In re the Marriage of: Jefta Olupo, petitioner, Respondent, vs. Olufunmilayo Adetoun Denise Olupo, Appellant.

In re the Marriage of: Jefta Olupo, petitioner, Respondent, vs. Olufunmilayo Adetoun Denise Olupo, Appellant. C8-02-109, Court of Appeals Unpublished, August 20, 2002.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-02-109

 

In re the Marriage of:
 
Jefta Olupo, petitioner,
Respondent,
 
vs.
 
Olufunmilayo Adetoun Denise Olupo,
Appellant.

 

Filed August 20, 2002

Affirmed

Minge, Judge

 

Dakota County District Court

File No. F99414370

 

 

Maury D. Beaulier, Elizabeth H. Strand, 5001 West 80th Street, Suite 1010, Bloomington, MN 55437 (for respondent)

 

Kevin J. McGrath, Mark E. Mullen, Jensen, McGrath & Mullen, P.L.L.P., 1350 Wells Fargo Plaza, 7900 Xerxes Avenue South, Bloomington, MN 55431 (for appellant)

 

Joyce M. Grannis, 412 Southview Boulevard, Suite 100, South St. Paul, MN 55075 (guardian ad litem)

 

            Considered and decided by Minge, Presiding Judge, Schumacher, Judge, and Peterson, Judge.

 

 

U N P U B L I S H E D   O P I N I O N

 

MINGE, Judge

 

            Appellant-mother challenges the district court's denial of her motion for unsupervised visitation, arguing that (a) the findings of no change in circumstances are unsupported by the record; (b) the district court misapplied Al-Zouhayli v. Al-Zouhayli, 486 N.W.2d 10 (Minn. App. 1992), in addressing her alleged risk of flight with the children; and (c) she should have been given a plan for obtaining unsupervised visitation. Because there is evidence in the record to support the court's concern that appellant is a flight risk, we affirm the court's denial of unsupervised visitation.

FACTS

 

            Appellant Olufunmilayo Olupo and respondent Jefta Olupo dissolved their marriage by judgment and decree in October 1994.  The parties have two minor children:  a son J.O., age 11, and a daughter C.O., age 8.  The dissolution judgment reserved the issues of custody and visitation.[1]  Both parties are from Nigeria; respondent is a permanent resident of the United States but retains Nigerian citizenship.  Appellant is not a U.S. citizen and has had an asylum request pending with the Immigration & Naturalization Service.  Her current immigration status is unclear from the record.

In September 1997, the court appointed a guardian ad litem (GAL) with orders to make recommendations regarding custody and visitation.  In October, the court ordered the parties to surrender their passports.  In March 1998, the court again ordered appellant to provide her passport to respondent's counsel.  Appellant failed to surrender her passport.  In August, the district court placed sole legal and physical custody of the children with respondent.  The court reserved the issue of visitation pending the GAL's report and expressed concern that appellant could flee with the children to Nigeria, noting that she had earlier obtained false documents and had the capacity to lie to obtain new passports for herself and the children.  Appellant sought review of the original custody determination, and this court affirmed the district court's decision.  See Olupo v. Olupo, No. C0-98-2348 (Minn. App. July 6, 1999), review denied (Minn. Sep. 14, 1999). 

In November 1998, the court adopted the GAL's supervised visitation schedule.  In September 2000, the court denied appellant's request for unsupervised visitation and ordered supervised visitation at the Children's Safety Center on a midweek day, in lieu of the Friday visits.  In May 2001, the court (1) allowed appellant to visit the children at their school if a supervisor is present; (2) allowed appellant to visit the children at daycare once a week if a supervisor is present; (3) ordered the GAL to update her records and make recommendations regarding any transition to unsupervised visitation; and (4) ordered appellant to relate her concerns regarding the children's welfare to the GAL, reminding appellant that her "repeated reports of child abuse [against respondent], all of which have been determined unsubstantiated, are an impediment to any award of unsupervised visitation." 

In August, the GAL recommended unsupervised visitation with restrictions to reduce the risk of appellant absconding with the children, including (1) registering the children with the state department; (2) requiring appellant to surrender her passport to the court; and (3) educating the children about what to do if appellant flees with them.  The GAL stated that it was not in the children's "best interest to continue to have such limited and restricted contact with their mother."  In September, appellant moved the court to adopt the GAL's recommendations.  Respondent opposed unsupervised visitation, arguing that it would provide an opportunity for appellant to abduct the children. 

In November, the court denied appellant's motion to modify visitation, determining that the record shows "a strong probability that [appellant] will abduct the children and transport them to a country not obliged to respect this Court's order if allowed unsupervised visits."  In addition, the court found the GAL's recommendations for unsupervised visitation

insufficient to protect the children from abduction given [appellant's] psychological evaluation, propensity for moving without due consideration, history of obtaining false documentation, lack of any ties to the state or nation, and tenuous legal standing allowing her to remain in the country.

 

The court concluded that the GAL's report does not show any change in circumstances since 1998 to warrant modification of appellant's visitation rights.  This appeal followed.

D E C I S I O N

 

I.

 

             The district court has extensive discretion in deciding visitation questions and will not be reversed absent an abuse of discretion.  Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).  A district court's factual findings for a visitation decision will be upheld unless they are clearly erroneous.  Griffin v. Van Griffin, 267 N.W.2d 733, 735 (Minn. 1978).  Written findings are not always required for visitation modifications, but it is the "better practice" to include them.  Haala v. Haala, 354 N.W.2d 121, 122 (Minn. App. 1984) (remanding for further findings not "mandatory" in all cases of visitation modification).

            Under Minnesota law, a district court can modify visitation if such "modification would serve the best interests of the child."  Minn. Stat. § 518.175, subd. 5 (Supp. 2001); see also Lutzi v. Lutzi, 485 N.W.2d 311, 315 (Minn. App. 1992) (stating that a decision to remove supervised visitation is governed by the best interests of the child).  The party seeking modification bears the burden of establishing that such modification is in the best interests of the children.  Griffin, 267 N.W.2d at 735.  When the sole allegation of endangerment is risk of abduction, the district court should weigh the harmful effect of supervised visitation on the parent-child relationship against the risk of abduction to determine the best interests of the child.  Al-Zouhayli v. Al-Zouhayli, 486 N.W.2d 10, 13 (Minn. App. 1992).[2]

            Appellant first argues that the district court failed to make any findings or conclusions of law regarding the best interests of the children.  Although written findings are preferred in a decision regarding visitation, they are not required.  See Hennessy v. Stelton, 302 Minn. 550, 550, 224 N.W.2d 926, 927 (1974) (stating that a district court is encouraged but not required to make findings of fact when deciding a motion for modification of visitation rights).  The district court, however, in this proceeding has made certain findings.  It explicitly found that "[t]he children appear to be secure and thriving under the present order" and "[i]t is in the children's best interest that they remain in the custody of their father."  Moreover, the court made detailed findings supporting the strong probability of appellant's flight with the children, such as appellant's (1) ability to falsify documents; (2) failure to relinquish her passport to the court; (3) frequent moves with the children without notifying respondent of their location; (4) unclear immigration status and problematic eligibility for political asylum; and (5) lack of ties to Minnesota other than her children. 

The court's focus on appellant's propensity to flee with the children was appropriate.  If she abducts the children to Nigeria it would be virtually impossible for respondent to recover them.  Nigeria has not ratified the Hague Convention on the Civil Aspects of International Child Abduction, Hague Conference on Private International Law, Final Act to the 14th Session, October 25, 1980.  51 Fed. Reg. 10498 (1980).  The Convention's goal is to curb international child abductions by providing judicial remedies to those seeking the return of a child who has been wrongfully removed.  Such an abduction would essentially sever the children's contact with their father.  The resulting separation from the father would not be in the children's best interests.  See Clark v. Clark, 346 N.W.2d 383, 385 (Minn. App. 1984) (stating intent of visitation statute is to allow child to maintain a two-parent relationship), review denied (Minn. Jun. 12, 1984). 

Appellant next argues that the court's finding of no change during the three years of supervised visitation was clearly erroneous.  Appellant misinterprets the court's finding.  The district court found that appellant has not shown a change in circumstances regarding appellant's propensity to abduct the children, not that there has been no change at all.  The record does reflect that during these three years appellant has (1) complied fully with the supervised visitation order; (2) obtained limited employment; (3) rented a room; and (4) requested political asylum in the United States, which was denied and which she is appealing.  These changes, however, did not alleviate the court's continued concern that appellant will abscond with the children, especially when appellant (1) remains an alien with an ambiguous status and made no showing as to why she is eligible for political asylum; and (2) continues to violate the court's order by obtaining orders for protection against respondent instead of contacting the GAL.  Ultimately, it is within the court's discretion to determine whether expanded visitation is in the best interests of the children, and this decision turns on weight and credibility determinations.  See In re Welfare of M.D.O., 462 N.W.2d 370, 374-75 (Minn. 1990) (stating that appellate courts defer to district court's assessment of witnesses in evaluating what is in best interests of child).  Here, the record supports the court's determination that these changes do not decrease the risk of appellant absconding with the children to Nigeria.

               Appellant also argues that there is no evidence in the record to support the court's finding that the children are secure and thriving under the present order.  Because respondent's affidavit supports this finding, and because the district court decides conflicts in evidence, there is sufficient evidence in the record to support this finding.  See Straus v. Straus, 254 Minn. 234, 235, 94 N.W.2d 679, 680 (1959) (stating that a district court should resolve conflicts in evidence even though presented by affidavit and that the rule that evidence must be viewed in the light most favorable to the prevailing party applies to evidence presented by an affidavit).

II.

 

            Appellant argues that the court misapplied Al-Zouhayli v. Al-Zouhayli, 486 N.W.2d 10 (Minn. App. 1992), in addressing appellant's flight risk.  Specifically, appellant argues that Al-Zouhayli supports her position and that the court failed to weigh the harmful effects of supervised visitation with the risk of abduction, as Al-Zouhayli requires. 

            In Al-Zouhayli, the district court granted unsupervised visitation with the father despite the mother's allegation of a risk of abduction because the allegation was based solely on speculation of what he might do.  486 N.W.2d at 12.  But Al-Zouhayli cautioned that a decision whether to order supervised visitation must depend on the particular facts of the case.  Id. at 13.  Here, unlike Al-Zouhayli,the district court determined there was a great risk of abduction.  And here, unlike Al-Zouhayli,there is significant past history to suggest that appellant may try to abduct the children.  Al-Zouhayli recognizes that risk of abduction may present a viable barrier to modifying visitation and that the district court has discretion to evaluate the risk.  The district court's citation to this case was proper. 

III.

 

            Appellant finally argues that the district court erred by failing to provide her with a plan for achieving unsupervised visitation.  Appellant, however, never requested such a plan from the district court and cites no caselaw that requires a court to provide a noncustodial parent with a plan for achieving unsupervised visitation.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (this court will generally not consider matters that were not raised below); see also State v. Modern Recyling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (stating that an assignment of error in a party's brief based on mere assertion and not supported by authority is waived unless prejudicial error is obvious on mere inspection).  Therefore, we decline to address this argument.

            This court recognizes that, as the children grow older, the risk of abduction is reduced.  Hopefully, the parties, and if necessary the court below, will be able to fashion expanded visitation for appellant in the future.  Appellant's development of additional ties to and her continued residence in the community should also be persuasive in any subsequent district court consideration of this matter.

            Affirmed.

[1] In 2000, the legislature changed Minnesota law to provide for parenting plans and parenting time, rather than visitation rights.  See 2000 Minn. Laws ch. 444, arts. 1, § 2 (providing for parenting plans and parenting time), 2, §§ 26-31 (conforming terminology).  Because the changes to these statutes became effective January 1, 2001, and because the district court ordered supervised visitation before this date, we review the decision under the former statute.  See 2000 Minn. Law ch. 444, arts. 1, § 8, art. 2, § 50; see also McClelland v. McClelland, 393 N.W.2d 224, 226-27 Minn. App. (1986) (explaining that former law is to be applied where applying the law in effect at the time of the decision would alter matured right), review denied (Minn. Nov. 17, 1986).

[2] The only allegation of endangerment in this case pertains to the risk of abduction.  Respondent conceded that appellant cares for the children and that they are well-adjusted, happy children.