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CIVIL PROCEEDURE - no abuse striking affirmative defense as discovery sanction for untimely interrogatory answers

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).


Dee Marie Duckwall, petitioner,


Adam Andrew Duckwall,

Filed March 13, 2007
Reversed and remanded
Randall, Judge
Concurring specially, Dietzen, Judge

Anoka County District Court
File No. F5-04-7552

Douglas G. Sauter, William D. Siegel, Barna, Guzy & Steffen, Ltd., 400 Northtown Financial Plaza, 200 Coon Rapids Boulevard, Minneapolis, MN 55433 (for respondent)

Lawrence H. Crosby, Jay D. Olson, Crosby & Associates, Roseville West, 2277 Highway 36 West, Suite 234E, St. Paul, MN 55113 (for appellant)

Considered and decided by Randall, Presiding Judge; Hudson, Judge; and Dietzen, Judge.
Appellant-father challenges the district court’s modification of parenting time without an evidentiary hearing. Appellant argues that the record, containing respondent-mother’s hearsay-laden affidavit, does not establish the changed circumstances or evidence necessary to modify parenting time; and further, that the district court improperly limited appellant’s ability to lift the restrictions on his parenting time. We reverse and remand for an evidentiary hearing.
Appellant Adam Andrew Duckwall and respondent Dee Marie Duckwall were married on August 17, 1996, and have a daughter, born May 22, 2001. By judgment and decree, dated May 18, 2005, the marriage was dissolved. Respondent received sole physical custody, and the parties received joint legal custody. The parties created a parenting plan that included a parenting-time schedule.
Respondent, by motion, sought modification of appellant’s parenting time. In her affidavit, respondent alleged that parenting time modification was in the minor child’s best interests and that the child’s “emotional well-being is endangered from the manner which [appellant] is exercising his parenting time.”
Prior to the parties’ marriage dissolution, appellant, a violin and viola teacher had an “affair” with K. Lundblad, a 16-year old student. Appellant acknowledged the inappropriateness of his conduct and claimed to have ended the relationship. Appellant
was never criminally charged; however, respondent characterized the relationship as “inappropriate and exploitive” and tending to show appellant’s unfitness.
By agreement, appellant submitted to a psychosexual evaluation. Two evaluators reported on appellant’s condition, concluding that “[appellant] has difficulties identifying and honoring the personal boundaries for himself and others” and that “[appellant] may present a sexual risk for adolescent females.” With regard to his daughter, the evaluators stated, “we believe [appellant] has not nor is presently abusing his daughter in any form or fashion,” however, “[appellant] demonstrated a few poor boundaries, judgment, and decision making related to his own three-year-old daughter.” The evaluators recommended that appellant seek counseling for a minimum of 18 months on a weekly basis from a mental health professional who understands prevention and relapse of boundary violations. The marriage dissolution decree did not contain any requirement or stipulation regarding enrollment in or completion of such counseling.
Appellant resumed his relationship with Lundblad after the marriage dissolution. The impact on the minor child of this relationship and the impact on Lundblad concerned respondent. Respondent claims Lundblad is “a very troubled young woman” who has engaged in self-mutilation and attempted suicide. Lundblad strongly refutes these accusations and denies respondent’s claim that she is a poor role model for a minor child.
In response to the various affidavits submitted and counsel’s oral arguments, the district court granted respondent’s modification motion, prohibiting both appellant’s overnights and any contact whatsoever between the minor child and Lundblad. Additionally, the district court recommended that appellant “voluntarily comply, follow, and complete the recommendations contained in the [psychosexual evaluation].” This appeal followed.
Appellant argues that the district court was required to hold an evidentiary hearing before restricting his parenting time. The district court has broad discretion in deciding parenting time questions based on the best interests of the child and will not be reversed absent an abuse of that discretion. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995). To substantially modify a party’s parenting time, the district court must find changed circumstances. Matson v. Matson, 638 N.W.2d 462, 468 (Minn. App. 2002). “Whether the district court must hold an evidentiary hearing depends on the degree of modification.” Id.
Insubstantial modifications do not require an evidentiary hearing and are governed by the best-interests standard. Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001), review denied (Minn. Oct. 24, 2001). “Substantial modifications of visitation rights require an evidentiary hearing when, by affidavit, the moving party makes a prima facie showing that visitation is likely to endanger the child’s physical or emotional well being.” Id. A substantial modification includes the placement or removal of a restriction on a party’s parenting time. In re Welfare of B.K.P., 662 N.W.2d 913, 916 (Minn. App. 2003). Determining the proper statutory standard to apply is a question of law subject to de novo review. Anderson v. Archer, 510 N.W.2d 1, 4 (Minn. App. 1993).
In its order, the district court used both the best-interests and the endangerment standards, concluding that “[i]t is in [the minor child’s] best interests that [appellant’s] parenting time be restricted;” and further, that “[the minor child’s] welfare would be endangered and/or her emotional development would be impaired.” (Emphasis added.) Likewise, respondent’s affidavit accompanying her motion for modification alleged that “[their daughter’s] emotional well-being is endangered from the manner in which the [appellant] is exercising his parenting time.” (Emphasis added.)
An initial issue here is whether there was an actual (not de minimis) restriction on appellant’s parenting time. Originally, appellant had only one overnight per week during the school year and two overnights per week during the summer, excluding holiday and vacation time. A modification resulting in a reduction of total parenting time is not necessarily a “restriction.” Danielson v. Danielson, 393 N.W.2d 405, 407 (Minn. App. 1986). In deciding “whether a reduction constitutes a restriction, the court should consider the reasons for the change as well as the amount of the reduction.” Anderson, 510 N.W.2d at 4-5 (finding that modification was not a restriction where one party relocated and the children began school, having less free time at home).

Respondent’s allegations against appellant, forming the basis for her modification motion, were serious. Respondent alleged endangerment because appellant (1) had not completed treatment as agreed upon by the parties; (2) had not established appropriate boundaries; (4) allowed Lundblad to move in, creating a dangerous environment; (5) engaged in an “inappropriate exploitive relationship”; and (6) verbally and emotionally abused respondent in the presence of the minor child. Additionally, respondent alleged that Lundblad is a troubled woman who is not a positive role model for the minor child.
Serious allegations offered to restrict a party’s parenting time, such as those asserted here, require an evidentiary hearing. See Courey v. Courey, 524 N.W.2d 469, 472 (Minn. App. 1994) (“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.”). Courey is partially distinguishable because it involved a minor child who had been sexually abused by her father. No such allegations were made here. But respondent insists that appellant engaged in inappropriate sexual behavior with Lundblad and that conduct affected the minor child.
We remand for an evidentiary hearing. Our remand is not a statement on the relative strength or weakness of the case of either party. It is simply a remand for an evidentiary hearing which must follow the establishment of a prima facie case for a substantial parenting time modification. See B.K.P., 662 N.W.2d at 916 (“An evidentiary
hearing is required when the modification is substantial, which appears to include the placement or removal of restrictions on parenting time.”).
Respondent argues that appellant effectively waived his right to an evidentiary hearing by not requesting such a hearing until after the district court had already orally modified his parenting time. In general, an appellate court will only decide issues previously raised before the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Here, the court is faced with an unusual situation. Appellant did not have to ask for an evidentiary hearing before the district court ruled. Respondent brought the motion seeking modification of parenting time. At the hearing, respondent had the burden of proof. See Geske v. Marcolina, 624 N.W.2d 813, 818 (Minn. App. 2001) (citing cases showing that moving party in family matters bears the burden of proof). Since respondent brought the motion, appellant had no obligation to seek the affirmative relief of an evidentiary hearing “in case” the court found respondent had brought a prima facie case. The law is clear that after a finding of a prima facie case for a substantial modification or a restriction, you move on to an evidentiary hearing. Respondent had the burden of making a prima facie showing of endangerment and a need for change, following which an evidentiary hearing would be required. See Braith, 632 N.W.2d at 721 (“Substantial modifications of [parenting time] rights require an evidentiary hearing when, by affidavit, the moving party makes a prima facie showing that visitation is likely to endanger the child’s physical or emotional well being.”).
Appellant argues that the district court improperly based its conclusions on affidavits rampant with hearsay. At an evidentiary hearing, witnesses, psychologists, and other experts can testify live and may be subject to subpoena power and to cross-examination. Here, because of the emotion-charged divorce, the highly contentious and contradictory self-serving affidavits highlight the need for due process. We remand for an evidentiary hearing.
Appellant argues that the district court erred by placing upon him a one-year restriction prohibiting him from bringing a motion to lift the parenting time restrictions. A district court has broad discretion in deciding parenting time issues and a child’s best interests. Anderson, 510 N.W.2d at 5. Its decision will be reversed only for a clear abuse of discretion. Moravick v. Moravick, 461 N.W.2d 408, 409 (Minn. App. 1990).
The district court ordered that:
4. No earlier than one year from January 10, 2006 may the [appellant] bring a motion to ask the Court to lift the restrictions herein imposed and seek an increase in his parenting time if such a request is clearly in the best interests of [the minor child].

5. The [appellant] has the burden of proof at such a motion hearing to prove that a modification of this Order is in the best interests of [the minor child].

Appellant cites B.K.P. as support for his position. B.K.P. states that “Minn. Stat. § 518.18 expressly governs modification of a ‘custody order or parenting plan’ . . . . [T]he time limitations of Minn. Stat. § 518.18 do not apply to modifications of parenting time, even if the parenting time schedule was originally part of a broader parenting plan.” 662 N.W.2d at 916. It is undisputed that this case involves a modification of parenting time. The restriction contained in Minn. Stat. § 518.18 (2006), has no application.
Although focused on the application of Minn. Stat. § 518.18, B.K.P. includes the observation that: “[u]nless a motion is for a modification of a custody order, there is no time limit on when a motion for modification of parenting time can be brought.” Id. (citation omitted). Minn. Stat. § 518.175, subd. 5 (2006), states: “If modification would serve the best interests of the child, the court shall modify the decision-making provision of a parenting plan or an order granting or denying parenting time.” Neither caselaw nor statutory provisions addressing the modification of parenting time impose time restrictions on a party’s ability to seek the removal of restrictions, if removal would serve the best interests of the child. This case does not involve a history of frivolous or repetitive motions by the appellant. The nature of the restriction was not inherently incapable of changing within one year. Consequently, the district court’s one-year restriction on appellant’s seeking relief constituted an abuse of discretion.
Respondent argues that the district court’s restriction was not based on Minn. Stat. § 518.18, but instead, was based on the court’s findings that appellant is in need of treatment for boundary issues, relapse prevention, problematic sexual behavior, and mischaracterization of his initial relationship with Lundblad. It is unclear if this was the court’s intention, however, here, such intention by the court would amount to an abuse of discretion. See J.M.G. v. J.C.G., 431 N.W.2d 592, 596 (Minn. App. 1988) (ordering father to participate in counseling as a condition of exercising his visitation rights, based on inconclusive evidence of sexual abuse, was abuse of discretion).
A final word is appropriate on the issue of enforcement of this decision. Although we have concluded that it was improper to permanently modify parenting time without an evidentiary hearing, the district court’s order shall remain in effect until the appellate judgment is entered. See Minn. R. Civ. App. P. 136.02 (providing that entry of judgment is stayed for “not less than 30 days after the filing of the decision” and thereafter until petition for review is decided). We note that the district court has discretion to issue temporary orders for the protection of children and to respond to new developments, even while an appeal is pending. See Minn. Stat. § 518.131, subd. 1(a) (2006) (addressing temporary orders regarding parenting time); In re Welfare of C. Children, 348 N.W.2d 94, 99 (Minn. App. 1984) (addressing district court’s authority to issue orders during pendency of appeal). Construing the district court’s order as a temporary order regarding parenting time, that order shall remain in effect until judgment is entered on appeal or until a new or amended temporary order is issued by the district court, whichever occurs sooner.

We ask the parties and the district court to give priority to the scheduling of the evidentiary hearing on remand, and to resolve this matter as expeditiously as possible.
Reversed and remanded.

DIETZEN, Judge (concurring specially)
While I concur with the majority’s determination that an evidentiary hearing is required in this parenting-time modification dispute, I write separately because I would arrive at that conclusion differently.
The statute governing parenting-time modification states that, with exceptions not relevant here, a court may not “restrict” parenting time unless it finds that parenting time “is likely to endanger the child’s physical or emotional health or impair the child’s emotional development[.]” Minn. Stat. § 518.175, subd. 5(1) (2006); see Minn. Stat. § 518.1705, subd. 9(a) (2006) (addressing modification of parenting plans). Here, the district court stated it was “restrict[ing]” father’s parenting time by precluding contact between the child and father’s girlfriend and by terminating father’s overnight parenting time. The district court stated that it was doing so because “[the child’s] welfare would be endangered and/or her emotional development would be impaired by exposing [the child] to the inappropriate sexual relationship between [father] and [his girlfriend].”
Thus, not only did the district court explicitly state that it was “restrict[ing]” father’s parenting time, but its stated reason is one of the statutory bases for doing so .
The parenting-time-modification statute also states that “[i]f a parent makes specific allegations” that parenting time by the other parent endangers the parent or child, the district court “shall hold a hearing at the earliest possible time to determine the need to modify the [existing parenting-time schedule.]” Minn. Stat. § 518.175, subd. 5; see Minn. Stat. § 645.44, subd. 16 (2006) (stating “‘[s]hall’ is mandatory”). And the restriction-related hearing must be an evidentiary hearing. See, e.g., In re Welfare of B.K.P., 662 N.W.2d 913, 916 (Minn. App. 2003) (stating both that substantial modification of parenting time requires an evidentiary hearing and that substantial modification apparently includes imposition and removal of “restrictions on parenting time”); Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001) (stating substantial modifications of parenting time require an evidentiary hearing when the moving party
make a prima facie case that parenting time endangers child), review denied (Minn. Oct. 24, 2001). We turn then to the mother’s motion to modify.
Here, mother’s affidavit accompanying her motion to modify father’s parenting time alleges the child’s emotional well being is endangered by the way father was exercising his parenting time because, among other things, (a) father never completed the treatment recommendations listed in the psychosexual evaluation arising out of his relationship with his former student; (b) father is unable to establish appropriate boundaries with the parties’ child; (c) father is still involved with his former student, his relationship with her is exploitive, and mother does not want the parties’ child exposed to “such an inappropriate [and] exploitive relationship”; (d) the child told mother that, during an overnight stay with father, the child had seen father and his former student in bed together; and (e) father verbally and emotionally abuses mother in the child’s presence.
If these allegations are true, it is within the scope of a district court’s discretion to impose an appropriate restriction on father’s parenting time. Therefore, I would hold that these allegations are sufficiently specific to trigger the hearing requirement of Minn. Stat. § 518.175, subd. 5. And because I would conclude that the district court was required to hold an evidentiary hearing, I would decline to address father’s alleged failure to seek a hearing in district court.



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