Marriage of Anderson v. Archer

510 N.W.2d 1, 1993 Minn. App. LEXIS 1246, 1993 WL 524885
CourtCourt of Appeals of Minnesota
DecidedDecember 21, 1993
DocketCX-93-1088
StatusPublished
Cited by23 cases

This text of 510 N.W.2d 1 (Marriage of Anderson v. Archer) 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
Marriage of Anderson v. Archer, 510 N.W.2d 1, 1993 Minn. App. LEXIS 1246, 1993 WL 524885 (Mich. Ct. App. 1993).

Opinions

OPINION

PETERSON, Judge.

After appellant Mark G. Anderson changed his residence, respondent Anne Marie Archer moved to modify visitation. The district court issued an order modifying visitation, and a judgment amending the parties’ foreign dissolution decree was entered pursuant to the order. This is an appeal from the amended judgment. Appellant also challenges the denial of his motion to appoint a guardian ad litem for the children. We affirm.

FACTS

The parties were married in 1983 and had three children, one born in 1985, one in 1986, and one in 1987.

In 1987 the parties moved from Minnesota to California to operate a business with appellant’s family. While in California, appellant maintained a Minnesota residence and a consulting business in Minnesota. During 1987, appellant traveled back and forth between Minnesota and California.

After the parties separated in late 1987, respondent returned to Minnesota with the children. Although appellant continued to travel back and forth between California and Minnesota while the dissolution was pending, he claims he spent only 10 days out of a month in California in 1988 and even less time there in 1989.

The marriage was dissolved in 1989. Pursuant to the parties’ stipulation, the dissolution decree awarded respondent physical custody of the children and granted appellant visitation. The stipulation provided:

[Appellant] shall have reasonable visitation rights with the minor children, including the following:
[3]*3(a) On weekends when [appellant] is in Minnesota, every weekend, commencing as early as each Friday at 5:00 p.m. * * ⅜;
(b) When [appellant] is in Minnesota, every Tuesday and Thursday evening from 5:00 p.m. to 8:00 p.m.;
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(g) [Appellant] shall have the children for the full term of summer vacation. During summer vacation, [respondent] will be afforded reasonable and liberal visitation.

The stipulation identified appellant as a California resident and respondent as a Minnesota resident. The stipulation also provided that the parties would have the children on alternating holidays. The holiday provision was not restricted to when appellant was in Minnesota.

In December 1989, appellant relocated to North Carolina for work-related reasons. In 1991 appellant returned to Minnesota where he continues to reside. Since 1991 the parties have followed the visitation schedule set forth in the stipulation.

According to respondent, when the parties agreed to the stipulation, they expected appellant to reside outside of Minnesota following the dissolution. Respondent testified she agreed to allow appellant extensive summer visitation and visitation every weekend and Tuesday and Thursday evenings when he was in Minnesota because she believed the children would only be seeing their father infrequently on weekends and during the week. Appellant denies respondent’s claim. According to appellant, the visitation schedule was actually implemented during the latter part of 1988 to accommodate the parties’ work schedules.

In March 1993, respondent brought a motion to modify visitation. The trial court found that

respondent, the children’s physical custodian, sees the children for an hour and fifteen minutes on weekday mornings, when she is busy helping the children get ready for school and is herself preparing for work, and three or so hours a week on Sunday, Monday and Wednesday evenings, which is all the time that her work schedule and the children’s bed times allow.

The trial court issued an order modifying visitation, allowing appellant visitation on alternating weekends, two evenings a week, six weeks during the summer, and alternating holidays. This appeal followed.

ISSUES

I. Did the trial court properly conclude the stipulated visitation provision was agreed to because the parties expected appellant to be in Minnesota infrequently?

II. Did the trial court err by modifying visitation to allow both parties about equal time with the children?

III. Did appellant’s allegations of abuse require the appointment of a guardian ad litem for the children?

IV. Is respondent entitled to attorney fees on appeal?

ANALYSIS

I.

The district court amended the decree in this case based on its interpretation of the stipulated visitation provision. Because the interpretation of a written document is a question of law, we do not defer to the district court’s interpretation of a stipulated provision in a dissolution decree. Vanderleest v. Vanderleest, 352 N.W.2d 54, 57 (Minn.App.1984); see also Jensen v. Jensen, 440 N.W.2d 152, 154 (Minn.App.1989) (interpretation of stipulation is legal question).

The stipulation identified appellant as a California resident and limited weekly visitation to times when appellant was in Minnesota. This shows that when the parties entered the stipulation, they did not expect appellant to reside in Minnesota. Because the decree does not indicate how much time appellant was expected to spend in Minnesota, it is ambiguous as to how much visitation was in fact intended by the parties. See Landwehr v. Landwehr, 380 N.W.2d 136, 138 (Minn.App.1985) (writing is ambiguous if it is reasonably susceptible of more than one interpretation when judged by its language alone).

[4]*4If a writing is ambiguous, extrinsic evidence may be admitted to resolve the ambiguity. Erickson v. Erickson, 449 N.W.2d 173, 178 (Minn.1989). When extrinsic evidence is admitted, the meaning of ambiguous language is a question of fact. Landwehr, 380 N.W.2d at 140. Here, respondent testified that she agreed to the stipulated visitation provision because she expected appellant to be in Minnesota infrequently. The district court specifically found her testimony credible. We must defer to the district court’s assessment of witness credibility. Id. at 139. The district court properly concluded the stipulated visitation provision was drafted to accommodate the parties’ expectations that appellant would be residing in another state and not regularly exercising weekly visitation.

II.

A substantial alteration of visitation rights amounting to a “restriction” of visitation requires findings that the existing arrangement “is likely to endanger the child’s health or developmént.” Lutzi v. Lutzi, 485 N.W.2d 311, 315 (Minn.App.1992); see also Minn.Stat. § 518.175, subd. 5 (1992) (court may not restrict visitation rights unless it finds visitation is likely to endanger child's health or development). Less substantial changes in visitation are governed by the best interest standard. Lutzi, 485 N.W.2d at 315; see also Minn.Stat. § 518.175, subd. 5 (court shall modify visitation whenever modification would serve child’s best interests).

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Bluebook (online)
510 N.W.2d 1, 1993 Minn. App. LEXIS 1246, 1993 WL 524885, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-anderson-v-archer-minnctapp-1993.