Randi Renee McCormick, petitioner, Respondent, vs. Jerry Richard Tyrpa, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-165

 

Randi Renee McCormick, petitioner,

Respondent,

 

vs.

 

Jerry Richard Tyrpa,

Appellant.

 

Filed September 30, 2003

Affirmed

Hudson, Judge

 

Stearns County District Court

File No. F9-92-050681

 

Brian R. Salita, Law Office of Brian R. Salita, 8409 Hopewood Lane, Minneapolis, Minnesota 55427 (for respondent)

 

David W. Buchin, Buchin Law Office, 16 North Ninth Avenue, St. Cloud, Minnesota 56303 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Randall, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            On appeal from the district court's modification of his parenting time, appellant argues that the district court abused its discretion because it failed to make adequate best-interests findings and the record does not support the findings it did make.  Because we conclude that the modifications to appellant's parenting time were minimally adequate and need not be supported by best-interests findings, and because the record sufficiently supports the findings the district court did make, we affirm. 

FACTS

Appellant Jerry R. Tyrpa and respondent Randi R. McCormick have a minor child, J.M., born August 24, 1990.  Pursuant to an order entered May 16, 2001, appellant was awarded parenting time with J.M.  The order provided, in relevant part:

School Year:

 

[Appellant] shall exercise parenting time with the minor child alternating weekends from Friday after school to Sunday evening at 6:30 p.m.

 

[Appellant] shall . . . exercise mid-week parenting time each Tuesday evening after school to Wednesday morning.

 

Summer:

 

[Appellant] shall exercise parenting time with the minor child alternating weekends from Friday evening when he gets off work to Sunday evening at 6:30 p.m.

 

[Appellant] shall exercise mid-week parenting time with the minor child each Tuesday evening when he gets off work to Wednesday morning.

 

[Appellant] shall exercise parenting time one week of each summer month.

 

In early October 2002, appellant brought a motion seeking to have respondent held in contempt of court for several alleged violations of the visitation order.  In response, respondent moved the district court for an order modifying the visitation schedule.  Respondent proposed that appellant's Tuesday overnight visit be eliminated and that J.M. be returned to respondent's home by 8:00 p.m.  Additionally, respondent proposed that appellant's summer parenting time be reduced from three non-consecutive weeks to two consecutive weeks in the summer.  Attached to respondent's motion was a notarized affidavit offering explanations to the allegations contained in appellant's contempt motion, as well as several allegations regarding appellant's alleged parenting deficiencies. 

Appellant appeared on his own behalf at the contempt/modification hearing in October 2002.  Following the hearing, the district court denied appellant's contempt motion and adopted respondent's proposed modified visitation schedule.  However, the district court's order did not contain factual findings and did not address how the modification to its visitation order served J.M.'s best interests.  In response, appellant, now represented by legal counsel, brought a motion for amended findings.  The motion was heard in January 2003.  After this hearing, in a letter to the parties, the district court acknowledged that a modification order decreasing visitation should be supported by adequate findings, but agreed with respondent's attorney that there were sufficient facts in the record to support its modification order.  The district court then requested that respondent's attorney prepare and submit to the court an order incorporating the findings and conclusions set forth in respondent's memorandum of law opposing appellant's motion.  The district court issued an order that incorporated respondent's proposed factual findings.  This appeal follows.

D E C I S I O N

I

Appellant argues that the district court abused its discretion because it failed to make findings explaining how the modification to the parenting schedule serves J.M.'s best interests.

A substantial alteration of visitation rights that amounts to a "restriction" of visitation requires findings that the existing visitation schedule is likely to endanger the child's health or development.  Anderson v. Archer, 510 N.W.2d 1, 4 (Minn. App. 1993); see also Minn. Stat. § 518.175, subd. 5 (2002) (the court may not restrict parenting time unless it finds the parenting time is likely to endanger the child's health or development).  However, less substantial changes in a visitation schedule are governed by the best-interests standard.  Anderson, 510 N.W.2d at 4; see also Minn. Stat. § 518.175, subd. 5 (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.  Anderson, 510 N.W.2d at 4. 

To decide this issue we must determine whether the reduction in appellant's parenting time represents a modification or a "restriction" of visitation.  When determining whether a reduction constitutes a restriction, we consider the reasons for the change as well as the amount of the reduction.  Id.  Modification of visitation that results in a reduction of total visitation time may not necessarily constitute a "restriction" of visitation.  See Danielson v. Danielson, 393 N.W.2d 405, 407 (Minn. App. 1986) (original visitation schedule consisted of a one-day-per-week visit which was increased to every other weekend after six months, plus alternating holidays.  After mother relocated to another state, court held that modification of visitation schedule to four weeks of visitation in the summer, visitation in the new state upon reasonable notice, and 24 hours' visitation when child was in Minnesota, was not a "restriction" of visitation); compare Clark v. Clark, 346 N.W.2d 383, 385-86 (Minn. App. 1984) (gradual reduction of visitation from fourteen weeks to five and one-half weeks per year during a four-year period following removal of child from Minnesota constituted "restriction" of visitation rights), review denied (Minn. June 12, 1984).

Here, we conclude that the changes to appellant's parenting time are not substantial and constitute a modification, not a "restriction," of visitation.  Appellant's Tuesday visitation was changed from an overnight visit to the return of J.M. to respondent's home by 8:00 p.m. on Tuesday evening.  On this record, eliminating the overnight stay is not a substantial modification.  The district court took this action in response to respondent's contention that appellant did not properly care for J.M., who was sometimes sent to school in soiled clothes after his overnight visit with appellant.  Similarly, appellant's three weeks of visitation in the summer was reduced to two consecutive weeks.  Insubstantial modifications of a parenting time schedule are within the district court's discretion and need not be supported by findings that such modifications are in the child's best interest.  Funari v. Funari, 388 N.W.2d 751, 753 (Minn. App. 1986).  Because the modification to the parenting schedule was insubstantial, the absence of best-interest findings in the modification order was not an abuse of the district court's discretion.

II

Appellant argues that the record does not support the factual findings the district court did make or the district court's decision to reduce appellant's parenting time.  Specifically appellant claims that the only basis for the district court's factual findings are the unsupported allegations contained in respondent's affidavit.  We disagree.

District courts are granted broad discretion to determine what is in the best interests of a child in visitation matters and will not be overturned on appeal absent an abuse of discretion.  Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001), review denied (Minn. Oct. 24, 2001).  A district court's factual findings, upon which a visitation 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).

Appellant contends that the only basis for the district court's factual findings are the unsupported allegations contained in respondent's affidavit supporting her motion for a reduction in appellant's parenting time.  But appellant, who was represented by counsel, failed to produce any evidence at the January 2003 hearing to rebut respondent's allegations.  Furthermore, respondent's affidavit was not the only evidence available to the district court.  In addition to respondent's affidavit, the district court had appellant's contempt motion in which appellant made several allegations against respondent.  Also a part of the record were the district court's findings in its original visitation order.  Finally, the district court heard the argument of respondent's attorney. 

We conclude that the record amply supports the district court's factual findings.  The original visitation order indicates J.M. is diagnosed with Attention Deficit Hyperactivity Disorder for which he takes Ritalin.  J.M. also suffers from depression and takes Zoloft.  This evidence supports the district court's finding that J.M. suffers from emotional and psychological difficulties.  The record equally supports respondent's allegation in her affidavit that appellant was not properly dispensing medication to J.M.  At the hearing, appellant noted that respondent leaves the minor child's medication at school instead of giving the medicine to appellant to administer.  Respondent noted that she encounters serious difficulties in trying to deliver J.M.'s medication to appellant.  Appellant did not rebut this statement.  Appellant also did not rebut respondent's allegation that appellant's roommates are "recovering" chemical abusers.  Respondent reported that she was apprehensive about leaving J.M.'s medication in appellant's mailbox because of appellant's roommate situation.  This evidence supports the trial court's finding that appellant has demonstrated a continuing disregard for dispensing J.M.'s medications to him.

Furthermore, the record indicates, and appellant does not deny, that he transports J.M. on a "crotch-rocket motorcycle."  The district court also found that appellant transported the child on the motorcycle at unsafe and dangerous speeds, thus placing J.M. in unacceptable peril.  Appellant argues now that this latter finding is based on the unsupported opinion of respondent, but he produced no evidence to the contrary at the contempt/modification hearing.  Therefore, the district court's finding is not clearly erroneous. 

Appellant next takes issue with the district court's finding that appellant had not complied with the original visitation order.  Appellant stated that he has followed the original visitation schedule "to the T," while respondent alleged in her affidavit that appellant ignores the court-ordered visitation schedule and returns J.M. home on Sunday nights instead of Fridays after a weeklong visitation.  According to respondent this occurred on three separate occasions.  Again, appellant did not rebut this allegation at the hearing or contend that he was confused as to when J.M. should be returned home.  The district court was entitled to credit respondent's affidavit.  Lastly, appellant argues that the district court improperly considered a December 1994 harassment restraining order that appellant claims was not a part of the record.  But the harassment restraining order is a part of the record, as it was discussed in the district court's original visitation order. 

Appellant argues that there is no direct link between the findings made by the district court and its conclusion that appellant's parenting time should be reduced.  But the district court's finding that appellant places J.M. in unacceptable peril by transporting him on a motorcycle at unsafe speeds, and its finding that J.M. has difficulty receiving his medication while he is in appellant's care, support the district court's conclusion that appellant's actions are likely to continue to physically and emotionally endanger J.M.  Accordingly, we cannot say that the district court abused its broad discretion when it reduced appellant's parenting time.  

Finally, we note the district court erroneously analyzed the modification of appellant's parenting time as a "restriction" of visitation, which requires a finding of child endangerment or a finding of chronic failure by the noncustodial parent to comply with the court-ordered visitation schedule.  Anderson, 510 N.W.2d at 4; Minn. Stat. § 518.175, subd. 5(1) - (2) (2002).  The district court made both these findings and they are supported by the record.  But because this was an insubstantial modification of visitation time, the trial court was not required to make those findings.  In any event, the district court's findings demonstrate it was obviously concerned for the health, safety, and welfare of J.M. and it ultimately reached the right result.  Therefore, we will not reverse.  See Katz v. Katz, 408 N.W.2d 835, 839 (Minn. 1987) (stating district court will not be reversed where it reaches the right result for the wrong reason). 

Affirmed.