Hector DeLeon, petitioner, Respondent, vs. Janie DeLeon, Appellant.

Hector DeLeon, petitioner, Respondent, vs. Janie DeLeon, Appellant. A05-87, Court of Appeals Unpublished, August 23, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-87

 

Hector DeLeon, petitioner,

Respondent,

 

vs.

 

Janie DeLeon,

Appellant.

 

Filed August 23, 2005

Affirmed Worke, Judge

 

Becker County District Court

File No. F1-01-57

 

Hector DeLeon, 1265 Loring Avenue, Apt. 209, Detroit Lakes, MN 56502 (pro se respondent)

 

Michael Klinkhammer, Anishinabe Legal Services, Inc., P. O. Box 157, Cass Lake, MN  56633 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Wright, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            Appellant Janie DeLeon appeals from a district court order denying her motion to terminate respondent Hector DeLeon's parenting time based on his chronic and unreasonable failure to comply with court-ordered parenting time.  Because appellant failed to demonstrate the unreasonableness of respondent's conduct and the district court's findings of fact were not clearly erroneous, we affirm.

FACTS

            On March 6, 2000, appellant filed for an Emergency (Ex Parte) Order for Protection (OFP) against respondent on behalf of herself and the parties' four minor children, based on an incident when respondent physically assaulted and threatened appellant. On May 4, 2001, the parties' marriage was dissolved.  The parties' divorce decree awarded appellant sole legal and sole physical custody of the parties' four minor children.  Respondent was awarded reasonable parenting time consistent with the children's best interests but only on the conditions that he not consume alcohol or non-prescription drugs within 24 hours before any visit and that he not leave the State of Minnesota with the children except to visit relatives in Fargo, North Dakota. 

            On April 29, 2002, appellant obtained a second OFP against respondent, based on phone calls respondent made to the parties' oldest daughter, during which he threatened to physically harm her, her friends, and appellant.  The OFP denied respondent parenting time.  On May 7, 2002, respondent was found in contempt of court for violating the OFP; however, the record does not provide a factual basis for the contempt ruling.  Respondent was sentenced to 30 days in jail, stayed for one year on the condition that he refrain from committing the same or any similar violations for the duration of the OFP.  On June 17, 2002, the OFP was amended to allow respondent parenting time according to the following schedule: visits with the parties' 16-year-old daughter at her discretion and visits with the three remaining children for two hours every Tuesday and Thursday and one half-day on Saturday for four weeks, then every other weekend from 5:00 p.m. Friday to 7:00 p.m. Sunday.  On February 18, 2003, respondent was found in contempt of court for violating the OFP a second time; again, the record does not provide a factual basis for the contempt ruling.  Respondent was sentenced to 60 days in jail, with 30 days executed and the remaining 30 days stayed for one year.  The district court suspended respondent's parenting time until he completed anger-management classes. 

On October 3, 2003, the OFP was amended to prohibit respondent from calling appellant's home except when the children were reasonably expected to be home.  The court issued an order on October 31, 2003, that resumed respondent's parenting time, entitling him to one supervised visit per week.  On November 17, 2003, respondent was found in contempt of court a third time; again, the record does not provide a factual basis for the contempt ruling.  Respondent was sentenced to 30 days in jail, stayed for one year on the condition that respondent record all telephone calls to the children; any unrecorded telephone calls would result in the execution of respondent's sentence. 

            On January 27, 2004, appellant filed contempt-of-court motions in both the domestic abuse and dissolution files, requesting that respondent be held in contempt of court for contacting the children's schools to obtain information about them.  Appellant also filed a request for an extension of the OFP.  On February 19, 2004, respondent filed for an OFP against appellant; however, he withdrew the request several days later.  On February 27, 2004, the court granted appellant's request for an extension of the OFP for a period of one year.  A hearing on appellant's contempt motions was held on August 12, 2004.  On August 24, 2004, the court issued an Order Granting Motions for Contempt of Court and Implementing Stipulated Agreement.  The parties agreed that respondent would be allowed one telephone call for no more than 20 minutes every Monday, Wednesday, and Friday at 5:00 p.m., with each child having the opportunity to speak with respondent.  The children, however, were not obligated to be home when he called or to speak to him.  The order also allowed respondent one supervised visit with the children every Tuesday. 

On September 8, 2004, respondent filed a motion for parenting-time assistance.  On October 15, 2004, appellant filed a motion opposing the parenting-time assistance and requesting that the district court terminate respondent's parenting time and/or to grant her permission to move the children from Minnesota to Nebraska.  In connection with the motion hearing on October 25, 2004, the judge met with the parties' children alone in chambers.  During the meeting with the judge, the children stated that they no longer wanted to see or speak to their father.  On November 9, 2004, the court issued an order granting appellant's motion to move the children from Minnesota to Nebraska.  The district court denied appellant's request to terminate respondent's parenting time and continued the existing parenting-time restrictions, including supervised visits with the children but ordered that the visits were to occur in Nebraska.  Appellant now appeals the district court's denial of her request to terminate respondent's parenting time. 

D E C I S I O N

Appellant argues that the district court clearly erred by denying her motion to terminate respondent's parenting time by finding that "[respondent] has not chronically and unreasonably failed to comply with court ordered parenting time" and "[t]he parenting time of [respondent] is already restricted.  The limited supervised parenting time is not likely to endanger the children's physical or emotional health and is not likely to impair their development."  A district court's findings of fact, on which a parenting-time decision is based, will be upheld unless they are clearly erroneous.  Griffin v. Van Griffin, 267 N.W.2d 733, 735 (Minn. 1978); Crosby v. Crosby, 587 N.W.2d 292, 295 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).  Under Minn. Stat. § 518.175, subd. 5 (2004), "the court may not restrict parenting time unless it finds that (1) parenting time is likely to endanger the child's physical or emotional health or impair the child's development, or (2) the parent has chronically and unreasonably failed to comply with court-ordered parenting time." 

In support of her argument, appellant directs this court's attention to the testimony taken during the hearing regarding respondent's failure to comply with the court-ordered parenting time, the alleged physical and emotional abuse the parties' oldest daughter, who is no longer subject to the parenting-time order, endured at the hand of respondent as she was growing up, and evidence regarding respondent's mental-health issues.  As the moving party, appellant had the burden of establishing that respondent's failure to comply with parenting time was chronic and unreasonable.  While it is clear from the record that respondent chronically failed to comply with parenting time, the record does not sufficiently establish the unreasonableness of the underlying conduct that constitutes respondent's noncompliance.  The record does not reflect the specific basis for the violations of the OFP.  Thus, there is nothing in the record on which we can rely to find clear error.  Further, the district court has had significant contact with this family and is in the best position to determine if respondent's violations were chronic and unreasonable.

Appellant further directs this court's attention to the transcript of the meeting the judge had in chambers with the parties' children, wherein all of the children stated that they no longer wished to see or speak to their father.  Appellant argues that the district court should have followed the children's wishes.  The ultimate question in all disputes over parenting time is what is in the best interests of the child.  Clark v. Clark, 346 N.W.2d 383, 385 (Minn. App. 1984), review denied (Minn. June 12, 1984).  Factors indicating the best interests of a child are enumerated in Minn. Stat. § 518.17, subd. 1 (2004).  A child's preference, however, is only one of the factors to be considered in a best-interests determination.  Further, when judicial determinations are dependent on oral testimony, this court must defer to the district court's assessment of the credibility of the witnesses and the weight to be given their testimony.  See Serbus' Estate v. Serbus, 324 N.W.2d 381, 384-85 (Minn. 1982).

While the district court denied appellant's request to terminate respondent's parenting time, it also granted appellant's request to move the children to Nebraska.   The district court order mandates that if respondent wishes to continue his one-day per week supervised visits with the children, he will need to do so in Nebraska.  This places a heavy burden on respondent if he wishes to spend time with the children.  Further, the district court has not obligated the children to speak to their father on the phone.  Based on the evidence before it, the district court acted within its discretion in denying appellant's request to terminate respondent's parenting time.

Affirmed.