In re the Marriage of: Heather Newman, n/k/a Heather Osagiede, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0970

In re the Marriage of:
Heather Newman, n/k/a Heather Osagiede,
Appellant,

vs.

Robert Newman,
Respondent.

Filed March 26, 2018
Affirmed in part, reversed in part, and remanded
Kirk, Judge

Isanti County District Court
File No. 30-FA-11-153

MacKenzie Guptil, Pine City, Minnesota (for appellant)

Kristine J. Zajac, Ryan J. Briese, Zajac Law Firm, Minneapolis, Minnesota (for
respondent)

Considered and decided by Johnson, Presiding Judge; Hooten, Judge; and Kirk,
Judge.
U N P U B L I S H E D O P I N I O N
KIRK, Judge
In this parenting -time appeal, appellant -mother argues that the district court erred
by modifying the parties’ parenting time when it granted respondent-father’s motion to
remove the requirement that father’s parenting time be supervised and granted father

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unsupervised parenting time with the parties’ children , without (1) conducting an
evidentiary hearing and (2) making findings regarding the children’s best interests. We
affirm in part, reverse in part, and remand.
FACTS
Appellant-mother Heather Newman, now known as Heather Osagiede , and
respondent-father Robert Newman married in 1999. The parties have three joint -minor
children.
In 2011, father was convicted of fourth-degree criminal sexual conduct. The district
court stayed imposition of father’s sentence and placed him on probation for a period of
ten years.
In 2012, father and mother entered into a stipulation to dissolve their marriage. The
district court entered judgment on the stipulation, and it was subsequently amended twice.
The final amended judgment granted mother sole legal and sole physical custody of the
three children and established supervised parenting time for father of up to four hours every
other week. The judgment also incorporated the parties’ stipulation to appoint a parenting
consultant with the “authority to decide all issues relating to parenting time and issues
regarding the implementation of the recommendations of [father’s therapist and the
children’s therapist], as to supervised/unsupervised and expanded parenting time.” The
district court appointed the parenting consultant to a term of two years an d provided that
the appointment would terminate after two years unless the parties’ agreed to extend the
appointment or to appoint a new parenting consultant.

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The parenting consultant increased father’s supervised parenting time from up to
four hours every other week to six hours every other week based on the recommendation
of the children’s therapist. Mother filed a motion in district court to overturn the parenting
consultant’s decision, which the district court denied. The parenting consultant’s two-year
term expired in April 2016. The parties were unable to agree to an extension of the
parenting consultant’s appointment, or to the appointment of a new parenting consultant.
In February 2017, father received an early discharge from probation, after which he
filed a motion in district court requesting that the court “remove all restrictions on his
parenting time so that he [would] have unsupervised parenting time” with the children
every other weekend and on alternating holidays . Father submitted documentation of his
successful completion of sex-offender treatment , reports from 43 supervised parenting -
time visits, and a report from a psychosexual evaluation concluding that he is able to safely
have unsupervised parenting-time visits with the children.
Mother opposed father’s motion and moved the district court to deny the motion or
to order an evidentiary hearing. Mother argued that father “has a significant propensity for
alienation” and that father is likely to alienate the children from her, which would
emotionally harm them. Mother submitted a 2012 family assessment in which the assessor
found that father “was not forthright in his interview.” The assessor expressed concern
about father’s “active alienation” of the children from mother, father’s risk to reoffend and
his minimization of his sexual offenses, and father’s lack of parental authority.
The district court granted father’s motion without holding an evidentiary hearing
and modified the parties’ parenting -time arrangement to grant father unsupervised

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parenting time every other week end and on alternating holidays. The district court based
this decision on its review of father’s psychosexual evaluation, father’s successful
supervised parenting -time visits with the children, and father’s early discharge from
probation. The court also authorized the children’s therapist to communicate with the court
on any issue concerning father’s parenting time. The court stayed its order pending appeal.
Mother appeals.
D E C I S I O N
“The district court has broad discretion in de termining parenting-time issues and
will not be reversed absent an abuse of that discretion. Reversible abuses of discretion
include misapplying the law or relyi ng on findings of fact that are not supported by the
record.” Shearer v. Shearer , 891 N.W.2d 72, 75 (Minn. App. 2017) (quotations and
citations omitted). A district court’s findings of fact will be upheld unless clearly
erroneous. Griffin v. Van Griffin, 267 N.W.2d 733, 735 (Minn. 1978).
I. The district court did not abuse its discretion by denying mother’s request for
an evidentiary hearing.

Mother argues that an evidentiary hearing was required because she made
allegations of endangerment under Minn. Stat. § 518.175, subd. 5(d) (2016) . Minn. Stat.
§ 518.175, subd. 5(d), provides that “[i]f a parent makes specific allegations that parenting
time by the other parent places the 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
parenting time.”

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Here, the district court held a non-evidentiary hearing on father’s motion to change
his parenting time from supervised to unsupervised. At the hearing, the district court noted
that mother, in her responsive motion, did not allege specific instances of behavior by the
children that demonstrated that father had acted to a lienate them from mother. The
information mother submitted regarding “active alienation” came from the 2012 family
assessment, which was conducted before the parties entered into the stipulation to dissolve
their marriage, and to establish father’s supervised parenting time.
Although the district court did not explicitly deny mother’s motion for an
evidentiary hearing on the basis of her endangerment allegations, it implicitly did so. See
Palladium Holdings, LLC v. Zuni Mortg. Loan Trust 2006 —OA1, 775 N.W.2d 168, 177-
78 (Minn. App. 2009) (“Appellate courts cannot assume a district court erred by failing to
address a motion, and silence on a motion is therefore treated as an implicit denial of the
motion.”), review denied (Minn. Jan. 27, 2010). Because the record indicates that mother
did not make specific allegations of endangerment sufficient to require an evidentiary
hearing under Minn. Stat. § 518.175, subd. 5(d), we conclude that the district court did not
abuse its discretion by denying mother’s request for an evidentiary hearing on the basis of
endangerment.
Mother also argues that the district court’s removal of the requirement that father’s
parenting time be supervised and its award of unsupervised parenting time to father
constituted a substantial modification of parenting time that required an evidentiary
hearing. We note that the Minnesota Supreme Court, in its recent decision in Hansen v.
Todnem, eliminated the previously recognized common -law distinction between

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substantial and insubstantial modifications of parenting time. ___ N.W.2d ___, ___, No.
A16-0986, slip op. at 6 (Minn. Mar. 14, 2018). Nonetheless, m other did not raise this
argument to the district court. Because an appellate court generally will not consider
matters not properly argued to and considered by the district court, we decline to reach this
argument. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
II. The district court abused its discretion by modifying the parties’ parenting
time without first finding that the modific ation was in the children’s best
interests.

Mother argues that the district court erred by not making more detailed findings as
to the best interests of the children before it granted father’s motion to modify the parties’
parenting time. Minn. Stat. § 518.17, subd. 1(a) (2016) , enumerates a number of factors
that a district court must consider “[i]n evaluating the best interests of the child for the
purposes of determining issues of . . . parenting time.” In Hansen, the Minnesota Supreme
Court recognized that Minn. Stat. § 518.17 applies when establishing a parenting plan, but
that Minn. Stat. § 518.175 governs parenting -time modifications. Hansen, slip op. at 6.
Minn. Stat. § 518.175, subd. 5(b) (2016), provides:
If modification [of parenting time] would serve the best
interests of the child, the court shall modify the decision -
making provisions of a parenting plan or an order granting or
denying parenting time, if the modification would not change
the child’s primary residence. Consideration of a child’s best
interest includes a child’s changing developmental needs.

A district court is not required to make “detailed findings on each and every best-interest
factor when a court decides a request to modify parenting time. ” Hansen, slip op. at 10.
But Minn. Stat. § 518.175, subd. 5(b) , does require that the district court find that a

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modification “would serve the best interest of the child” before modifying a parenting-time
order.
Here, the district court modified the parties’ parenting time by granting father
unsupervised parenting time with the parties’ children and by increasing father’s parenting
time from six hours every other week to every other weekend and alternating holidays.
The district court’s decision was based on evidence regarding father’s ability to have
unsupervised parenting time with the children, but the district court made no finding either
in its order or on the record that the modification was in the children’s best interests. There
is no indication that any consideration was given to the children’s best interests. Thus, we
conclude that the district court abused its discretion by modifying the parties’ parenting
time without finding that the modification would serve the children’s best interests. We
reverse the order granting father’s motion and remand for further proceedings. On remand,
the district court must consider the children’s best interests and must specifically consider
the children’s changing development al needs. See Minn. Stat. § 518.175, subd. 5(b).
Affirmed in part, reversed in part, and remanded.