CX-99-1833

In Re the Marriage of:

Mary Hope West,

f/k/a Mary Hope Daher, petitioner,

Respondent,

vs.

William Joseph Daher,

Appellant.

Filed May 2, 2000

Affirmed; motion granted

Harten, Judge

Ramsey County District Court

File No. F6-95-2917

William J. Daher, 970 Pickett Street North, 153406, Bayport, MN 55022-1490 (appellant pro se)

John H. Daniels, Jr., Willeke & Daniels, 201 Ridgewood Avenue, Minneapolis, MN 55403-3508 (for respondent)

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

U N P U B L I S H E D O P I N I O N

HARTEN, Judge

Appellant, an incarcerated noncustodial parent, challenges the denial of visitation during his incarceration and the denial of his motion for retroactive modification of spousal maintenance. Respondent, the custodial parent, moves to strike parts of the appendix to appellant’s reply brief. Because we see no abuse of discretion in the denial of visitation or retroactive modification of maintenance, we affirm, and because appellant’s reply brief includes matters not part of the record, we grant respondent’s motion to strike.

FACTS

Appellant William Daher and respondent Mary West, f/k/a Mary Daher, were married in 1993. Their son, J.E.D., was born in 1995. Between December 1996 and February 1997, appellant took part in several robberies, was convicted and sentenced to prison, and remains incarcerated.

In December 1996, respondent petitioned for default dissolution of the marriage. She was awarded sole legal and physical custody of J.E.D. The district court granted respondent’s motion for appellant to have only supervised visitation until he could prove that he had gone for 12 successive months with no positive drug tests and had completed an anger management course. Respondent was also awarded $200 monthly spousal maintenance for 24 months, but appellant made no payments.

During 1997, J.E.D. was brought to the prison to visit appellant, but those visits stopped early in 1998. In December 1998, appellant moved to modify visitation. But resolution of his motion was delayed because he escaped from prison for two days in January 1999. During that time, he threatened to kidnap J.E.D.

Respondent moved for restriction of visitation during appellant’s incarceration and for judgment on spousal maintenance.^[1] Following a hearing, the district court denied appellant’s motion and granted respondent’s motion.

Appellant, acting pro se, contends on appeal that the district court should have provided an evidentiary hearing on his motion and that the court abused its discretion in denying visitation and retroactive modification of maintenance. Respondent also seeks to have portions of the appendix to appellant’s reply brief stricken.

D E C I S I O N

1. Evidentiary Hearing

“The court may * * * restrict a parent’s visitation rights if necessary to protect the custodial parent or child from harm.” Minn. Stat. § 518.175, subd. 5 (1998). Here, the district court denied visitation during appellant’s incarceration based on the affidavits, exhibits, and documents submitted.

Appellant argues that it was the district court’s responsibility to hold a hearing sua sponte and take oral testimony. For this argument, he relies on Courey v. Courey, 524 N.W.2d 469, 472 (Minn. App. 1994), but his reliance is misplaced: Courey is distinguishable.

Courey involved not an incarcerated parent but a parent accused of sexual abuse. The denial of visitation was reversed and the case remanded for an evidentiary hearing because the district court had based the denial

almost solely on Child Protection’s recommendations. The [noncustodial parent] did not have an adequate opportunity to challenge those recommendations and otherwise be heard.

Id. at 472.

Appellant contends that he, like the noncustodial parent in Courey, did not have an adequate opportunity to respond. But the record does not support that contention. Appellant served a lengthy affidavit on respondent’s attorney on June 11, ten days before the June 21 hearing. Respondent served responsive affidavits on June 16, five days before the hearing. Minn. R. Gen. Pract. 303.03(a)(3) provides for service of responsive affidavits five days prior to a hearing. Neither appellant nor his attorney objected to the affidavits on timeliness grounds or requested an evidentiary hearing, and the district court did not err by not providing one.

2. Restriction of Visitation

A court may restrict visitation if it finds that “the visitation is likely to endanger the child’s physical or emotional health or impair the child’s emotional development.” Minn. Stat. § 518.175, subd. 5 (1) (1998). The court has extensive discretion in deciding visitation questions and will not be reversed absent an abuse of that discretion. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).

The district court found that appellant had escaped from prison and threatened to kidnap J.E.D., that he was a continuing threat of violence to respondent and J.E.D., that he continued to use drugs during his incarceration, that earlier attempts to remain alcohol free and drug free had failed, and that appellant had physically abused respondent. The district court then concluded that

the facts and circumstances of this case are such that [appellant’s] past contact with [respondent] has been abusive and has posed a danger to [respondent] and the parties’ son [J.E.D.]. [Appellant’s] conduct continues to present a danger to [J.E.D.’s] physical and emotional health.

3. [Appellant] is currently incarcerated for robbery, and escape charges are presently pending against [appellant.] Under the circumstances, the Court concludes that an order compelling visitation at this time is likely to endanger [J.E.D.’s] health and emotional development. Therefore, [appellant’s] request for visitation with [J.E.D.] is denied while [appellant] remains incarcerated. Upon [appellant’s] release from incarceration he may file a motion to reinstate visitation with [J.E.D.], and at such time, Court Services shall conduct a visitation evaluation. [Appellant] must demonstrate that he can remain alcohol and illegal substance free in a noncustodial setting and avoid abusive contact with the child’s mother.

The district court’s decision to restrict visitation during appellant’s incarceration was not an abuse of discretion.

3. Retroactive Modification of Maintenance

We review a district court’s maintenance award under an abuse of discretion standard. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). Minn. Stat. § 518.64, subd. 2(d) (1998), provides that:

A modification of support or maintenance may be made retroactive only with respect to any period during which the petitioning party has pending a motion for modification but only from the date of service of notice of the motion on the responding party * * *. However, modification may be applied to an earlier period if the court makes express findings that:

* * * *

(3) the order for which the party seeks amendment was entered by default, the party shows good cause for not appearing, and the record contains no factual evidence, or clearly erroneous evidence regarding the individual obligor’s ability to pay.

The district court declined to modify the maintenance award because it found that “[appellant] has not filed such a motion for retroactive relief.”

Appellant nevertheless argues on appeal that he is entitled to retroactive relief because the order for maintenance was entered by default, citing subdivision (d)(3). But he misreads the statute. Subdivision (d)(3) regarding amending awards entered by default provides that a modification may be made retroactive to an earlier date, but it does not eliminate the need for the party seeking retroactive modification to file a motion. The district court did not abuse its discretion in refusing retroactive modification.

4. Motion to Strike

The papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.

Minn. R. Civ. App. P. 110.01. Respondent contends that the appendix to appellant’s reply brief should be stricken because it contains items that are not part of the record. Appellant does not argue that the items were before the district court; rather, he claims he needed them in order to respond in his reply brief to the assertions in respondent’s brief. But “needing” an item not before the district court does not entitle a party to put the item before this court. Respondent’s motion to strike is granted.

Appellant was not entitled to an evidentiary hearing, and the district court did not abuse its discretion in denying either visitation during incarceration or retroactive modification of maintenance.

Affirmed; motion granted.

^[1] Respondent also moved for attorney fees, but the district court denied the motion because appellant is indigent and incarcerated.