Tischendorf v. Tischendorf, 51614

• Decision Date: 09 July 1982
• Docket Number: 51615.,No. 51614,51614
• Citation: 321 NW 2d 405
• Parties: In the Matter of the Marriage of Diane TISCHENDORF (now Diane Montgomery), petitioner, Appellant, v. Peter TISCHENDORF, Respondent, William J. Hempel, Appellant.
• Court: Minnesota Supreme Court

321 N.W.2d 405 (1982)

In the Matter of the Marriage of Diane TISCHENDORF (now Diane Montgomery), petitioner, Appellant, v. Peter TISCHENDORF, Respondent William J. Hempel, Appellant.

No. 51614, 51615.

Supreme Court of Minnesota.

July 9, 1982.

Oppenheimer, Wolff, Foster, Shepard & Donnelly, Thomas P. Kane, Catherine A. Cella and Rupert M. Mitsch, St. Paul, for Montgomery in No. 51614, and for Diane Tischendorf in No. 51615.

Head & Truhn, Jerome Truhn and Thomas V. Seifert, Minneapolis, for Hempel.

Barnett, Ratelle, Hennessy, Vander Vort Stasel & Herzog, James H. Hennessy and Dale M. Wagner, Minneapolis, for Peter Tischendorf.

Heard, considered and decided by the court en banc.

OTIS, Justice.

This case involves appeals from two related proceedings in the trial court.

The first appeal is from the order of the Ramsey County District Court dated July 25, 1980, denying a motion by appellant Diane Montgomery, formerly Diane Tischendorf, that sought to modify a prior court order. The prior order, dated December 26, 1979, amended a 1977 judgment and decree of dissolution and directed that respondent be allowed visitation with the parties' minor son, Thomas Tischendorf, in both this country and respondent's native West Germany.

The other appeal is from an order of July 25, 1980, denying Attorney William Hempel's motion to intervene and for his appointment as a guardian ad litem for Thomas Tischendorf.

We modify the conditions for visitation prescribed by the trial court but otherwise affirm.

The principal parties to this proceeding, appellant Diane Montgomery and respondent Peter Tischendorf, were married in Minneapolis, Minnesota, on September 8, 1968. Appellant Montgomery is a native citizen of this country and respondent Tischendorf is a native citizen of the Federal Republic of Germany (West Germany). The only child of the parties and the focus of this dispute, Thomas Tischendorf, born December 25, 1970, is a bright and articulate child.

After their marriage, the couple lived in the United States and each pursued graduate studies. In 1969, they moved to Hamburg, West Germany, where Thomas was born. In August of 1974, appellant returned to this country with the child. There is some dispute as to whether the family had planned to reside permanently in West Germany or the United States. After infrequent visits between the two countries, the marriage deteriorated.

In May of 1976, respondent petitioned the German court for a divorce and claimed appellant's desertion as a ground for such divorce. Appellant shortly thereafter instituted divorce proceedings in the Ramsey County District Court. The German court took note of the American dissolution proceeding but concluded that the American court was without jurisdiction. Appellant did not appear or defend in the German proceedings and on March 11, 1977, the German court granted respondent a divorce after determining that appellant was the "guilty" party. After respondent's default in the American proceeding, the Ramsey County District Court issued a judgment and decree on May 17, 1977, that dissolved the marriage and awarded the exclusive custody of Thomas to appellant.

In the period that followed, there were unsuccessful efforts by both parties to work out an acceptable visitation structure. In January of 1979, respondent formally moved for an amendment of the May 1977 judgment and decree of dissolution granted by the Ramsey County District Court in order to secure definite visitation rights. A later motion in March of 1979 was made by respondent to provide for regular visitation, to determine support obligations and to resolve the issue of property division between the parties. Appellant moved the court to change venue of the case to Hennepin County and to continue the hearing on respondent's motion. Appellant's motion was denied.

After a hearing on respondent's motions, the trial court issued its order dated May 3, 1979, that provided respondent was entitled to visitation both in this country and in West Germany. The order specifically approved a visit to West Germany in the summer of 1980. The May 3, 1979 order also made respondent's visitation rights conditional. These conditions included a requirement that an irrevocable letter of credit in the amount of $10,000 be provided by respondent as an assurance that Thomas would be returned to the custody of appellant and a requirement that respondent execute an agreement acknowledging appellant's right to custody and the jurisdiction of the trial court. Respondent complied with these conditions.

Appellant's concern over whether Thomas could be detained in Germany prompted her to move the court for an amendment of the May 3, 1979 order. That motion was denied and on December 26, 1979, the May 1977 Judgment and Decree of dissolution was amended to reflect respondent's visitation privileges.

Some visitation between respondent and his son occurred in Minnesota during March of 1980. An agreement was also reached by the parties with respect to Thomas' trip to Germany between August 1 and August 22, 1980. The trial court was made aware of the proposal and recommended that objections to the plan be heard on or before June 13, 1980. After meeting with counsel on June 13, 1980, the court ordered that objections to the proposed itinerary be heard on July 14, 1980. Thereafter, appellant moved the court to deny all visitation, specifically that scheduled to take place in Germany.

There was evidence presented at the hearing on appellant Montgomery's motion that suggested respondent could successfully gain custody of Thomas through a German court and prevent his return to this country. Evidence of Thomas' reluctance to travel to Germany and the psychological impact of such a trip on Thomas was also presented by appellant. Respondent countered such evidence with an affidavit from his German counsel that indicated respondent's detention of Thomas in Germany would subject respondent to criminal prosecution. The court also interviewed Thomas about his desire not to travel to Germany to visit his father.

Several days after the hearing on July 14, 1980, appellant Hempel moved the court for an order granting him leave to intervene and for his appointment as guardian ad litem for Thomas. On July 25, 1980, the trial judge issued his order denying both appellant Montgomery's motion and appellant Hempel's motion. These appeals followed.

Respondent's motion in this court to vacate a stay of the lower court order was denied on July 31, 1980.¹

Appellant Hempel's motion to intervene and for his appointment as guardian ad litem was denied by the trial court because (1) Minn.Stat. § 518.165 required such denial, (2) the motion was untimely, and (3) the child's interests were adequately represented.

Minn.Stat. § 518.165 (1980) concerns the appointment of guardians in dissolution proceedings and provides as follows:

In all proceedings for child custody or for dissolution or legal separation where custody or visitation of a minor child is in issue, the court may appoint a guardian ad litem from a panel established by the court to represent the interests of the child. The guardian ad litem shall advise the court with respect to custody, support and visitation. The court may enter an order for costs, fees and disbursements in favor of the child\'s guardian ad litem. The order may be made against either or both parties, except that any part of the costs, fees, and disbursements which the court finds the parties are incapable of paying shall be borne by the county.

(Emphasis added.)

The language of the statute clearly contemplates that the court can, in its discretion, appoint an independent guardian. Appellant Hempel was selected by appellant Montgomery, was not a member of the panel referenced by the statute, and therefore cannot be considered to be a disinterested party.²

In addition, appellant Hempel's motion was brought on July 23, 1980, only a few days prior to Thomas' scheduled departure for Germany. No attempt to secure a guardian for the child was made throughout the proceedings conducted in 1979 or the first half of 1980 when issues of visitation were addressed. Because of this delay, the trial court determined the motion to be untimely. Minn.R.Civ.P. 24.01 expressly provides that intervention will be permitted "upon timely application" of an interested party. Given the circumstances, the trial court correctly denied appellant Hempel's motion to intervene because it was not timely made.

The trial court also concluded that the child's interests in this proceeding were adequately represented and therefore intervention by a guardian was not warranted. While we hold that appellant Hempel's motion was properly denied for the reasons stated above, our disposition of this case may prompt the trial court, on remand, to select an independent guardian pursuant to section 518.165 to assure that Thomas' interests are adequately represented. Our decision as to this issue merely forecloses an attempt by either party to select counsel to serve as guardian.

Respondent asserts that appellant Montgomery failed to make a timely appeal of the trial court's visitation determination and, therefore, this court is without jurisdiction to hear the appeal. In Minnesota, the failure to make a timely appeal is a jurisdictional defect. Minn.R.Civ.App.P. 126.02; see Schaust v. Town Board of Hollywood Township, 295 Minn. 571, 204 N.W.2d 646 (1973) (per curiam).

Appellant Montgomery did not seek review of the May 3, 1979 order granting visitation privileges to respondent, the June 7, 1979 order confirming the May 3, 1979 order, or the December 26, 1979 amendment of the original judgment and decree of dissolution that permitted visitation by respondent. The appeal from the July 25, 1980 order denying appellant Montgomery's request for modification of the visitation rights of respondent was timely, however.

Respondent's contention is that the motion...