Fontaine v. Hoffman

359 N.W.2d 692, 1984 Minn. App. LEXIS 3929
CourtCourt of Appeals of Minnesota
DecidedDecember 24, 1984
DocketC0-84-1383
StatusPublished
Cited by5 cases

This text of 359 N.W.2d 692 (Fontaine v. Hoffman) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fontaine v. Hoffman, 359 N.W.2d 692, 1984 Minn. App. LEXIS 3929 (Mich. Ct. App. 1984).

Opinion

OPINION

RANDALL, Judge.

This is an appeal from an order denying appellant Richard Hoffman’s motion for reasonable visitation with his son, Cha Michael Delude. The child’s mother opposed the motion. The trial court denied visitation due to the lengthy period during which Hoffman had not seen the child, and the existence of a stable stepfamily relationship which might be threatened by the visitation of a father whom the child did not know. We reverse and remand.

FACTS

Cha Michael Delude, born to Lori Fon-taine on October 30, 1977, *was adjudicated to be the child of Richard Hoffman by order dated September 18, 1980. Soon after the birth, Hoffman and Fontaine, who had never married, separated. Hoffman visited the child regularly for a year and a half, or until May 1979.

Hoffman last visited the child on May 20, 1979. Fontaine claimed that Hoffman stopped visitation on his own initiative. Hoffman claimed that he was told by James Fontaine not to visit the child. Lori Fontaine conceded that she may have prevented Hoffman from resuming visitation after he had stopped visiting. She stated, and the trial court found, that Hoffman last attempted visitation in March, 1980, when he came to her apartment around midnight, intoxicated.

The 1980 paternity order required Hoffman to pay 50 dollars per month child support. There was a provision for visitation in the order as follows:

6. It is suggest [sic] that defendant be provided reasonable visitation of the minor child, Cha Michael Delude.

Hoffman paid child support regularly from September 1980, to January 1982. He made those payments regularly even during a period Fontaine had conceded that she may have interfered with his visitation rights. He finally stopped making support payments in February of 1982, and claimed it was because he was not allowed to visit the child. As a result of the support delinquency, Fontaine brought a contempt motion against Hoffman. Following the contempt hearing, on August 10, 1983, Hoffman was found in contempt, with the order deferred upon Hoffman’s making monthly payments, including a payment on the arrears.

Hoffman raised the visitation issue at the August 10 hearing, and the trial court issued an order to show cause against Fon-taine on a contempt motion against her for *694 denial of visitation. Following a hearing, the court submitted the visitation matter for mediation by Polk County Social Services.

The attempt at mediation was unsuccessful. The trial court was so informed in April 1984, and scheduled a hearing on visitation.

At the hearing, besides the testimony of Fontaine and Hoffman, the court heard testimony from Hoffman’s wife as to her willingness to assist with visitation. The Hoffmans, who had been married for 2 years and were expecting their first child, also presented testimony on' the stability of' their home and employment. Fontaine stated that her husband was not opposed to visitation, and conceded that they planned on telling the child at some point about his real father, but they did not feel it was the right time to do so, and preferred that the child himself elicit the information through his own questions.

Although Social Services mediation was unsuccessful in getting Fontaine and Hoffman to agree on visitation, its representative indicated she could see no reason why Hoffman should not get to know his son. After all the evidence was in, the trial court denied Hoffman’s motion for reasonable visitation. The court made no mention of the support order, thus leaving it in effect.

ISSUE

Was the denial of visitation in error?

ANALYSIS

The trial court made four basic findings, which may be summarized as follows:

1. Hoffman had had no contact with the child for five years, and therefore, there was no “parent-child relationship;”
2. Hoffman’s negligence was responsible for this lack of any relationship;
3. The child had established a stable stepfamily relationship; and
4. This stepfamily relationship would be threatened by visitation.

Since he was adjudicated the father, Hoffman’s parental rights were the same as those applicable to divorced parents. Minn.Stat. § 257.541(2) (Supp.1983). Minn. Stat. § 518.175, subd. 1, provides as follows:

In all proceedings for dissolution or legal separation, subsequent to the commencement of the proceeding and continuing thereafter during the minority of the child, the court shall, upon the request of the noncustodial parent, grant such rights of visitation as will enable the child and the noncustodial parent to maintain a child to parent relationship that will be in the best interests of the child. If the court finds, after a hearing, that visitation is likely to endanger the child’s physical or emotional health or impair his emotional development, the court may restrict visitation by the noncustodial parent * * * and may deny visitation entirely, as the circumstances warrant. The court shall consider the age of the child and the child’s relationship with the noncustodial parent prior to the commencement of the proceeding.

(Emphasis added.)

The trial court found the requisite danger to the child’s emotional health and development, and found that visitation was not in the best interests of the child. Appellant challenges the sufficiency of the evidence to support these findings.

The trial court has broad discretion in deciding questions relating to visitation. Manthei v. Manthei, 268 N.W.2d 45 (Minn.1978). In determinations dependent on oral testimony, this court must defer to the trial court’s assessment of the credibility of the witnesses and the weight to be given their testimony. Serbus’ Estate v. Serbus, 324 N.W.2d 381 (Minn.1982). But, even accepting the trial court’s determination that the long interruption of visitation was due to Hoffman’s negligence rather than a refusal of visitation by the Fon-taines, the record does not support the *695 court’s total denial of visitation to the father.

A denial of visitation rights must be based on persuasive evidence that visitation will not serve the best interests of the child. Griffin v. Van Griffin, 267 N.W.2d 733, 735 (Minn.1978).

Kespondent argues that Griffin is factually similar, and thus controlling. In Griffin, the father had not visited the child in over four years and had not made child, support payments, although financially able to do so. In Griffin, the supreme court also noted the father’s longstanding neglect and the threat of disruption to “the only family harmony and security the child has known,” 267 N.W.2d at 735, that of the stepfamily. The child in Griffin expressed a desire for no visitation.

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Bluebook (online)
359 N.W.2d 692, 1984 Minn. App. LEXIS 3929, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fontaine-v-hoffman-minnctapp-1984.