David Michael Durbin, petitioner, Respondent, vs. Janeen Renee Saylor, f/k/a Janeen Renee Durbin, Appellant.
Annotate this CaseThis opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
A06-866
David Michael Durbin, petitioner,
Respondent,
vs.
Janeen Renee Saylor,
f/k/a Janeen Renee Durbin,
Appellant.
Filed May 15, 2007
Reversed and remanded Hudson, Judge
St. Louis County District Court
File No. 69-F1-03-100488
David Michael Durbin, 1444 East Camp Street, Ely, Minnesota 55731 (pro se respondent)
Ellen E. Tholen, 702 Second Avenue, P.O. Box 210, Bovey, Minnesota 55709 (for appellant)
Considered and decided by Dietzen, Presiding Judge; Randall, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
HUDSON, Judge
D E C I S I O N
Appellant argues that the district court abused its discretion by denying, without first holding an evidentiary hearing, her motion to modify or restrict respondent's parenting time. "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). The district court has broad discretion in deciding parenting-time issues and what is in the child's best interests. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995). We will reverse its decision only for an abuse of discretion. Id.
Under Minnesota statutory law, the district court shall "grant such parenting time . . . as will 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) (2006). But when it is in the best interests of the child, "the court shall modify the decision-making provisions of a parenting plan or an order granting or denying parenting time." Id., subd. 5. The district court may restrict parenting time if it finds that "parenting time is likely to endanger the child's physical or emotional health or impair the child's emotional development." Id. The party alleging harm has the burden of making a prima facie case for modification or restriction. Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001), review denied (Minn. Oct. 24, 2001). But an evidentiary hearing "shall" be held if a "parent makes specific allegations that visitation places custodial parent or child in danger of harm." Id. (citing Minn. Stat. § 518.175, subd. 5).
Here the parties' dissolution decree established a parenting-time schedule. Appellant stopped abiding by this schedule after the child alleged that respondent sexually abused her. Affidavits from appellant, the child's maternal grandparents, and the child's psychologist support appellant's claim. We note in particular an October 13, 2005 report from licensed psychologist Barbara Olmsted Thorne of the Range Mental Health Center. Ms. Thorne stated that the child's comments about "daddy naughty," "daddy put finger in my butt" are consistent and that it did not appear that the child had been coached by appellant. Ms. Thorne concluded by stating that to completely ignore the child's statements and have unsupervised visitation between the child and respondent would be insensitive and irresponsible. Nevertheless, the district court concluded that "there is not credible evidence warranting a restriction on visits." The district court apparently relied, in part, on a concluding statement in a November 29, 2005 report from Dr. Carolyn Levitt of the Midwest Children's Resource Center, wherein she stated that "[the child] was unable to provide any details to support what she said and to help determine what she meant by what she said." But Dr. Levitt also confirmed that the child made statements regarding respondent "tying her up, putting tape on her mouth and touching her on her pee part with a rope." She concluded by stating that it may be to the child's benefit to have supervised visits with respondent until the meaning of the child's statements can be better understood. The district court stated that it reviewed the various reports, but ultimately observed that there were "gaps in contact and parental conflict . . . resulting in some level of trepidation on the part of the child, which is addressed by the gradual restoration of parental contact ordered herein." The district court modified the parenting-time schedule by imposing upon respondent a new period of gradually reduced supervised visitation.
The district court made its decision not to restrict respondent's parenting time without first holding an evidentiary hearing. But the law requires that if a parent makes specific allegations of endangerment, the court shall hold an evidentiary hearing. Minn. Stat. § 518.175, subd. 5. Although the child's statements may have been unclear at times, based on the record before us, we believe that appellant's allegations have the requisite specificity warranting an evidentiary hearing, and that the district court abused its discretion by summarily denying appellant's motion, appointing a parenting-time expediter, and awarding respondent compensatory parenting time.
Because we are remanding for an evidentiary hearing concerning repeated allegations of sexual abuse, in the interim we are suspending respondent's unsupervised parenting time until the district court can make a decision on the merits. In making this ruling we are mindful that appellant did not specifically move this court for such relief. Nevertheless, we consider such relief implicit in her request for parenting-time restrictions. This court has the authority to take any action "as the interest of justice may require." Minn. R. Civ. App. P. 103.04. Because the state has an interest in protecting the well-being of children, we conclude that justice requires us to temporarily restrict respondent's parenting time until the district court addresses whether to allow parenting time pending the outcome of the evidentiary hearing held to test the veracity of appellant's allegations. See Putz v. Putz, 645 N.W.2d 343, 350 (Minn. 2002) (addressing an issue deemed waived on appeal because the state has an interest in protecting the well-being of children). We encourage the district court to expedite its resolution of this matter.
Reversed and remanded.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.