This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1197

 

In re the Custody and Visitation of:  A.P. and K.W.

 

Filed June 19, 2007

Affirmed in part, reversed in part, and remanded

Wright, Judge

 

Benton County District Court

File No. FA-05-3110

 

 

Michael L. Perlman, Perlman Law Office, 10520 Wayzata Boulevard, Minnetonka, MN  55305 (for appellant Sharon Pearson)

 

Cynthia J. Vermeulen, Jacob T. Erickson, Vermeulen Law Office, 26 North Seventh Avenue, St. Cloud, MN  56303 (for respondent Craig Weyer)

 

 

            Considered and decided by Wright, Presiding Judge; Stoneburner, Judge; and Minge, Judge.

U N P U B L I S H E D  O P I N I O N

WRIGHT, Judge

Appellant challenges the district court’s entry of summary judgment on her third-party petition for custody or grandparent visitation, arguing that the district court erred in its application of the law when it held that the doctrines of res judicata and collateral estoppel bar the petition.  We affirm in part, reverse in part, and remand.

 

FACTS

Appellant Sharon Pearson is the maternal grandmother of A.P. and K.W.  Respondent Craig Weyer is their father.  Weyer was married to the children’s mother at the time of her death in May 1999.

In September 2004, Pearson and her husband filed a petition as interested third parties under Minn. Stat. §§ 257C.01, subd. 3(a), .03, subd. 7(a) (2004), in which they sought custody of A.P. and K.W.  While that petition was pending, Pearson and her husband moved for a temporary visitation schedule with the children.  The district court denied the custody petition, holding that it did not establish a prima facie case that grounds exist to modify custody because the petition did not identify specific incidents to support the general allegations that the children were abused, endangered, and neglected.  It also denied the motion for temporary visitation on the ground that Pearson and her husband had not requested permanent grandparent visitation under Minn. Stat. § 257C.08, subd. 1 (2004), as an alternative to their custody request.  We dismissed as untimely Pearson’s appeal of the decision denying the September 2004 petition.

            In December 2005, Pearson filed the instant petition as an interested third party.  Therein, she seeks joint legal and joint physical custody of the children or, alternatively, grandparent visitation under Minn. Stat. § 257C.08, subd. 1.  The petition alleges that Weyer has denied Pearson routine visitation with the children since September 2004 and includes specific examples of the alleged abuse, endangerment, and neglect.  Weyer moved for judgment on the pleadings under Minn. R. Civ. P. 12.03, arguing that Pearson’s petition is barred by the doctrines of res judicata and collateral estoppel.  Because the district court considered matters outside the pleadings, including affidavits submitted by both parties, it treated this motion as one for summary judgment, as required by Minn. R. Civ. P. 12.03 (“If . . . matters outside the pleadings are presented to and not excluded by the [district] court, the motion [for judgment on the pleadings] shall be treated as one for summary judgment . . . .”).  The district court entered summary judgment in favor of Weyer, concluding that Pearson’s petition for custody is barred by the doctrines of res judicata and collateral estoppel and her alternative request for visitation is barred by the doctrine of res judicata.  This appeal followed.

D E C I S I O N

On review from a grant of summary judgment, we consider whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  The applicability of the doctrine of res judicata to preclude a claim is a question of law, which we review de novo.  Hauschildt v. Beckingham, 686 N.W.2d 829, 840 (Minn. 2004).  In contrast, the applicability of the doctrine of collateral estoppel is a mixed question of law and fact.  Id. at 837.  But because the application of collateral estoppel here is in the context of summary judgment, we consider the facts as alleged by the nonmoving party and review de novo whether the district court erred as a matter of law.  Minn. R. Civ. P. 56.03; Williams v. Curtis, 501 N.W.2d 653, 655 (Minn. App. 1993).

Res judicata is a finality doctrine that mandates that there be an end to litigation.  Hauschildt, 686 N.W.2d at 840.  It requires a party to assert all alternative theories of recovery in its initial action.  Id.  The doctrine applies as an absolute bar to all subsequent claims when the initial action (1) involved the same set of factual circumstances; (2) involved the same parties or their privies; (3) was resolved through a final judgment on the merits; and (4) involved claims that the asserting party had a full and fair opportunity to litigate.  Id.  The doctrine of collateral estoppel “is the ‘issue preclusion’ branch of the res judicata doctrine.”  Johnson v. Consol. Freightways, Inc., 420 N.W.2d 608, 613 (Minn. 1988).  It applies to bar the litigation of an issue when (1) the issue is identical to one in a prior adjudication; (2) there was a final judgment on the merits in the prior adjudication; (3) the party asserting the issue was a party or was in privity with a party to the prior adjudication; and (4) the party asserting the issue was given a full and fair opportunity to be heard on the issue during the prior adjudication.  Hauschildt, 686 N.W.2d at 837.

The doctrines of res judicata and collateral estoppel have limited applicability in family-law matters.  Maschoff v. Leiding, 696 N.W.2d 834, 838 (Minn. App. 2005) (citing Loo v. Loo, 520 N.W.2d 740, 743-44 (Minn. 1994)).  Specifically, these doctrines will not bar a subsequent motion to modify matters such as custody, visitation, and spousal maintenance when the motion alleges that circumstances have changed since the earlier decision because a district court has continuing jurisdiction over such matters.  Loo, 520 N.W.2d at 743.  Nevertheless, the doctrines’ “underlying principle that an adjudication on the merits of an issue is conclusive, and should not be relitigated, clearly applies” in family-law matters.  Id. at 744.  And a decision on other issues litigated and determined during the course of deciding a modification motion should be given preclusive effect.  Id. at 743.

We begin our analysis of the district court’s entry of summary judgment by observing the limited nature of our review that results from Pearson’s failure to satisfy her burden to provide an adequate record on appeal.  See Noltimier v. Noltimier, 280 Minn. 28, 29, 157 N.W.2d 530, 531 (1968) (holding that appellant has burden to provide adequate record on appeal).  The record does not include a copy of the 2004 petition for custody, which is relevant to our analysis under the doctrine of res judicata of whether that petition involved the same set of factual circumstances as the instant petition.  The absence of this petition also limits our analysis under the doctrine of collateral estoppel of whether the 2004 petition involved an issue that is identical to one raised in the instant petition.  We, therefore, perform our analysis of each doctrine by considering the district court’s characterization of the contents of the 2004 petition in the order denying it.

From this limited record, we can glean that the 2004 petition involved the same set of factual circumstances as the instant petition.  The 2004 petition alleged, in general terms only, that Weyer abused, endangered, and neglected A.P. and K.W.  The instant petition identifies specific incidents of this alleged abuse, endangerment, and neglect.  But because it does not refer to the dates of the alleged incidents, the instant petition does not establish that any of these alleged incidents occurred after the 2004 petition was filed.  Rather, the petition suggests that these alleged incidents predate the 2004 petition because Pearson states that she has been denied access to the children since September 2004.  We, therefore, conclude that the factual circumstances alleged in both petitions are the same, and the instant petition is not based on changed circumstances.  As such, limitations on the applicability of the doctrine of res judicata in family-law matters are not relevant here.  See Loo, 520 N.W.2d at 743 (holding that res judicata does not preclude subsequent motion to modify custody, visitation, and spousal maintenance when that motion is based on changed circumstances since the prior petition because district court has continuing jurisdiction over such motions).

The second element of the doctrine of res judicata is also satisfied because the 2004 petition involved the same parties as the instant petition, namely, Pearson, Weyer, A.P., and K.W.  The third element, which requires the earlier petition to have been resolved through a final judgment on the merits, is satisfied when, as here, the district court denied the earlier petition because it did not state a claim on which relief may be granted.  See H.J., Inc. v. Nw. Bell Corp., 420 N.W.2d 673, 677 (Minn. App. 1988) (holding that dismissal for failure to state claim on which relief may be granted is judgment on merits), review denied (Minn. May 16, 1988).  And the final element of the doctrine of res judicata—that the party asserting the earlier claim had a full and fair opportunity to litigate that claim—is satisfied because Pearson had the opportunity to, but did not, present evidence in support of her 2004 petition for custody.

Because the elements of the doctrine of res judicata are satisfied, the district court did not err as a matter of law when it determined that the doctrine may be applied so as to bar the instant petition for joint legal and joint physical custody and the alternative request for grandparent visitation, which the district court concluded that Pearson could have, but did not, raise in the 2004 petition.  That the doctrine of res judicata may be applied, however, does not compel a district court to apply it.  Rather, application of the doctrine of res judicata to bar a particular claim is an exercise of the district court’s discretion, which we review for an abuse of that discretion.  Dixon v. Depositors Ins. Co., 619 N.W.2d 752, 755-56 (Minn. App. 2000). 

Here, Pearson had a full and fair opportunity to be heard on her 2004 petition for custody.  She also had ample opportunity to appeal the district court’s dismissal of that petition.  We, therefore, cannot conclude on this record that the district court abused its discretion when it applied the doctrine of res judicata to bar the instant petition for joint legal and joint physical custody.[1] See, e.g., id. at 756 (holding that district court did not abuse discretion when it applied res judicata when appellant “had his day in court and ample opportunity for appeal”); D.H. Blattner & Sons, Inc. v. Firemen’s Ins. Co., 535 N.W.2d 671, 674 (Minn. App. 1995) (concluding that district court properly declined to apply res judicata when “the parties were denied a fair hearing and had no opportunity for judicial review”), review denied (Minn. Oct. 18, 1995).

But we reach a different conclusion regarding the alternative request for grandparent visitation.  In its order denying the requested relief and dismissing the 2004 petition, the district court declined to consider whether Pearson was entitled to grandparent visitation under Minn. Stat. § 257C.08, subd. 1, because Pearson “did not alternatively request grandparent visitation rights.”  Nor did it do so in the instant order.  Rather, the district court concluded that it need not consider the merits of the instant request for grandparent visitation because Pearson could have, but did not, request such alternative relief in her 2004 petition.  Although we agree that res judicata may be applied to bar this request, we conclude that the district court abused its discretion when it chose to apply it.  At stake here is A.P.’s and K.W.’s right to know their grandmother.  See Olson v. Olson, 534 N.W.2d 547, 549 (Minn. 1995) (recognizing that “what is at issue in grandparent visitation cases is the right of the child to . . . know her grandparents, and not the interests of the grandparents” (quotation omitted)).  The state, “in its role as parens patriae, has a compelling interest in promoting relationships among those in recognized family units . . . in order to protect the general welfare of children.”  SooHoo v. Johnson, ___ N.W.2d ___, ___, 2007 WL 1364749, at *5 (Minn. May 10, 2007).  The state codified that interest when it enacted the grandparent-visitation statute, Minn. Stat. § 257C.08, in order to “protect children from losing contact with their grandparents because of disputes between parents and grandparents.”  Olson, 534 N.W.2d at 549 n.3. 

Because important rights and interests are at stake here, the district court abused its discretion when it applied the doctrine of res judicata to bar Pearson’s alternative request for grandparent visitation.  We, therefore, remand to the district court for consideration of the merits of that request.

Affirmed in part, reversed in part, and remanded.