This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In Re the Marriage of:

Stephen Joseph Sapp, petitioner,



Karen Lynette Nelson,

Lower Court Respondent,


S.K.S., intervenor,


Filed May 20, 1997

Affirmed in part and remanded

Huspeni, Judge

Kandiyohi County District Court

File No. F093349

Robert F. Henson, Neil M. Kliebenstein, Henson & Efron, P.A., 1200 Title Insurance Building, 400 Second Avenue South, Minneapolis, MN 55401 (for Respondent)

Charles A. Cox, Cox & Goudy, 676A Butler Square, 100 North Sixth Street, Minneapolis, MN 55403 (for lower court respondent)

Robert J. Zohlmann, Ralph E. Daby, Zohlmann Law Office, P. O. Box 178, New London, MN 56273 (for Appellant)

Considered and decided by Schumacher, Presiding Judge, Parker, Judge, and Huspeni, Judge.



Appellant S.S., a minor child, appeals from an order denying her motion to terminate or restrict visitation with her father. We affirm in part and remand.


S.S. alleged that certain actions of her father constituted domestic abuse, and through her attorney she petitioned for an order for protection under Minn. Stat. § 518B.01, subd. 6 (1996). In that petition S.S. sought to terminate or restrict visitation with her father. The father admitted to some of the complained-of behavior, but argued that in the context in which it occurred, it was not abuse. The district court determined that S.S.'s petition should be considered as a post-dissolution motion to restrict visitation and permitted S.S. to intervene in her parents' dissolution proceeding.[1] At the post-dissolution hearing, the district court found that a child protection matter existed and that visitation should be supervised, but denied S.S.'s motion to terminate visitation. The court conditioned further visitation on the father refraining from the conduct to which S.S. objected. S.S. alleges that the district court was required to make a finding on whether abuse occurred and also alleges that the district court was required to make best-interest findings under Minn. Stat. § 518.175 before ordering continued visitation.

A petition for protection under Minn. Stat. ch. 518B does not normally give rise to the same findings required under chapter 518. Baker v. Baker, 494 N.W.2d 282, 282 (Minn. 1992).

In one sense, [the Domestic Abuse Act] may be thought of as a "band aid," designed to curtail the harm one household member may be doing to the other in the short term, until a more permanent dispute resolution can be put in place. Nothing within the plain wording of the statute suggests that reference to any other statute is necessary.

In contrast, the marital dissolution statute, Minn. Stat. Ch. 518, is a complex scheme designed to detail the procedures for termination of a particular kind of legal relationship * * *. While the reach of the two statutes may incidentally overlap as to some married persons in some situations, each serves a distinct and separate public policy.

Id. at 285.

While the reasoning of Baker applies in most cases, the unique circumstances here require a different conclusion. Because the district court allowed the child, through her attorney, to intervene as a party in the ongoing proceedings under chapter 518, the child's request for relief was also a request by a party to restrict or terminate visitation based on allegations of abuse and harm to the child. See Minn. Stat. § 518.175, subd. 5 (1996) (court shall modify visitation whenever modification would serve child's best interests). In light of its preliminary finding "that there exists reason to believe that the minor child * * * may be the victim of domestic abuse," the district court was required to hold a complete evidentiary hearing and make findings to support its visitation decision. See Courey v. Courey, 524 N.W.2d 469, 472 (Minn. App. 1994) (holding, in light of allegations that parent abused child, Minn. Stat. § 518.175 required full evidentiary hearing and complete findings to support district court's visitation decision).[2] The findings here are insufficient for this court to conduct meaningful review of the district court's visitation decision. We must remand.

Upon remand, best-interest findings are necessary to support the district court's visitation decision. Minn. Stat. § 518.175, subd. 5; see also Anderson v. Archer, 510 N.W.2d 1, 4 (Minn. App. 1993).[3] If the district court restricts father's visitation, it must find that the previous visitation order is likely to endanger the child's physical or emotional health or impair the child's emotional development. Minn. Stat. § 518.175, subd. 5; Anderson, 510 N.W.2d at 4.

S.S. also alleges the district court erred by not making a finding on the question of abuse. Alternatively, she argues that the court's conditions on visitation, requiring father to refrain from the objectionable behavior, were equivalent to a finding that abuse occurred and required relief under chapter 518B. We conclude that under Minn. Stat. § 518B.01, subd. 6(4), the district court was not required to make an ultimate finding on the abuse issue if the conduct complained of did not endanger the child's safety. See Baker, 494 N.W.2d at 285 (viewed as band-aid approach to curtail harm); Hall v. Hall, 408 N.W.2d 626, 629 (Minn. App. 1987) (affirming broad discretion of district court to fashion relief as long as record supports it), review denied (Minn. Aug. 19, 1987).

While we agree that the district court's order presumes that at least some of the conduct S.S. complained of did occur, we cannot conclude on the record before us that the conduct unequivocally rises to the level of abuse under Minn. Stat. § 518B.01 or endangers the child's safety under Minn. Stat. § 518.175. Accordingly, the district court did not abuse its discretion by failing to find abuse. Nevertheless, we are concerned that under the best-interest analysis of section 518.175 the district court failed to address circumstances that weigh heavily on that analysis. There is evidence in the record that the child threatened to harm herself rather than visit her father. At the very least, a best-interest analysis must be applied to these facts to determine what continuing visitation should be ordered and what emotional supports and safeguards need to be in place to assure that visitation is in the best interest of the child. Even though the specific conduct S.S. complains about may not be endangering her physical and emotional health, the record indicates that the circumstances under which visitation occurs appear to cause extreme trauma to S.S. See Minn. Stat. § 518.175, subd. 5 (court shall modify visitation if it serves the best interest of the child); see also Minn. Stat. § 645.44, subd. 16 (1996) ("[s]hall is mandatory").

We recognize the policy of this state that children of divorce benefit from a relationship with both parents. See Minn. Stat. § 518.175, subd. 1 (court shall grant visitation to enable noncustodial parent and child to maintain relationship). Our decision is not intended to undermine that policy. However, the unique circumstances of this case require unique application of the best-interests analysis to this child, who, for whatever reason, has developed an unhealthy anxiety and fear surrounding visitation with her noncustodial parent. The difficult task of identifying the source of S.S.'s hysteria and evaluating the impact of that source on future visitation must be undertaken. In this case, a sensitively structured visitation may be the only way to serve the best interests of S.S., even if both parents have done their best to encourage a relationship between her and her father. Fault should not be a factor in determining the child's best interests.[4]

We affirm the district court's denial of relief under Minn. Stat. § 518B.01. We remand to the district court for findings under Minn. Stat. § 518.175 and to consider dismissing the child as a party to the dissolution now that a guardian ad litem has been appointed to protect her interests.

Affirmed in part and remanded.

[ ]1Although the child was a proper party in the domestic abuse action under Minn. Stat. § 518B.01, we question the wisdom of making her a party to her parents' dissolution proceeding. We note that the district court has now appointed a guardian ad litem to protect the child's interests in the dissolution proceeding, and the court is free to dismiss the child as a party to that proceeding. See Minn. Stat. § 518.165, subd. 2a (1996) (guardian ad litem shall advocate for child's best interests and monitor those interests throughout the proceedings).

[ ]2While neither party criticizes the scope of the August 16 hearing, S.S. does criticize the district court's restriction of her right to cross-examine the guardian ad litem. Although S.S. has not shown that this procedure was reversible error, the district court on remand may conduct a more complete evidentiary hearing if that is deemed desirable.

[ ]3We recognize that not every motion to modify visitation necessarily requires the findings required here, especially if the motion is denied. Here, however, the district court first found reason to believe abuse occurred. Under these circumstances, the district court was in a position similar to a court considering a modification of custody. Once a party moving to modify custody establishes a prima facie case for modification and an evidentiary hearing is held, a court must make specific findings to support its decision, even if a court denies modification. See Abbott v. Abbott, 481 N.W.2d 864, 867 (Minn. App. 1992) (applying procedure set out in Nice-Peterson v. Nice-Peterson, 310 N.W.2d 471 (Minn. 1981)). Similarly, here, once the district court found reason to believe abuse occurred, it was required to make findings to support its visitation decision, even if that decision was to continue visitation as ordered. See, e.g., Courey, 524 N.W.2d at 472 (full evidentiary hearing protects not only child but also parent accused of abuse).

[ ]4Importantly, it is also the policy of this state that parents encourage their children's relationship with the other parent. See Minn. Stat. §§ 518.17, subd. 1(13) (disposition of parent to encourage frequent and continuing contact by other parent is relevant factor when determining custody); 518.175, subd. 6 (creating remedies including fine and civil contempt for unwarranted interference with visitation).