Gregory Schizzano, petitioner, Respondent, vs. Alonna Schizzano, n/k/a Alonna Schizzano-Silbernagel, Appellant.

Gregory Schizzano, petitioner, Respondent, vs. Alonna Schizzano, n/k/a Alonna Schizzano-Silbernagel, Appellant. A06-113, Court of Appeals Unpublished, September 26, 2006.

This opinion will be unpublished and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

A06-113

 

Gregory Schizzano, petitioner,

Respondent,

 

vs.

 

Alonna Schizzano,

n/k/a Alonna Schizzano-Silbernagel,

Appellant.

 

Filed September 26, 2006

Reversed and remanded

Shumaker, Judge

 

Otter Tail County District Court

File No. F6-92-718

 

 

Gregory Schizzano, OID# 144366, MCF Faribault, 1101 Linden Lane, Faribault MN 55021-6400 (pro se respondent)

 

Samuel S. Johnson, 205 North Seventh Street, P.O. Box 5, Wahpeton, ND 58074-0005 (for appellant)

 

 

            Considered and decided by Shumaker, Presiding Judge; Stoneburner, Judge; and Worke, Judge.

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

            Appellant-mother argues that the district court abused its discretion when it denied her motion to reduce respondent-father's parenting time after the court expressly found that his conduct was not in the best interests of their oldest son.  We reverse and remand.

FACTS

            Appellant-mother Alonna Schizzano-Silbernagel and respondent-father Gregory Schizzano have two sons, who are 16 and 14 years old.  Upon the dissolution of their marriage in 1993, the parties were awarded joint legal custody of the children, but mother was granted sole physical custody.  According to a 2000 order, father's parenting-time schedule consisted of two weekends per month, alternating holidays, and Father's Day weekend. 

            In October 2005, the district court granted mother's request for an ex parte order to vacate and cancel father's parenting time after mother alleged that father's purchase of a drug-masking drink for the oldest son threatened his emotional and physical development.  The court also scheduled an evidentiary hearing for November 2005.  Father served no responsive pleadings but appeared pro se at the hearing.  Father cross-examined mother and the son's girlfriend and called one witness on his behalf.  Father, however, did not testify, and he did not submit any type of summary or make a closing argument.  The district court issued findings in December 2005.  The oldest son is on probation and is required to undergo periodic drug testing until he turns 19 years of age.  The district court found that father purchased a drink called "Total Eclipse" that allegedly would prevent the detection of the son's marijuana use.  The court also found that father admitted his direct involvement in the purchase, was aware of the purpose of the drink, and knew that the oldest son was on probation and subject to random drug testing.  It concluded that father's purchase of the drink was contrary to the oldest son's best interests because it is likely to endanger his physical and emotional health and impair his emotional development. 

            But the district court also found that father is "capable of change" and that he vocalizes an "anti-drug message" to his sons.  In the court's opinion, "[e]liminating all contact between [father] and his children is not in the children's best interests.  However, it is in the children's best interests that [father] changes his conduct."  The district court reinstated the 2000 parenting-time schedule with one modification irrelevant to the issues before this court.  Mother appealed.  Father did not file a responsive brief.

D E C I S I O N

            Mother first argues that we should reverse the district court's reinstatement of father's parenting time because reinstatement is contrary to the best interests of their children.  A district court has broad discretion in deciding parenting-time issues and what is in a child's best interests.  Anderson v. Archer, 510 N.W.2d 1, 5 (Minn. App. 1993); Moravick v. Moravick, 461 N.W.2d 408, 409 (Minn. App. 1990).  Its decision will be reversed only for a clear abuse of discretion.  Moravick, 461 N.W.2d at 409.  "It is well established that the ultimate question in all disputes over [parenting time] is what is in the best interest of the child."  Clark v. Clark, 346 N.W.2d 383, 385 (Minn. App. 1984), review denied (Minn. June 12, 1984).

            An order granting or denying parenting time shall be modified if modification would serve the child's best interests.  Minn. Stat. § 518.175, subd. 5 (2004).  Before the court may restrict parenting time, it must find either that the exercise of parenting time would endanger the child's physical or emotional health or impair the child's emotional development, or the parent has chronically and unreasonably failed to comply with the parenting-time order.  Id. 

            If the court finds that the exercise of parenting time endangers the child or impairs the child's emotional development, "the court shall restrict parenting time with that parent as to time, place, duration, or supervision."  Minn. Stat. § 518.175, subd. 1(a) (2004) (emphasis added); see also Minn. Stat. § 645.44, subd. 16 (2004) (stating that "shall" is "mandatory").

            Here the court found that the father's purchase of a marijuana-masking drink for the child was "contrary" to the child's best interests and was "likely to endanger" his physical and emotional health and to impair his emotional development.  These findings are not disputed on appeal.  Mother argues that these findings trigger the requirement that the court enforce the mandatory parenting-time restriction.  We agree.  But the district court did not do so and instead concluded that the elimination of father's parenting time would not be in the child's best interests.

            The statute does not mandate the elimination of parenting time when the court finds endangerment or impairment, but rather requires an appropriate restriction of parenting time.  Id.  Because the court failed to apply the statute by appropriately restricting parenting time, the court abused its discretion.  See Courey v. Courey, 524 N.W.2d 469, 472 (Minn. App. 1994) (noting that district court abuses its discretion as to parenting time if its findings are not supported by the record or it improperly applies the law).  Thus, it is necessary to remand this matter for further proceedings consistent with the parenting-time statute.

            Because a remand is necessary, we need not address mother's additional arguments.

            Reversed and remanded.