In re the Marriage of: Larry J. Hoffer, petitioner, Appellant, vs. Joni L. Moyer, f/k/a Hoffer, Respondent.

In re the Marriage of: Larry J. Hoffer, petitioner, Appellant, vs. Joni L. Moyer, f/k/a Hoffer, Respondent. A05-2388, Court of Appeals Unpublished, September 12, 2006.

This opinion will be unpublished and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

A05-2388

 

In re the Marriage of:

Larry J. Hoffer, petitioner,

Appellant,

 

vs.

 

Joni L. Moyer, f/k/a Hoffer,

Respondent.

 

Filed September 12, 2006

Affirmed

Halbrooks, Judge

 

 

Rice County District Court

File No. F5-02-1281

 

 

Larry James Hoffer, 11513 Dennison Boulevard, Dennison, MN 55018 (pro se appellant)

 

Joni Lei Moyer, 10835 Farrel Avenue, Northfield, MN 55057 (pro se respondent)

 

 

            Considered and decided by Halbrooks, Presiding Judge; Hudson, Judge; and Wright, 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 denial of appellant's motion to increase his parenting time, appellant argues that the district court failed to consider the children's best interests, that he was denied due process and equal protection of the law, that the district court should have appointed a guardian ad litem, and that the district court erred by failing to order mediation of the parties' disputes.  We affirm.

FACTS

            Appellant Larry Hoffer and respondent Joni Moyer married in 1989.  They divorced in 2003 and share joint physical and legal custody of their three children.  Respondent's home was designated in the dissolution judgment as the children's primary residence.  Appellant was awarded parenting time every other weekend and every Wednesday night.  At the time of the dissolution, the parties agreed that that schedule was in the children's best interests.

            In August 2005, appellant moved the district court for an order modifying appellant's parenting-time and child-support obligation and requiring the parties to mediate custody and parenting-time disputes.  Appellant requested equal parenting time, so that each parent would have the children 50% of the time.  Respondent opposed the motion and moved the court for an order requiring appellant to pay the costs and fees associated with responding to the motion.  The district court denied appellant's motion in its entirety and ordered appellant to pay respondent's $55 filing fee.  The district court reasoned that appellant's "proposal for increase[d] family [time] is too disruptive for the children [then ages 10, 6, and 5], at this time, while they are attending school."  In denying appellant's request that all future custody and parenting-time disputes be mediated, the district court noted that appellant had walked out of mediation sessions in the past.  This appeal follows.

D E C I S I O N

I.

            Appellant contends that the district court abused its discretion by denying his motion for increased parenting time, arguing that the district court failed to consider the best interests of the children and that the court deprived appellant of his due-process, equal-protection, and basic civil rights.  The district court has broad discretion in deciding parenting-time questions based on the best interests of the child, and this court will not reverse the district court absent an abuse of that discretion.  Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995); Matson v. Matson, 638 N.W.2d 462, 465 (Minn. App. 2002); Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001), review denied (Minn. Oct. 24, 2001).

            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).  Further, 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).

            Here, the stipulated dissolution judgment sets forth a detailed parenting-time plan.  The judgment provides that the children's primary residence is with respondent, but that appellant is entitled to parenting time every Wednesday night and every other weekend.  The judgment also provides that the parties are to alternate weeks with the children during the summer and sets forth a schedule indicating parenting-time rights for holidays and special occasions. 

            Appellant asked the district court to modify the parenting-time schedule so that the parties would always alternate access to the children every other week, effectively extending the summer parenting-time arrangement to also apply during the school year.  Respondent opposed the parenting-time modification, arguing that modification would be inappropriate because of the children's ages and because the children need more stability, particularly during the school year when they already do not get their homework done on nights spent with appellant.  Respondent also noted concerns about her son's safety at appellant's house.  But while Rice County Social Services investigated respondent's allegations and noted that the child reported being hit and kicked by appellant's stepson, there was no determination of neglect and no need for protective services.  Finally, both parties observed that the transitions between the respective parental homes are difficult. 

            Appellant argues that the district court did not consider the children's best interests in making its decision.  But there is no indication that the district court failed to consider the children's best interests in deciding this parenting-time dispute.  The record shows that the district court denied appellant's motion because it concluded that increasing parenting time would be too disruptive to the children at this time.  And during the hearing, the court asked the parties whether "anybody [has] looked at psychologically what that does to the children if they're going to be living in the household every other week."  That question and the district court's rationale for denying the motion indicate that the court was, in fact, mindful of the children's best interests in making its decision.

            Appellant also contends that the current parenting-time arrangement denies him his basic civil rights, as well as his rights to due process and equal protection.  But appellant did not raise these constitutional arguments in the district court; he argues them for the first time on appeal.  Because this court generally does not consider matters not argued and considered in the district court, we do not address appellant's constitutional arguments here.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

            Further, appellant argues that the district court erred by allowing respondent to provide allegedly false and misleading testimony and by denying appellant the opportunity to cross-examine respondent.  But because appellant also raises these issues for the first time on appeal, we need not address them.  Id. 

            On this record, and mindful of our narrow standard in reviewing district court determinations of parenting-time questions, we cannot conclude that the district court abused its broad discretion in denying appellant's motion for increased parenting time.

II.

            Appellant argues for the first time on appeal that the district court erred by failing to appoint a guardian ad litem.  While appellant has requested the appointment of a guardian ad litem in other proceedings before the district court, appellant did not request the appointment of a guardian ad litem in the instant proceeding.  Because the appointment of a guardian ad litem was neither requested nor considered at the district court, we do not address the issue here.  See id. 

III.

            Appellant contends that the district court erred by denying his motion requesting that all future custody and parenting-time disputes be mediated pursuant to Minn. R. Gen. Pract. 114.  Minn. R. Gen. Pract. 114.01 provides that, with certain enumerated exceptions, "[a]ll civil cases are subject to Alternative Dispute Resolution (ADR) processes."  Minn. R. Gen. Pract. 114.04(b) provides that "the court at its discretion may order the parties to utilize one of the non-binding processes; provided that no ADR process shall be approved if the court finds that ADR is not appropriate."  (Emphasis added.)  Thus, the decision whether to require mediation is discretionary with the district court.  

            Here, the district court did not abuse its discretion by failing to require mediation for future parenting-time and custody disputes in light of the evidence of failed past mediation attempts.  While appellant disputes the failure of the previous mediations, it is well settled that judging the credibility of witnesses and the weight to be given to their testimony rests within the province of the finder of fact.  General v. General, 409 N.W.2d 511, 513 (Minn. App. 1987).  The district court's order specifically notes that appellant was the party who "walked out of the mediation sessions on all occasions."  And during the district court hearing, counsel for appellant conceded that the parties had mediated in the past and that it "wasn't terribly successful."  Under the circumstances of this case, the district court did not abuse its discretion in refusing to order mediation for all further custody and parenting-time disputes.

            Affirmed.