This opinion will be unpublished and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:

Mary Rose Ziermann, petitioner,



Douglas Richard Ziermann,


Filed June 1, 1999


Huspeni, Judge[*]

Carver County District Court

File No. F2-93-365

R. Kathleen Morris, Morris & Wolf, 404 First Avenue East, Shakopee, MN 55379 (for respondent)

T. Oliver Skillings, Halverson Law Office, P.O. Box 3544, Mankato, MN 56002-3544 (for appellant)

Considered and decided Kalitowski, Presiding Judge, Huspeni, Judge, and Norton, Judge.[**]



Appellant contests the district court's denial of his motion to compel supervised visitation with his minor children, and its grant of attorney fees to respondent. We affirm.


The parties' marriage was dissolved pursuant to a stipulated decree in September 1993. Respondent was granted sole physical and legal custody of the parties' six children. Regarding visitation with the children, all then minors, the decree provided that:

Any visitation by the [appellant] with the children shall be arranged and supervised by Carver County Community Social Services with input from Gerard of Minnesota and First Street Center.

(At the time of the judgment, Gerard of Minnesota and First Street Center provided counseling for the children.)

Visitations between appellant and the children occurred in 1993, but did not go well. A counselor at First Street Center in an August 1993 letter to Carver County Social Services recommended that no visits occur for a time until appellant became "more capable of interacting with his children in a positive manner." In February 1994, the district court, in extending respondent's order for protection against appellant, stated that "to the extent it is not inconsistent with the * * * dissolution file" the following applied:

[Appellant's] visitation and contact with the minor children of the parties is to be arranged through Carver County Community Social Services. To the extent that the [appellant] has failed to complete the appropriate counseling dealing with family violence and parenting issues, or has failed to follow the reunification plan recommended by Carver County Social Services, he shall not be allowed visitation with his minor children.

Appellant completed the required counseling programs in March 1995. Upon completion, however, appellant contacted Carver County Social Services and declared that he did not want visitation with his children until the order for protection expired. The order in place at that time would not expire until February 1996. In January of 1996, appellant called Social Services and stated that he wanted to resume visitation. Three visits took place in February and March 1996, none of which went well. Moreover, the twins, J.Z. and P.Z., then age 11, who had not had disciplinary problems earlier that school year, had behavioral problems at school and at home directly after the visits with their father.

In a report dated March 1996, a Carver County social worker recommended that: (1) visitation be suspended, (2) respondent obtain counseling for the children through First Street Center, (3) Social Services obtain recommendations from First Street Center as to how to help improve the children's relationship with appellant, and (4) appellant participate in the counseling as recommended.

Visitation was suspended in March 1996, but appellant took no steps to have visitation until the summer of 1998. The children of the parties who are still minors are the twins, now age 14, and B.Z., age 10.

In July 1998, appellant moved to compel visitation, sought the return of personal property,[1] and requested $750 in attorney fees. Respondent requested denial of appellant's motion and an award of attorney fees, but also requested that Carver County Social Services meet with the children and make recommendations regarding visitation.

The district court denied appellant's motion and granted respondent's. Carver County Social Services met with the minor children and recommended that they continue to be assured that the county would arrange for supervised visits, but that the children should not be required to visit their father against their will.

In October 1998, appellant moved for an evidentiary hearing regarding visitation. The court denied appellant's motion. It is from both orders that appellant appeals.


Appellant contests the district court's denial of his motion to compel visitation without conducting an evidentiary hearing. The district courts have broad discretion in determining questions regarding visitation. Kulla v. McNulty, 472 N.W.2d 175, 183 (Minn. App. 1991), review denied (Minn. Aug. 29, 1991). This includes the decision of whether to hold an evidentiary hearing. Id. This court's inquiry is limited to whether the district court's findings are supported by the record and whether the district court appropriately applied the law. Id. Findings of fact regarding visitation cannot be set aside unless clearly erroneous. Id.

The district court characterized appellant's motion to compel visitation as a modification of the decree, in which the parties stipulated that any visitation would be arranged and supervised by Carver County Community Services. The court then found appellant had failed to present a prima facie case that modifying visitation was in the children's best interests. See Minn. Stat. § 518.175, subd. 5 (1998) (district court to modify order granting or denying visitation rights whenever modification would best serve the children's best interests); Lutzi v. Lutzi, 485 N.W.2d 311, 316 (Minn. App. 1992) (proponent of a change in a visitation order is entitled to an evidentiary hearing upon showing of prima facie case for the requested modification).

The district court did not err in its characterization of the motion as one for modification or in its conclusion that appellant failed to establish a prima facie case for modification. Appellant sought to change the stipulated provision of the decree that states, "[a]ny visitation by the [appellant] with the children shall be arranged and supervised by Carver County Social Services * * *" (emphasis added). Taking visitation out of the hands of Carver County Social Services and having the court compel it would constitute a modification of the decree.

In support of his motions, appellant presented only the statement that it was in the children's best interests to have a continued relationship with their father. In light of the history of the parent-child relationships, the district court did not err in finding that this was not enough to establish a prima facie case for modification.

We are not insensitive, nor was the district court, to appellant's desire to see his children and to re-establish parent-child relationships with them. We also appreciate appellant's frustration with Carver County Social Services' determination that it has done all that it can to foster the father-child relationships, absent a willingness on the children's part to see him. But the record clearly demonstrates that actions of the appellant are a very substantial cause of the poor relationships between him and the children and that appellant has only sporadically taken steps to improve the situation. We support the district court's suggestion that appellant continue to take steps, short of seeking to compel immediate visitation, to improve the relationships, including seeking psychological counseling and perhaps the appointment of a guardian ad litem to represent the children with a view toward reconciliation.

Additionally, appellant contends the district court erred in awarding respondent $750 in attorney fees. We see no error. An award of attorney fees lies almost entirely within the district court's discretion. Solon v. Solon, 255 N.W.2d 395, 397 (Minn. 1977). "Fee awards under Minn. Stat. 518.14 may be based on the impact a party's behavior has had on the costs of litigation regardless of the relative financial resources of the parties." Dabrowski v. Dabrowski, 477 N.W.2d 761, 766 (Minn. App. 1991) (citation omitted).

The district court found that appellant "brought this motion with the intent to burden [respondent] and cause unnecessary delay in these proceedings" and therefore granted attorney fees. This finding is not clearly erroneous. Appellant presented minimal evidence in support of his position that mandatory visitation was in the children's best interests. The district court's award of attorney fees to respondent was not an abuse of discretion.


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

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

[1] Appellant does not pursue return of personal property on appeal, and describes this issue as one "not of major importance."