In Re the Marriage of: Shawn McDonald Moriarty, petitioner, Respondent, vs. Stephen Aloysius Moriarty, 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This opinion will be unpublished and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

C4-00-37

 

In Re the Marriage of:

Shawn McDonald Moriarty, petitioner,

Respondent,

 

vs.

 

Stephen Aloysius Moriarty,

Appellant.

 

Filed July 11, 2000

Affirmed

Huspeni, Judge*

 

Ramsey County District Court

File No. F5-98-574

 

 

Christine L. Stroemer, Collins, Buckley, Sauntry & Haugh, PLLP, W-1100 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101-1379 (for respondent)

 

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

 

 

 

            Considered and decided by Toussaint, Chief Judge, Amundson, Judge, and Huspeni, Judge.

U N P U B L I S H E D  O P I N I O N

 

HUSPENI, Judge

 

            Appellant Stephen Aloysius Moriarty challenges the district court's reduction of visitation in a marriage dissolution proceeding, claiming that the district court erred (1) in removing, without adequate findings, visitation provisions included in a previous order, and (2) by denying appellant's proposals for additional visitation.  Because the challenged findings are adequate to permit meaningful review and are supported by the evidence, and because the district court did not abuse its discretion in any of its determinations, we affirm.

FACTS

            Respondent Shawn McDonald Moriarty, n/k/a Shawn M. McDonald, and appellant Stephen Aloysius Moriarty were married in October 1994.  Their son, B.S.M., was born on July 3, 1996.  The couple separated in November 1997; respondent petitioned for dissolution of marriage in March 1998. 

At a temporary hearing in April 1998, the district court ordered that custody and visitation mediation, and, if necessary, evaluation, be conducted by the department of court services.  At that hearing, the court granted temporary sole physical custody to respondent and reasonable visitation to appellant; legal custody was joint. 

A court services evaluation report was issued in January 1999, recommending joint legal custody, with sole physical custody to respondent.  Recommended visitation included (1) alternate weekendseach ending on Sunday evening until B.S.M. reached school-age, and then extending to Monday morning, (2) Friday daytime after daycare, "[a]s long as Day Care programming allows," (3) Tuesday evening, (4) four non-consecutive weeks of vacation access, and (5) an alternating holiday schedule.  Because neither party challenged the report, the district court adopted the recommendations.  The parties followed the schedule.

In September 1999, the district court held a pretrial hearing during which the parties resolved all issues except for visitation.  Legal custody was joint, and sole physical custody was with respondent, subject to reasonable visitation.  The parties agreed to submit letter briefs[1] to the court on the remaining visitation issues, which were to be resolved by separate order.  The dissolution decree included the following provisions:

[Respondent] is granted sole physical custody of the child, subject to reasonable visitation by [appellant] as follows:

(a)       Every-other Friday, pickup at school/daycare through Sunday with drop off at [respondent's] home, the exact pick up and drop off times to be dealt with by the Court's separate order filed December 6, 1999, as well as the issue of Friday daytime visitation and alternating Sunday overnight visitation.[2]

(b)       Tuesday evenings visitation to be dealt with by the Court's separate Order filed December 9, 1999.

(c)       Review.  Any review of the access in dispute is left to the Court under its separate Order filed December 6, 1999.

 

In its December 6, 1999 order, the district court found respondent had remained B.S.M.'s primary caregiver throughout the pendency of the dissolution.  In discussing the custody evaluation report in detail, the court noted that its author had been "well aware of [appellant's] insistence on joint physical custody and, specifically, his request for midweek overnights" but, after considering the statutory factors, had concluded that respondent, as primary caregiver, was "more attuned to [B.S.M.'s] day-to-day needs" and that B.S.M. needed the continuity and consistency of the current schedule.

The court then made findings evaluating all of the factors listed in Minn. Stat. § 518.17, subd. 1 (1998), including observations that it was "not appropriate to increase overnight visitation for [appellant] given [B.S.M.'s] developmental needs at age three"; that "many child psychologists writing in the current psychological literature have determined that a young child is generally more bonded with his primary caregiver"; that appellant's proposed parenting agreement would require the parties to share responsibilities for B.S.M.'s care and "would be equivalent to creating joint physical custody," which was "not appropriate given the circumstances in this case"; that the history of the relationship between the parties showed there was a "level of hostility between them" that would "not be improved by the imposition of a court-ordered plan for contact between them on issues involving the care of [B.S.M.]"; and that appellant's request for "first option of being the caregiver of B.S.M. if [respondent] is out of town" was inappropriate because respondent, as sole custodian, should be free to make the necessary day-to-day scheduling to meet the child's needs "without the risk of any intervention by [appellant]" and had "the right to determine appropriate daycare for B.S.M. when it is needed."

            The court denied appellant's requests for increased visitation, ordered that visitation would be Tuesday evenings from 5:00 p.m. to 7:45 p.m., plus alternating Fridays from 5:00 p.m. to Sundays at 5:00 p.m., and added that the visitation scheduled could be reviewed after B.S.M. began elementary school.

D E C I S I O N

            The district 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).

I.

            Appellant claims the district court erred by failing to include Friday daytime visitation and eventual Sunday overnight visitation in the final visitation schedule after both provisions had been recommended by the custody evaluation report and adopted in the temporary visitation order.  Appellant argues the district court abused its discretion both by excluding these visitation provisions against the weight of the evidence and by failing to explain this exclusion with specific findings of fact. 

Notwithstanding the custody evaluation recommendation, the district court must set visitation based on its own independent judgment according to the overarching consideration of the best interest of the child.  See Shepard v. Shepard, 352 N.W.2d 42, 46 (Minn. App. 1984) (stating ultimate test in all disputes over visitation is best interests of the child); see also Halper v. Halper, 348 N.W.2d 360, 365 (Minn. App. 1984) (upholding visitation schedule despite existence of evidence that a different schedule might have been preferable).  In addition, in the decree, the parties acknowledged that questions regarding visitation were being submitted to the district court for final resolution in a subsequent order.  The clear implication of the decree was that the visitation schedule set forth in the earlier court order would not be final.  The court's best-interests analysis focused on the need for maintaining consistency in the visitation schedule, and does not indicate that either Friday day visits or eventual Sunday overnights was part of the consistent schedule to be preserved, or that these provisions were otherwise essential to furthering the best interests of the child.  Friday daytime visits depended on B.S.M.'s daycare program and appellant's work schedule, and Sunday overnights was a plan for the future that had not yet been implemented.  In light of appellant's substantial visitation rights absent these provisions, we cannot conclude that the court's failure to include these provisions was an abuse of discretion.

Appellant, in claiming that the court's exclusion of certain visitation provisions lacked adequate support in the court's findings of fact, relies on Lawver v. Lawver, 360 N.W.2d 471 (Minn. App. 1985).  That reliance is misplaced.  In Lawver, the district court's decision to split custody of the minor children contradicted custody study recommendations, and this court noted that "[s]uch a decision may occur, given the broad discretion of the trial court.  However, the circumstance enlarges the need for particularized findings."  Id. at 473.  Remand in Lawver was based upon the complete lack of findings addressed to the best interest of the children.  Id.; see also Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991) (discussing Lawver in finding no abuse of discretion in awarding custody contrary to custody report recommendation without explanatory findings, where district court conducted thorough best-interests analysis).  Contrary to Lawver, the record here amply demonstrates that the district court analyzed the proper factors and arrived at a reasonable visitation schedule.  Failure to make specific findings explaining the omitted provisions was not an abuse of discretion, and does not frustrate meaningful review by this court.

II.

Appellant raises several challenges to the district court's denial of his proposal for additional visitation; none, however, requires remand or reversal.

First, there is no merit in appellant's claim that the district court erred in determining that additional Thursday and Sunday overnight visits were inappropriate given B.S.M.'s developmental needs at age three and the need to maintain continuity with respect to the existing overnight schedule.  Adequate support for this determination is found in the custody evaluation report, which stated that "[t]he need for maintaining continuity in [B.S.M.'s] life is especially important considering his young age" and that B.S.M.'s adjustment to preschool had improved as his parents had maintained a consistent schedule.

Second, citing Estby v. Estby, appellant claims the court's denial of his visitation requests fails to give adequate weight to the need for B.S.M. to have a strong relationship with his father.  See Estby v. Estby, 371 N.W.2d 647, 650 (Minn. App. 1985) (remanding for additional findings on visitation where one of two custody studies gave a favorable review of father's parenting ability but the district court reduced visitation in final decree).  Appellant's reliance on Estby is misplaced.  In contrast to the severe limitations placed upon visitation in Estby, appellant here has been granted significant visitation by a district court that fully weighed all of the relevant factors that must be considered in establishing a visitation schedule.

Third, appellant claims the district court erred in determining that implementation of appellant's parenting code would equate to awarding joint physical custody.  (Joint physical custody had been rejected by the court as not appropriate.)  While the code might not meet the definition of joint physical custody as set forth in Minn. Stat. § 518.003, subd. 3(d) (1998), in all respects, the district court's refusal to implement the code was clearly within its discretion.

Fourth, appellant claims the district court abused its discretion by finding that there was a "level of hostility" between the parties that mitigated against adopting appellant's proposed parenting code.  Our review of the record reveals support for the determination that hostility existed between the parties.  Moreover, while the parties' hostility was a factor in resolving appellant's initial request for joint physical custody, there is no evidence indicating that this hostility influenced the court to deny appellant's request for expanded visitation. 

Fifth, appellant disputes the district court's denial of the request that appellant be given the option of caring for B.S.M. when respondent is out of town.  The court did not abuse its discretion, however, in determining that respondent, as physical custodian, should have the right to decide who would care for B.S.M. when she was away.

Sixth, appellant argues that the court's finding that child psychologists believe young children have particularly strong bonds with their primary caregivers is unsupported by the evidence.  The record shows that this statement was included in addition to the court's finding that "it would not be in the child's best interest to reduce that primary caregiver's role at [B.S.M.'s] young age of three years," which is amply supported by the custody report.  Further, there is no support in the record for appellant's assertion that this statement played a significant role in the court's visitation determination or that it was "highly prejudicial."  Even lacking evidentiary support, this finding would not constitute reversible error.  See Hanka v. Pogatchnik, 276 N.W.2d 633, 636 (Minn. 1979) (holding "[w]here a decisive finding of fact is supported by sufficient evidence and is adequate to sustain the conclusions of law, it is immaterial whether some other findings are not so sustained") (citing Locksted v. Locksted, 208 Minn. 551, 552, 295 N.W. 402, 404 (1940)).

Based on our review of the record, the district court's denial of appellant's requests for additional visitation was not an abuse of discretion.

            Affirmed.

 

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

[1] While there is discussion in the briefs about the nature of the February 1999 order, clearly that order was temporary; the final visitation schedulewith or without the provisions disputed herewas to be determined after the dissolution hearing.

 

[2]  The emphasized portion was handwritten and initialed by the parties.