Marriage of Courey v. Courey

524 N.W.2d 469, 1994 Minn. App. LEXIS 1155, 1994 WL 652913
CourtCourt of Appeals of Minnesota
DecidedNovember 22, 1994
DocketC4-94-1310, C7-94-1348
StatusPublished
Cited by7 cases

This text of 524 N.W.2d 469 (Marriage of Courey v. Courey) 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 Courey v. Courey, 524 N.W.2d 469, 1994 Minn. App. LEXIS 1155, 1994 WL 652913 (Mich. Ct. App. 1994).

Opinions

OPINION

KLAPHAKE, Judge.

Appellant Marc W. Courey (the father) and his parents, appellants Sam T. and Barbara L. Courey (the grandparents), filed separate motions pertaining to visitation with the father’s two minor children. A family court referee issued an order suspending the father’s visitation and granting the grandparents supervised visitation. This appeal is from the district court’s affirmance of the referee’s order.

On appeal, the father and grandparents argue that the district court’s findings are unsupported by the record and that they were entitled to an evidentiary hearing before their visitation with the children was restricted. We agree, and reverse and remand for further proceedings consistent with this opinion.

FACTS

The father and mother, were divorced in November 1993. They have joint legal custody of their six-year-old son and three-year-old daughter. Under an amended judgment and decree, the mother has sole physical custody subject to the father’s right of reasonable and liberal visitation. The accompanying visitation schedule allowed the father visitation with the children every other weekend and at least one additional day per week.

In February 1994, the children’s daycare provider reported to Hennepin County Child Protection (Child Protection) that she suspected the father had sexually abused his [471]*471daughter. Child Protection thereafter told the mother that the father and grandparents should have no contact with the children during its investigation of the alleged abuse. Child Protection warned the mother that if she permitted such contact, it would place the children in foster care.

In early March 1994, the grandparents petitioned for visitation. The father brought a separate motion to enforce his visitation rights, or in the alternative, to grant him supervised visitation during the pendency of the child abuse matter. The visitation matters were consolidated, referred to a family court referee, and scheduled for a hearing.

Prior to the hearing, Child Protection informed the parents that it had concluded the father had sexually abused the daughter. Child Protection recommended that the father have no contact with the children until he entered a treatment program, and that the grandparents have only supervised contact with the children.

A hearing1 was held at which the parties presented oral arguments. No testimony was taken. Thereafter, the referee issued findings, including the following:

9. Minnesota Statute Section 518.175, Subdivision 5, states that visitation may be restricted if it is likely to endanger the child’s physical or emotional development. Here sexual abuse of [the daughter] has been investigated and substantiated by Child Protection. The children must be protected as much as possible from the fallout of the sexual abuse and any resulting criminal investigation and charges. To that end, the Court will suspend [the father’s] visitation with the minor children until he has enrolled in treatment for his sexual behavior and until such visitation is approved by the guardian ad litem and the children’s therapist. The grandparents will initially be required to have their visitation with the children supervised. Supervised visitation will continue until unsupervised visitation is approved by the guardian ad litem and the children’s therapist.

The referee further ordered that the father and grandparents pay $1,000 to the mother “as and for attorney’s fees related to this proceeding.”

The father and grandparents filed notices of review of the referee’s order, in which they requested an evidentiary hearing and challenged the referee’s findings as unsupported by the record. The district court affirmed the referee’s order, and these appeals followed.2

ISSUES

I. Did the district court abuse its discretion in restricting visitation without an evi-dentiary hearing?

II. Did the district court abuse its discretion in affirming the referee’s award of $1,000 in attorney fees to the mother?

III. Is the mother entitled to attorney fees in connection with this appeal?

ANALYSIS

I.

The determination and enforcement of visitation rights are questions of law. Simmons v. Simmons, 486 N.W.2d 788, 790 (Minn.App.1992). Other questions relating to visitation, however, are generally left to the broad discretion of the trial courts. See [472]*472Manthei v. Manthei, 268 N.W.2d 45, 45 (Minn.1978). Our review of these latter matters is limited to determining whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. See Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn.1985) (sets out standard followed in custody cases).

FATHER’S VISITATION

The order appealed from here modifies the visitation schedule in the amended judgment and decree. Modification of such an order is required “whenever modification would serve the best interests of the child.” Minn.Stat. § 518.175, subd. 5 (1992). Restriction of visitation rights, however, must be accompanied by the court’s finding that “the visitation is likely to endanger the child’s physical or emotional health or impair the child’s emotional development.” Id. The statute further requires:

If the custodial parent makes specific allegations that visitation places the custodial parent or child in danger of harm, the court shall hold a hearing at the earliest possible time to determine the need to modify the order granting visitation rights. The court may require a third party, including the county welfare board, to supervise the visitation or may restrict a parent’s visitation rights if necessary to protect the custodial parent or child from harm.

Id. (emphasis added).

An order restricting visitation will not be upheld unless the trial court makes particularized findings on the reasons for, restricted visitation and expressly finds that the children’s best interests would be served. See, e.g., Moravick v. Moravick, 461 N.W.2d 408, 409 (Minn.App.1990) (modification of visitation reversed and remanded for evidentia-ry hearing where court failed to make particularized findings as to best interests of child); Haala v. Haala, 354 N.W.2d 121, 122-23 (Minn.App.1984) (modification decreasing visitation reversed and remanded because no findings made and no testimony allowed). In cases involving allegations of sexual abuse, evidentiary hearings are often necessary not only to protect the best interests of the child, but also to protect the noncustodial parent’s visitation rights. Cf. Lilleboe v. Lilleboe, 453 N.W.2d 721

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Related

Marriage of Matson v. Matson
638 N.W.2d 462 (Court of Appeals of Minnesota, 2002)
Foster on Behalf of J.B. v. Brooks
546 N.W.2d 52 (Court of Appeals of Minnesota, 1996)
Gray v. Hauschildt
528 N.W.2d 271 (Court of Appeals of Minnesota, 1995)
Marriage of Courey v. Courey
524 N.W.2d 469 (Court of Appeals of Minnesota, 1994)

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524 N.W.2d 469, 1994 Minn. App. LEXIS 1155, 1994 WL 652913, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-courey-v-courey-minnctapp-1994.