Diane Orsello, petitioner, Respondent, vs. Paul Orsello, Appellant.

Diane Orsello, petitioner, Respondent, vs. Paul Orsello, Appellant. A05-1974, A06-573, Court of Appeals Unpublished, October 3, 2006.

This opinion will be unpublished and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

A05-1974

A06-573

 

Diane Orsello, petitioner,

Respondent,

 

vs.

 

Paul Orsello,

Appellant.

 

Filed October 3, 2006

Affirmed Willis, Judge

 

Chisago County District Court

File No. 13-F3-91-000638

 

 

Diane Orsello, 4154 Lexington Avenue North, Apt. 6101, Shoreview, MN  55126 (pro se respondent)

 

Sandra K. Kensy, 5430 Carlson Road, St. Paul, MN  55126 (for appellant in A05-1974)

 

Paul Orsello, 1610 East Montana Avenue, St. Paul, MN  55106 (pro se appellant in A06€‘573)

 

Michelle Thiel, P.O. Box 844, Anoka, MN  55303 (guardian ad litem)

 

            Considered and decided by Willis, Presiding Judge; Dietzen, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant father argues that the district court abused its discretion by restricting his parenting time without a finding of endangerment and erred by allowing him parenting time only if approved by the minor child.  Appellant further maintains that the district court (1) abused its discretion by denying appellant's motion to have the minor child evaluated psychologically, (2) abused its discretion by granting respondent mother's motion to deny father access to the minor child's medical records, and (3) erred by ordering that appellant must post a $200 bond before submitting any additional motions.  We affirm.

FACTS

            The parties' November 1992 dissolution decree granted respondent mother Dianne Orsello sole legal and physical custody of the parties' three minor children, subject to appellant father Paul Orsello's right to unsupervised parenting time.  Only the youngest of the parties' children, R.O., now age 17, is still a minor.  In 1996, the district court granted mother's motion to modify the parenting-time order to provide for supervised visitation after finding that father was not properly caring for the parties' children during his parenting time.  In a previous appeal, this court affirmed the district court's denial of father's motion to modify the order to provide for unsupervised parenting time.  Orsello v. Orsello, No. C1-99-1509, 2000 WL 665635, at *4 (Minn. App. May 22, 2000), review denied (Minn. July 25, 2000).

            In September 2002, father moved to have the then-existing order changed to allow unsupervised parenting time.  The record shows that other than one visit in 2001, father had not exercised parenting time with the children since the 1996 order requiring that his parenting time be supervised.  In January 2003, the district court followed the recommendation of the guardian ad litem (GAL) and granted father "bi-monthly supervised visitation privileges with said minor children, contingent on their approval, and with the approval of the GAL." 

Because the children did not approve parenting time with father, father brought another motion in November 2003, asking the district court for an order awarding him ongoing parenting time with the parties' minor children with a court-appointed therapist or counselor, as recommended by the therapist or counselor.  At a June 2004 hearing, R.O. testified that she was not afraid of her father and that she wanted parenting time with him.  In its July 2004 order, the district court iterated that in its January 2003 order it had granted father "bi-monthly supervised visitation privileges with said minor children, contingent on their approval" and then ordered that father "shall have unsupervised visitation with [R.O.] every other Saturday" because R.O. had indicated her approval to the parenting time.  The district court also ordered that if the parties' other child who was a minor at the time, A.O., then age 16, "requests" parenting time, father could have unsupervised visits with A.O. at the same time as with R.O.

Father then brought yet another motion, this time seeking an increase in parenting time with R.O.  Following a hearing at which mother testified that R.O. had told her that she no longer wanted to see father, the district court denied father's motion in an October 2004 order.   

In November 2004, father brought another motion asking the district court to find mother in contempt of court for preventing father's parenting time with R.O. from occurring and to grant father compensatory parenting time.  Mother submitted an affidavit stating that father was not having parenting time with R.O. because R.O. no longer wanted parenting time with father.  Attached to mother's affidavit was a letter from R.O. to father, in which R.O. stated, "Here is your phone back, thanks for letting me use it.  I guess that you need to hear from me that I don't care to see you in my life at this time."  Following a hearing, the district court issued an order in November 2004 denying father's motion for compensatory parenting time, finding that the district court's previous orders permitted father parenting time only if the parties' children approved parenting time and that father did not meet his burden of proving that the parties' minor children wanted parenting time with him.

             In May 2005, father moved for an order that would "enforce" the previously issued orders allowing parenting time, asserting that he had been "wrongfully denied" parenting time.  The district court denied father's motion, finding that father "has repeatedly failed to meet his burden of demonstrating that the minor children wish to have contact with him" and, thus, there "are no orders to enforce as [father] requests."  Father then moved to have the district court correct a "clerical mistake" in its order, arguing that the July 2004 order removed the requirement that parenting time was contingent on R.O.'s approval.  In an August 2005 order, the district court denied the motion, noting that the July 2004 order allowing father unsupervised parenting time with R.O. also cited the previous order that granted father parenting-time privileges with the minor children "contingent on their approval."

            Father then moved the district court to order that (1) he receive parenting time with R.O., (2) R.O. be examined by a mental-health professional, and (3) father be allowed access to R.O.'s medical records.  After receiving the GAL's report, the district court denied father's motion in a March 2006 order, finding that his "behavior toward [R.O.] amounts to stalking and harassment of the child."

            In this consolidated appeal, father appeals from the October 2004, November 2004, August 2005, and March 2006 orders.

D E C I S I O N

I.

 

Appellant argues first that in the four orders at issue, the district court improperly "restricted" his parenting time "based on the sole grounds" that R.O. did not want to see him and that the district court could place such a "restriction" on parenting time only if it found that parenting time would endanger R.O.  We will not reverse the district court's decision regarding parenting time unless that decision is a clear abuse of discretion.  Hennessy v. Stelton, 302 Minn. 550, 550, 224 N.W.2d 926, 927 (1974). 

When modifying an order for parenting time, the district court may not impose restrictions unless it finds that "parenting time is likely to endanger the child's physical or emotional health or impair the child's emotional development."  Minn. Stat. § 518.175, subd. 5 (2004).  Less-substantial changes in a parenting-time schedule are governed by the best-interests standard.  Anderson v. Archer, 510 N.W.2d 1, 4 (Minn. App. 1993); see Minn. Stat. § 518.175, subd. 5 (providing that the court shall modify a parenting plan whenever modification would serve the child's best interests).  Determining the proper statutory standard to apply is a question of law, subject to de novo review.  Archer, 510 N.W.2d at 4.  

In its January 2003 order, the district court followed the guardian ad litem's recommendation and granted father "bi-monthly supervised visitation privileges with said minor children, contingent on their approval, and with the approval of the GAL."  Although father does not appeal from that order, we address it for context and conclude that the January 2003 order was not a "restriction" on parenting time but rather an insubstantial modification of father's parenting time because it occurred (1) after father's parenting time had been modified from unsupervised to supervised because father was improperly caring for the children during his parenting time and (2) after father had seen the children only once in the preceding six years. 

Father argues, however, that the July 2004 order removed the provision that father's parenting time with R.O. was contingent on her approval.  Thus, father asserts, the district court's subsequent orders that denied him parenting time on the ground that R.O. did not approve it impermissibly restricted his parenting time without a finding of endangerment.  But a review of the July 2004 order shows that the district court retained the requirement that father have parenting time with R.O. only with her approval.  First, the district court iterated the provision that father's parenting-time privileges were "contingent" on R.O.'s "approval."  Second, the district court ordered that father was entitled to bi-monthly parenting time with R.O. after she had testified that she wanted to have parenting time with her father.  Third, the district court ordered that father could have parenting time with A.O., who was a minor at the time of the order, only if A.O. approved it.  Thus, we determine that the orders from which father appeals did not "restrict," or even modify, his parenting time and that, thus, the district court did not abuse its discretion by not making endangerment findings. 

Father further argues that the district court erred by not considering all of the best-interests factors in Minn. Stat. § 518.17 when allowing him parenting time only if approved by R.O.  See Minn. Stat. § 518.17, subd. 1(a) (2004) (enumerating 13 best-interests factors to consider when determining custody and child support).  But the parenting-time statute does not require the district court to make specific findings on those factors.  See Minn. Stat. § 518.175, subds. 1(a), 5 (providing for the establishment and modification of parenting time).  Rather, the parenting-time statute simply states that "[i]f modification would serve the best interests of the child, the court shall modify the decision-making provisions of a parenting plan or an order granting or denying parenting time."  Minn. Stat. § 518.175, subd. 5.  And this court has held that while significant modifications of parenting time must be supported by findings that the modifications are in the child's best interests, mere clarifications or insubstantial modifications of parenting time need not be supported by such findings.  Funari v. Funari, 388 N.W.2d 751, 753 (Minn. App. 1986).  Because the orders from which father appeals retained the requirement that father's parenting time was contingent on R.O.'s approval, and therefore were not modifications of father's parenting time, we determine that the orders did not need to be supported by best-interests findings. 

II.

 

            Father also moved to have R.O. evaluated psychologically so that she could "explain in private her feelings and reasons why she does not wish to see [father]."  The district court denied father's motion in its March 2006 order, finding that R.O. "testified under oath on three separate occasions stating that she does not want to have any contact with [father] in any fashion."  Based on the record and the district court's findings, we conclude that the district court's denial of father's request was not an abuse of discretion.  See Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995) (determining that the district court has broad discretion in deciding parenting-time issues and will not be reversed absent an abuse of discretion).

III.

 

            Father also argues that the district court erred by granting mother's motion to deny father access to R.O.'s medical records.  Under Minn. Stat. § 518.17, subd. 3(b) (2004), each parent has a right of access to his or her child's school, medical, dental, and other important records.  But under the statute, the court may "waive" a parent's right of access to the records "if it finds it is necessary to protect the welfare of a party or child."  Minn. Stat. § 518.17, subd. 3(b).  In the order granting mother's motion to deny father access to R.O.'s medical records, the district court found that father's behavior toward R.O. "amounts to stalking and harassment," without commenting on whether father's conduct satisfies the definitions of stalking and harassment under Minn. Stat. § 609.749 (2004 & Supp. 2005).  We conclude that, on this record, the district court did not abuse its discretion by granting mother's motion.

IV.

 

            In August 2000, the district court denied a motion brought by father regarding parenting time and determined that "[m]uch court time has been wasted, and the efficient administration of justice has been thwarted, by [father's] repetitive, duplicative, and groundless motions regarding visitation" and that it was likely that requiring security for the bringing of future motions would ensure that father curbs his "frivolous [motions] and treats these proceedings as serious matters."  Thus, the district court ordered that, before filing another motion regarding parenting time, father was required to post a $200 bond, the motion would then be forwarded to a judge for review, and if the reviewing judge determined that the motion was frivolous or brought in bad faith, the bond would be forfeited as court costs.  If the reviewing judge determined that father's motion had merit and was not brought for any improper purpose, the bond would be refunded to father.  The record shows that this requirement has been enforced since the August 2000 order.

            In its March 2006 order, the district court ordered that if father "seeks to submit any additional Motions in this matter, he shall post a $200.00 bond" under the court's August 2000 order.  Father argues that the district court erred by ordering that he post a bond before bringing any parenting-time motions because it did not follow the procedural requirements of Minnesota General Rules of Practice 9.01 and 9.02 by giving father notice and a hearing.

Rule 9.01 authorizes a district court to enter an order "(a) requiring the furnishing of security by a frivolous litigant who has requested relief in the form of a claim, or (b) imposing preconditions on a frivolous litigant's service or filing of any new claims, motions or requests."  The district court may impose such preconditions on its own initiative.  Minn. R. Gen. Pract. 9.01.  A litigant is entitled to notice and a hearing before such an order may be entered.  Minn. R. Gen. Pract. 9.01.  The record shows that in a June 2000 order, the district court told father that, on its own initiative, the court concluded that "[t]here is reason to believe that [father's] present motion is frivolous within the meaning of Rule 9 of the General Rules of Practice" and ordered father to appear for a hearing on July 10, 2000, to show cause why the district court should not enter an order imposing sanctions because of father's frivolous and bad-faith motion.  The record further shows that the district court entered its August 2000 order imposing such preconditions following the July 2000 hearing.  Thus, because the district court followed the procedural requirements of Rule 9 in its initial order imposing preconditions, we determine that the district court did not err in its March 2006 order by repeating, without an additional hearing, the requirement that father post a $200 bond before filing any further motions in this matter.

Affirmed.