This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §480A.08, subd. 3 (1998).




In Re the Marriage of:

Pamela Jean Sorensen, petitioner,



Shawn Everett Sorensen,


Filed March 2, 1999


Anderson, Judge

Clearwater County District Court

File No. F9-91-189

Richard J. Sheehan, Harvey, Sheehan & Capistrant, 7401 Metro Boulevard, #555, Minneapolis, MN 55439-3033 (for respondent)

Thomas L. D'Albani, Cann, Haskell, D'Albani, Schueppert, Hazelton & Rodgers, P.A., P.O. Box 978, Bemidji, MN 56619 (for appellant)

Considered and decided by Anderson, Presiding Judge, Kalitowski, Judge, and Shumaker, Judge.



Appellant challenges the district court's refusal to consider his late affidavit, the modification of his visitation schedule, and the award of attorney fees to respondent. Respondent requests attorney fees for this appeal. We affirm and deny respondent's request for attorney fees.


Appellant Shawn Everett Sorensen and respondent Pamela Jean Sorensen were divorced in 1991. Respondent was granted physical custody of their minor child and appellant was awarded visitation with both the child and their unborn child. Appellant was responsible for picking up the children for visitation and dropping them off. In 1995, respondent moved to Burnsville.

In July 1998, appellant brought a motion to amend the 1991 judgment, requesting additional visitation and that the parties be required to meet approximately halfway between the parties' homes to exchange the children. On July 24, 1998, respondent served and filed her affidavit opposing appellant's motion and seeking attorney fees. At the hearing on July 30, appellant attempted to submit his affidavit to the court; however, the court refused to accept the affidavit because it was not timely filed. Appellant argued that a new issue was raised by respondent's affidavit requesting attorney fees and that he needed to respond. The court replied that it would allow oral testimony regarding attorney fees, but would not accept appellant's late affidavit.

The district court issued an order modifying visitation and requiring appellant to pay $850 in attorney fees to respondent. Appellant was granted visitation for at least one weekend every month; because many are holidays or include the children's days off from school, the weekend visitation typically includes more than just Saturday and Sunday. Appellant previously only had visitation rights consisting of four days per month, exercised as two two-day weekends. Appellant was also given ten more days of visitation during summer vacation, adding to the two weeks he already had. The court modified the decree so that, rather than requiring appellant to both pick up and return the children to their home, respondent now has the responsibility of picking up the children at the end of visitation.



The question of whether to admit or exclude evidence rests within the broad discretion of the trial court and its ruling will not be disturbed unless it is based on an erroneous view of the law or constitutes an abuse of discretion.

Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990) (citation omitted); see also Minn. R. Civ. P. 61 (error in exclusion of evidence is not ground for disturbing an order unless inconsistent with substantial justice); Axford v. Axford, 402 N.W.2d 143, 145 (Minn. App. 1987) (court has discretion to ignore late affidavits).

Appellant argues that respondent's affidavit was filed late and that, because the district court accepted respondent's affidavit, it must accept appellant's untimely affidavit. Respondent's affidavits were served and filed by facsimile on July 24, 1998, six days before the July 30, 1998, hearing. Because respondent raised a new issue with her request for attorney fees, the affidavit was late. See Minn. R. Gen. Pract. 303.03(a)(2) (requiring that responding party raising issues other than those raised in initial motion, shall serve copy of documents, including any relevant affidavits, on opposing counsel and file original at least ten days prior to hearing); Minn. R. Gen. Pract. 303.03(a)(3) (requiring party that is only responding to issues raised in initial motion, shall serve and file documents, including any relevant affidavits, five days prior to hearing, inclusive of Saturdays, Sundays, and holidays).

A district court has discretion to disregard any responsive pleadings that are not timely filed. See Minn. R. Gen. Pract. 303.01 (requiring all motions in family court to contain statement that "court may, in its discretion, disregard any responsive pleadings served or filed with the court administrator less than five days prior to such hearing"); Minn. R. Gen. Pract. 303.03 (b) (allowing court discretion to take appropriate action in response to party's failure to serve and file documents timely).

Appellant cites no authority requiring a district court to treat untimely documents submitted by different parties in the same way. Because the rules give the court the discretion to disregard untimely documents, and because appellant's affidavit was untimely, the district court could disregard that affidavit. In any event, in light of the decision of the district court to take testimony on this issue, appellant is unable to demonstrate prejudice from the alleged disparate treatment of the two affidavits.

The district court did not abuse its discretion by refusing to accept appellant's untimely affidavit.


The district 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, 46 (Minn. 1978); Al-Zouhayli v. Al-Zouhayli, 486 N.W.2d 10, 12 (Minn. App. 1992). A district court "shall modify an order granting or denying visitation rights whenever modification would serve the best interests of the child." Minn. Stat. § 518.175, subd. 5 (1996).

Appellant argues that there has been a substantial modification of appellant's visitation rights because, in 1995, respondent moved the children to Burnsville, more than 260 miles from appellant's home. Relying on Anderson vs. Archer, 510 N.W.2d 1, 4 (Minn. App. 1993), appellant claims that, because the district court did not grant appellant's request for substantially increased visitation rights, a restriction of visitation occurred. Appellant's argument fails because the district court did not "restrict" appellant's visitation but, rather, chose not to adopt appellant's request to increase visitation to nine weeks during the summer. Further, even if a modification of visitation reduces the total visitation time, "`it is not necessarily a `restriction' of visitation.'" Anderson, 510 N.W.2d at 4 (quoting Danielson v. Danielson, 393 N.W.2d 405, 407 (Minn. App. 1986)). In this case, appellant's total visitation time was not reduced. Although there are now some months when appellant may only have the children for two or three days rather than four, there are also months when appellant has the children for more than four days, in addition to having the children for an extra ten days during the summer.

Because the district court did not "restrict" appellant's visitation rights, but rather made a less substantial modification to the visitation decree, the court's determination must be governed by the best-interests standard. See id. (changes in visitation, not amounting to "restriction," are governed by best-interests standard). "The district court has broad discretion to decide how to serve the child's best interests in the area of visitation." Id. at 5. In denying appellant's request for visitation for nine weeks during the summer, the court found that the three weeks as proposed by respondent was more reasonable and appropriate given the facts of this case.

Appellant also argues that the district court did not take into account difficulties associated with travel time resulting from respondent's change of address and these problems constitute a restriction on visitation that is unsupported by any district court findings. Contrary to appellant's assertion, the district court did take into consideration the distance appellant would have to travel if the original visitation decree was not modified. In fact, the court modified the decree after finding that "it would be unfair for [appellant] to bear the entire responsibility of getting the kids back and forth." The court then ordered appellant to pick up the children at the start of each visitation and required respondent to pick them up at the end.

On this record, the modifications of visitation ordered by the district court are reasonable, and therefore, the court did not abuse its discretion.


"Generally, the award for attorney fees [based on Minn. Stat. § 518.14] lies in the discretion of the court." Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987). An award of attorney fees will not be upset absent an abuse of discretion. See. id. The district court "shall" award attorney's fees if it finds that the party from whom fees are sought has the means to pay them, and the party to whom fees are awarded does not have the means to pay them. Minn. Stat. § 518.14, subd. 1 (1996). The district court found: (1) that respondent needed and benefited from the services of counsel; (2) that respondent's income is obviously limited and she does not have the means to pay her attorney's fees; and (3) that appellant is in a position to pay the costs that respondent had to incur in responding to his motion.

The record supports the court's finding that respondent needed and benefited from the services of counsel, and that those fees amounted to $850. The award of fees was not an abuse of discretion.


Respondent requests that this court award her attorneys fees on appeal, arguing that appellant has brought a frivolous appeal in bad faith and for the purpose of harassment. Respondent has failed to specify any authority for her attorney fees request and has not properly moved for attorney fees under Minn. Stat. § 549.211, subd. 4 (Supp.1997) (requiring motion for sanctions be first served and not filed or presented to the court unless, within 21 days after service, the challenged claim is not withdrawn). In addition, appellant did not file this appeal in bad faith. Therefore, we decline to award respondent fees based on Minn. Stat. § 549.211, subd.4. Respondent did not make a need based request for attorney fees under Minn. Stat. § 518.14, and there is insufficient evidence in the record for this court to make an independent award of attorney fees based on need.