Clark v. Clark, C7-83-1497

• Decision Date: 04 April 1984
• Docket Number: No. C7-83-1497,C7-83-1497
• Parties: In re the Marriage of Sue Ann CLARK, now known as Sue Ann Causey, Petitioner, Respondent, v. Charles Lawrence CLARK, Appellant.
• Court: Minnesota Court of Appeals

Page 383

346 N.W.2d 383

In re the Marriage of Sue Ann CLARK, now known as Sue Ann

Causey, Petitioner, Respondent, v. Charles Lawrence CLARK, Appellant.

No. C7-83-1497.

Court of Appeals of Minnesota.

April 4, 1984.

Review Denied June 12, 1984.

Ruth Ann McCaleb, Rochester, for appellant.

Mary Alice Richardson, Rochester, for petitioner, respondent.

Syllabus by the Court

1. The trial court erred in reducing visitation privileges of a father by failing to make specific findings, pursuant to Minn.Stat. 518.175, subd. 5, that the child's health or emotional development required a restriction of visitation.

2. The trial court erred in ordering appellant to pay full airline transportation costs for half the trips the child made each year for visits, when respondent can provide airline passes, at little or no cost, but simply elected not to.

3. The trial court did not abuse its discretion in denying attorney fees to either party when there was no evidence of bad faith.

Heard, considered, and decided by FOLEY, P.J., and WOZNIAK and SEDGWICK, JJ.

OPINION

SEDGWICK, Judge.

Dr. Clark appeals from an August 30, 1983, post-dissolution order by Olmstead County Court, Family Division, denying his motion for expanded visitation privileges with his six-year-old daughter, for equal division of actual transportation costs incidental to visitation, and for reasonable attorney fees. The court denied his motion for attorneys fees, further reduced appellant's visitation privileges, and ordered him to pay the travel costs for half the trips the child made incidental to visitation, despite respondent's ability to provide such transportation free. We affirm in part, reverse in part, and remand.

Facts

This is the fifth appearance of this matter before a court. The issues cannot be reviewed in a vacuum. Therefore, the history of the many motions brought by ex-wife in a short period of time must be considered.

Appellant Dr. Lawrence and respondent Sue Clark were divorced after five years of marriage. At the time of their dissolution, both were living in the Rochester area. The mother was granted custody of their only child, Carrie, 2 1/2 years, subject to reasonable and liberal visitation by the father.

Both parties are remarried and each have two children from their second marriage. Dr. Clark and his new wife continue to live in Rochester. Sue Clark, now Sue Causey, married an airline pilot and lives in Salt Lake City, Utah, with her new family and Carrie.

Less than nine months after the Clarks were divorced, Mrs. Causey moved to modify the judgment and decree to allow her to leave Minnesota with Carrie to pursue her nursing career in Colorado where she believed her professional opportunities were greater. Over Dr. Clark's objection the court granted Mrs. Causey's motion and defined his reasonable visitation rights to mean 14 weeks of visitation per year, including at least 6 weeks of visitation during the summer months.

One and a half years later Mrs. Causey moved to reduce visitation. Again, over Dr. Clark's objection, his visitation was reduced from 14 weeks per year to approximately 7 1/2 weeks per year. At this time Carrie was not yet in school. The amended judgment also required appellant to pay transportation costs for two summer visits, notwithstanding the availability of free, or nearly free, air fare for Carrie through her step father's benefits as an airline pilot. Mrs. Causey was ordered to pay the transportation costs during Christmas and spring vacations. She has used free airlines passes provided by her husband for these trips.

Less than one month later Mrs. Causey moved to reduce visitation. Dr. Clark's visitation was again reduced by an average of one week per year, again over his objection.

After much difficulty in getting even the minimum court ordered visitation, Dr. Clark moved for more extensive and reasonably scheduled visitation and division of actual transportation costs. This hearing, scheduled for Dec. 14, 1982, was continued five months to May 16, 1983 at request of Mrs. Causey's attorney to permit her time to prepare responsive affidavits.

The May 16, 1983 hearing resulted in an amended judgment, issued on August 30, 1983, which further reduced Dr. Clark's visitation by an average of one week per year and provided for a continuing division of transportation costs, requiring Clark to pay transportation for half of the visitation, regardless of availability of free airline passes for the child.

In four years Dr. Clark's visitation has been reduced from "reasonable and liberal visitation" to 14 weeks per year, to 7 1/2 weeks per year, to 6 1/2 weeks per year, to 5 1/2 weeks per year.

Each order reducing visitation includes the statement that his visitation should "include but not be limited to" the schedule set out by the court. It is clear that this statement is meaningless to Sue Ann Causey as she never allows visitation in excess of the minimum established by the court.

Issue

1. Did the trial court abuse its discretion in reducing father's visitation from 14 weeks to 5 1/2 weeks each year without specific findings that the child's health or emotional development required restricted visitation?

2. Did the trial court abuse its discretion in failing to order the parties to share equally in the actual...