Opinion
No. A03-584.
Filed February 10, 2004.
Appeal from the Beltrami County District Court, File No. F8991939.
Thomas L. D'Albani, Cann, Haskell, D'Albani Schueppert, P.A., Mn, (for appellant)
Thomas T. Smith, Smith Law Firm, P.A., Mn, (for respondent)
Considered and decided by Harten, Presiding Judge; Peterson, Judge; and Hudson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
OPINION
In this parenting-time dispute, appellant-father argues that the district court should not have restricted his parenting time to one hour per week without making the required findings and that the record does not support any modification of father's parenting time. We reverse and remand.
FACTS
Appellant-father David Chwialkowski and respondent-mother Mary Dahlman are the parents of a daughter, born February 20, 1990. By judgment entered December 21, 1990, the district court granted mother physical custody of daughter subject to parenting time with father. Father appealed, and this court remanded for additional findings. Chwialkowski v. Dahlman, No. C2-91-738 (Minn. App. Feb. 18, 1992). Following the remand, judgment was entered on May 11, 1992, awarding physical custody of daughter to mother subject to parenting time with father.
In 1995, after taking daughter to Mexico, father was convicted of depriving mother of parental rights. By order filed May 19, 1995, the district court terminated contact between father and daughter. By order filed July 26, 2001, the district court (1) allowed father supervised parenting time, the amount to be determined at the guardian ad litem's discretion, and (2) instructed the guardian ad litem to recommend a permanent and fixed parenting-time schedule after six months of parenting time. By order filed April 23, 2002, the district court granted father supervised parenting time every other weekend for two months, followed by unsupervised parenting time thereafter. By order filed November 12, 2002, the district court established a schedule commencing November 23, 2002, that gradually increased father's unsupervised parenting time with daughter, from every other Saturday from noon until 5:00 p.m. to every other weekend from Friday at 7:00 p.m. until Sunday at 7:00 p.m. by June 2003.
The parenting time orders conflicted with a no-contact order in the criminal proceeding. The no-contact order in the criminal proceeding was lifted in January 2003.
In February 2003, father filed a motion to find mother in contempt for failing to comply with the November 2002 order, and the district court issued an order to show cause why mother should not be found in contempt. In support of his motion, father submitted an affidavit stating that mother had failed to deliver daughter for parenting time on November 23, December 25-26, January 3-4, and January 17-18.
The district court held an evidentiary hearing on the contempt motion. At the hearing, father testified that he had moved from Bemidji to a one-room motel room in International Falls. Daughter testified that she did not want to stay overnight in a motel room with father. Mother testified that she has not seen any evidence of a relationship building between father and daughter and that daughter was not showing interest in further contact with father. Mother also expressed concern about father living in International Falls and not having shown remorse for his previous actions.
By order filed April 9, 2003, the district court modified father's parenting time with daughter to every Sunday from 12:30 p.m. to 1:30 p.m., with the visits to take place at the McDonald's restaurant in Bemidji with the location subject to change by mutual agreement of father and daughter. The district court made no findings of fact supporting the modification.
DECISION
A parent's right to parenting time may be modified only upon a showing that (1) modification is in the child's best interests (for modification not amounting to restriction of parenting time) or (2) parenting time is likely to endanger the child's physical or emotional health or the parent has chronically and unreasonably failed to comply with court-ordered parenting time (for modification amounting to restriction of parenting time). Minn. Stat. § 518.175, subd. 5 (2002). Significant modifications of parenting time must be supported by findings that the modifications are in the child's best interests. Chapman v. Chapman, 352 N.W.2d 437, 441 (Minn. App. 1984) (holding expansion of father's holiday visitation and elimination of requirement that he take children to Mass are significant modifications and must be supported by findings). To reduce a party's parenting-time rights, the district court must find changed circumstances. Matson v. Matson, 638 N.W.2d 462, 468 (Minn. App. 2002) (modification of parenting time to about one-half the amount provided for in previous order was substantial modification requiring evidentiary hearing). 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 interests." Funari v. Funari, 388 N.W.2d 751, 753 (Minn. App. 1986) (stating temporary modification of parenting-time schedule from alternating weekends and on Tuesday during one week followed by Wednesday through Thursday the next week to every Wednesday through Thursday was insubstantial change). A "restriction" occurs when a reduction of parenting time will impair the parent-child relationship. Clark v. Clark, 346 N.W.2d 383, 385-86 (Minn. App. 1984), review denied (Minn. Jun. 12, 1984). A restriction of parenting time "requires findings that the existing arrangement is likely to endanger the child's health or development." Anderson v. Archer, 510 N.W.2d 1, 4 (Minn. App. 1993) (quotation omitted).
Mother argues that the record supports a finding that the parenting-time schedule in the November 2002 order was likely to endanger daughter's physical and emotional health and impair her development. Mother cites the facts that father is living near an international border; father has not expressed remorse for his past actions; father engaged in parenting time in violation of a no-contact order in the criminal proceeding; and daughter does not want to spend time with father and is uncomfortable with staying overnight in a motel room with father. Mother also argues that the modification is not significant because father did not exercise all of the parenting time allotted in the November 2002 order and has not yet succeeded in establishing a relationship with daughter.
But the record also contains contrary evidence. The guardian ad litem opined that it would be beneficial for daughter to have a relationship with father. The record contains evidence that father's failure to exercise all of the parenting time allotted to him and his failure to develop a relationship with daughter was caused at least in part by mother's lack of cooperation.
We conclude that the reduction in father's parenting time from 48 hours to two hours during every two-week period was a significant modification requiring findings on changed circumstances and daughter's best interests. Because the district court made no findings regarding a change in circumstances or daughter's best interest, we reverse and remand for findings. Without any findings, we cannot determine the basis for reducing father's parenting time when the issue before the court was father's motion to find mother in contempt for failing to comply with the November 2002 order. See Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989) (stating "[e]ven though the trial court is given broad discretion in determining custody matters, it is important that the basis for the court's decision be set forth with a high degree of particularity."(quotation omitted)). We express no opinion on the merits of the modification of father's parenting time.