Kulla v. McNulty, CX-90-2629

• Decision Date: 18 June 1991
• Docket Number: No. CX-90-2629,CX-90-2629
• Citation: 472 N.W.2d 175
• Parties: In re the Matter of Nancy Jean KULLA, Petitioner, Appellant, v. Deborah McNULTY, et al., Respondents.
• Court: Minnesota Court of Appeals

Page 175

472 N.W.2d 175

In re the Matter of Nancy Jean KULLA, Petitioner,

Appellant, v. Deborah McNULTY, et al., Respondents.

No. CX-90-2629.

Court of Appeals of Minnesota.

June 18, 1991.

Review Denied Aug. 29, 1991.

Syllabus by the Court

The trial court properly required appellant to establish a prima facie showing of each of the statutory factors of Minn.Stat. Sec. 257.022, subd. 2b (Supp.1989), and it correctly determined that appellant had failed to meet this burden in regard to whether visitation would interfere with the natural parent-child relationship.

M. Sue Wilson, Christine N. Howard, Wilson & Binder, Minneapolis, for appellant.

Michael D. Dittberner, Kathleen Worner Kissoon Law Office, Bloomington, Suzanne Born, Minneapolis, for respondents.

Paul L. Ettelbrick, Legal Director, Lambda Legal Defense and Educ. Fund, Inc., New York City, Maria Gil de la Madrid, National Center for Lesbian Rights, San Francisco, Cal., for amici curiae.

Considered and decided by HUSPENI, P.J., and SHORT and MULALLY, ^* JJ.

OPINION

EDWARD D. MULALLY, Acting Judge.

Appellant brings this appeal from the dismissal of her petition seeking visitation with the daughter of respondents Deborah McNulty and Joseph J. Marrone. Appellant filed her petition pursuant to Minn.Stat. Sec. 257.022, subd. 2b (Supp.1989). She contends the trial court erred by finding that appellant had failed to produce prima facie evidence on each of the statutory factors. We affirm.

FACTS

Appellant Nancy Jean Kulla appeals from an order vacating a prior family court referee order, and denying appellant's petition for visitation with the minor child of respondents Deborah McNulty and Joseph J. Marrone.

The referee had found that appellant had established a prima facie showing for visitation under the provisions of Minn.Stat. Sec. 257.022, subd. 2b (Supp.1989), and she ordered the matter be continued for an evidentiary hearing. However, on motion for review, the district court concluded that appellant had failed to make a prima facie showing on the statutory factor that visitation would not interfere with the relationship between the respondents and the minor child. Respondents also challenged the constitutionality of the statute. The trial judge did not reach that issue.

The parties are in dispute over the facts at virtually every turn. The record is made up of competing affidavits submitted by and on behalf of the parties throughout the proceeding below. While the parties agree on a few contextual facts, even there they dispute the details and nature of their relationships to one another and to the minor child, K.R.M. ¹

Appellant and respondent, Deborah McNulty, were involved in a lesbian relationship from mid-1984 through mid-1987. Respondent, Joseph J. Marrone, is the father of the minor child, K.R.M. Appellant moved into McNulty's home in late September or early October 1985 after K.R.M.'s birth, and she moved out on March 16, 1988.

While residing in McNulty's home, appellant provided some care and supervision for K.R.M. while McNulty was away from home working as an airline attendant. In the late summer or early fall of 1987, McNulty and Marrone resumed their romantic relationship, and thereafter, appellant and McNulty's relationship deteriorated and was confrontational throughout the proceedings below. ²

After appellant moved out of McNulty's home in March of 1988, she sought visitation with K.R.M. and was allowed a limited amount by respondents. Eventually, all visitation was denied. In early summer of 1988, appellant moved into the house next door to McNulty's. Appellant brought two legal actions in the fall of 1988: in one she sought custody of the minor child, K.R.M.; and in the other, she sought foreclosure on McNulty's home in satisfaction of an alleged mechanics' lien. The custody action was dismissed on December 2, 1988, and the mechanics' lien foreclosure was dismissed with prejudice, pursuant to stipulation on June 15, 1990.

Subsequent to the dismissal of appellant's custody action, the legislature enacted the present version of Minn.Stat. Sec. 257.022, subd. 2b (Supp.1989) which allowed third parties to obtain a visitation order if three statutory conditions were found to exist. Appellant commenced the present action on or about September 14, 1989.

In support of her petition for visitation, appellant incorporated by reference the affidavits she submitted in the earlier custody action. According to appellant's personal affidavits, she and McNulty were involved in a loving and committed relationship.

Appellant maintains that following the birth of K.R.M., she was the primary caretaker and that K.R.M. benefited from the security, stability and commitment of the relationship. Appellant maintains that K.R.M. expressed an obvious preference for her over McNulty.

In support of her petition for visitation, appellant submitted affidavits of several social acquaintances and members of her family, as well as a report from Jil Leverone, Ph.D., a licensed consulting psychologist. The relevant portions of Dr. Leverone's report provide:

The bond between the two was evident. The sterility and awkwardness inherent in such a short, structured, supervised visit could have eliminated any contact or interest on K.R.M.'s behalf. It is evident that K.R.M. was shy at first, but warmed to Ms. Kulla as the two began to play with cars on the floor and continue a conversation. * * * Her involvement with Ms. Kulla reflected a comfort in the already-established bond still felt by both individuals.

It is not possible to determine the exact nature of the relationship between Kulla and K.R.M. without further observation. * * * It could not be determined in the 40 minutes of supervised visitation--after two years of separation--the exact nature of the parent/child relationship. There was nothing in the content of the observed session to indicate that Ms. Kulla's relationship with K.R.M. was not parental. * * *

Consequently, there appears to be no reason to recommend no visitation between K.R.M. and Ms. Kulla. * * * K.R.M.'s contact with Ms. Kulla should not be expected to interfere with K.R.M.'s relationship with her biological parents. Ms. Kulla has demonstrated in interview and in supervised visit with K.R.M. that she is respectful of the rules and limits imposed by Ms. McNulty and Mr. Marrone. * * *

(Emphasis in original.)

The affidavits submitted by respondents are in conflict with those submitted by appellant. Deborah McNulty's personal affidavit begins by characterizing the proceedings brought by appellant as the acts of a mentally unstable person obsessed with having a relationship with K.R.M. and McNulty. McNulty contends she entered into the relationship initially out of curiosity as to the gay lifestyle, and although she was fond of appellant, McNulty asserts the extent of her feelings were that she found appellant merely amusing and enjoyable for a time.

McNulty asserts that following the birth of K.R.M., appellant pressured McNulty to let her move in and help take care of the baby while McNulty was working. She promised to pay McNulty $350 a month rent. After appellant moved into McNulty's home, appellant was hostile to the idea of any interaction between the natural father and K.R.M. McNulty also contends that appellant was called upon to care for K.R.M. never more than eight days a month, and that McNulty provided all the food and groceries.

The relationship between McNulty and appellant ended in late 1987. McNulty and Marrone began dating again. In early 1988, when McNulty suggested appellant find a place of her own, McNulty asserts appellant threatened various forms of legal action if McNulty prevented appellant from seeing K.R.M. McNulty also alleges that during this period, appellant stated she had urges of a sexual nature involving K.R.M. This prompted McNulty to change her work schedule in order to avoid leaving K.R.M. alone with appellant. Thereafter, when McNulty could not care for K.R.M., she was placed in the care of Marrone.

In March 1988, pursuant to McNulty's directive, appellant moved out. Appellant was allowed to visit K.R.M. three or four times, but because she was abusing her visiting privileges by demanding additional time, all visits were discontinued. McNulty asserts a pattern of harassment then began to develop. It took the form of repeated telephone calls and contacts pressing for extended visits with K.R.M., as well as unauthorized entry into the McNulty residence to visit K.R.M. In early summer 1988, appellant moved into the house next door to McNulty's residence. According to McNulty, appellant would watch for respondents to come and go with K.R.M. and then run outside to attempt to interact with the child.

McNulty asserts appellant used the mechanics' lien, filed earlier by appellant, as leverage to get respondents to allow appellant visitation with K.R.M. Following dismissal of appellant's earlier custody action, McNulty contends the harassment slowed but did not stop.

Respondents moved to dismiss appellant's petition for visitation, and submitted various affidavits from acquaintances of Deborah McNulty and appellant in support of their motion. The affidavits generally state the following. Appellant is an egocentric, domineering person who is obsessed with Deborah McNulty. Her obsession extended to McNulty's pregnancy and subsequently to K.R.M. following her birth. Appellant considered K.R.M. "her" child, and she always claimed to know better than anyone else what was best for K.R.M. Appellant attempted to usurp McNulty's parenting role. McNulty was the primary caretaker. McNulty was a very good parent and appellant was unstable and had a negative effect on K.R.M.

Appellant's petition for visitation came before a family court referee, who initially continued the action pending a visitation evaluation by the Department of Court Services. The Department report contained the following relevant...