This opinion will be unpublished and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:

Michael David Christensen, petitioner,



Kari Kym Christensen, n/k/a Kari Kym Mitchell,


Filed April 27, 1999


Shumaker, Judge

Redwood County District Court

File No. F896288

Michael L. Perlman, Perlman Law Office, 333 Parkdale Plaza, 1660 South Highway 100, St. Louis Park, MN 55416; and

Raymond O. Walz, Walz Law Office, 230 East Third Street, Box 50, Redwood Falls, MN 56283 (for appellant)

Matthew S. Vickery, 125 Main West, P.O. Box 303, Sleepy Eye, MN 56085-0303 (for respondent)

Considered and decided by Harten, Presiding Judge, Shumaker, Judge, and Foley, Judge.[*]



Appellant Michael David Christensen (father) challenges a trial court order amending the visitation schedule provided in the parties' marriage dissolution, arguing that the modification was not supported by findings of fact and that the trial court abused its discretion by failing to hold an evidentiary hearing. We affirm.


The parties married in September 1994. A daughter was born in November 1995. In April 1996, father began dissolution proceedings. Both parties sought custody of the minor daughter. After a temporary hearing, the trial court appointed a guardian ad litem and awarded temporary custody of the daughter to respondent Kari Kym Christensen (mother) pending the guardian's evaluation and recommendation.

The court later bifurcated the trial, hearing the dissolution, custody, and visitation issues in the first phase.[1]

In October 1997, the trial court awarded the parties joint legal custody of their daughter with physical custody to father. As to visitation the court said:

Visitation. In the event that the parties are unable to agree on the frequency, duration, or conditions of visitation, the following schedule for Respondent [mother] shall apply:

a. Every other weekend, from 6:00 p.m. on Friday until 7:00 p.m. on Sunday evening.
b. One continuous month during the summer.
c. Mother's Day each year.
d. Birthday of the child every second year.
e. The parties shall alternate holidays with the minor child. Holidays are defined as New Year's Eve, New Year's Day, Easter Sunday, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, Christmas Eve, Christmas Day, MEA Break.

In April 1998, mother moved to amend the visitation schedule.

In the second half of the bifurcated trial the court addressed mother's motion and directed the parties to negotiate an expanded visitation schedule. At the close of that phase of the trial court stated:

Every other weekend visitation, it's not a lot of visitation. When I put that in my order, I wanted that to be minimum visitation and I was really hopeful that -- that the parties would be able to have a lot more visitation and to some extent it sounds to me like it started out that way and then I think maybe some bitter feelings kind of got -- got in the way. And whether they are justified or unjustified, I think it's important that there be enough communication so you guys can get over that.

I want more visitation than just every other weekend visitation. I'd like to see some sort of visitation in the middle of that, whether it be telephone visitation or if the parties can agree to -- to, you know, one night during that week. I'd like to see you guys settle this case yourself.

I'll appoint a visitation expeditor if that's really necessary but I have a hunch that if you guys settle down, I think that you can -- that you guys can work something out yourself, I think it's really important that you do.

As a follow-up to its ruling from the bench, the court issued an order finding, among other things, that:

The existing order regarding visitation does not give the mother sufficient time with her daughter, * * *, to maintain a child to parent relationship. The court intends to expand visitation but like [sic] to give the parents an opportunity to negotiate a schedule that both parties can agree to. The court would like to see this visitation include telephone visitation once per week at a time and day agreed upon by the parties and visitation on alternating holidays, with Christmas split between Christmas eve with one parent and Christmas eve with the other. * * * If the parties are not able to agree upon a modified visitation schedule, then each party shall submit a proposed schedule to this court and this court will issue an amended order.

Because the parties were unable to reach a visitation agreement, the court modified the visitation schedule as follows:

That the respondent [mother], shall be entitled to reasonable and liberal visitation. That if the parties are otherwise not able to agree on the frequency, duration, location, or conditions of respondent's visitation, the following schedule shall apply:

(a) Respondent shall be allowed visitation on alternating weekends from Thursday at 10:00 a.m. until Sunday at 7:00 p.m. and every other week from Wednesday at 10:00 a.m. until Friday at 10:00 a.m. In addition, the respondent shall be entitled to a telephone call to [daughter] on Mondays at 12:00 noon.


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, 45-46 (Minn. 1978).


Under the statute governing modification of visitation, the "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 (1998). On the other hand, the court may not restrict visitation rights without a finding of endangerment or the noncustodial parent's chronic and unreasonable failure to comply with court-ordered visitation. Id.; see also Anderson v. Archer, 510 N.W.2d 1, 4 (Minn. App. 1993) (defining restriction as "[a] substantial alteration of visitation rights"); see Lutzi v. Lutzi, 485 N.W.2d 311, 315 (Minn. App. 1992) (best-interests standard applies to visitation modification unless substantial modification is proposed, such as restriction or reduction of visitation, then endangerment standard applies).

Here, father argues that the visitation modification ordered by the trial court substantially reduces the amount of time he can spend with his daughter and is tantamount to a change of custody.

A modification of visitation that "results in a reduction of total visitation time, is not necessarily a 'restriction of visitation'." Danielson v. Danielson, 393 N.W.2d 405, 407 (Minn. App. 1986). When determining whether a reduction constitutes a restriction, the court should consider the reasons for the change as well as the amount of the reduction. See Danielson, 393 N.W.2d at 406-07 (best-interests standard applies following removal of children to Montana, which dramatically changed visitation); Clark v. Clark, 346 N.W.2d 383, 385-86 (Minn. App. 1984) (gradual reduction of visitation from reasonable and liberal visitation to five and one-half weeks per year during four-year period following removal of child from Minnesota constituted restriction of visitation rights), review denied (Minn. June 12, 1984); Auge v. Auge, 334 N.W.2d 393, 400 (Minn. 1983) (when modification of visitation is required due to removal of child from jurisdiction, district court shall make reasonable and necessary adjustments to visitation schedule, provided the adjustments are in child's best interests).

Father's time with his daughter has been modified but not restricted. His argument that the modification "virtually changed a custody and visitation order into a joint custody arrangement" is not supported by the record. The record reveals that under the previous visitation schedule mother had two full days and four half days of visitation a month, whereas father was given 22 full days and four half days a month. The new schedule gave mother six full days and eight half days a month and father retained 14 full days and eight half days. The change in the visitation schedule does not substantially alter father's visitation rights and, therefore, cannot be categorized as a restriction. See Anderson, 510 N.W.2d at 4 (restriction is substantial alteration of visitation rights).

We must next address whether the visitation modification was in the best interests of the child. Father contends that the court was required under Minn. Stat. § 518.175 (1998) to make findings as to the daughter's best interests to support the modification. He argues that, according to the statute, the case should at least be remanded for findings. Written findings are not always required for visitation modifications, but it is the better practice to include them. See Haala v. Haala, 354 N.W.2d 121, 122-23 (Minn. App. 1984) (remanding for further testimony and express findings, even though findings not "mandatory" in all cases of visitation modification). But see Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992) (when a court determines that a party moving for custody modification fails to make a prima facie case, findings are not needed).

Minnesota law provides that

the court shall, upon the request of either parent, grant such rights of visitation on behalf of the child and noncustodial parent as will enable the child and the noncustodial parent to maintain a child to parent relationship that will be in the best interests of the child.

Minn. Stat. § 518.175, subd. 1(a) (1998).

Here, the trial court specifically found in its April 1998 order that the existing visitation order did not give mother sufficient time with daughter to maintain a child-parent relationship. The trial court noted from the bench as well as in its written orders that the original schedule was the bare minimum and was set up in hopes that the parties could reach an agreement as to additional times. In finding that mother could not maintain an adequate parent-child relationship, the court in effect found that the previous visitation schedule was not in daughter's best interests. Under the circumstances of this case, more extensive findings were unnecessary.

Given the trial court's broad discretion in this area, it appears that the trial court properly acted in the child's best interests because the previous schedule negatively affected the parent-child relationship. See Bear v. Bear, 415 N.W.2d 389, 393 (Minn. App. 1987) (trial court has broad discretion to decide how to serve child's best interests in area of visitation). Here, the trial court properly concluded that a modification of visitation was necessary to maintain the child's relationship with mother. See Clark, 346 N.W.2d at 385 (intent of visitation statute is to allow child to maintain a two-parent relationship).


Father also contends that the trial court abused its discretion by failing to hold an evidentiary hearing. Neither party requested an evidentiary hearing. See Minn. R. Gen. Pract. 303.03(d) (derived in part from Minn. R. Fam. Ct. P. 2.04, requiring that a party requesting an evidentiary hearing file a written demand). Furthermore, the court allowed appellant father to testify and present evidence at the April 1998 hearing as to why he opposed changes in the visitation schedule. On appeal, father fails to state what evidence he was deprived of presenting or how additional evidence might have changed the court's ruling.

Assuming, arguably, that the April 1998 hearing did not constitute an evidentiary hearing, the court's failure to do so is not an abuse of discretion as there is authority for limiting the use of evidentiary hearings when insubstantial alterations are made. See Minn. R. Civ. P. 43.05 (describing trial court's role in directing scope of evidence); Saturnini v. Saturnini, 260 Minn. 494, 496, 110 N.W.2d 480, 482 (1961) (quoting Strom v. Montana Cent. Ry. Co., 81 Minn. 346, 349, 84 N.W. 46, 47 (1900)) (it is discretionary with trial court as to whether oral testimony may be presented).

There is also precedent for making ordinary adjustments of visitation without an evidentiary hearing. Lutzi v. Lutzi, 485 N.W.2d 311, 316 (Minn. App. 1992) (citing Auge, 334 N.W.2d at 397, 400) ("removal from state may be permitted without a hearing, and trial court has obligation in these situations to make appropriate modifications of visitation").

Under these circumstances, the trial court did not abuse its discretion in modifying the prior visitation order or in failing to provide a separate evidentiary hearing on the visitation issue.


[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] The remaining issues, including property division, child support, and attorney fees, were reserved to be determined at a later date.