Sarah Anne Kennedy, petitioner, Respondent, vs. Steven Wayne Kennedy, Appellant.

Sarah Anne Kennedy, petitioner, Respondent, vs. Steven Wayne Kennedy, Appellant. A05-2397, Court of Appeals Unpublished, December 5, 2006.

This opinion will be unpublished and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

A05-2397

 

Sarah Anne Kennedy, petitioner,

Respondent,

 

vs.

 

Steven Wayne Kennedy,

Appellant.

 

 

Filed December 5, 2006

Affirmed

Halbrooks, Judge

 

 

Hennepin County District Court

File No. DC 269638

 

 

Louise E. Livesay, Grand Hill Professional Building, 333 Grand Avenue, Suite 206, St. Paul, MN 55102 (for respondent)

 

Steven Wayne Kennedy, 1829 Running Fawn Court, North Las Vegas, NV 89031 (pro se appellant)

 

 

            Considered and decided by Halbrooks, Presiding Judge; Hudson, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            On appeal from the district court's order determining custody, parenting time, and sanctions, appellant argues that (1) the district court erroneously determined that he withdrew his motion for modification of custody, (2) the parenting-time schedule is not in the best interests of the children, (3) appellant should receive compensatory time and sanctions against respondent, (4) the district court unduly limited appellant's contact with his children by electronic and long-distance communication, (5) appellant should not be required to release confidential counseling records from 2001 or to provide random urinalysis, (6) the district court failed to consider appellant's child-support obligations for his child from a previous marriage, (7) the district court failed to address appellant's motion for an evidentiary hearing regarding respondent's fraud, (8) the district court should not have sanctioned appellant with an award of attorney fees to respondent, and (9) the district court abused its discretion by imposing court review of appellant's future motions before scheduling a hearing.  We affirm.

FACTS

            Respondent Sarah Anne Kennedy and appellant Steven Wayne Kennedy married in 1996; respondent petitioned for dissolution in 2001.  The district court granted the dissolution in 2003 in a judgment and decree that provided for joint legal custody of their two children and sole physical custody to respondent.  Appellant received parenting time and was ordered to pay child support.  Before the dissolution judgment, appellant gave respondent $12,058.46 for child care.  Soon after the judgment, the parties disputed parenting time.  Respondent's noncompliance with the district court's order, according to appellant, resulted in his decision to move to Las Vegas to care for his child from a previous marriage.

            Appellant then began making several motions.  He moved to reduce his child-support payments based on changed circumstances and claimed that respondent fraudulently failed to tell the court about appellant's pre-dissolution child-care payments.  The child-support magistrate denied appellant's request in an order dated March 16, 2004, because he failed to document his changed circumstances.  Appellant requested review of the March 16 order under the expedited process by district court.  When appellant's request for review was denied, he appealed the failed request for review to the district court. 

            In June 2004, appellant filed a motion, signed in late April, to establish parenting time and to have child-support obligations offset by travel expenses.  Appellant served respondent's attorney with the motion, but the hearing was canceled because appellant had not properly filed the motion. 

            On December 15, 2004, appellant moved for parenting time during the holidays after 18 months' absence from the children, including a request to establish access, an order to establish a visitation exchange point, and that child support be reduced in the amount of his cost of transportation to exercise his parenting time.  The dissolution judgment required such matters to be resolved by mediation instead of by hearing; according to respondent, appellant refused to attend mediation.  The district court granted appellant a holiday parenting-time schedule, reserving final determination of parenting-time issues for mediation.  Appellant had parenting time in December 2004 and January, February, April, and May 2005.  But mediation failed.

            On March 23, 2005, appellant moved to modify child support based on reduced costs of health insurance for the children, appellant's reduced income, and child-support costs for his other child as well as to modify appellant's parenting time.  Respondent contended that it was the same motion that appellant had unsuccessfully made the previous year.  When appellant was not prepared for the April 6 hearing, the district court continued the hearing to mid-June. 

In May 2005, appellant moved to modify custody and parenting time, schedule parenting time for the three summer months at his home in Las Vegas, grant him compensatory time, and sanction respondent for failing to comply with the parenting-time schedule.  Respondent moved to consolidate the issues raised by appellant and for a parenting-access evaluation, interim parenting-time schedule, and sanctions against appellant for multiple, frivolous motions.  On May 27, 2005, the district court ordered an evaluation, limited appellant's interim parenting time to contact using a web camera, consolidated appellant's motions, and reserved other issues for later hearing.  The district court also ordered that appellant authorize release of his medical records for the evaluation. 

            Throughout 2005, appellant documented respondent's alleged failures to comply with the parenting-time schedule by respondent's refusing mail addressed to the children, not responding to voice-mail messages, and being consistently absent for scheduled parenting time via web camera.  On one instance, appellant arrived in Minneapolis for scheduled parenting time on Father's Day weekend to find respondent and children out of state, although respondent had indicated this anticipated absence in a prior affidavit.  As a result of the children's absence on Father's Day, appellant moved for ex parte relief for respondent to return the children to Minnesota, to obtain sole legal and physical custody, and to sanction respondent for violation of court-ordered parenting time.  Appellant further claimed that respondent was guilty of kidnapping and deprivation of parental rights. 

            Appellant also sought reconsideration of the May 27 order.  Appellant's motion sought to strike the district court's finding that he was ordered to obtain mental and chemical-dependency treatment, claiming treatment was voluntary, and to change a gender error in a pronoun referring to his son.  In addition, appellant challenged the limited telephone/video contact of 6:00-6:30 p.m. on Sundays during the parental-access evaluation as being too restrictive because no justification existed for the restriction.

            The parenting-access evaluation documented the children's comfort with appellant.  But due to appellant's long absence from the children, the evaluation recommended that parenting time increase gradually and be granted conditional to appellant's random urinalysis once a month for six months.  The district court accepted the recommendations.  The district court denied appellant's claim of changed circumstances justifying reduced child support, sanctioned appellant with one-half of respondent's attorney fees, and required that any future motions brought by appellant be reviewed by the district court before scheduling a hearing.  This appeal follows. 

D E C I S I O N

I.

 

            Appellant claims that the district court incorrectly determined that he withdrew his motion to modify custody.  District courts have broad discretion in granting custody, and this court's review "is limited to determining whether the district court abused its discretion" through unsupported findings or improper application of law.  Lemcke v. Lemcke, 623 N.W.2d 916, 919 (Minn. App. 2001), review denied (Minn. June 19, 2001).  Custody may be legal or physical.  See Minn. Stat. § 518.003, subd. 3 (2004).  "Legal custody" is the "right to determine the child's upbringing," id., subd. 3(a), and "physical custody" indicates where the child receives "daily care and control" from the parent.  Id., subd. 3(c).  In contrast, parenting time is a parent's time with a child regardless of custody.  Id., subd. 5 (2004). 

            The judgment's terms provide that the parties have joint legal custody with sole physical custody to respondent.  Appellant once had asked for temporary sole legal and physical custody as a sanction against respondent.  Because the district court was uncertain as to the nature of appellant's request, the district court sought clarification.  Appellant characterized his motion as one for parenting time for the three summer months.  Upon receiving this clarification, the district court then considered appellant's request as one for a parenting-time modification.  In doing so, the district court acted within its discretion.

II.

            Appellant challenges the district court's parenting-time schedule and claims that the parenting-time limitations are not in the best interests of the children because they limit the children's ability to have a continuing relationship with their half-sister.  The district court has broad discretion in deciding parenting-time issues, and, unless the court abuses that discretion, this court will not reverse its determination.  Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).  The best interests of the children is a determinative factor in disputes over parenting time.  Clark v. Clark, 346 N.W.2d 383, 385 (Minn. App. 1984), review denied (Minn. June 12, 1984); see also Olson, 534 N.W.2d at 550; Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001), review denied (Minn. Oct. 24, 2001).  We will affirm a district court's decision on the best interests of a child unless the decision constitutes an abuse of the district court's discretion.  Vangsness v. Vangsness, 607 N.W.2d 468, 475 (Minn. App. 2000). 

            A district court must grant parenting time to "enable the child and the parent to maintain a child to parent relationship that will be in the best interests of the child."  Minn. Stat. § 518.175, subd. 1(a) (2004).  A district court must modify a parenting-time order "[i]f modification would serve the best interests of the child" and "if the modification would not change the child's primary residence."  Id.,subd. 5 (2004).  Restrictions may be made only if the parenting time would likely endanger the child or "the parent has chronically and unreasonably failed to comply with court-ordered parenting time."  Id.

            Here, appellant's request for parenting-time modification is based both on his desire to maintain contact with his children to the extent possible due to the distance between Minnesota and Nevada and on his claims that respondent has failed to comply with the established parenting-time schedule.  By scheduling parenting time in larger blocks of time during holidays and the summer, appellant contends that he could reduce travel expenses while maintaining contact with his children, who also would benefit from seeing their half-sister, grandparents, and extended family.

            In response to parenting-time concerns raised by both parties, the district court ordered a parenting-access evaluation, which found a need for stability in the children's living arrangements.  The evaluation recognized that the children enjoy being around appellant and their half-sister.  In the evaluator's words, "a gradually increasing parenting time schedule . . . would allow [the children] time to get more comfortable with" appellant before allowing for the possibility of parenting time in Las Vegas.  The district court's decision to adopt this recommendation as being in the best interests of the children is well within its discretion.

III.

            Appellant seeks compensatory time based on respondent's alleged failure to comply with previous parenting-time schedules.  In parenting-time decisions, the district court has extensive discretion, limited by the best interests of the child.  Gregory v. Gregory, 408 N.W.2d 695, 697 (Minn. App. 1987).  Compensatory parenting time is a remedy "[i]f the court finds that a person has been deprived of court-ordered parenting time, the court shall order the parent who has interfered to allow compensatory parenting time to the other parent or the court shall make specific findings as to why a request for compensatory parenting time is denied."  Minn. Stat. § 518.175, subd. 6(a)-(b) (2004).  Such compensatory time must be "at least of the same type and duration as the deprived parenting time," "taken within one year after the deprived parenting time," and scheduled according to the deprived parent's availability.  Id., subd. 6(b).

            Appellant contends that compensatory parenting time is warranted because respondent refused mail that he sent to his children, did not respond to voice mail, and was consistently unavailable for scheduled web-camera parenting time.  In addition, in anticipation of this parenting time on Father's Day weekend 2005, appellant sent respondent two letters and three voice-mail messages with no response.  But respondent earlier stated in an affidavit filed with the court that the children would be out of town on vacation that weekend.  Instead of sanctions, as appellant requested, the district court chose to order a parenting-access evaluation for full re-evaluation of parenting time. 

            Although the district court needs to make findings for its decision, the findings may be obtained "from the four corners of the court's order."  Gregory, 408 N.W.2d at 698.  Nor are findings technically required under Minn. R. Civ. P. 52.01.  Hennessy v. Stelton, 302 Minn. 550, 551, 224 N.W.2d 926, 927 (1974).  Furthermore, district courts have maintained parenting time even when evidence existed of parental alienation because the applicable test is the best interests of the child.  Lemcke, 623 N.W.2d at 920.  Here, the district court adopted the evaluator's recommendations for a gradual increase in parenting time.  Although the district court denied appellant's compensatory-time request, the district court anticipates increasing appellant's parenting time in a manner that is in the best interests of the children.  This approach is within the district court's discretion.

IV.

            Appellant challenges the district court's parenting-time schedule that limits contact with his children by long-distance communications.  Appellant's parenting time has always included both telecommunications and visitation in Minnesota.  Appellant's assigned parenting time increased the permissible visitation while retaining a telecommunications component for long-distance contact three times a week.  The district court's order allows appellant much greater in-person parenting time augmented by regular web-camera parenting time.  We conclude that the district court's decision was within its discretion.

V.

            Appellant claims that the district court abused its discretion by ordering him to release confidential medical records from 2001 for the parenting-access evaluation.  Appellant claims that the disclosure was unnecessary because the district court found on December 20, 2004, that "no immediate drug or mental health issues . . . pose a danger to the children."  The district court's order required both parties to "complete all requested authorizations for release of information."  The district court's order for record disclosure for the parenting-time evaluator's use was within the court's discretion.

VI.

            Appellant contends that the district court inappropriately ordered him to comply with six months of random urinalysis when appellant has not been charged criminally and respondent's concerns of his substance abuse are unfounded.  The record before the district court was that appellant had been hospitalized for mental-health reasons in the preceding three years and had stopped taking his prescribed medication.  The terms of dissolution judgment required appellant to complete both mental-health and chemical-dependency treatment.  There is no finding that he has done so.  We, therefore, conclude that the district court did not abuse its discretion by ordering appellant to provide random urinalysis for a limited time frame.

VII.

            Appellant raises concerns that his child-support payments fail to accommodate his child-support payments for his child from a previous marriage.  "It is well established" that the district court has discretion to modify a child-support order, and we may reverse only if the district court resolved the matter in a manner that is against logic and the facts on record.  Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986) (quotation omitted). 

            Courts may modify child-support payments only for a substantial change in circumstances as described in Minn. Stat. § 518.64, subd. 2 (2004).  These changes must have occurred after the initial dissolution judgment, which includes the initial child-support obligations.  See Minn. Stat. § 518.57, subd. 1 (2004).  The district court is required to make specific findings in determining whether changed circumstances justify modification.  Moylan, 384 N.W.2d at 863, 865.  In 2004 and 2005, the district court found that appellant had not shown a change in circumstances since the judgment.  The record supports the district court's determination.

VIII.

            Appellant claims that the district court abused its discretion by failing to hold an evidentiary hearing on his motion for a change in custody, a parenting-time schedule, and sanctions for respondent's alleged violations of the parenting-time schedule.  Appellant also claims the district court failed to respond to his application for ex parte relief regarding the children's absence during Father's Day weekend 2005.  But the parenting-access evaluation, which was adopted by the district court, addressed the custody and parenting-time issues.

            Appellant argues that the failure to obtain an evidentiary hearing resulted from his counsel's failure to advise him before his withdrawal.  Furthermore, appellant claims that we must hold "allegations of the pro se complainant . . . to less stringent standards than formal pleadings drafted by lawyers."  See Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596 (1972).  But "this court has repeatedly emphasized that pro se litigants are generally held to the same standards as attorneys and must comply with court rules," although courts may make some accommodations based on the litigant's pro se status.  Fitzgerald v. Fitzgerald, 629 N.W.2d 115, 119 (Minn. App. 2001).  The district court did not abuse its discretion by not conducting an evidentiary hearing on these issues.

IX.

            Appellant argues that he should not be sanctioned with one-half of respondent's attorney fees because he filed his claims in good faith.  The decision to impose attorney fees is almost entirely within the discretion of the district court, and this court will not alter the decision absent an abuse of discretion.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).  A district court may impose attorney fees on a litigant in matters related to marriage dissolution if a party "unreasonably contributes to the length or expense of the proceeding."  Minn. Stat. § 518.14, subd. 1 (2004).  This standard, unlike rule 11, does not require bad faith.  Geske v. Marcolina, 624 N.W.2d 813, 818-19 (Minn. App. 2001); cf. Minn. R. Civ. P. 11.  Before imposing conduct-based attorney fees, the district court must identify the offending conduct, and the conduct must have occurred during the proceeding.  Geske, 624 N.W.2d at 818-19.  Respondent asserts that appellant repeatedly brought motions without sufficient factual support, filed them improperly, or appeared in court without being sufficiently prepared to proceed.  As a result, she sought reimbursement for her attorney fees.  The district court found that appellant had contributed to the length of the proceeding but recognized appellant's limited financial resources, thus making appellant responsible for only one-half of respondent's attorney fees.  On this record, we conclude that the district court's decision was within its discretion.

X.

            Appellant challenges the district court's decision that granted respondent's motion that the district court review his future motions before scheduling a hearing.  A district court has great discretion in determining the procedural calendar of a case, Rice v. Perl, 320 N.W.2d 407, 412 (Minn. 1982), and has extensive authority to sanction participants whose actions adversely affect efficient court operation.  See, e.g., Minn. Stat. § 518.14, subd. 1 (allowing judgment of attorney fees against party who unreasonably contributes to length of proceedings); Minn. Stat. § 549.211 (2004) (permitting monetary or nonmonetary sanctions to deter frivolous litigation); Minn. R. Civ. P. 11 (permitting monetary or nonmonetary sanctions to deter frivolous litigation).  A district court may limit hearing a frivolous litigant's motions through requiring security or non-monetary conditions.  Minn. R. Gen. Pract. 9.01.

            Appellant argues that the district court failed to find him a frivolous litigant, as required in a rule 9 or rule 11 hearing, to justify sanctions.  While the district court's order did not indicate past specific conduct, see Minn. R. Gen. Pract. 9.02(c); Minn. R. Civ. P. 11.03(c), respondent's supporting affidavit and statements at hearing made an ample record.  Cf. Hennessy, 302 Minn. at 551, 224 N.W.2d at 927 (finding no abuse of discretion even though the record "is not a model of either completeness or clarity").           The review process does not prohibit appellant from making motions.  Nor does it prevent appellant from obtaining a hearing.  If appellant's future motions have sufficient grounds and support, the district court after its review will set a hearing date.  Such limited requirements are within a court's discretion in managing its calendar for efficiency.

            Affirmed.