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be unpublished and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
David Michael Durbin,
Janeen Renee Saylor,
f/k/a Janeen Renee
Filed May 15, 2007
Reversed and remanded
St. Louis County District Court
File No. 69-F1-03-100488
David Michael Durbin, 1444 East Camp Street, Ely, Minnesota 55731 (pro se respondent)
Ellen E. Tholen, 702 Second Avenue, P.O. Box 210, Bovey,
and decided by Dietzen, Presiding Judge; Randall, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
D E C I S I O N
Appellant argues that the district
court abused its discretion by denying, without first holding an evidentiary
hearing, her motion to modify or restrict respondent’s parenting time. “It is well established that the ultimate
question in all disputes over [parenting time] is what is in the best interest
of the child.” Clark v. Clark, 346 N.W.2d 383, 385 (Minn.
App. 1984), review denied (Minn. June
12, 1984). The district court has broad
discretion in deciding parenting-time issues and what is in the child’s best
interests. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).
We will reverse its decision only for an abuse of discretion. Id.
statutory law, the district court shall “grant such parenting time
. . . as will 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) (2006). But
when it is in 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
subd. 5. The district court may
restrict parenting time if it finds that “parenting time is likely to endanger
the child’s physical or emotional health or impair the child’s emotional
development.” Id. The party alleging harm has the burden of
making a prima facie case for modification or restriction. Braith
v. Fischer, 632 N.W.2d 716, 721 (Minn.
App. 2001), review denied (Minn. Oct. 24,
2001). But an evidentiary hearing “shall”
be held if a “parent makes specific allegations that visitation places
custodial parent or child in danger of harm.”
Id. (citing Minn. Stat. § 518.175, subd.
Here the parties’ dissolution decree
established a parenting-time schedule.
Appellant stopped abiding by this schedule after the child alleged that
respondent sexually abused her. Affidavits
from appellant, the child’s maternal grandparents, and the child’s psychologist
support appellant’s claim. We note in
particular an October 13, 2005 report from licensed psychologist Barbara
Olmsted Thorne of the Range
Center. Ms. Thorne stated that the child’s comments
about “daddy naughty,” “daddy put finger in my butt” are consistent and that it
did not appear that the child had been coached by appellant. Ms. Thorne concluded by stating that to
completely ignore the child’s statements and have unsupervised visitation
between the child and respondent would be insensitive and irresponsible. Nevertheless, the district court concluded
that “there is not credible evidence warranting a restriction on visits.” The district court apparently relied, in
part, on a concluding statement in a November 29, 2005 report from Dr. Carolyn
Levitt of the Midwest Children’s Resource Center, wherein she stated that “[the
child] was unable to provide any details to support what she said and to help
determine what she meant by what she said.”
But Dr. Levitt also confirmed that the child made statements regarding
respondent “tying her up, putting tape on her mouth and touching her on her pee
part with a rope.” She concluded by
stating that it may be to the child’s benefit to have supervised visits with
respondent until the meaning of the child’s statements can be better
understood. The district court stated
that it reviewed the various reports, but ultimately observed that there were
“gaps in contact and parental conflict . . . resulting in some level
of trepidation on the part of the child, which is addressed by the gradual
restoration of parental contact ordered herein.” The district court modified the parenting-time
schedule by imposing upon respondent a new period of gradually reduced
district court made its decision not to restrict respondent’s parenting time without
first holding an evidentiary hearing.
But the law requires that if a parent makes specific allegations of
endangerment, the court shall hold an evidentiary hearing. Minn.
Stat. § 518.175, subd. 5. Although the
child’s statements may have been unclear at times, based on the record before
us, we believe that appellant’s allegations have the requisite specificity
warranting an evidentiary hearing, and that the district court abused its
discretion by summarily denying appellant’s motion, appointing a parenting-time
expediter, and awarding respondent compensatory parenting time.
we are remanding for an evidentiary hearing concerning repeated allegations of
sexual abuse, in the interim we are suspending respondent’s unsupervised parenting
time until the district court can make a decision on the merits. In making this ruling we are mindful that
appellant did not specifically move this court for such relief. Nevertheless, we consider such relief
implicit in her request for parenting-time restrictions. This court has the authority to take any
action “as the interest of justice may require.” Minn.
R. Civ. App. P. 103.04. Because the
state has an interest in protecting the well-being of children, we conclude
that justice requires us to temporarily restrict respondent’s parenting time
until the district court addresses whether to allow parenting time pending the
outcome of the evidentiary hearing held to test the veracity of appellant’s
allegations. See Putz v. Putz, 645 N.W.2d 343, 350 (Minn. 2002) (addressing an issue deemed
waived on appeal because the state has an interest in protecting the well-being
of children). We encourage the district
court to expedite its resolution of this matter.
Reversed and remanded.