This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-97-1984

In Re the Marriage of:

Robin L. Guthmiller, petitioner,

Appellant,

vs.

Sheryl A. Guthmiller,

Respondent.

Filed July 7, 1998

Affirmed

Forsberg, Judge*

Dakota County District Court

File No. F6-95-15700

*Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, 10.

Thomas L. Iliff, 2372 Leibel Street, White Bear Lake, MN 55110 (for appellant)

Aldo J. Terrazas, 701 4th Avenue South, Suite 500, Minneapolis, MN 55415 (for respondent)

Philip N. Scheide, Esq., 2500 W. County Road 42, Suite 125, Burnsville, MN 55337 (Guardian Ad Litem)

Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Forsberg, Judge.

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

FORSBERG, Judge

This appeal is from a trial court order denying appellant/father Robin L. Guthmiller's motion for amended findings of fact and conclusions of law or, in the alternative, a new trial. Guthmiller appeals, arguing that the requirement of supervised visitation with his minor son interferes with his right to reasonable visitation and the trial court erred by considering ex parte communications in determining that he was in arrears as to his court-ordered child support. We affirm.

D E C I S I O N

Visitation

Trial courts have extensive discretion in deciding visitation questions and will not be reversed absent an abuse of discretion. Manthei v. Manthei, 268 N.W.2d 45, 46 (Minn. 1978).

Guthmiller argues the trial court abused its discretion in denying his motion for amended findings of fact and conclusions of law or, in the alternative, a new trial. He contends no basis exists for the trial court's determination that visitation with his son should be supervised. Guthmiller claims that, although his ex-wife testified to several instances of his abusive behavior toward her, there were no instances of abusive behavior toward their minor son. He further argues that the guardian ad litem's testimony confirms that the minor child is not at risk for being harmed, and the court should have followed the recommendation that the "best interests of the child" are served by ordering unsupervised visitation.

A trial court shall modify visitation if it serves the child's best interests. Minn. Stat. 518.175, subd. 5 (1996); see also Minn. Stat. 518.17, subd. 1 (1996) (listing factors to be considered when determining child's "best interests"). The court may not restrict visitation unless it finds that visitation is "likely to endanger the child's physical or emotional health or impair the child's emotional development; * * * ." Id.; see also Anderson v. Archer, 510 N.W.2d 1, 4 (Minn. App. 1993) (to restrict visitation, courts must find that current visitation endangers child's health or development). Furthermore, deference must be given to the opportunity of the trial court to judge the credibility of the witnesses. Minn. R. Civ. P. 52.01.

In the original judgment and dissolution decree, the trial court noted that Guthmiller's ex-wife had been the victim of domestic abuse on several occasions. The court also noted that at least two of the incidents occurred when the ex-wife was pregnant. The court then noted that Guthmiller was convicted of domestic abuse when the parties vacationed in Florida because he threw sand at his ex-wife while the minor son was present. The trial court then noted that Guthmiller completed a domestic abuse program in Minnesota, but could benefit from ongoing anger management therapy. The court further noted that, because of Guthmiller's actions, his ex-wife made a request to check on the minor son periodically during Guthmiller's week-long visits after she relocated to Florida. Based on this information, the trial court concluded that the best interests of the minor son would be served if the child's mother were allowed to periodically check on the child's welfare during extended visits with Guthmiller.

On this record, we cannot say that the trial court's order of supervised visitation constitutes an abuse of discretion. We observe that the trial court properly considered the best interests of the child in determining that supervised visitation was warranted. We note that in his brief, Guthmiller impliedly concedes that he has exhibited instances of abusive behavior toward his ex-wife. He further concedes that he was convicted of domestic abuse in Florida and has attended counseling for that matter. Although the guardian ad litem testified that supervised visitation was not warranted, the trial court is in the best position to evaluate the testimony of the witnesses. See Minn. R. Civ. P. 52.01. Under these circumstances, granting Guthmiller's ex-wife the opportunity to periodically check on the welfare of their child neither impinges on nor interferes with Guthmiller's visitation right.

Ex Parte Communication

Next, Guthmiller argues the trial court abused its discretion by relying on an ex parte communication from his ex-wife to determine that he was in arrears in his child support obligation. He contends that Dakota County Support and Collections erroneously informed the trial court that he had not fulfilled his child support obligations for August and September 1997 based on his ex-wife's information. He claims that this misinformation resulted in the trial court awarding his ex-wife the sum of $7,312.34, including $1,050 in support arrearages that he contends were already paid.

[W]here the broad and sound discretion of the trial court is exercised within the limits set out by the legislature, an appellate court will not reverse unless it finds a "clearly erroneous conclusion that is against logic and the facts on record."

Katz v. Katz, 408 N.W.2d 835, 839 (Minn. 1987) (quoting Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984)). "Beyond that, we will not reverse a correct decision simply because it is based on incorrect reasons." Katz, 408 N.W.2d at 839 (quoting Kahn v. State, 289 N.W.2d 737, 745 (Minn. 1980)).

Prior to the hearing, the trial court disclosed to counsel that she received an ex parte call from Guthmiller's ex-wife reporting child support arrears. The trial judge then contacted Dakota County Collections and Support and was told that Guthmiller had not paid support for August and September. Guthmiller indicated that the support had been paid, but presented no evidence of any payments. By order dated September 25, 1997, the trial court ordered him to pay the arrearages and all monies as prescribed in the original order.

We observe that page one of Guthmiller's appendix contains a receipt copy from the Dakota County Collections and Support office indicating that all "support payments are current." However, the report was printed on 10/20/97 and indicated that the support payments were made on 10/10/97 and 10/13/97, which was after the date of the hearing and the entry of the trial court's order.

Because the payments had not been made at the time of the hearing, we cannot say that the trial court's order, including an order for payment of the arrearages, was improper. However, because Guthmiller is now current in his support obligation, this issue is moot.

Attorney Fees

In deciding whether to award attorney fees on appeal, this court must make findings under Minn. Stat. 518.14, subd. 1 (1996) regarding (1) whether there is evidence of bad faith or a frivolous claim; (2) appellant's inability to pay respondent's attorney fees; and (3) respondent's inability to pay her attorney fees.

Because of the frivolous nature of this appeal, we conclude that Guthmiller's ex-wife is entitled to attorney fees in the amount of $2,500. The trial court's order regarding visitation did not infringe on Guthmiller's visitation rights with his child. At the time of the hearing, Guthmiller had not paid his court-ordered child support. Dakota County Collections properly credited Guthmiller's account upon receipt of the payment. Had the arrears been paid prior to trial, there would have been no need for the trial court to order compliance with the original judgment and decree.

Affirmed.