This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-99-1603

 

State of Minnesota, ex rel.

Kandiyohi County Family Services,

Respondent,

 

Kristen A. Knutson, as mother and

natural guardian of P.C.K.,

a minor child,

Respondent,

 

vs.

 

Casey S. Korsmo and Cindy Clark,

Appellants.

 

Filed April 25, 2000

Affirmed
Foley, Judge^*

 

Kandiyohi County District Court

File No. F1-97-50718

 

 

Boyd A. Beccue, Kandiyohi County Attorney, 316 S.W. Fourth St., Willmar, MN  56201 (for respondent state)

 

Ramona C. Lackore, P.O. Box 1529, Willmar, MN  56201 (for respondent Knutson)

 

John E. Mack, Mack & Daby, P.A., P.O. Box 302, New London, MN  56273-0302 (for appellants)

 

Considered and decided by Harten, Presiding Judge, Lansing, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Appellant father appeals from an order changing his minor son’s surname, claiming insufficient evidence to support the change and denial of due process.  Appellant paternal grandmother appeals from an order reducing her grandparent visitation, claiming insufficient evidence to support the reduction.  We affirm.

FACTS

            P.C.K. is the nine-year-old child of appellant Casey Korsmo and respondent Kristen Knutson.  The parents have never married.  Knutson has sole custody of P.C.K.  Since P.C.K. was six months old, Korsmo has been incarcerated for aiding and abetting first-degree murder.

            In 1997, Kandiyohi County initiated this paternity action in which Korsmo and the paternal grandmother, appellant Cindy Clark, sought visitation rights with P.C.K.  In September 1998, after an evidentiary hearing, the trial court ordered:  (1) visitation twice per year with the father in prison, but the mother has sole discretion over whether visits occur; (2) mail and telephone contact with the father if he reimburses mother for long-distance calls; (3) visitation with paternal grandmother one Saturday and two weekday nights per month, one summer week, and a Christmas, Easter, and birthday day.

            In April 1999, Clark moved for increased visitation.  Knutson cross-moved to terminate all grandparent visitation and to change P.C.K.’s surname from the father’s surname to her surname.  On July 15, 1999, the trial court ordered that the grandparent visitation be reduced to two hours per month.  On August 24, the trial court ordered that the surname of the child be changed.

D E C I S I O N

I.  Grant of Name Change

            Korsmo claims that the trial court erred in granting the name change and that he was given no full and fair opportunity to contest the name change.

This court reviews name changes under an abuse of discretion standard.  In the Matter of the Welfare of C.M.G., 516 N.W.2d 555, 561 (Minn. App. 1994).  In a contested name change (over objection of one parent), this discretion should be exercised with great caution and only where evidence is “clear and compelling” that the substantial welfare of the child necessitates such change.  In re Saxton, 309 N.W.2d 298, 300-01 (Minn. 1981).

            The court shall grant an application to change the name of a minor child unless “the court finds that such name change is not in the best interests of the child.”  Minn. Stat. § 259.11(a) (1998).  In considering the “best interests,” the trial court may consider: (1) the preference of the child; (2) the effect of the change on the preservation and development of the child’s relationship with each parent; (3) the length of time that the child has borne a given name; (4) the degree of community respect associated with the present and proposed surname; and (5) the difficulties, harassment or embarrassment, the child may experience from bearing the present or proposed surname.  Saxton, 309 N.W.2d at 301.  In weighing these factors, the trial court should set out its reasons for granting or denying the application.  Id.

            Here, the trial court granted the motion, citing the following reasons:  (1) P.C.K. has strongly expressed a preference to his mother and would like his surname to be Knutson; and (2) P.C.K. feels the criminal stigma associated with his father and the Korsmo name and has made efforts to disassociate himself from the name by substituting Knutson for Korsmo on school documents and personal effects.

            The evidence supports these findings, including:  (1) affidavit testimony from Knutson relating that P.C.K. wants the name change, has been teased at school about his name, and is extremely sensitive; (2) a letter from his teacher stating P.C.K. desires to change his name and has received negative comments and deeply personal questions about his name, which cause him to be anxious, nervous, and emotional; (3) the guardian ad litem testified at the name change hearing that she recommended the name change based on her conversations with P.C.K. and discussions with his teacher.  We find that the trial court did not abuse its discretion, as the evidence supports the findings, and the findings are sufficient to support the contested name change.

            Korsmo also claims that he had no “full and fair” hearing on the contested name change.  He claims right to an evidentiary hearing, reasoning that, because the trial court is exercising jurisdiction over the name change motion in this continuing paternity action, he is entitled to all procedures authorized in paternity actions, including a pretrial hearing, opportunity to present witnesses, and even a jury trial.

            There is no support for this claim.  First, although the trial court had continuing jurisdiction under Minn. Stat. § 257.66 (1998) to consider the name change motion, this does not engraft paternity procedures into a name-change proceeding.  The name-change procedures are still governed by the applicable statute (Minn. Stat. § 259.10-11) and case law.  Second, the record shows no formal request for an evidentiary hearing.  Minn. R. Gen. Pract. 303.03(d), governing family court proceedings, contemplates that motions will be submitted on affidavit and documents unless one party requests oral testimony.  The record indicates that Korsmo never requested oral testimony.  Instead, both Korsmo and Clark filed affidavits, before the hearing, containing evidence to support denial of the name change.

Korsmo claims this comment is a request for an evidentiary hearing:

            For these reasons, your Honor, I request that the Court deny the motion or if it is inclined to look at the matter more broadly, consider a continuance to give the -- the father a reasonable chance to submit affidavits and other matters -- in fact, have a deposition -- in order to fully and finally adjudicate this important matter.

 

However, later in the transcript, this exchange occurred:

THE COURT:  Did the parties contemplate taking testimony at that hearing -- at this hearing today?  I’m not certain --

 

LACKORE [RESPONDENT ATTORNEY]:  I was not. 

 

MR. MACK [APPELLANT ATTORNEY]:  I wasn’t given notice that -- that testimony was contemplated.

 

The record shows that Korsmo did not demand such a hearing.  Instead, he chose to submit evidence through affidavit.  There was no error.

II.  Reduction of Grandparent Visitation

Clark claims that there was insufficient evidence to support the reduction in grandparent visitation.

The trial court has broad discretion to determine the “best interests” of the child for visitation and will not be overturned absent abuse of discretion.  Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995) (in context of grandparent visitation).

The grandparent visitation statute permits the district court to grant “reasonable visitation rights” to the minor child if it finds

(1) visitation rights would be in the best interests of the child; and (2) such visitation would not interfere with the parent-child relationship.

 

Minn. Stat. § 257.022, subd. 2 (1998).  In its analysis, the trial court is required to consider “the amount of personal contact between the * * * grandparents of the party and the child prior to the application.”  Id.; see also In re Santoro, 594 N.W.2d 174, 177 (Minn. 1999).  The trial court can also consider the “best interest” factors under the custody dissolution statutes, Minn. Stat. § 518.17, subd. 1 (1998).  Santoro, 594 N.W.2d at 178-79 (reversing order for grandparent visitation where trial court did not consider the strong preference of the child against visitation).

In this case, the trial court ordered reduced grandparent visitation, finding that adhering to the prior September 1998 visitation order would likely endanger P.C.K.’s emotional health and impair his emotional development.^[1]  In support of restriction, the trial court relied on P.C.K.’s strong averse reaction to visitations (ranging from protracted crying and screaming to hiding under beds to avoid visitation) and his clear preference against visitation expressed to the guardian ad litem.  The trial court noted that P.C.K. feels scared and pressured by his grandmother and that he was very capable of expressing his feelings.

The record has ample support for the trial findings.  Knutson submitted a detailed affidavit outlining his averse reaction to each grandparent visit.  She also described specific incidents when Clark had relayed inappropriate messages through P.C.K. that put him “in the middle.”  P.C.K. also told her that he feels very uncomfortable because his grandmother forces him to write letters to his father in prison.  The guardian ad litem related that P.C.K. does not want visits with his grandmother, as he feels scared and pressured.  The guardian spoke with his second-grade teacher, who related that she could see a definite change in demeanor after visits.  The guardian strongly recommended that the visits stop.

The record also contains affidavits from P.C.K.’s day-care mom, a neighbor, and the mother of one of P.C.K.’s friends, all supporting that he reacts very negatively to the grandparent visitations.  In short, the record overwhelmingly supports that the continued visitation is not in the “best interests” of the child.

Clark also criticizes the “paper record” for the motion.  Again, this assertion is without merit because she never requested that the motion hearing include oral testimony as authorized under Minn. R. Gen. Pract. 303.03(d).  Instead, Clark submitted three lengthy affidavits to support her motion, with attached letters, numerous photographs with captions, and a visitation schedule.  She cannot claim that the trial court erred in determining the visitation motion on affidavits.^[2]

Affirmed.