Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed March 17, 1998
Affirmed in part and reversed in part
Otter Tail County District Court
File No. K7951259
Kent D. Mattson, Pemberton, Sorlie, Sefkow, Rufer & Kershner, P.L.L.P., 110 N. Mill St., P. O. Box 866, Fergus Falls, MN 56538-0866 (for appellant)
Rolf H. Nycklemoe, Nycklemoe, Ellig & Nycklemoe, 106 E. Washington, P. O. Box E, Fergus Falls, MN 56538-0960 (for respondent)
Considered and decided by Huspeni, Presiding Judge, Schumacher, Judge, and Mulally, Judge.[*]
The district court found appellant to be in contempt of court for not complying with an order providing respondent with visitation of their child and ordered that respondent have 30 continuous days of compensatory visitation. The court also denied appellant's motions that a guardian ad litem be appointed, that respondent have a parenting capacity evaluation and a chemical dependency assessment, and that visitation be supervised. Because we see neither abuse of discretion nor error of law in the denial of appellant's motions, we affirm; however, because we see no basis for the finding of contempt and because our review of the record demonstrates that compensatory visitation as ordered would not be in the best interests of the parties' child, we reverse on those issues.
The visits went smoothly initially, but on February 14, 1997, when P.F.S. became upset at the beginning of a visit, appellant said to P.F.S., "You don't want to stay here, do you," picked her up, and carried her out, telling respondent that he was not going to see P.F.S. any more. Respondent has not seen P.F.S. since.
Appellant claims that during a diaper change later that day, P.F.S. said that respondent had put his fingers in her diaper area and that it hurt. Appellant took P.F.S. to her pediatrician, who found no evidence of any abuse but referred appellant to child protection services. P.F.S. was interviewed twice: by a case worker a few days later and by a child psychologist in May 1997. The case worker reported that P.F.S. pointed to her vaginal area and said "[respondent] touched me here," and said she cried when she went to respondent's home. The psychologist reported that because P.F.S. is so young, it is difficult to interpret what she says; that it was impossible to say what actually occurred; and that there were two possible alternatives; that P.F.S. had been hurt during the normal course of a diaper change or bath or that "something explicitly sexual" had occurred. The psychologist noted that she had never met or had contact with respondent, but recommended that he have a parental capacity assessment and that his visits be supervised by neutral third parties until after the assessment.
Respondent was interviewed by the child protection worker in June 1997. She reported that no maltreatment had occurred, but recommended that respondent have a parental capacity evaluation and either report the results of a previous chemical dependency assessment or have another assessment.
Respondent moved for an order finding appellant to be in civil contempt for failing to allow court-ordered visitation and sought 30 continuous days of compensatory visitation; appellant counter-moved for an order appointing a guardian ad litem, requiring respondent to undergo parental capacity and chemical dependency evaluations, and requiring visitation be supervised. Following an August 1997 hearing, the court granted respondent's motions and denied appellant's motions.
1. Compensatory visitation and the finding of contempt
Minn. Stat. § 518.175, subd. 6(b), provides that:
If the court finds that a person has been wrongfully deprived of the duly established right to visitation, the court shall order the custodial parent to permit additional visits to compensate for the visitation of which the noncustodial parent was deprived. Additional visits must be:
(1) of the same type and duration as the wrongfully denied visit * * *.
The construction of a statute is clearly a question of law and thus fully reviewable by an appellate court. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985).
The court found appellant to be in contempt for disobeying the original October 1996 visitation order, ordered that visitation be re-established pursuant to that order, and awarded respondent compensatory visitation for 30 continuous days. Appellant argues that the compensatory visitation is an unauthorized sanction for her contempt. While we cannot agree with appellant's inference that the court awarded compensatory visitation to punish her, we conclude that the record does not support a finding of contempt. Appellant complied with the visitation schedule until February 1997. The report of possible sexual abuse was made in that same month, triggering several months' involvement of the caseworker and the psychologist. Respondent made no attempt to visit P.F.S. between February and August 1997; he did not mention visitation when he spoke with appellant in March, and the parties' attorneys agreed in May that visitation would be suspended until the psychologist's report was received. The only arguably wrongful deprivation of visitation occurred between late July, when the psychologist's report failing to substantiate the charge of abuse was received, and August 25, the date of the hearing. This does not support a finding of contempt for disobeying a visitation order.
Appellant also challenges the compensatory visitation on the ground that a continuous 30-day visit violates the statute because it is not "of the same type and duration" as the visitation respondent was denied. We agree, particularly if the situation is considered from the child's perspective. P.F.S. is now about three and a half years old; respondent last saw her a year ago. While we recognize that respondent's prolonged absence from his daughter's life was an unfortunate circumstance, we must also recognize that spending 30 consecutive days with respondent and away from appellant could be a very unsettling, even traumatic experience, for P.F.S. Moreover, a continuous 30-day visit obliterates the advantages of the graduated visitation schedule that the original order wisely sought to provide. That order allowed for the fact that respondent and P.F.S. had little contact prior to October 1996 when visitation began.
Thirty days of continuous visitation with respondent would not meet the statutory requirement that compensatory visitation be "of the same type and duration" as the visitation of which respondent may have been wrongfully deprived. Nor would it serve the best interests of P.F.S. Development of a loving and nurturing relationship between father and daughter can best be assured, we believe, by re-establishing visitation pursuant to the original order. To the extent the order on appeal provides that re-establishment, we affirm. We reverse the award of 30 days of compensatory visitation.
2. Failure to appoint a guardian ad litem
The standard of review for decisions on appointing a guardian ad litem is abuse of discretion. See Abbott v. Abbott, 481 N.W.2d 864, 870 (Minn. App. 1992). Minn. Stat. § 518.165, subd. 1 (1996), provides that the trial court "may appoint a guardian ad litem" (emphasis added) in cases where visitation of a child is an issue. Minnesota law provides that the court "shall appoint a guardian ad litem" (emphasis added) in such cases "if the court has reason to believe that the minor child is a victim of domestic child abuse or neglect * * *." Minn. Stat. § 518.165, subd. 2 (1996). The court denied appellant's request to appoint a guardian ad litem because it found:
In the report filed by [the psychologist], it was not established that Respondent engaged in improper behavior with the minor child in question. Furthermore, in the report filed by [the child protection worker], it was specifically determined that maltreatment of the minor child by Respondent did not occur. Thus, the allegations made by [appellant] regarding the alleged sexual misconduct of Respondent have not been substantiated.
Absent any reason to believe that P.F.S. was a victim of abuse, the court had no obligation to appoint a guardian ad litem, and there was no abuse of discretion in deciding not to appoint one.
3. Failure to require supervised visitation
The construction of a statute is a question of law and thus fully reviewable by an appellate court. Hibbing Educ. Ass'n, 369 N.W.2d at 529. Appellant contends that the court misconstrued Minn. Stat. § 518.175 by not making findings as to P.F.S.'s best interests and by not requiring supervised visitation. Appellant argues that, pursuant to the statute, the case should at least be remanded for findings. We find no merit in these arguments. Minn. Stat. § 518.175 does not mention findings. Subdivision 1 of that statute specifies that the purpose of visitation is to
enable the child and the noncustodial parent to maintain a child to parent relationship that will be in the best interests of the child.
Subdivision 5 of that statute states that the trial court
shall modify * * * visitation rights whenever modification would serve the best interests of the child * * * [, but] may not restrict visitation rights unless it finds that:
(1) the visitation is likely to endanger the child's physical or emotional health or impair the child's emotional development * * *.
In finding that neither the child protection worker nor the psychologist had substantiated the allegation of abuse, the court in effect found that P.F.S. is not endangered by respondent's visitation. We can see no error of law in either the court's failure to make findings on the child's best interests or its decision not to require supervised visitation.
4. Parenting capacity and chemical dependency evaluations
The trial court has extensive discretion in deciding visitation questions and will not be reversed absent an abuse of discretion. Manthei v. Manthei, 268 N.W.2d 45 (Minn. 1978).
Appellant invoked the "best interests" language of Minn. Stat. § 518.175, subd. 5, to move that visitation be as recommended by the psychologist and child protection worker: contingent on respondent's evaluations for parental capacity and chemical dependency. We note initially that the psychologist had never met respondent and the child protection worker found that P.F.S. had not been abused.
Further, appellant's reliance on Moravick v. Moravick, 461 N.W.2d 408 (Minn. App. 1990), to argue that a trial court must make particularized and detailed findings when determining a child's best interest, is misplaced because Moravick is distinguishable both factually and procedurally. In Moravick, the court determined that visitation was likely to endanger the child's physical or emotional development and ordered that visitation would be re-established when the child's counselor determined it was safe to do so. Id. at 409. When the noncustodial parent moved to reinstate visitation before the counselor determined that it could be accomplished safely, and the district court granted the motion without holding a hearing or making findings, this court reversed and remanded for a hearing to determine the child's best interests. Id.
Here, there was no finding of endangerment. The noncustodial parent moved to modify visitation, a hearing was held, the court found that allegations of abuse by the noncustodial parent were not substantiated, and the motion was denied. There was no basis other than the alleged abuse for modifying visitation, and the court made a specific finding that the abuse had not been substantiated. There was no reason for further findings and no abuse of discretion in the district court's refusal to make visitation contingent on evaluations for parenting capacity and chemical dependency.
The finding of contempt and the award of compensatory visitation are reversed; the denial of the motions for a guardian ad litem, for chemical dependency and parental capacity evaluations, and for supervised visitation is affirmed.
Affirmed in part and reversed in part.
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 The parties disagree as to how upset P.F.S. was when appellant removed her from respondent's house: appellant claims she was crying "uncontrollably" while respondent claims she had begun to calm down.
 This period was roughly commensurate to the fourteen 48-hour weekend visits and twenty-eight 2-hour Wednesday visits respondent missed between February, when visitation stopped, and August, when the hearing was held.
 See also Abbott, 481 N.W.2d at 868 (when a court determines that a party moving for custody modification fails to make a prima facie case, findings are not needed).