A06-1749

Antonio I. Kartalozi, petitioner,

Appellant,

vs.

Melissa Kartalozi,

Respondent.

Filed July 24, 2007

Affirmed; motion denied

Willis, Judge

Hennepin County District Court

File No. MF288901

Antonio I. Kartalozi, 2832 Humboldt Avenue South #14, Minneapolis, MN 55408 (pro se appellant)

Melissa Kartalozi, c/o Tom Fiutak, 5770 West Bald Eagle Boulevard, White Bear Lake, MN 55110 (pro se respondent)

Considered and decided by Randall, Presiding Judge; Klaphake, Judge; and Willis, Judge.

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

WILLIS, Judge

On appeal in this parenting-time dispute, pro se appellant-father argues that (1) the district court abused its discretion by denying his motion for unsupervised parenting time without adequately considering the children’s best interests; (2) the guardian ad litem (GAL) failed to perform her statutory duties properly; and (3) the district court abused its discretion by awarding conduct-based attorney fees to mother. Because the district court did not clearly err by finding that father failed to show that unsupervised parenting time would be in the children’s best interests, the GAL properly performed her duties, and the district court did not abuse its discretion by awarding attorney fees to mother, we affirm.

FACTS

A Florida state court dissolved the four-year marriage of appellant Antonio Kartalozi (father) and respondent Melissa Kartalozi (mother) in 2003. The parties have two children: A.K., born in March 2000, and I.K., born in May 2002.

Mother grew up in Minnesota. Father became a naturalized United States citizen in 1997. The parties married in 1999, and their first child was born in Minneapolis. They then lived briefly in Albany, New York, and moved to Florida in 2001. Mother alleges that in October 2001, after she became pregnant with the parties’ second child, father punched and slapped her in front of the parties’ child, saying, “If you keep this baby, you and it will die.” The Florida court granted a permanent “Injunction For Protection Against Domestic Violence with Minor Children,” enjoining father from having contact with mother.

Father petitioned for a divorce, and the Florida court ordered a custody evaluation, including psychological evaluations of both parties. As part of father’s evaluation, Dr. Stephen Bloomfield concluded that father displayed characteristics of narcissistic, paranoid, and obsessive/compulsive personality disorders. Bloomfield assessed mother with characteristics of battered-women’s syndrome, and he recommended that father have only supervised access to the children.

The Florida dissolution judgment granted to mother “primary residential custody, care and sole parental responsibility” of the two children, with “supervised visitation” for father. The court also permitted mother to move to Minnesota with the children.

Both parties relocated to Minnesota, where father moved the district court to assume jurisdiction over custody and parenting-time issues; to appoint a guardian ad litem (GAL); and to grant father unsupervised parenting time with the older child. With the consent of the Florida court, the Minnesota court assumed jurisdiction over custody and parenting-time issues, and ordered the appointment of a GAL.

The district court, after reviewing the GAL’s recommendations, issued interim orders that (1) denied father’s motion for temporary unsupervised parenting time; (2) ordered weekly supervised parenting time for father with both children; (3) directed both parties to retain individual psychologists; (4) required a parenting evaluation by a psychologist, Dr. Sandra Hewitt; (5) required father to consult with a parenting-reunification therapist; and (6) required father to deposit the older child’s passport with the court.

On August 27, 2005, the district court issued its findings of fact, conclusions of law, and order denying father’s motion for unsupervised parenting time. The court found that unsupervised access was not in the children’s best interests because (1) despite progress in a supervised setting, father’s “parenting was observed to be inappropriate on numerous occasions”; (2) reunification therapy between father and the children had not yet occurred; (3) father had not shown by a preponderance of the evidence that his mental health had improved significantly since the parties’ dissolution; and (4) father had not complied with the order to deposit the older child’s passport with the court. The court also ordered that father’s parenting time could be modified to move gradually from supervised to unsupervised parenting time with supervised exchanges if he: (1) by September 30, 2005, paid the full amount due to Dr. Hewitt for her report and provided a notarized affidavit verifying service of the report on the GAL, the reunification therapist, the director of the supervised-access program, wife’s counsel, and the district court; (2) by September 30, 2005, contacted the reunification therapist and took “all steps necessary to engage in reunification therapy,” at father’s own cost; (3) continued his individual therapy with a psychologist, addressing both his mental-health issues and his history of domestic violence; and (4) surrendered the older child’s passport to the clerk of court.

On February 14, 2006, father filed another motion requesting unsupervised parenting time because “every child has an inalienable right to love, care, and companionship of both parents.” Mother claimed that the request was an unauthorized request for reconsideration and sought conduct-based attorney fees. After a hearing, the district court denied the motion, found that father had failed to comply with the conditions of the August 27, 2005 order, and awarded mother $1,611.75 in attorney fees. This appeal follows.

D E C I S I O N

This court reviews a district court’s decision on parenting-time issues for an abuse of discretion. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995). The district court’s factual findings regarding parenting time will be upheld if they are not clearly erroneous. Griffin v. Van Griffin, 267 N.W.2d 733, 735 (Minn. 1978).

Under Minnesota law, a district court “shall” order modification of a parenting-time order if the modification “would serve the best interests of the child.” Minn. Stat. § 518.175, subd. 5 (2006). The district court found that father “failed to carry his burden of presenting a preponderance of evidence that modification of the [order issued August 27, 2005] for supervised access would be in the children’s best interests.”

Father argues that the district court’s findings are clearly erroneous because the record does not show that unsupervised parenting time would harm his children and because his children are being “punished” by continuing the requirement that he have supervised parenting time only. But the record shows that the district court properly considered evidence of Dr. Hewitt’s concerns regarding father’s bonding issues with the children and father’s failure to attend therapy consistently to address concerns regarding his mental health. Dr. Hewitt reported that, based on her observations, “several issues . . . must be dealt with before [extended, unsupervised] contact can be in place.” The issues include the “significant concern[s]” about father’s favoritism of the older child over the younger child and his inability “to complete the parent interview about [the younger child] because he stated that he does not know her.” Dr. Hewitt reported that “[t]his problem will need long and careful work as it represents a complex issue not easily solved.”

In addition, the district court noted father’s failure to continue meeting with his psychologist on a timely basis for individual therapy and found that continued therapy is especially important in light of father’s diagnosis of narcissistic disorder and “his history of committing extreme domestic violence against [mother] and the children.” Therefore, based on father’s failure to meet the conditions of the court’s previous order, the district court reasonably found that father failed to sustain his burden of showing that unsupervised parenting time would be in the children’s best interests.

Father argues that he was not allowed to contest the methodology that Dr. Hewitt used in preparing her report and that he followed the terms of the August 27 order, except for the deadlines ordered by the court and the direction that father pay Dr. Hewitt, which he claims that he could not afford to do. This court defers to the credibility determinations of the district court. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). The district court was entitled to credit Dr. Hewitt’s report and the methodology she used. And although the record shows that father had difficulty obtaining a job, resulting in a reduced support obligation, he did not ask the court for an extension of the deadlines for resuming treatment with his psychologist or for paying Dr. Hewitt. Instead, he filed another motion to modify parenting time, having paid Dr. Hewitt only a few weeks earlier and having resumed psychological treatment only ten days before filing the motion. Further, father did not comply with the terms of the previous order by timely filing an affidavit of service of Dr. Hewitt’s report. And although father contends that he completed an application to cancel the child’s passport, he did not provide evidence of such a cancellation to the district court.

Father argues that the court failed to take the children’s best interests into account when it ordered supervised parenting time, which he believes to be harmful to the children. Father also maintains that the district court ignored both father’s completion of an anger-management class in Florida and neutral observers’ notes from parenting-time sessions that show that father’s interaction with his children is improving. But the district court did not clearly err by determining that, despite father’s progress in a supervised parenting-time setting, he failed to show that modification of the order for supervised parenting time only would be in the children’s best interests. And the record does not support father’s claim that the district-court judge improperly interposed her personal views during a hearing on his first motion.

II.

Father also asserts that the court-appointed GAL “has not shown any true interest in what would be the best interest of the children” and did not perform the statutory duties of her position. See Minn. Stat. § 518.165, subd. 2a (2006) (listing the responsibilities of a guardian ad litem); Minn. R. Gen. Pract. 905 (listing same). Father claims that the GAL did not conduct a thorough evaluation and ignored evidence of father’s positive interaction with the children. But the record shows that the GAL submitted five reports, which referred to extensive notes taken by neutral observers of father’s parenting-time sessions. The GAL’s reports do not appear to show a bias against father, and it appears that the GAL properly focused her attention on the best interests of the children. Father also asserts that the GAL improperly filed a report after she was discharged from the case. But the district court asked the GAL for a further report in response to father’s filing of another motion for unsupervised parenting time after the GAL had already been discharged.

III.

Father argues finally that the district court abused its discretion by awarding conduct-based attorney fees to mother. The district court may assess attorney fees against a party “who unreasonably contributes to the length and expense of the proceeding.” Minn. Stat. § 518.14, subd. 1 (2006). This court reviews a district court’s decision to impose attorney fees for an abuse of discretion. Gully v. Gully, 599 N.W.2d 814, 825 (Minn. 1999).

Because the record shows that father brought an additional motion to modify the district court’s parenting-time order without complying with the terms of the court’s previous order, the district court did not abuse its discretion by assessing conduct-based attorney fees against father.

IV.

Fathermoves to strike portions of mother’s brief as beyond the record on appeal. “Appellate courts may not consider matters outside the record on appeal and will strike references to such matters from the parties’ briefs.” Brodsky v. Brodsky, 733 N.W.2d 471, 479 (Minn. App. 2007). The record on appeal is the papers filed in district court, the exhibits, and any transcript of the proceedings. Minn. R. Civ. App. P. 110.01. Here, the record is unclear regarding whether the district court even accepted the materials in question. Regardless of whether the district court accepted or considered these materials, however, we have not considered them in resolving this appeal. Therefore, we deny father’s motion to strike as unnecessary. See Clark v. Clark, 642 N.W.2d 459, 467 (Minn. App. 2002) (denying a motion to strike because, in part, it was “unnecessary in light of our resolution of this appeal”).

Affirmed; motion denied.