In Re the Marriage of: Pamela J. Sokolowski, petitioner, Respondent, vs. Daniel J. Sokolowski, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-99-1881

 

In Re the Marriage of:

 

Pamela J. Sokolowski, petitioner,

Respondent,

 

vs.

 

Daniel J. Sokolowski,

Appellant.

 

Filed April 18, 2000

Affirmed

Randall, Judge

 

Washington County District Court

File No. FX-97-785

 

Amy Senn, Senn & Associates, 7200 80th Street South, Cottage Grove, MN  55016 (for respondent)

 

Michael Ormond, Ormond Law Offices, 300 Sexton Building, 529 South Seventh Street, Minneapolis, MN  55415 (for appellant)

 

            Considered and decided by Randall, Presiding Judge, Amundson, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            Appellant challenges the district court's order denying his motion to (a) address custody matters; (b) consolidate his dissolution and child-support files; and (c) vacate an Administrative Law Judge's child-support order.  He also challenges the district court's order denying his motion to amend the first order.  We affirm.

FACTS

            The stipulated judgment dissolving the marriage of appellant Daniel Sokolowski and respondent Pamela Sokolowski awarded respondent custody of the parties' child and ordered appellant to pay a sub-guideline child support obligation of $350 per month.  Within 280 days of the dissolution, respondent gave birth to another child.  The next day, the parties signed a Recognition of Paternity form (ROP) identifying appellant as the father of that child.  Later, respondent sought support for the second child.  An Administrative Law Judge (ALJ) ordered appellant to pay an additional $296.82 in monthly child support; the difference between appellant's $350 monthly obligation and the $646.82 guideline obligation for two children.  Appellant then filed a motion in the dissolution file to (a) consolidate the ALJ's child-support file and the dissolution file; (b) obtain joint physical and legal custody of both children; and (c) vacate the ALJ's child-support order.  In July 1999, the district court denied appellant's requests, stating he had to be adjudicated the second child's father before the court could consider custody issues involving that child.  The district court denied appellant's motion to amend this ruling, stating that it would consolidate the support and custody matters if appellant was adjudicated the second child's father.  Appellant challenges both of these orders.[1] 

D E C I S I O N

I.          Applicability of ROP Statute

            Appellant alleges that because the parties signed an ROP regarding the second child, it is not necessary to bring a paternity action to adjudicate appellant to be that child's father.  Therefore, appellant concludes, the district court should have considered the issue of the second child's custody.[2]  Appellant's argument is essentially one regarding the correct construction of the ROP statute, and we review the issue de novo.  See Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990) (stating statutory construction is legal question). 

            An ROP "has the force and effect of a judgment or order determining the existence of the parent and child relationship."  Minn. Stat. § 257.75, subd. 3 (1998).  Also, if there are no competing paternity presumptions, proper execution of an ROP precludes a paternity action and is a basis for seeking custody and visitation.  Id.  The ROP statute, however, applies to a child

born to a mother who was not married to the child's father nor to any other man when the child was conceived nor when the child was born.

 

Minn. Stat. § 257.75, subd. 1 (1998) (emphasis added).  Because it is undisputed that the parties were married to each other when the second child was conceived, the unambiguous language of the ROP statute renders it inapplicable.  See Minn. Stat. § 645.16 (1998) (stating when statute is unambiguous "the letter of the law shall not be disregarded under the pretext of pursuing the spirit").  While we admit that the result in this case is counter-intuitive, it is not for this court to correct, by interpretation, what are clear but seemingly unwise or illogical statutes.  See, e.g., Olson v. Ford Motor Co., 558 N.W.2d 491, 496 (Minn. 1997) (emphasizing it is not appellate court's role to challenge wisdom of legislature's act "but rather to give effect to its will as expressed in the unambiguous language of the statute"); Martinco v. Hastings, 265 Minn. 490, 497, 122 N.W.2d 631, 638 (1963) (stating "[i]f there is to be a change in the statute, it must come from the legislature, for courts cannot supply that which the legislature purposely omits or inadvertently overlooks"); State ex rel. Coduti v. Hauser, 219 Minn. 297, 303, 17 N.W.2d 504, 507 (1945) (recognizing legislature may ignore logic and perpetrate injustice as long as constitution is not violated). 

II.        Procedure for Seeking Custody

            Appellant is the presumed father of the second child because the child was born within 280 days of the dissolution of his marriage to the child's mother.  Minn. Stat. § 257.55, subd. 1(a) (1998).  As a presumed father, appellant may bring an action to establish "the existence of the father and child relationship."  Minn. Stat. § 257.57, subd. 1(a) (1998).  After that relationship is established, he may petition for visitation or custody either in the paternity proceeding or in a separate proceeding under Minn. Stat. § 518.156 (1998).  Minn. Stat. § 257.541, subd. 2(b) (1998).

            Under Minn. Stat. § 518.156, a "parent" may commence a child-custody proceeding under subdivision 1(a) by filing a petition or motion seeking custody or visitation.[3]  Here, legally, appellant is a "presumed father" of the second child.  Absent a paternity adjudication, the legal relationship of parent-child does not exist, and appellant is not the child's parent under the law.  See Minn. Stat. §§ 257.52 (defining parent-child relationship as "the legal relationship" between child and child's biological or adoptive parents (emphasis added)); 257.54(b) (stating parent-child relationship between child and biological father may be established under Parentage Act or with Recognition of Paternity); 257.57 (1998) (addressing who may bring action to establish father-child
relationship and when action may be brought).  Thus, appellant may not bring a custody action under Minn. § 518.156, subd. 1(a), until his paternity has been legally established.  See Morey v Peppin, 375 N.W.2d 19, 23 (Minn. 1985) (recognizing "whatever custodial right the father may have cannot arise until paternity has been established pursuant to the [Parentage] Act").[4]

            Thus, we conclude that the district court did not err in ruling that appellant could not commence a custody action absent a paternity adjudication because (a) the ROP statute is inapplicable; (b) appellant has no legally established parent-child relationship with the child; and (c) a person lacking a legally established parent-child relationship has no right to commence a custody proceeding under Minn. Stat. § 518.156, subd. 1(a). 

III.       Consolidation/Vacating ALJ's Child-Support Order

            A district court's determination regarding consolidation will not be reversed absent an abuse of discretion.  Minnesota Personal Injury Asbestos Cases v. Keene Corp., 481 N.W.2d 24, 26 (Minn. 1992); see Minn. R. Civ. P. 42.01 (stating district court "may" consolidate actions if they involve common questions of law or fact).  Here, because the custody of the second child was not properly before the district court, it did not abuse its discretion either by refusing to consolidate the child-support and dissolution files or by denying appellant's motion to vacate the ALJ's child-support order for that child.  Notably, the district court, understanding appellant's situation, stated it would be willing to consolidate all matters relating to custody, support, and visitation as soon as appellant is adjudicated D.D.S.'s father.

IV.       Custody of Older Child

Appellant alleges that he established a prima facie basis for modification of custody of the older child and that the district court abused its discretion by rejecting his modification motion without specific findings or an evidentiary hearing.  See Geibe v. Geibe, 571 N.W.2d 774, 777-78 (Minn. App. 1997) (applying abuse-of-discretion standard where district court denied motion to modify without evidentiary hearing).  The district court findings may be rejected only if they are clearly erroneous.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).

Absent agreement by the parties or integration of a child into the family of the party seeking custody, an existing custody arrangement may not be altered unless the district court finds that (a) there has been a change in circumstances; (b) modification is in the best interests of the child; (c) the child's current custodial environment endangers the child; and (d) the harm to the child likely to be caused by modifying custody is less than the harm to the child likely to be caused by not modifying custody.  Minn. Stat. § 518.18(d) (1998).  A party seeking to modify custody must show a significant change in circumstances and establish a prima facie case for doing so by alleging facts that, if true, would provide a sufficient basis for modification.  Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981); Geibe, 571 N.W.2d at 777.

Here, the dissolution judgment awarded respondent sole physical custody of the first child, and the district court denied appellant's motion to modify that arrangement, stating appellant failed to meet "the burdens imposed by Minn. Stat. § 518.18(d) to warrant a modification of the custody arrangement." 

By affidavit citing both respondent's plea of guilty to a charge of fifth-degree assault against appellant and respondent's 1998 D.W.I. conviction, appellant alleged that respondent has "anger management problems" and "difficulties with chemical dependency."  Appellant's affidavit also states that respondent kicked her teen-age son.[5] 

Because the assault occurred in 1996, it does not evidence a change in circumstances.  See Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989) (stating change of circumstances must be real change and not continuation of ongoing problems), review denied (Minn. June 21, 1989).  Appellant's other support for his allegation that respondent has anger-management problems is vague and lacks specific detail.  Similarly, appellant's allegation that respondent has a chemical-dependency problem does not assert that this is a change in circumstances or describe how this circumstance endangers the children.  Moreover, appellant requested the court to modify the custody award to give the parties' joint physical custody, suggesting that he, himself, does not believe respondent's conduct is dangerous to the child. 

Because appellant did not establish a prima facie case to modify custody of the older child, the district court did not abuse its discretion by denying appellant's custody-modification motion without an evidentiary hearing or more specific findings.

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Appellant's notice of appeal also states that he is appealing the ALJ's order.  Assuming that this is procedurally proper, we note that appellant waived any objections to that order by not directly challenging it in his brief.  See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (stating issues not briefed on appeal are waved). 

[2] The parties do not argue, and we do not address, whether the facts of this case would allow reopening of the dissolution judgment.  See Minn. Stat. § 518.145, subd. 2 (1998) (addressing reopening of dissolution judgments).

[3] Section 518.156, subdivision 1(b) is a second provision in Minn. Stat. § 518.156 under which a person may seek custody.  Under it, "a person other than a parent" may seek custody.  Minn. Stat. § 518.156, subd. 1(b).  Because the parties did not address the applicability of this provision either here or in the district court, we do not address it either.

[4] In Wilson v. Speer, this court stated, that "[a] presumed parent is a parent until the presumption is rebutted."  Wilson v. Speer, 499 N.W.2d 850, 855 (Minn. App. 1993), review granted (Minn. July 19, 1993), and appeal dismissed (Minn. Aug. 16, 1993).  Our statement there, however, was made in the limited context of imposing child support and ordering reimbursement for past public assistance paid for the child's benefit.  Cf. Minn. Stat. § 257.62, subd. 5(a) (Supp. 1999) (stating person alleged to be child's father may be ordered to pay temporary support pending result of paternity proceedings if blood tests show person at least 92 percent likely to be child's father).  In Wilson, we observed that an action formally adjudicating a presumed father as the father "may result in legal benefits for the child beyond those immediately available through child support."  Wilson, 499 N.W.2d at 854; see also id. at 857 (Randall, J., dissenting) ("The far reaching ramifications of a legal parent/child relationship, including but not limited to social security benefits, military benefits, child support, possible inclusion in group medical coverage, inheritance rights, et cetera, are better served by completing legal adjudication * * * .").

[5] Although appellant contends on appeal that respondent denied or interfered with his visitation rights, appellant did not assert to the district court that respondent violated the court-ordered visitation schedule.  See Grein v. Grein, 364 N.W.2d 383, 386 (Minn. 1985) (holding unwarranted denial of, or interference with, visitation is factor for consideration in determining whether to modify custody order but is not controlling and must be considered along with other Minn. Stat. § 518.18(d) factors).  Instead, in his affidavit he described only her unwillingness to continue permitting him additional access to the child outside of the ordered schedule.  Further, he makes no attempt to demonstrate how this alleged visitation interference endangers the child.  See Dabill v. Dabill, 514 N.W.2d 590, 595-96 (Minn. App. 1994) (recognizing visitation interference does not establish danger to children without evidence of adverse effects).