This opinion will be unpublished and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
Roberta Ann Wirth, petitioner,
Filed August 27, 1996
Affirmed in part, reversed in part, and remanded
Toussaint, Chief Judge
Washington County District Court
File No. F0-93-3511
Roberta Ann Wirth, 608 Wildwood Ave., Birchwood, MN 55110 (Pro se appellant)
Mark J. Vierling, Eckberg, Lammers, Briggs, Wolff & Vierling, P.L.L.P., 1835 Northwestern Ave., Stillwater, MN 55082 (for respondent)
Considered and decided by Klaphake, Presiding Judge, Toussaint, Chief Judge, and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
, Chief Judge
Appellant Roberta Ann Wirth challenges the district court's denial of her motions for increased child support and modified visitation. Respondent Steve Sievek challenges the determination of his net income. We reverse and remand on Sievek's income and the related issues of his support and child care obligations, but otherwise affirm.
D E C I S I O N
In October 1994, the district court calculated Sievek's net income for support purposes based on his full-time employment with the City of Brainerd but did not consider his farm income.
Minn. Stat. §subd. 2(b)(2) (Supp. 1995) (excluding from net income amounts earned from employment in excess of a 40-hour work week if certain criteria are met).
Wirth v. Sievek
, No. C2-95-425 (Minn. App. July 18, 1995). Afterwards, Wirth moved to modify support and the district court increased Sievek's obligation because Sievek's income from the City of Brainard had increased. Again, however, the district court refused to include Sievek's farm income in his net income. Noting that Sievek has received farm income since before the October 1994 order, Wirth claims that the current exclusion from net income of Sievek's farm income is erroneous because Minn. Stat. § 518.64, subd. 2(b)(2)(i) (Supp.1995) excludes income from employment becoming excess "after entry of the existing support order."
Whether a source of funds is income for purposes of setting a person's child support obligation is a legal question on which we need not defer to the district court.
Sherburne County Social Servs. v. Riedel
, 481 N.W.2d 111, 112 (Minn. App. 1992). Wirth's reading of the excess employment provision would subject Sievek's farm income, which is income from work in addition to his full time job, to being used for child support. This result would be contrary to the legislative intent behind the statute.
See Johnson v. Johnson
, 533 N.W.2d 859, 864 (Minn. App. 1995) (purpose of the excess employment provision is to allow support obligor to "move ahead" by limiting ability to use income from excess employment for child support); Minn. Stat. § 645.16 (1994) (object of statutory interpretation is to effectuate legislative intent). Wirth's reading of the statute would also require the district court to include in Sievek's current net income the same monies the statute required the district court to exclude from Sievek's net income in October 1994. We cannot accept this reading of the statute.
Minn. Stat. §subd. 1 (1994) (legislature does not intend an absurd result).
Sievek argues that the district court erred by failing to exclude from his net income the amount of his contribution to a retirement account.
Minn. Stat. 518.551, subd. 5(a) (Supp. 1995) (allowing "reasonable pension deductions" when calculating support obligor's net monthly income). The district court's order does not explain why Sievek's contribution to his retirement account was disallowed. We remand for the district court to address whether and to what extent Sievek's retirement-account contribution is reasonable and any recalculation of his support and child care obligations necessitated by a change in his net monthly income.
See Mueller v. Mueller
, 419 N.W.2d 845, 847 (Minn. App. 1988) (where district court did not address reasonableness of pension deduction, issue remanded).
A July 1993, paternity adjudication granted Sievek reasonable visitation on 24 hours' notice. After Wirth denied Sievek visitation in October 1994, Sievek sought visitation mediation. Based primarily on unverified reports from her parents that Sievek had shaken the child, Wirth's affidavit responding to Sievek's motion for mediation claimed Sievek had physically abused the child. On November 4, 1994, the district court ordered mediation. Wirth claims that her allegations show probable cause for abuse and preclude mediation.
Minn. Stat. § 518.619, subd. 2 (1994) (existence of probable cause that a child of a party was abused by the other party precludes mediation). The district court did not find probable cause of abuse. Wirth's abuse allegations are generally unsubstantiated and are supported by neither the child's guardian ad litem nor the family court officer, and the record lacks anything that would constitute an implicit finding of probable cause.
See Vogt v. Vogt
, 455 N.W.2d 471, 474 (Minn. 1990) (prior protective order an implicit finding of probable cause that abuse occurred);
Mechtel v. Mechtel
, 528 N.W.2d 916, 919 (Minn. App. 1995) (prior ex parte protective order an implicit finding of probable cause that abuse occurred). On this record, Wirth's allegations are insufficient to show the probable cause for abuse which would preclude mediation. Also, because the record lacks evidence that the parties agreed to the appointment of a visitation expediter, we reject Wirth's claim that the district court should have appointed an expediter after the visitation disputes of October 1994.
Minn. Stat. § 518.1751, subd. 1 (1994) (expediters may be used "[u]pon agreement of all parties").
Wirth argues that the November 1994, order improperly required a custody study and that the evaluator performing the study failed to consider the statutory factors.
Minn. Stat. § 518.17 (listing best-interest factors to be considered in custody awards). The November 1994, order required a "visitation evaluation" to address the parties' visitation proposals, not a formal custody study. Because the order for the visitation evaluation listed the items the district court wanted in the report and the list did not include a best-interests analysis, the evaluation is not defective because it lacks a best-interests analysis.
Wirth claims that the district court should have awarded her attorney fees because Sievek's litigation of visitation issues unreasonably contributed to the proceeding's length and expense.
Minn. Stat. § 518.14 (1994) (attorney fees may be assessed against a party who unreasonably contributes to length and expense of proceeding). We will not reverse a district court's attorney fee determination absent an abuse of discretion.
Nazar v. Nazar
, 505 N.W.2d 628, 635-36 (Minn. App. 1993),
(Minn. Oct. 28, 1993). Wirth fails to establish a basis for her attorney fee claim, and we find no basis in the record to conclude that the district court abused its discretion.
The determination and enforcement of visitation rights are legal questions while other visitation-related questions are discretionary with the district court.
Courey v. Courey
, 524 N.W.2d 469, 471 (Minn. App. 1994). Wirth alleges that Sievek failed to fully comply with her discovery requests by not completely disclosing his mental health records. We reject this claim because (a) both parties underwent independent psychological evaluations as part of the visitation evaluation process, and the report concerning Sievek evidenced no mental health concerns, (b) Sievek released his medical records to the district court, which determined, after an in-camera review to which Wirth stipulated, that the records contained "nothing relevant to the visitation issues in this case[,]" and (c) despite Wirth's continued allegations of conduct by Sievek related to his mental health, the "records" Wirth seeks apparently do not exist.
Wirth next asserts that the child's physical and emotional health will be endangered by unsupervised visitation. As noted, Wirth's allegations that Sievek physically abused the child are generally unsubstantiated. Also, while Wirth's expert witness recommended supervised visitation leading "gradually" to unsupervised visits, the district court relied on other professional reports and recommendations to find that unsupervised visitation is appropriate. The district court did not abuse its discretion in not ordering supervised visitation.
See Stiff v. Associated Supply Co.
, 436 N.W.2d 777, 779-80 (Minn. 1980) (where evidence conflicts, appellate court will not alter district court's findings merely because appellate court might have found facts differently in first instance).
Wirth argues that supervised visitation should be ordered because Sievek has not visited the child on a regular basis. Sievek has been attempting to secure his visitation rights since he was denied visitation in October 1994. While doing so, he has been faced with allegations that he abused the parties' child. Under these circumstances, we cannot conclude that Sievek's failure to regularly visit the child was unreasonable or that the district court was required to order supervised visitation.
Minn. Stat. § 518.175, subd. 5(2) (Supp. 1995) (district court may restrict visitation if noncustodial parent "chronically and
" did not visit child) (emphasis added).
Wirth complains that the district court's March 28, 1996, order prohibits her from disseminating the visitation reports in the record to third persons but does not similarly restrict Sievek. The local administrative rules under which the case was heard preclude attorneys, without court permission, from disseminating the reports to third persons. The district court's order was apparently directed at Wirth because she was pro se and not bound by the local rule. The district court did not abuse its discretion in restricting Wirth's use of the records; she is not prohibited from using it within the litigation itself, but only from disseminating it to third persons outside of the proceedings.
Affirmed in part, reversed in part, and remanded.
The October 1994 order was made pursuant to the 1994 version of the statute. The relevant language in the now-applicable 1995 version is the same.
Sievek argues that the district court abused its discretion by denying his motion for periodic verification of Wirth's child care expenses. The district court order does not specifically address the issue and the record is unclear about whether the issue was presented to the district court. Because Sievek concedes that requiring verification is discretionary with the district court and that he could pursue this issue in the district court, we allow him to do so on remand.