In re the Matter of: Brooks J. Waldron, petitioner, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0863

In re the Matter of: Brooks J. Waldron, petitioner,
Respondent,

vs.

Uneica Nicole Garrett,
Appellant.

Filed March 15, 2021
Affirmed; motions denied
Bryan, Judge

Hennepin County District Court
File No. 27-FA-16-1681

Brooks John Waldron, Minnetonka, Minnesota (pro se respondent)

Uneica Nicole Garrett, Jordan, Minnesota (pro se appellant)

Considered and decided by Bryan, Presiding Judge; Ross, Judge; and Florey, Judge.
NONPRECEDENTIAL OPINION
BRYAN, Judge
In this custody and parenting time dispute, appellant argues that the district court
erred in the following three respects: (1) it applied the wrong legal standard to her motion
to modify parenting time; (2) it restricted her parenting time to under 25% wi thout a
showing of endangerment; and (3) it imposed an unconstitutional condition on her ability
to make a motion to modify custody. We affirm the district court’s parenting time decision
because the district court applied the correct legal standard and because mother’s argument

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misstates the law. In addition, we conclude that the district court did not violate mother’s
constitutional rights because the district court did not dismiss mother’s motion to modify
custody, but instead considered it. Finally, we deny appellant’s and respondent’s motions
to strike.
FACTS
Appellant Uneica Nicole Garrett ( mother) and respondent Brooks John Waldron
(father) were never married and have one child together. The initial custody and parenting
time order from January 2017 (January 2017 order) awarded the parties joint legal and joint
physical custody of the child and established an equal parenting time schedule. In 2018,
mother and father had a series of escalating arguments, and mother made statements that
she was intending to harm herself and the child. For instance, mother told father “I don’t
want to be alive anymore, but I don’t want [child] to be with you, so I am going to kill us
both . . . [y]ou can do a welfare check tomorrow, and you can find us both floating in the
lake.” After this phone call, father petitioned the court for an order for protection (OFP)
against mother on behalf of himself and the child. Following an evidentiary hearing, the
district court granted the OFP. The child exclusively resided wi th father a fter the OFP
went into effect.
Father also moved to modify custody based on endangerment. The district court
scheduled the motion for an evidentiary hearing. At the evidentiary hearing on January 24,
2019, mother failed to appear. The district court f ound her in default and proceeded to
receive testimonial and documentary exhibits in her absence. On February 1, 2019, the
district court issued its written order (the February 2019 order) based on the evidence

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presented. The district court concluded that “[b]ased on [father’s] testimony, undisputed
evidence in the record that [mother] threatened her own life and the life of the child while
the child was in her care, and [mother’s] default status, . . . endangerment of the child has
occurred.” The district court then considered the best interests factors, awarded father sole
legal and sole physical custody, and restricted mother’s parenting time to one supervised
session every other week for up to four hours. The district court noted that mother was to
“complete psychological and psychiatric evaluations,” and provide the district court “with
updated medical and psychological records, to verify the status of her mental health” prior
to filing a motion for unsuper vised parenting time. Mother did not appeal the February
2019 order.
In November 2019, mother moved the district court to modify custody based on her
belief that father was interfering with her parenting time and based on her improved mental
health. In support of her motion, mother provided a report from the supervised visitation
facility showing parenting time visits that father had cancelled. Mother also submitted
documents from her family physician and therapist to demonstrate she was mentally able
to care for the child in an unsupervised setting. In an order dated December 16, 2019,
(December 2019 order) the district court denied mother’s motion to modify custody
without a formal evidentiary hearing. The district court also addressed mother’s mental
health and the allegations of father’s denial of parenting time. The district court determined
that mother had a “history of psychiatric hospitalizations and crisis interventions” and that
the documents mother submitted—including mother’s own reports—failed to address her
history of impulsive and dangerous behaviors. These documents also failed to reference

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mother’s extensive psychiatric history. The district court concluded that the medical
opinions were “without legal or factual basis and demonstrate a disturbing level of bias.”
The district court granted mother’s request for unsupervised parenting time and permitted
an expansion of parenting time to one overnight every other week. The district court also
prohibited mother from filing any additional modification motions until she provides
“credible documentation and qualified psychiatric opinions” showing that she is adequately
managing her mental health. The district court also stated that “ [p]rior to filing a motion
to increase parenting time, [mot her] shall complete a full psychiatric evaluation and
provide the evaluator with her complete psychiatric history and a copy of this Order.”
Mother did not appeal the December 2019 order.
In March 2020, mother again moved the district court to modify custody. Mother’s
written motion also included the following request regarding parenting time: “If a change
of physical custody is ordered, then I ask the Court to change the parenting time schedule
as set forth in my Affidavit.” In mother’s affidavit, she reiterated the conditional request:
“If the court changes physical custody, the parenting time schedule should be changed.”
Mother’s affidavit also alleged that father willfully denied mother’s parenting time, that
the child expressed a desire to see mothe r more often, and that mother had continued to
receive mental health treatment. Father submitted a responsive motion and affidavit
regarding mother’s allegations. At a hearing o n April 7, 2020, the district court heard
arguments regarding the custody mod ification motion. In addition, the district court
permitted mother to make an oral request for an equal parenting time schedule even though
the district court had no written parenting time modification motion before it.

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In an order dated May 11, 2020, (May 2020 order) the district court denied mother’s
custody modification motion, concluding that mother failed to make a prima facie case for
modification. The district court also denied mother’s parenting time request, concluding
that the stated bases di d not establish that an equal parenting time schedule was in the
child’s best interests:
The Court notes that [mother] did not file a formal
motion to modify the current parenting time schedule.
[Mother] argued that it is in the best interests of the chil d to
revert to the 2 -2-5-5 parenting time schedule incorporated in
the January 30, 2017 Order. However, she provided no basis
to support her argument that a modification of the current
parenting time schedule is in the best interests of the child.
[Mother] exercised supervised visits with the child at a
supervision facility once every other week during the time
period of September 4, 2018 until December 21, 2019.
Following a hearing on December 3, 2019, [mother’s]
parenting time was modified to unsupervi sed overnight visits
on alternating weekends from Saturday at 3:00 p.m. until
Sunday at 1:00 p.m. [Mother’s] proposed modification to an
equal parenting time schedule would be a drastic change for
the child, and the only basis she provided for the drastic change
is that the child wishes to spend more time with her and she is
psychologically equipped to parent the child. The Court finds
that [mother] has not presented a change in circumstances
which would warrant her requested modification to the
parenting time schedule and she has not done a proper analysis
to show that a modification of the current parenting time
schedule is in the best interests of the child.

Mother appeals the May 2020 order.
DECISION
I. Legal Standard Applied to Mother’s Parenting Time Modification Motion
Mother argues that the district court abused its discretion because the district court
did not apply the best interests standard to her parenting time modification request . We

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disagree. The district court applied the best interests st andard when it denied mother’s
parenting time modification request.
As a threshold matter, we note that mother did not make a written motion for
modification of parenting time. Instead, she filed a motion for modification of custody.
The only written req uest regarding parenting time was made contingent on a change in
custody. The motion states, “If a change of physical custody is ordered, then I ask the
Court to change the parenting time schedule as set forth in my Affidavit.” In addition,
mother’s affidavit reads, “If the court changes physical custody, the parenting time
schedule should be changed.” Mother used the forms provided by the Minnesota Judicial
Branch corresponding to a motion for change of custody (Form CHC302) and to an
affidavit in support of the motion to change custody (Form CHC303). We acknowledge
that there is no form prov ided for a change in parenting time. It may be that mother
intended to make a request to modify parenting time independent from her request to
modify custody, but that is not what mother’s motion and affidavit stated.
The district court denied mother’s cu stody modification motion without an
evidentiary hearing. 1 See Minn. Stat. 518.18 (2020); Englund v. Englund , 352 N.W.2d
800, 802 (Minn. App. 1984) (“If the affidavits accompanying the motion for modification
do not allege sufficient facts to allow a cour t to reach the findings required by § 518.18,
the trial court is required to deny the motion.” (citing Nice-Petersen v. Nice-Petersen, 310
N.W.2d 471, 472 (Minn. 1981)). Even though the district court had no parenting time

1 Mother does not challenge the decision to deny her custody modification request without
a hearing.

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modification motion before it , once it denied mother’s custody modification motion, it
permitted mother to make an oral request to modify parenting time at the April 7, 2020
hearing on her motion to modify custody.
Mother has appealed the denial of this oral motion , arguing that the dist rict court
applied the custody modification standard instead of the best interests standard used for
many types of parenting time modification motions. Mother does not contest any of the
fact findings of the district court, argue that the district court i gnored or improperly
discounted the statements in her affidavit, or expressly challenge the district court’s
weighing of the applicable best interests factors. Although we review the decision to grant
or deny parenting time modification motions for an abuse of discretion, Shearer v. Shearer,
891 N.W.2d 72, 75 (Minn. App. 2017), determining what legal standard applies to a request
to change parenting time is a question of law that we review de novo, Dahl v. Dahl, 765
N.W.2d 118, 123 (Minn. App. 2009)).
Minnesota Statutes section 518.175 (2020) governs modification of a parenting time
schedule. For parenting time modification motions that do not request a change in the
child’s primary residence, the statute provides that modification of parenting time is
justified if the requested modification would “serve the best interests of the child.” Minn.
Stat. § 518.175, subd. 5(b). In addition, the best interests standard applies to modifications
of parenting time that do not constitute a “restriction,” Matson v. Matson, 638 N.W.2d 462,
468 (Minn. App. 2002), including modifications that reduce one parent’s parenting time to
“an amount that is between 45.1 to 54.9 percent parenting time,” Minn. Stat. § 518.175,
subd. 5 (establishing that a reduction to an amount within this range is “not a restriction of

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the other parent’s parenting time”). The party requesting to modify a parenting time order
has the burden of establishing that the proposed modification is in the best interests of the
child. See Griffin v. Van Griffin, 267 N.W.2d 733, 735 (Minn. 1978).
This standard differs from the requirements that apply to motions to modify custody,
motions to modify a parenting plan , motions to change t he primary residence of a child ,
and motions to restrict one parent’s parenting time. Those types of motions are subject to
specific procedural limitations and they require proof of endangerment or integration, proof
of a change in circumstances, and proof that the requested change serves the best interests
of the child. M inn. Stat. § 518.18 (listing requirements and legal standard) ; see also
Goldman v. Greenwood , 748 N.W.2d 279, 284 (Minn. 2008) (applying Minn. Stat.
§ 518.18(d) in an endangerment context); In re Welfare of B.K.P. , 662 N.W.2d 913, 916
(Minn. App. 2003) (di fferentiating parenting time modification motions from parenting
plan modification motions and concluding that “the 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”); Matson, 638 N.W.2d at 468 (restrictions of a
parent’s parenting time are subject to the provisions of section 518.18).
Mother asked the district court to adopt an equal parenting time schedule , not a
“restriction,” and mother is correct to argue that the best interests standard applies to
mother’s motion. Minn. Stat. § 518.175, subd. 5; Matson, 638 N.W.2d at 468. We disagree
with mother’s characterization of the district court order, however. Contrary to mother’s
argument, the district court did not apply the custody modification standard. Instead, it
expressly applied the best interests standard to mother’s oral parenting time modification

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request. The district court first described the permanent parenting time schedule in place
at the time of mother’s motion: “ Following a hearing on December 3, 2019, [mother’s]
parenting time was modified to unsupervised overnight visits on alternating weekends from
Saturday at 3:00 p.m. until Sunday at 1:00 p.m.” Mother’s parenting time consisted of one
overnight visit out of every fourteen days. The district court then compared this schedule
to the equal parenting time schedule that mother requested, expressing concern regarding
the degree of the requested chan ge: “ [Mother’s] proposed modification to an equal
parenting time schedule would be a drastic change for the child .” The district court
considered mother’s stated basis for the request: “the only basis she provided for the drastic
change is that the child wishes to spend more time with her and she is psychologically
equipped to parent the child.” The district court concluded the following:
The Court finds that [mother] has not presented a change in
circumstances which would warrant her requested
modification to the parenting time schedule and she has not
done a proper analysis to show that a modification of the
current parenting time schedule is in the best interests of the
child.

Although the district court stated that mother did not establish a “change in circumstances,”
it also concluded separately that mother had “not done a proper analysis to show that a
modification . . . is in the best interests of the child.” Thus, we reject mother’s assertion
that the district court applied the wrong legal standard when it denied her request to modify
parenting time.
To the extent that mother also impliedly argues that the district court abused its
discretion when it weighed the best interests factors and denied her request, we disagree.

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The basis for mother’s requested parenting time change consisted only of mother’s
improved mental health and the child’s statements that he wanted to see her more often.
Mother’s motion and affidavit conta ined no factual statements regarding the impact that
requested change would have and lacked any analysis regarding the degree of the requested
change. In the absence of mother’s factual statements or explanations regarding any of the
other enumerated best interests factors, the district court did not abuse its discretion when
it concluded that mother’s improved mental health and the child’s statements did not justify
the requested modification.
II. The Statutory Minimum Parenting Time Percentage

Mother argues that the district court erred as a matter of law by “restricting” her
parenting time below the statutory minimum parenting time percentage without finding
that she presents a danger to the children. We are not persuaded.
The legislature established a rebuttable presumption in favor of a minimum
parenting time percentage: “ In the absence of other evidence, there is a rebuttable
presumption that a parent is entitled to receive a minimum of 25 percent of the parenting
time for the child.” Minn. Stat. § 518.175, subd. 1(g). In addition, to impose a “restriction”
on one party’s parenting time, the dist rict court must make a finding that “parenting time
is likely to endanger the child’s physical or emotional health or impair the child’s emotional
development” or that the parent whose parenting time is being restricted “has chronically
and unreasonably failed to comply with court -ordered parenting time. ” Id., subd 5(c).
Mother’s argument depends on the interpretation of these two statutory provision s,
presenting a question of law that we review de novo. Dahl, 765 N.W.2d at 123.

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Mother’s argument does not convince us to reverse the district court. First, mother’s
argument conflates a “restriction” with an amount of parenting time falling below the
statutory minimum. Contrary to mother’s argument, these two statutory provisions are
distinct from one another and a finding of endangerment is only required when a district
court imposes a restriction: “Although a ‘restriction’ requires a finding of endangerment or
noncompliance with court orders, parenting -time allocations that merely fall below the
25% presumption can be justified by reasons related to the child ’s best interests and
considerations of what is feasible given the circumstances of the parties.” Hagen v.
Schirmers, 783 N.W.2d 212, 218 (Minn. App. 2010) (citation and footnote omitted).
Father need not prove endangerment and the district court need not find endangerment in
order to justify awarding mother less than 25% parenting time.
Second, the district court did not restrict or reduce mother’s parenting time in the
May 2020 order. After presiding over an evidentiary hearing in February 2019, the district
court restricted mother’s parenting time based on a finding of endangerment. In addition,
in the February 2019 order, the district court made sufficient findings to award mother less
than 25% parenting time. The district court later permitted an insubstantial expansion of
mother’s parenting time in the December 2019 order. When co mparing the May 2020
order to the baseline permanent parenting time schedule previously established, we
conclude that the district court did not restrict mother’s parenting time when it denied her
oral request for equal parenting time in its May 2020 order.
Third, we decline to interpret the statute as mother’s argument necessitates: to
require father to perpetually carry a burden to prove endangerment or to perpetually rebut

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the statutory presumption in response to mother’s motions to expand parenting time. To
adopt such an interpretation would conflict with the caselaw requiring a moving party to
establish the requirements of 518.18 , result in continual litigat ion of factual disputes
regarding endangerment, and mandate evidentiary hearings with competing endangerment
presumptions and burdens of proof. In addition, mother’s interpretation conflicts with the
statutory language regarding applicability of the rebuttable presumption. The legislature
provided that the rebuttable presumption applies only “[i]n the absence of other evidence.”
Minn. Stat. § 518.175, subd. 1(g). In this case, father also submitted a sworn affidavit
regarding the factual assertions made by mother. Because the record in this case contains
evidence, we cannot adopt mother’s interpr etation of the statute and conclude that the
statutory presumption applied to her oral motion to modify custody. Based on these
reasons, we discern no error in the district court’s parenting time decision.
III. Constitutional Challenge to Conditions of the December 2019 Order
Mother challenges the district court’s denial of her modification motions in the May
2020 order, arguing that the district court imposed an unconstitutional condition on her
ability to bring such motions in the December 2019 order. Mother is correct that the district
court’s December 2019 order precluded her from filing modification motions unless she
satisfied certain conditions. We disagree with mother’s argument, however, for two related
reasons. First, mother did not appeal the December 2019 order and cannot now challenge
the conditions therein. See Dieseth v. Calder Mfg. Co., 147 N.W.2d 100, 103 (Minn. 1966)
(stating that “[e]ven though the decision of the trial court in the first order may have been
wrong, if it is an appealable or der it is still final after the time for appeal has expired.”);

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Dailey v. Chermak , 709 N. W.2d 626, 631 (Minn. App. 2006) (applying this aspect of
Dieseth in family law appeal), review denied (Minn. May 16, 2006).
Second, the district court permitted mother to file her modification motions. It did
not preclude them or strike the motions. Instead, the district court considered both motions,
concluding that mother had satisfied the conditions of the December 2019 order. At the
hearing, the district court stated the following: “We just said before filing another motion
to increase parenting time, she must do that, and we see from what’s been filed that she’s
done that which would allow her to bring the motion regarding parenting time.” Therefore,
we conclude that mother’s constitutional rights were not violated.
IV. Motions to Strike
Mother and father filed motions before this court to strike portions of the other
party’s brief and addendum. Father challenges a number of factual descriptions in mother’s
brief. If an appellate court does not consider material that a party seeks to strike, the motion
to strike is moot. See Drewitz v. Motorwerks, Inc., 728 N.W.2d 231, 233 n.2 (Minn. 2007)
(denying motion to strike as moot when the court did not rely on challenged materials).
Because we neither consider nor need to consider the portions of the briefs and addenda
that are not properly included in the appellate record, we deny both motions as moot.
Affirmed; motions denied.