely to endanger the child’s physical or emotional well being. Insubstantial modifications or adjustments of visitation, on the other hand, do not require an evidentiary hearing and are appropriate if they serve the child’s best interests.” Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001) (citations omitted), review denied (Minn. Oct. 24, 2001).
Here, there were no allegations by either party that the child was subject to abuse necessitating a “restriction” of parenting time, which would require the district court to conduct an evidentiary hearing. And because the district court’s modification of father’s parenting time did not amount to a “restriction,” the district court was not required to hold an evidentiary hearing before it weighed the best-interests factors. Braith, 632 N.W.2d at 721. Further, father did not make a motion requesting an evidentiary hearing, so he waived consideration of the claim on appeal. See Minn. R. Gen. Prac. 303.03(d); see also Doering v. Doering, 629 N.W.2d 124, 130 (Minn. App. 2001) (“In family cases non-contempt motions are decided without an evidentiary hearing, ‘unless otherwise ordered by the court for good cause shown.’”), review denied (Minn. Sept. 11, 2001).
Father further argues that the district court erred by not applying the reasoning of Auge v. Auge, 334 N.W.2d 393 (Minn. 1983), to require an evidentiary hearing. In Auge, the supreme court declared a presumption in favor of granting out-of-state removals to the custodial parent, which could be rebutted by the noncustodial parent showing that the removal was not in the child’s best interests. If a prima facie case was made by affidavit, an evidentiary hearing was required. Id. at 397. But the Auge presumption applied only to out-of-state removals and was rendered moot by subsequent legislative amendments to Minn. Stat. § 518.175, subd. 3 (2004). See Frauenshuh v. Giese, 599 N.W.2d 153, 157, 159 n.8 (Minn. 1999) (declining to address whether the Auge presumption applies to purely intrastate relocations and stating that the role of courts in dissolution proceedings is “strictly limited to that provided for by statute”); see also Goldman v. Greenwood, 725 N.W.2d 747, 752 (Minn. App. 2007) (discussing the 2006 legislative amendments eliminating the Auge presumption).
Father argues that the district court abused its discretion in allowing respondent mother to relocate within the state contrary to the “no move provision” in the marital-termination agreement incorporated into the judgment and decree. The district court has broad discretion to determine what is in the best interests of child in the area of visitation, and its determination will not be overturned absent abuse of discretion. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995). “[C]urrent law leaves scant if any room for an appellate court to question the [district] court’s balancing of best-interests considerations.” Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000). The district court’s findings of fact will not be overturned unless they are clearly erroneous. Minn. R. Civ. P. 52.01.
If modification would serve the best interests of the child, the court shall modify the decision-making provisions of a parenting plan or an order granting or denying parenting time so long as the modification would not change the child’s primary residence. Minn. Stat. § 518.175, subd. 5. Minn. Stat. § 518.17, subd. 1 (2006), sets forth the statutory factors to be considered in determining the “best interests of the child.”
Father argues that the granting of the motion is in contravention of the original judgment and decree, which incorporated the marital-termination agreement. But the judgment and decree allows amendment by “court order,” and that is what occurred in this case. Further, if it is in the best interests of the child to strike the “no move” provision, caselaw allows the district court to do so. See Petersen v. Petersen, 296 Minn. 147, 148, 206 N.W.2d 658, 659 (1973) (courts not bound by stipulation, but must consider best interests of child); see also Tammen v. Tammen, 289 Minn. 28, 30, 182 N.W.2d 840, 842 (1970) (“Courts . . . will be controlled by the welfare of the child as the paramount consideration.”).
Here, the district court applied the best interest factors and found that the relocation and subsequent modification of parenting time served the best interests of the child. Father challenged two of those findings. Father argues that mother’s move was motivated by mother’s intent to deprive him of parenting time, and, therefore, she was not disposed to encourage his continuing contact with the child. He relies on a court order awarding him compensatory parenting time to support his argument. Minn. Stat. § 518.17, subd. 1(a)(13), states that the district court must consider the “[d]isposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.” The district court found that “[t]here is no evidence to suggest that either parent has interfered with the other’s continuing contact with the child” and mother was willing “to permit continuing contact between [father] and child.”
The record contains a number of complaints made by father arising from parenting-time disputes with mother, but many of the parenting-time disputes arose from disagreements over ad hoc arrangements that the parties made outside the parenting-time schedule. But the record does not reveal any systematic attempt by either party to deny the other of custody or parenting time, and mother does not appear to have deprived father of a substantial amount of his parenting time. On this record, we cannot say that the district court’s findings were clearly erroneous. See Minn R. Civ. P. 52.01 (stating that the district court’s findings of fact will not be overturned unless clearly erroneous).
Father next argues that the relocation will endanger the child’s emotional well-being because it will impair their relationship, and mother may break up with her boyfriend and could leave the child in an unstable environment. Minn. Stat. § 518.17, subd. 1(a)(6), requires the district court to consider “child’s adjustment to home, school, and community.” The district court found that “[t]here is no evidence showing that the minor child had not adjusted to both parties’ homes and communities, or that there is a reason to believe the minor child could not adjust to further changes in either parent’s residence.”
Father points to no evidence in the record that the child has had trouble adjusting to either parent’s moves or the various post-marital relationships of either parent. On this record, we cannot say that the district court’s findings were clearly erroneous. Minn. R. Civ. P. 52.01. Further, this factor alone is not enough to overcome the presumption that such a relocation is in the child’s best interests. See Geiger v. Geiger, 470 N.W.2d 704, 709 (Minn. App. 1991), review denied (Minn. Aug. 1, 1991).
Because the district court properly applied the law and did not abuse its discretion in granting mother’s request for parenting-time assistance and modifying father’s parenting time, we affirm.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 While the district court cited Minn. Stat. § 518.18 (2004) to determine whether the relocation would be in the child’s best interests, mother’s motion was made under Minn. Stat. § 518.175 (2004), and it is that statute that governs modifications of parenting time. While the district court cited Minn. Stat. § 518.18, the record demonstrates that it conducted the proper best-interests analysis under the appropriate statute, 518.175, subd. 5.