IN RE MARRIAGE OF LUNDBERG v. LUNDBERG

UNPUBLISHED OPINION

DAVIES, Judge.

Appellant mother challenges the district court's decision lifting the requirement that father's visitation be supervised and denying her motion to remove the guardian ad litem. We reverse and remand.

FACTS

The marriage between appellant Kathleen Lundberg (mother) and respondent Mark Lundberg (father) was dissolved in December 1993. Physical and legal custody of the parties daughter, A.L., who was six years old at the time of dissolution, was awarded to mother. Mother had alleged that father sexually abused A.L. The court, however, found that mother's allegation was not proved by a preponderance of the evidence. Rather, it found that A.L. has been traumatized by a combination of acts of domestic abuse in the family, overprotectiveness and sexual abuse from some unidentified perpetrator.

The court noted that mother was overprotective to a degree that could result in poor self-esteem for A.L. if not addressed, but found that those concerns did not outweigh the cooperation problems raised by the prospect of joint legal custody.

The court, nonetheless, found that A.L.'s best interests dictated that all visitation with father be supervised.

The dissolution was followed by numerous communications, motions, and orders.

In May 1994, the district court reappointed the guardian ad litem (GAL) because of concerns about "establishing an efficient, safe and productive means of visitation." Mother then moved for an order replacing the GAL on the ground that the GAL was favoring father's interests and not acting in A.L.'s best interests. The district court denied this motion, finding no showing of GAL bias. It further ordered psychological evaluations of both parents and a review evaluation of A.L.

In February 1995, the psychologist evaluating A.L. (Dr. Zoglauer) reported that A.L. had extreme mistrust of father resulting in "withdrawal orientation" and that the mistrust could not be "assigned to influences outside the father-daughter relationship (i.e., the mother)." After A.L. reported that the visitation supervisors (father's relatives) often left her alone with father, the psychologist recommended: (1) that supervisors be present "at all times during * * * visitation"; (2) that supervisors not be friends or relatives of father or have any other pre-existing loyalty to him; (3) that supervisors acknowledge in writing their obligation to be present at all times; and (4) that A.L. be given the option of having visitation only every other Sunday and be permitted to leave early if she wanted.

In a May 1995 letter to the court, another psychologist (Dr. Ascano) also expressed concern about father's conduct and recommended supervised visitation with unbiased supervisors. In July 1995, the district court again ordered supervised visitation pending an August hearing. Following that hearing, and responding to inquiries by the court, Dr. Ascano commented by letter on the GAL's report that A.L. did not demonstrate fear of father. Dr. Ascano replied that A.L. likely was not showing fear or anxiety because the visitations were supervised, making A.L. feel protected. He criticized, in the strongest language, the GAL's suggestions that visitation need not be supervised and that A.L. go through inpatient evaluation.

In October 1995, the district court again ordered supervised visitation, moved the visitation to a neutral location, and relieved two of the supervisors from their duties. The court again denied mother's motion to remove the GAL. The court stated in its memorandum that it had reviewed the case "over and over again and continues to come to the same result." It noted that the important issue was not the cause of A.L.'s lack of trust, but rather that such a lack of trust existed. The court again ruled that supervised visitation was the best means of assuring that A.L. did not experience fear or anxiety.

In November 1995, the district court ordered a change in visitation supervisors and changed the location for the convenience of the parties.

In December 1995, father moved for unsupervised visitation and mother moved for removal of the GAL. Mother's motion was based on assertions that the GAL: (1) was biased towards father; (2) argued with A.L.'s therapists; (3) told A.L. that the GAL liked father and not mother; (4) accused A.L. of lying; and (5) engaged in ex parte communications with the court concerning the change of visitation supervisors and its location. The child's therapist (Mary Kay Verkennes) provided an affidavit recommending, among other things, that visitation continue to be supervised because of A.L.'s continuing lack of trust of father. In February 1996, the district court denied father's motion for unsupervised visitation and denied mother's motion to remove the GAL. The court noted that all those who had performed psychological evaluations of A.L. had recommended supervised visitation and had stated that the GAL's contrary recommendation was "not in the child's best interests at this time."

This appeal arises from renewed motions in August 1996. Although there was a hearing, neither party offered oral testimony and no testimony was taken; the court did not seek any review evaluations. In November 1996, the district court denied the renewed motion to remove the GAL and for the first time ordered a gradual shift towards unsupervised visitation. In its memorandum, the court stated that A.L.'s best interests required her relationship with her father to "move to a more natural basis." Although noting that the psychological professionals had all recommended supervised visitation, the court relied on the observations that A.L. "is at a very comfortable level when she is with her father" (observations made by the main GAL, two other GALs who had been appointed, and the visitation supervisors). These were, in effect, the court's only findings.

Mother argues on appeal that the district court abused its discretion in ordering the shift to unsupervised visitation. She claims that the district court did not make specific findings to support the decision, that it should have held an evidentiary hearing (although neither party moved for such a hearing), and that the record does not support its decision. She also appeals the denial of her motion to remove the GAL.

In December (shortly before this appeal was filed), mother also asked the district court to "vacate" its order and hold an evidentiary hearing or to stay the order pending an evidentiary hearing. Affidavits accompanying the motion contained evidence that A.L. had reacted negatively when told that visitation was going to be unsupervised. Father argues that the November 1996 order is not properly before the court on appeal because of the December motion to vacate. To the extent that mother's motion is viewed as one for "modification" of the November visitation order, it could be argued that this appeal is premature under Minn.R.Civ.App.P. 104.04, subd. 2 (notice of appeal filed during pendency of modification motion is premature). In the interests of justice, we will hear the appeal. Our decision is not based in the least on the affidavits, which are not part of the record on appeal. We note that the district court may consider the motion and new evidence on remand. The motions for attorney fees are denied.

DECISION I. Unsupervised Visitation

The [district] court's discretion in deciding visitation questions is "extensive" and will not be reversed absent an abuse of discretion.

Al-Zouhayli v. Al-Zouhayli , 486 N.W.2d 10, 12 (Minn.App. 1992) (quoting Manthei v. Manthei , 268 N.W.2d 45, 45-56 (Minn. 1978)). A decision to remove supervision requirements on visitation is governed by the best-interests-of-the-child standard. See Lutzi v. Lutzi , 485 N.W.2d 311, 315 (Minn.App. 1992) (best-interests standard applies to visitation modification unless "substantial" modification is proposed, such as restriction or reduction of visitation; then showing of endangerment is required). Written findings are not always required for visitation modifications, but it is "better practice" to include them. Haala v. Haala , 354 N.W.2d 121, 122 (Minn.App. 1984) (remanding for further testimony and express findings, even though findings not "mandatory" in all cases of visitation modification).

Throughout the entire proceeding, all psychological professionals evaluating the situation have stated that visitation should be supervised. Only the main GAL, two secondary GALs, and the visitation supervisors have disagreed, based on their observations. At least one of the psychologists strongly criticized the GALs' position, reasoning that A.L. has appeared more comfortable during visitation precisely because of the supervision. Until it made the decision now appealed, the district court itself, in requiring supervision, had relied almost entirely on the expert psychological evaluations.

Although we are mindful that the district court is much "closer" to the case and is to be afforded broad discretion, the district court did not provide sufficient findings or rationale for the turn-about decision to end supervision. The only evident change in circumstances was that two additional GALs and the visitation supervisors agreed that supervision is not necessary, adding their voices to that of the main GAL. That conclusion, though, has been attacked by one of the psychologists as "reveal[ing] [a] lack of sophistication * * * by invalidating the result of several highly trained professionals' evaluation in regards to [A.L.'s] Post Traumatic Stress Disorder." In light of the district court's past reliance on the psychological experts, we cannot affirm this sudden abandonment of that reliance without further findings or explanation.

We remand for further findings on the visitation issue. The district court may conclude that it is necessary to hold an evidentiary hearing to flesh out the evidence about A.L.'s best interests.

II. Failure to Remove Guardian Ad Litem

[T]he court has broad discretion in determining whether the best interests of the child mandate replacement of the guardian ad litem.

Weiler v. Lutz , 501 N.W.2d 667, 672 (Minn.App. 1993), aff'd sub nom. Valentine v. Lutz , 512 N.W.2d 868 (Minn. 1994). A guardian ad litem's duty is to protect the best interests of the child. Id.

The district court's order is also sparse on findings related to the removal issue. In light of our remand, we also reverse and remand on the GAL removal issue. A.L.'s interests will be best served by a more thorough evaluation by and explanation from the district court.

Reversed and remanded.