may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Patrick Lawrence Martin, petitioner,
Cynthia Kay Martin,
Filed May 20, 1997
Affirmed in part, reversed in part, and remanded
Dakota County District Court
File No. F3-94-14364
Mark Gray, 1422 West Lake Street, Suite 320, Minneapolis, MN 55408-2656 (for Appellant)
Linda L. Pollmann, 1021 Sibley Memorial Highway, Suite 407, Mendota Heights, MN 55118 (for Respondent)
Considered and decided by Davies, Presiding Judge, Norton, Judge, and Mulally, Judge.[*]
Appellant contends that the trial court abused its discretion by: 1) failing to award him compensatory visitation; 2) modifying his visitation rights; 3) ordering him to attend anger counseling; 4) modifying his child support obligation; and 5) ordering him to pay daycare costs. Respondent contends that the trial court abused its discretion by denying her motion for attorney fees. The trial court's denial of compensatory visitation, modification of child support, and daycare cost order are not supported by sufficient findings. We affirm in part, reverse in part, and remand.
In May 1996, father filed a postdecree motion requesting: 1) compensatory visitation; 2) a set visitation schedule; 3) an order that mother vacate the marital homestead; 4) a reduction in his child support obligation; and 5) attorney fees. Mother filed an answer requesting: 1) that father be ordered to attend anger management counseling; 2) a visitation modification; 3) an increase in child support; and 4) attorney fees. Father filed an amended motion seeking reimbursement of daycare expenses he had paid to mother.
The trial court issued an order: 1) denying father's motion for compensatory visitation; 2) continuing father's motion for visitation modification until the court received a recommendation from the guardian ad litem; 3) ordering mother to vacate the marital homestead; 4) increasing father's child support obligation; 5) denying father's motion for reimbursement of daycare costs; 6) ordering father to pay mother $212 per month for daycare expenses; 7) continuing mother's request that father attend and complete anger counseling until the court received a recommendation from the guardian ad litem; and 8) denying both parties' requests for attorney fees. Later, pursuant to the recommendations of the guardian ad litem, the court issued an order setting visitation and requiring father to attend anger counseling.
The trial court has extensive discretion in deciding visitation issues and will not be reversed absent an abuse of discretion. Manthei v. Manthei, 268 N.W.2d 45, 45-46 (Minn. 1978). Parental visitation rights are not absolute and can be exercised only when the child's best interests are served. Id. at 45; Minn. Stat. § 518.175, subd. 1 (1996).
First, father argues that the trial court abused its discretion by denying him one weekend of compensatory visitation. See Minn. Stat. § 518.175, subd. 6(b) (providing that court shall order custodial parent to permit additional visits to compensate for visitation which noncustodial parent was wrongfully deprived). Father alleges that he was wrongfully deprived of a scheduled visit with the children on April 27, 1996.
The trial court's order simply states that father's "request to be awarded one weekend of compensatory visitation with the minor children should be denied." Meaningful appellate review is impossible unless the trial court makes detailed findings demonstrating its consideration of relevant factors. Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989); see also Minn. R. Civ. P. 52.01 ("In all actions tried upon the facts without a jury * * * , the court shall find the facts specially and state separately its conclusions of law"). The trial court's finding is inadequate because it is conclusory and fails to state why father was not "wrongfully deprived" of visitation. Moreover, the trial court failed to make a finding regarding whether father had failed to exercise his visitation rights in a predictable or timely manner as mother had alleged. See Gregory v. Gregory, 408 N.W.2d 695, 698 (Minn. App. 1987) (father was properly denied compensatory visitation where trial court found that he had failed to cooperate in establishing regular visitation schedule). Therefore, we reverse this issue and remand for findings regarding whether father was wrongfully deprived of visitation with the children and whether father had exercised his visitation rights in a predictable and timely manner. Furthermore, the trial court, in its discretion, is permitted to open the record for further factfinding.
Second, father contends that the trial court abused its discretion by "suspending" his visitation rights. The trial court continued father's request for visitation modification until after it received the guardian ad litem's recommendation. This continuance did not constitute a suspension of father's visitation rights. Father was still able to exercise his right to "reasonable" visitation under the dissolution decree.
Finally, father argues that the trial court abused its discretion because the order setting a visitation schedule lacked supporting findings. The trial court's order provided:
[V]isitation between [father] and the minor children in this matter shall be on a schedule and subject to the conditions as set forth in the letter of November 1, 1996 from the guardian ad litem to the undersigned which is attached hereto and made a part of this order.
The findings father seeks are found in the guardian ad litem's incorporated letter. The letter from the guardian ad litem reports on interviews with father, mother, and the children and proposes a visitation schedule between father and the children. The trial court's modification of visitation was based on sufficient findings and was not an abuse of discretion.
2. Anger Counseling
Father alleges that the trial court's order requiring him to attend anger counseling is not supported by adequate findings. As was the case with regard to visitation, the requisite findings are contained in the incorporated letter from the guardian ad litem. In the letter, the guardian ad litem stated that father had exhibited anger toward his ex-wife that could affect the welfare of the children. The trial court's order that father attend anger counseling is not an abuse of discretion.
3. Child Support
The trial court has broad discretion to provide for the support of the parties' children. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). An appellate court shall not reverse the trial court's decision on child support unless the decision was clearly erroneous. Id. at 51.
Father alleges that the trial court erred by finding that a substantial change in circumstances had not occurred. Modifications of child support orders are governed by Minn. Stat. § 518.64, subd. 2 (1996), which provides that the court may modify the terms of a support decree if a party shows one or more of the following:
(1) substantially increased or decreased earnings of a party;
(2) substantially increased or decreased need of a party or the child or children * * * ;
(3) receipt of assistance under sections 256.72 to 256.87 * * * ; [or]
(4) a change in the cost of living for either party as measured by the federal bureau of statistics, any of which makes the terms unreasonable and unfair.
The court must make specific findings regarding these factors. Moylan v. Moylan, 384 N.W.2d 859, 864-65 (Minn. App. 1986).
The trial court failed to make findings on any of the factors in section 518.64, subdivision 2. The trial court only made the conclusory finding that a substantial change in circumstances had not rendered the original support obligation unfair or unreasonable. This finding is insufficient to enable us to determine whether the trial court considered the relevant factors in denying a child support modification.
Moreover, the trial court's finding that father earns $1,872 per month, the same figure in the dissolution decree finding, lacks a reasonable basis in fact. See Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn. App. 1987) (court will affirm finding regarding income if it has reasonable basis in fact). Father presented evidence that his income had substantially decreased since the dissolution decree due to physical injuries. At the time of the parties' dissolution, father was employed as a subcontractor, which required him to lift heavy objects. Following an automobile accident in July 1995 and a work injury in October 1995, father's chiropractor imposed an on-the-job weight-lifting restriction of 25 pounds. Father argues that, since the weight restriction has been imposed, he has been unable to maintain the income level found in the dissolution decree. Father alleges that the only income that he has received since January 1, 1996, is the $1,000 per month compensation from his automobile insurer. Father asserts that in order to meet his monthly expenses, he has had to liquidate many of his assets. The trial court made no findings regarding father's income sources, or lack thereof.
We reverse this issue and remand for findings regarding father's income and the factors governing child support modifications under Minn. Stat. § 518.64, subd. 2. Once again, we provide that the trial court may, in its discretion, open the record for further factfinding.
4. Daycare Expenses
Father alleges that the trial court's order that he pay $212 per month for daycare costs is not supported by adequate findings. We agree. The trial court made no finding supporting this order. Therefore, we reverse this issue and remand for findings on father's income and ability to pay daycare costs.
5. Attorney Fees
Mother alleges that the trial court abused its discretion when it failed to award her attorney fees. Generally, the award of attorney fees is in the discretion of the trial court. Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987). The court may award attorney fees to "enable a party to carry on or contest the proceeding." Minn. Stat. § 518.14, subd. 1 (1996).
The trial court found that mother was employed and had net income of $1,460 per month. The trial court's finding, and the evidence in the record to support it, indicate that mother has sufficient funds to pay her own attorney fees. The trial court's decision to deny mother attorney fees was not an abuse of discretion.
Affirmed in part, reversed in part, and remanded.
[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
[ ]1 Father alleges that when he attempted to visit the children at daycare after the October 8, 1996, court order, he was arrested. Father's cite to this arrest is misleading. Father was actually arrested for visiting the children at daycare in violation of an order for protection which had been issued.
[ ]2 Additionally, father alleges that the guardian ad litem's recommendations are not supported by any evidence. Specifically, father alleges that the guardian ad litem's recommendation that the children not stay overnight with him is improper because the guardian ad litem failed to state why father does not have a proper home. The guardian ad litem denied overnight visits until father's anger counselor reported to the court, not because father did not have a proper home. (Although the guardian ad litem did advise that, if father was ever to have the children overnight, he should provide them proper sleeping quarters.)