This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-95-2515

In Re the Petition of:

Donald Zitka and Gail Zitka,

Grandparents.

Filed May 21, 1996

Affirmed

Harten, Judge

Anoka County District Court

File No. F5-95-10345

Loren E. Gross, 8609 Lyndale Avenue S., Bloomington, MN 55420 (for Donald and Gail Zitka)

Edward M. Cohen, Jr. Cohen & Friedberg, Ltd., 3015 Ottawa Avenue S., Minneapolis, MN 55416-2206 (for Maria Mattila)

Considered and decided by Davies, Presiding Judge, Harten, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

HARTEN, Judge

The district court granted the grandparents' petition for visitation. The children's mother appeals, claiming that the court acted without jurisdiction, and erred in allowing visitation without an evidentiary hearing and without addressing the children's best interests or whether visitation interfered with the parent-child relationship. We affirm.

FACTS

Respondents Donald and Gail Zitka are the paternal grandparents of two children, ages 9 and 11. Appellant Maria Mattila, the children's mother and custodial parent, was formerly married to respondents' son, William Zitka. Both before and after their parents' marriage dissolution, the children had always spent considerable time with their grandparents. In July 1995, Mattila halted all contact between the children and grandparents. The grandparents then petitioned the district court for visitation. The court awarded the grandparents visitation of one weekend every other month, two weeks in the summer, and three days during Christmas break. Mattila appeals.

D E C I S I O N

The authority of a district court to determine visitation rights is a question of law reviewed de novo. Simmons v. Simmons, 486 N.W.2d 788, 790 (Minn. App. 1992). The district court has broad discretion, however, to determine what is in the best interests of a child regarding visitation, and its determination will not be overturned absent an abuse of discretion. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).

Mattila first argues that the district court lacked jurisdiction to decide the case because the Zitkas brought their petition for grandparent visitation as a separate action, rather than as part of the dissolution proceeding. The Zitkas assert that Mattila waived this issue. [1] Of course, parties cannot waive a court's subject matter jurisdiction. See Gummow v. Gummow, 356 N.W.2d 426, 428 (Minn. App. 1984) (parties cannot consent to court acting when it has no subject matter jurisdiction).

Minn. Stat. § 257.022, subd. 2 (1994) allows the district court to consider a request (petition) for grandparent visitation "at any time after completion of the [dissolution] proceedings, and continuing during the minority of the child." Referring to section 257.022, Minn. Stat. § 518.156 (1994) on the commencement of custody proceedings states:

In a court of this state which has jurisdiction to decide child custody matters, a child custody proceeding is commenced: * * * (b) by a person other than a parent, where a decree of dissolution has been entered or where none is sought by filing a petition or motion seeking * * * visitation of the child in the county where the child is permanently resident * * *. A person seeking visitation pursuant to this paragraph must qualify under * * * section 257.022.

Minn. Stat. § 518.156, subd. 1(b) (emphasis added). Visitation rights are included within the definition of "custody determination." Minn. Stat. § 518.003, subd. 3(f) (1994). Nothing in section 257.022 precludes a grandparent visitation petition from being filed in an action separate from the completed underlying dissolution action. [2] We conclude that the district court had jurisdiction to determine the Zitka petition.

Mattila argues that the district court failed to make the findings necessary to grant

grandparent visitation. By statute, a court may grant grandparent visitation

if it finds that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship. The court shall consider the amount of personal contact between the parents or grandparents of the party and the child prior to the application.

Minn. Stat. § 257.022, subd. 2.

Regrettably, the district court made no distinct findings on the best interests of the children or whether visitation would interfere with the parent-child relationship. The detail of the district court's order, however, demonstrates that it considered these issues and resolved them in favor of visitation. [3]

Both parties addressed the children's best interests in their moving papers and at the district court hearing. The court properly considered the children's longstanding relationship with the Zitkas. Before the dispute arose, Mattila and the Zitkas had a voluntary arrangement wherein the children spent approximately one weekend a month, a week at Christmas, and six weeks in the summer with the Zitkas. The previous amount of contact between grandparent and grandchild is a primary factor in determining best interests. See Olson, 534 N.W.2d at 550.

Mattila argued that visitation was not in the children's best interests because the Zitkas refused to acknowledge that the children have attention deficit disorder (ADD), and did not enforce the same rules and daily routines to which the children were accustomed in her household. The district court addressed Mattila's objections, and the grandparents' counsel assured the court that the grandparents acknowledged the ADD diagnosis. In its order, the district court directed the grandparents to cooperate as to medications, diet, and discipline and ordered Mattila to provide copies of medical reports and information to the grandparents. These directives show that the district court considered the children's best interests.

Although the district court did not specifically address whether grandparent visitation would interfere with the parent-child relationship, the order shows that the court considered this factor. In Olson, the supreme court stated that although "it would be preferable to have a more specific finding," the district court's findings "plainly take the standard into account." Id.

Here, as in Olson, the district court directed the disputants to refrain from making disparaging remarks about the other in front of the children. The district court also addressed Mattila's concern (resulting from the Zitkas' failure to return the children at the prescribed time on a previous occasion) by ordering that the children be returned home by 6:30 p.m. on Sundays after weekend visits. In its remedial directive and associated comments from the bench, the district court implicitly determined that visitation would not interfere with the parent-child relationship.

We agree with the district court's tacit conclusion that grandparent visitation is in the children's best interest and, as established by the court, will not interfere with Mattila's parent-child relationship.

The district court did not err by denying Mattila an evidentiary hearing. See Foster v. Brooks, ___ N.W.2d ___ (Minn. App. Apr. 16, 1996) (district court properly modified grandparent visitation without evidentiary hearing provided that it considered child's best interests and non-interference with parent-child relationship); see also Minn. R. Gen. Pract. 303.03(d) (party in family law proceeding must show "good cause" to overcome presumption against evidentiary hearing). The district court took as true everything Mattila presented in her affidavit. When denied an evidentiary hearing, Mattila made no offer of proof as to what remained to be considered at an evidentiary hearing. No further contested issues were identified. [4] We hold that the district court did not err in denying an evidentiary hearing.

Finally, Mattila argues that the district court erred by denying her request for attorney fees and costs. Whether to grant attorney fees rests within the district court's discretion and will not be disturbed absent an abuse of discretion. Smolecki v. Smolecki, 386 N.W.2d 846, 849 (Minn. App. 1986), review denied (Minn. July 16, 1986). Mattila claims that a separate action was unnecessary and that the grandparents' conduct entitles her to attorney fees. The Zitkas argue that Mattila is not entitled to attorney fees because she unilaterally and abruptly discontinued their contact with the children. We hold that the district court did not abuse its discretion by denying attorney fees and costs.

Affirmed.


Footnotes

[1]The district court asked, "Is venue an issue today or are we proceeding to waive that procedural argument and just get to the meat of the matter?" Mattila's attorney responded, "[J]urisdiction is not an issue."

[2]Mattila's underlying 1992 dissolution judgment was procured in Itasca County. Thereafter, in 1993, Mattila and the children established permanent residence in Anoka County, where the Zitkas brought their petition. The underlying dissolution file was by stipulation transferred to Anoka County by court order prior to the hearing on the Zitka petition.

[3]We reject Mattila's argument that grandparent visitation should be governed by the same standards as third-party visitation. Although the statutes are similar, this case is controlled by Olson, 534 N.W.2d 547 (grandparent visitation), rather than Kulla v. McNulty, 472 N.W.2d 175 (Minn. App. 1991) (applying stricter standards under Minn. Stat. § 257.022, subd. 2b in case where former lesbian lover sought visitation with child), review denied (Minn. Aug. 29, 1991).

[4]We note that it is important for children to have closure on such matters and that remanding for further findings or a hearing simply would delay resolution with no probable change in the outcome. See Olson, 534 N.W.2d at 550-51. If any error occurred in this case, it was harmless. See Minn. R. Civ. P. 61.