Opinion
No. C4-01-1702.
Filed May 28, 2002.
Appeal from the District Court, Dakota County, File No. F19913314.
Vicki Fagre-Stroetz, (for respondent)
Ronald Resnik, (for appellant)
Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Shumaker, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant-father challenges the district court's modification of his weekly visitation schedule, alleging that (a) the evidence does not support the district court's findings; and (b) the district court's findings do not support the extent of the reduced parenting time. Because the district court did not abuse its discretion, we affirm the visitation modification.
FACTS
Appellant-father Kory Brown and respondent-mother Debra Brown dissolved their marriage in January 2000. The parties agreed to joint legal custody of their two minor children, with primary physical custody awarded to mother and reasonable and liberal visitation awarded to father. The stipulated visitation schedule included two days each week, with overnights, when father was not working, and one other evening each week. The weekly visitation schedule followed the recommendations of a custody evaluation, which also anticipated that the mid-week overnights might need to be eliminated once the children entered school.
In August 2001, the district court granted mother's motion to modify the visitation schedule to accommodate the children's new school schedules. The modification amounted to three evenings per week, with no overnights. During summer months, father would have weekly visitation on the two days per week that father was not working, including overnights, and one other evening. At the time of mother's motion, father was exercising his visitation rights on Tuesday through Thursday evenings.
Although father agreed that a visitation schedule modification was required, he brought a counter-motion and proposed a schedule where he would have the children from Monday mornings until Friday after work, and the children would attend school in Cottage Grove where he lives, rather than in Apple Valley where they reside with their mother. Father now challenges the district court's order modifying the weekly visitation schedule.
DECISION
The district court has wide discretion in deciding visitation matters, and this court will not reverse unless the district court has abused its discretion. Manthei v. Manthei, 268 N.W.2d 45, 45-46 (Minn. 1978). The district court's underlying findings of fact will be upheld if they are not clearly erroneous. Minn.R.Civ.P. 52.01.
Father argues that the district court's order modifying his visitation to three evenings per week has significantly reduced the time that he sees his children because he no longer has them overnight on the nights that he is not at work.
The crucial question in a visitation dispute is what is in the best interests of the child. Braith v. Fischer, 632 N.W.2d 716, 721 (Minn.App. 2001), review denied (Minn. Oct. 24, 2001). Insubstantial modifications of a visitation schedule are within a district court's discretion and need not be supported by findings that such modification is in the children's best interests. Funari v. Funari, 388 N.W.2d 751, 752 (Minn.App. 1986). A modification of visitation that reduces total visitation time is not necessarily a "restriction" of visitation. See Danielson v. Danielson, 393 N.W.2d 405, 407 (Minn.App. 1986) (when child is moved to another jurisdiction, visitation modification that results in a reduction of total visitation time is not necessarily a "restriction" of visitation). To determine whether a reduction in visitation constitutes a restriction, the court should consider the reasons for the change as well as the amount of the reduction. Anderson v. Archer, 510 N.W.2d 1, 4 (Minn.App. 1993).
In this case, the district court's visitation modification is not a substantial visitation modification or restriction. See, e.g., Funari, 388 N.W.2d at 753 (finding insubstantial modification and no abuse of discretion when district court modified visitation to every Wednesday through Thursday from alternating weekends and on Tuesday one week followed by Wednesday through Thursday of next week, especially where change in visitation days appeared temporary). Father continues to have visitation three evenings each week during the school year, and the weekly visitation schedule during the summer months remains unchanged. The reason for eliminating mid-week overnights during the school year was foreseen at the time of the judgment and decree, and father agrees that a modification is necessary because of the children's school schedule.
Father's proposal that the children move from their current home with their mother in Apple Valley to Cottage Grove where he lives with his girlfriend and her two teenage daughters would be disruptive. See Pfeiffer v. Pfeiffer, 364 N.W.2d 866, 868 (Minn.App. 1985) (noting that psychological effects of moving from one community to another cannot be ignored). Father claims that if the children are with him during the week, they will not have to be in daycare. However, the fact that the children are in daycare when not in school does not mean that it would be better for them to spend this time with father. See, e.g., Leyh v. Stelzer, 398 N.W.2d 63, 66-67 (Minn.App. 1986) (finding no evidence that children suffered harm as a result of time spent with a sitter rather than a parent). And the custody evaluation specifically cautioned that father not have the children in his care during the morning hours after he has worked all night.
Based on the evidence in the record, the district court's findings are not erroneous, and the court did not abuse its discretion in modifying the visitation schedule.