This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C3-99-958

Richard C. Allen, petitioner,
Appellant,

vs.

Lisa M. Allen,
Respondent.

Filed December 7, 1999
Affirmed
Davies, Judge
Concurring in Part, Dissenting in Part, Crippen, Judge

Beltrami County District Court
File No. F8981249

 

Virginia J. Knudson, Borden, Steinbauer & Krueger, P.A., P.O. Box 411, Brainerd, MN 56401 (for appellant)

Ronald S. Cayko, Fuller, Wallner & Anderson, Ltd., P.O. Box 880, Bemidji, MN 56619-0880 (for respondent)

Considered and decided by Crippen, Presiding Judge, Schumacher, Judge, and Davies, Judge.

U N P U B L I S H E D   O P I N I O N

DAVIES, Judge

Appellant challenges the district courtís denial of his requests for child support and for limits on visitation, asserting the court erred in failing to hold an evidentiary hearing. Appellant further challenges the courtís award of attorney fees to respondent. We affirm.

FACTS

In October 1998, appellant Richard C. Allen (father) and respondent Lisa M. Allen (mother) dissolved their 15-year marriage. The dissolution judgment incorporated a stipulation

to settle all matters pertaining to spousal maintenance, property rights, attorneysí fees, child custody and child support, and all other rights and obligations arising from their marital relationship.

The stipulation provided that the parents would share legal custody of their two children, and that father, who has a 100% permanent disability, would have sole physical custody of the children, subject to reasonable visitation. The parties waived spousal maintenance and expressly stated, "The issue of child support shall be reserved."

Less than five months after the dissolution judgment, father filed motions with the district court requesting child support and limitations on motherís visitation privileges, alleging that mother drank excessively and smoked with the children present. Mother submitted affidavits denying the allegations and filed responsive motions asking the court to impose a visitation schedule. She also requested attorney fees based on need, ability to pay, and harassment.

At a hearing, the district court questioned father and both partiesí attorneys. Mother was present but was not questioned, and no sworn testimony was given. The court denied fatherís requests for child support and limits on visitation and granted mother $450 in attorney fees under Minn. Stat. ß 549.211 (1998).

D E C I S I O N

I.

Appellant father contends the district court abused its discretion in denying child support to him as the custodial parent.

A trial court is accorded broad discretion in determining child support. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). Before an appellate court will find that the trial court abused its discretion, there must be a clearly erroneous conclusion that is against logic and the facts on record. Id.

Generally, there is no need to show a change in circumstances to grant child support that has been "reserved" in a judgment. Mulroy v. Mulroy, 354 N.W.2d 66, 69 (Minn. App. 1984). But unusual circumstances permit the court to deny child support that has been reserved. See OíConnor v. OíConnor, 386 N.W.2d 395, 397-98 (Minn. App. 1986) (party bound by initial agreement to reserve issue of child support because little more than one year had passed since agreement and there had been no change in financial circumstances).

The district court concluded that the agreement negotiated by the parties less than five months earlier purported to settle all dissolution issues, including child support, and that father had failed to demonstrate sufficient reason to modify the judgment that was based on the agreement. Contrary to fatherís assertion, the court did not find that father waived his right to child support by reserving the issue in the dissolution agreement. Rather, the court exercised its discretion, as in OíConnor, to hold that the parties were bound--for a time--by their recently negotiated agreement. The trial courtís interpretation of the agreement was not clearly erroneous and the court did not abuse its discretion in denying fatherís motion for child support.

II.

Father asserts that the district court erred in failing to hold an evidentiary hearing concerning visitation issues. We disagree.

Procedural and evidentiary rulings are within the district courtís discretion and are reviewed under an abuse-of-discretion standard. State v. Glaze, 452 N.W.2d 655, 660 (Minn. 1990).

By statute, the court must investigate any specific assertions by the custodial parent alleging that a child is in danger. Minn. Stat. ß 518.175, subd. 5 (1998). The court is required to "hold a hearing at the earliest possible time to determine the need to modify the order granting visitation rights." Id. The statute does not specify what type of hearing is required. The Minnesota Rules of Civil Procedure allow a court to take evidence either by the submission of written documents, through oral testimony, or both. Minn. R. Civ. P. 43.05; see Savoren v. Savoren, 386 N.W.2d 288, 291 (Minn. App. 1986) (finding no abuse of discretion when court declined to allow oral testimony).

We find no abuse of discretion in this case. The district court considered the motions and affidavits from both parties and conducted a limited hearing with all parties present. Father made no demand for sworn testimony before or during the hearing. If father had wished to present further testimony from particular witnesses, he should have made a specific demand. Minn. R. Gen. Pract. 303.03(d). While excessive drinking that could endanger the children is a serious allegation, father failed to support his allegations with evidence sufficiently credible to compel the court to take oral testimony.[1]

III.

Father further challenges the courtís decision to award attorney fees in the amount of $450.

The court may, on its own initiative, award attorney fees under Minn. Stat. ß 549.211, subd. 4(b). But, in the case at hand, there is no showing that the district court complied with the statutory requirement to direct the offending attorney or party to show cause why it is not in violation of the statute. Id.

The court, however, also has authority to award reasonable attorney fees in dissolution cases. Minn. Stat. ß 518.14 (1998). An award of attorney fees under section 518.14 lies within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion. Jensen v. Jensen, 409 N.W.2d 60, 63 (Minn. App. 1987).

The court must make specific findings of the factors on which the award of attorney fees was made or denied. Richards v. Richards, 472 N.W.2d 162, 166 (Minn. App. 1991). Here, the district court concluded that fatherís motion was "frivolous and for harassment," citing the timing of the filing, the absence of any change of circumstances, fatherís failure to provide legal support for his allegations, and his misleading answers to the court. Based on these specific findings, and with deference to the trial courtís ability to judge the credibility of witnesses, we conclude the district court did not clearly abuse its discretion in awarding attorney fees to mother.

Affirmed.

 

CRIPPEN, Judge (concurring part, dissenting in part)

Because the trial court must determine whether or not the children are endangered in visitation contacts, this matter should be remanded for further proceedings.

According to the affidavit appellant submitted to the trial court, respondent "has a severe drinking problem," respondent agreed not to drink in front of the children but has violated this agreement, and the children have reported to appellant that respondent "has picked them up hung over to the extent that she passed out as soon as she got the children home." The affidavit further stated a report of the children that respondent "was so drunk on one occasion while she had the children, that she could not find the ignition key and [one of the children] had to help her start the car;" further, that respondent then "drove with the children in that condition after the vehicle was started."

By statute, the court in these circumstances had a duty to act in the best interests of the children and should have held a hearing "to determine the need to modify the order granting visitation rights." Minn. Stat. ß 518.175, subd. 5 (1998).

The trial court dismissed the report of respondentís "severe drinking problem" because appellant knew of her condition when he agreed to the original visitation arrangement. The court did not determine whether respondent suffers from such a problem or whether it endangers the children. The court found the comments made by the children represented inadmissible hearsay and dismissed the reports on that basis. Again, the court did not determine whether or not the children were in any danger and whether they had in fact been put in a dangerous situation as passengers of a driver who was under the influence of alcohol.

It is debatable whether or not appellant has done what he should to present his claim that the children are endangered. But the resolution of such a claim cannot be completed by judging the adequacy of a partyís presentation of evidence. If "specific allegations" of endangerment are stated, the court must hold a hearing to determine whether or not the allegations are true. Id. The court "shall" modify the visitation arrangement when it would serve the best interests of the child. Id.

Children are vulnerable non-parties in a court proceeding dealing with dissolution of the marriage of their parents. The court's responsibility for their best interests frequently requires direct judicial initiative to determine the facts. See Lucas v. Lucas, 389 N.W.2d 744, 747 (Minn. App. 1986) (remanding for a hearing to obtain reliable information on the current circumstances of the children and whether they were in danger). This is such a situation.

Solely in respect to the visitation topic, I respectfully dissent. I concur in the other conclusions announced in the opinion of the court.

[1] The concerns of the dissent are best resolved by father submitting to the district court, in support of a new motion, admissible and credible evidence that constitutes a showing of mother's continuing alcohol abuse sufficient to require an evidentiary hearing.