This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1656
In re the Matter of: A. B.
Wayne Belisle, et al., petitioners,
Respondents,
vs.
Yana Verzhbitskaya,
Appellant.
Filed June 15, 2015
Affirmed as modified
Hooten, Judge
Washington County District Court
File No. 82-FA-14-1139
Elizabeth C. Henry, Gary K. Luloff, Chestnut Cambronne, PA, Minneapolis, Minnesota
(for respondents)
Eric Johnson, St. Paul, Minnesota (for appellant)
Considered and decided by Hooten, Presiding Judge; Hudson, Judge; and
Klaphake, Judge.
UNPUBLISHED OPINION
HOOTEN, Judge
In this grandparent-visitation dispute, appellant-mother argues that: (1) the district
court abused its discretion by finding that visitation between her child and respondent-
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
grandparents would not interfere with appellant-mother’s parent-child relationship;
(2) the district court failed to make adequate findings of fact to support the grandparent-
visitation schedule; (3) the amount of visitation awarded to respondent-grandparents is
excessive; and (4) the award of visitation impermissibly includes an award of visitation to
persons other than grandparents. We affirm as modified.
FACTS
A.B. was born to appellant Yana Verzhbitskaya and Timothy Belisle in December
2002. Appellant and Timothy Belisle were married at that time and divorced in 2006.
Appellant was granted sole physical and sole legal custody of A.B. after the divorce, and
Timothy retained parenting time, which included alternating weekends and Wednesday
overnights. Timothy passed away in November 2013.
Respondents Wayne and Janet Belisle are Timothy’s parents and A.B.’s paternal
grandparents. In March 2014, they filed a petition seeking grandparent visitation with
A.B., as they claimed that appellant had prevented them from seeing A.B. since
Timothy’s death. Appellant opposed this petition, requesting that the district court deny
visitation to respondents or, in the alternative, order respondents to “provide reasonable
financial support” for A.B. if visitation was awarded. At the initial case-management
conference, the district court ordered the parties to attend mediation and later appointed a
mediator by order. The record does not show whether any mediation actually took place
at this time, as the district court then proceeded to hold an evidentiary hearing in June
2014. The parties and several other members of the Belisle family testified at the
evidentiary hearing.
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Both respondents testified about their relationship with A.B. Janet Belisle testified
that, in accordance with their son’s parenting-time schedule, they had typically spent time
with A.B. every other weekend during the summer and at least one weekend a month
during the school year. A.B. would also be with them for major holidays such as
Thanksgiving and Christmas Eve. Wayne Belisle testified that because he attended
several of A.B.’s sporting events and gave A.B. a ride to and from the games, he would
see A.B. more often than his wife. Both testified that Timothy Belisle allowed his
parents to spend time with A.B. during his parenting time with the child. Janet noted that
she was respectful of appellant in front of A.B., and both said that they did not encourage
A.B. to lie to appellant about anything. Appellant, on the other hand, claimed to have
“no relationship” with respondents, and only saw them occasionally at parenting time
exchanges. She testified that she and Timothy had an “unfriendly divorce” and had had
difficulty co-parenting A.B before Timothy’s death.
Appellant raised concerns about the parties’ differing cultural backgrounds and
indicated her belief that respondents’ values and ideas about how to raise A.B. differed
from her own. Appellant was born in Russia and testified that she intended to raise A.B.
in the Russian Orthodox religion. She stressed her belief that “a person needs to have
one religion” and expressed concern that respondents would be taking A.B. to Catholic
services and having him celebrate Catholic holidays. In response to appellant’s concerns,
Janet Belisle testified that she knew that appellant was raising A.B. in accordance with
appellant’s Russian cultural background and religion. Although she acknowledged that
she had taken A.B. to Catholic services when Timothy was still alive, she disclaimed any
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intent to interfere with appellant’s desire to raise A.B. in the Russian Orthodox religion
and stated that she would not bring A.B. to Catholic church services if appellant did not
want her to do so.
Appellant also complained that respondents interfered with her parent-child
relationship when, on several occasions, they visited A.B. during his lunch hour at school
without her knowledge or permission. However, respondents claimed that, after
Timothy’s death, the school counselor expressed concerns for A.B.’s emotional well-
being and requested that respondents and other Belisle relatives visit with A.B. at school
during his lunch hour. As further evidence of respondents’ alleged interference, appellant
also testified about a verbal confrontation that occurred between Wayne Belisle and
herself about the distribution of Timothy’s estate, which took place while she was
assisting A.B. in retrieving his possessions from Timothy’s house. Appellant claimed
that this dispute between her and respondents involving her potential interest in
Timothy’s estate remained unresolved at the time of the hearing. Appellant did not
explain how these financial disputes regarding the probate of Timothy’s estate interfered
with her parent-child relationship with A.B.
In a July 11, 2014 order and judgment, the district court found by clear and
convincing evidence that, because respondents had spent “substantial time” with A.B.
after his parents divorced, grandparent visitation was in A.B.’s best interests and would
not interfere with appellant’s parent-child relationship. Accordingly, the district court
granted respondents’ request for grandparent visitation and ordered the parties to attend
mediation regarding the visitation schedule.
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Appellant refused to attend the scheduled mediation session. In his report, the
mediator described his phone call to appellant’s counsel on the morning of mediation, in
which counsel “was vague as to whether or not he or his client would appear.” The
mediator then received a phone call from appellant, who “made a number of
inappropriate statements” and began to argue her position. When the mediator responded
that appellant should present her proposals at mediation, “[appellant] stated she would
not appear at the mediation and hung up the telephone.” In appellant’s absence, the
mediator met with respondents and considered their proposed visitation schedule, as well
as the mediator’s best estimate of what appellant’s proposed visitation schedule would
have been. The mediator ultimately recommended that respondents receive one weekend
visit and one overnight Wednesday visit per month, a nine-day visit during summer
vacation, and visitation on Thanksgiving and Christmas Eve. He also recommended that
respondents be able to attend all of A.B.’s school functions and, along with other
relatives, be able to visit A.B. at school once per week.
The district court adopted these recommendations in full in an August 11, 2014
order. Appellant moved to revise the order, arguing that she never agreed that the
mediator’s recommendations would be binding and that this visitation schedule was
excessive and interfered with her parenting rights. Respondents soon brought a motion
for civil contempt, alleging that appellant had failed to allow respondents their weekend
visitation time with A.B. After a hearing on these motions, the district court awarded
compensatory visitation to respondents and affirmed the visitation schedule, finding that
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the schedule “is not excessive given the nature and quality of time the child has spent
with [respondents] in the past.” This appeal followed.
DECISION
The district court awarded grandparent visitation to respondents under Minn. Stat.
§ 257C.08, subd. 1 (2014), which provides:
If a parent of an unmarried minor child is deceased, the
parents and grandparents of the deceased parent may be
granted reasonable visitation rights to the unmarried minor
child during minority by the district court upon finding that
visitation rights would be in the best interests of the child and
would not interfere with the parent child relationship. The
court shall consider the amount of personal contact between
the parents or grandparents of the deceased parent and the
child prior to the application.
Appellant challenges the district court’s grandparent-visitation decisions. “The district
court enjoys broad discretion in determining visitation,” and we will not reverse absent an
abuse of that discretion. SooHoo v. Johnson, 731 N.W.2d 815, 825 (Minn. 2007). We
examine whether the district court made findings unsupported by the record or
improperly applied the law. See id. A finding is clearly erroneous when “the reviewing
court is left with the definite and firm conviction that a mistake has been made.”
Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000) (quotation omitted).
“That the record might support findings other than those made by the [district] court does
not show that the court’s findings are defective.” Id. at 474.
I.
Appellant concedes that the district court’s decision was in the best interests of
A.B. and focuses her first argument on the district court’s determination that respondents
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proved by clear and convincing evidence that visitation would not interfere with the
parent-child relationship. Appellant correctly notes that respondents carried the burden
of proving non-interference. In light of a parent’s protected fundamental right “to make
decisions concerning the care, custody, and control of his or her children,” SooHoo, 731
N.W.2d at 820 (citing Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060
(2000)), grandparents “must prove by clear and convincing evidence that visitation would
not interfere with the parent-child relationship” in order to be awarded visitation, In re
C.D.G.D., 800 N.W.2d 652, 656 (Minn. App. 2011), review denied (Minn. Aug. 24,
2011).
Appellant claims that the district court improperly placed the burden of proof on
her to affirmatively show interference. However, the district court’s order indicates that
it properly acknowledged and applied the correct burden of proof in its decision. It
specifically concluded that respondents had shown “by clear and convincing evidence . . .
that visitation has not [interfered] and will not interfere with [appellant’s] relationship
with [A.B.].” In its findings of fact, the district court properly evaluated the evidence
produced by respondents that rebutted appellant’s proposed instances of interference.
While the district court noted that appellant “did not provide any credible evidence” as to
interference, its findings indicate that the district court reached this determination by
weighing appellant’s proposed instances of interference against respondents’ testimony
as to how they would minimize interference in those circumstances.
Appellant further alleges that the evidence in this case does not support the district
court’s findings regarding non-interference. But, appellant has failed to show how these
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findings are erroneous, or why these findings fail to support the district court’s
conclusion that grandparent visitation would not interfere with appellant’s parental
relationship with A.B. For every concern raised by appellant regarding how respondents
may interfere with her parenting, the district court found that respondents credibly
showed how they would refrain from interfering. While appellant selectively chooses
portions of the record that she believes to be inconsistent with these findings, she fails to
show that the district court’s findings lack record support. Much of appellant’s argument
regarding respondents’ alleged interference relies on testimony that the district court
found to lack credibility, and we defer to the district court’s credibility determinations.
Minn. R. Civ. P. 52.01. While it is clear that there is an unfriendly relationship between
the parties, the record shows that many of appellant’s expressed concerns about
respondents stem from appellant’s financial claims regarding the distribution of
Timothy’s estate, which do not involve the parties’ relationship with A.B. Regarding
appellant’s concerns about her right to parent A.B., respondents repeatedly expressed a
willingness to accommodate these concerns.
On this record, we conclude that the district court did not clearly err by finding
clear and convincing evidence of non-interference.
II.
Appellant next raises a number of challenges to the district court’s August 11
order adopting the mediator’s recommended visitation schedule.
Appellant first contends that the district court erred by ordering the parties to
mediate regarding a visitation schedule, as she claims that the parties never actually
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agreed to mediate this issue. The record contradicts this claim. The district court had
already appointed the mediator prior to the evidentiary hearing, without timely objection
from appellant as provided for in the prehearing order appointing the mediator. The
mediator then appeared at the evidentiary hearing and informed the district court that the
parties had agreed to have him mediate a visitation schedule if the district court found
that respondents were entitled to visitation. Neither party objected to the mediator’s
claim that the parties had agreed to this procedure at the hearing. Based upon this
undisputed testimony, the district court memorialized the parties’ agreement in its July 11
order.
Furthermore, contrary to appellant’s arguments, the district court did not simply
adopt these recommendations as a binding schedule without making findings. The
district court’s July 11 order provided that any schedule proposed by the mediator, if the
parties were unable to reach an agreed-upon schedule, would be binding “on the date that
it is submitted to the parties and the court,” and either party would then have 14 days to
file a motion with the district court contesting that schedule. In accordance with the
district court’s order, appellant moved to revise the schedule. The district court
considered appellant’s arguments and denied appellant’s motion, finding that the
visitation schedule was not excessive in light of respondents’ prior contact with A.B.
Contrary to appellant’s contentions, the record shows that the district court had already
determined that grandparent visitation was warranted, and then independently evaluated
the mediator’s proposed schedule in light of its familiarity with the case.
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Appellant further challenges the substance of the visitation schedule, arguing that
“[t]here is a limit to the sheer quantum of grandparent visitation” under the statute, and
that this visitation schedule exceeded that limit by treating the grandparents like co-
parents. Appellant cites In re C.D.G.D. in support of this proposition, in which we held
that a district court abused its discretion by ordering excessive grandparent visitation that
impermissibly interfered with the parent-child relationship. See 800 N.W.2d 652, 659–62
(Minn. App. 2011), review denied (Minn. Aug. 24, 2011). The district court in C.D.G.D.
appeared to treat the grandparent like a co-parent and accordingly required the child to
“spend some part of 182 days every calendar year” with the grandparent, including 52
overnight visits. Id. at 659. This schedule entirely failed to consider holidays, prevented
the father from taking his child to religious meetings and other weekend activities, and
prohibited the father from taking long trips with the child without the grandparent’s
permission. Id. at 659–60. This schedule was “unprecedented in scale and design” when
compared to other grandparent-visitation cases, and we held that this amount of
visitation, in light of the circumstances, interfered with the parent-child relationship. Id.
at 660.
Here, there is no indication in the record that the district court impermissibly
treated respondents like co-parents in the amount of visitation it awarded. The visitation
schedule imposed by the district court is wholly unlike the visitation schedule in
C.D.G.D. when viewed in conjunction with the circumstances of this case and other
grandparent-visitation caselaw. The district court awarded visitation to respondents of
one weekend and one weekday afternoon per month, a once-weekly school visit, a nine-
10
day summer visit, and daytime visits on Thanksgiving and Christmas Eve. The district
court found this schedule to be appropriate in light of the nature and quality of
respondents’ relationship with A.B., and, on this record, this finding is not clearly
erroneous. This schedule awards significantly less time than was previously awarded to
Timothy as parenting time and is fully consistent with the amount of contact respondents
had with A.B. prior to Timothy’s death. The schedule also addresses the religious and
cultural concerns raised by appellant, as it specifically forbids respondents from taking
A.B. to Catholic services and disallows visitation on the day of Russian Orthodox
Christmas, which is celebrated on a different day than Catholic Christmas.
Further, this amount of visitation is not unprecedented in our grandparent-
visitation caselaw. In Rohmiller v. Hart, this court ruled that a very similar grandparent-
visitation schedule was nonexcessive. See 799 N.W.2d 612, 614–15 (Minn. App. 2011),
aff’d, 811 N.W.2d 585 (Minn. 2012). That visitation schedule provided for grandparent
visitation of one weekend per month, one week during the summer, and two holiday
visits. Id. at 614. This court declined to hold that the district court abused its discretion
in ordering such a schedule, even though the grandparent in that case had only spent
about eight hours per month with the young child prior to her mother’s death. Id. at 615.
The visitation schedule in this case is nearly identical, and the record here shows that
respondents spent a much greater quantity of time with A.B. than the grandparent in
Rohmiller did with his grandchild.
Based on this record, we conclude that the visitation schedule ordered by the
district court was not an abuse of discretion.
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III.
Lastly, appellant contends that the district court lacked the authority to award
visitation for other Belisle family members and to allow certain relatives to pick-up and
drop-off A.B. before and after visitation. Appellant provides no authority preventing the
district court from allowing other persons to facilitate visitation transfers, and we
conclude that this argument is forfeited. See In re Estate of Rutt, 824 N.W.2d 641, 648
(Minn. App. 2012) (providing that “an assignment of error based on mere assertion and
not supported by any argument or authorities” is forfeited (quotation omitted)), review
denied (Minn. Jan. 29, 2013).
Appellant’s argument that the district court did not have the authority to grant
visitation to other relatives is more persuasive. While respondents argue that the district
court’s August 11 order did not “grant[] separate or independent visitation,” the order
states that “[g]randparents and/or relatives (1/2 sister, aunts, uncles, cousins)” could visit
A.B. at school once per week. (Emphasis added.) On its face, the order awards visitation
time to Belisle relatives other than respondents. However, visitation awards under Minn.
Stat. § 257C.08 (2014) are expressly limited to grandparents or other persons who stand
in loco parentis with the child. See Rohmiller v. Hart, 811 N.W.2d 585, 591–92 (Minn.
2012) (holding that aunt was not entitled to visitation under section 257C.08). Here, the
other relatives contemplated in the district court’s order are not grandparents and do not
have an in loco parentis relationship with A.B. that would have allowed them to petition
for visitation. See Minn. Stat. § 257C.08, subd. 4 (allowing reasonable visitation rights to
person with whom an unmarried minor has resided for two years or more).
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We conclude that the district court acted contrary to section 257C.08 to the extent
that it awarded visitation rights to individuals other than respondents. We therefore strike
the phrase “and/or relatives (1/2 sister, aunts, uncles, cousins)” from the portion of the
district court’s August 11, 2014 order awarding independent visitation rights to other
Belisle relatives, and otherwise affirm.1
Affirmed as modified.
1
We note, however, that nothing in the award as modified herein prohibits respondents
from allowing other relatives to join them in the exercise of their court-ordered visitation
with A.B.
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