Beardsley v. Garcia

OPINION

ANDERSON, G. BARRY, Justice.

Appellant Alissa Christine Beardsley and respondent Dante’ Antonio Garcia, Jr., signed a recognition of parentage acknowledging that Garcia is the biological father of D.G., one of Beardsley’s sons. The district court subsequently granted Beardsley an order for protection against Garcia, but it granted Garcia temporary parenting time with D.G. in the order. Beardsley appealed the district court’s grant of temporary parenting time to Garcia, and the court of appeals affirmed. We affirm the decision of the court of appeals.

On March 2, 2006, Beardsley petitioned for an order for protection (OFP) against Garcia.1 Beardsley stated in the petition that she has two minor sons, A.F. and D.G., but that she and Garcia have no children in common. Beardsley alleged that on February 24, 2006, Garcia threatened to split her head open, knock out her teeth, and possibly kill her. She also alleged that A.F. overheard Garcia threaten to kill her 2 days later when A.F. answered a phone call from Garcia and Beardsley refused to take the call. The district court issued an ex parte temporary OFP and scheduled a hearing on Beardsley’s petition.

At the hearing on Beardsley’s petition, which was held on March 16, 2006, Garcia did not challenge the issuance of the OFP but requested parenting time with D.G., who was 20 months old at the time. Garcia provided the district court with a recognition of parentage (ROP) in which he and Beardsley acknowledged that they are D.G.’s biological parents, but the record indicates that Garcia’s paternity of D.G. had not been adjudicated. Beardsley informed the court that although Garcia is not D.G.’s biological father, he had “insisted on signing the birth certificate.” Beardsley said that she did not believe that D.G. would be safe with Garcia because of Garcia’s “anger problems” and that she feared that Garcia would “threaten somebody else in front of [D.G.].”

Later in the day on March 16, the district court issued a 1-year OFP that prohibited Garcia from committing any acts of domestic abuse against Beardsley, entering Beardsley’s residence, and contacting Beardsley by any means. The court made no finding that domestic abuse had occurred, and the OFP stated that Garcia had denied the allegations of the petition but had agreed to the issuance of the OFP. The court granted in part and denied in part Garcia’s request for parenting time, awarding him parenting time with D.G. for 2 hours each weekend at a supervised facility.

Beardsley appealed the district court’s grant of temporary parenting time to Garcia, arguing that Minn.Stat. § 257.541, subd. 3 (2006), prohibits a district court from awarding parenting time to an ROP father in an OFP proceeding. The court of appeals affirmed, holding that the district court had both subject matter jurisdiction and statutory authority to award temporary, supervised parenting time to Garcia in the OFP. Beardsley v. Garcia, 731 N.W.2d 843, 851-52 (Minn.App.2007). The court of appeals also held that Beards*737ley’s due process rights were not violated. Id. at 850. We granted Beardsley’s petition for review on the issue of whether the district court had statutory authority to award Garcia temporary parenting time with D.G. as part of the OFP proceeding.

The object of statutory interpretation “is to ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2006). “When the language of a statute is plain and unambiguous, it is assumed to manifest legislative intent and must be given effect.” Burkstrand v. Burkstrand, 632 N.W.2d 206, 210 (Minn.2001). But when the statutory language is ambiguous, we may look to other sources to ascertain legislative intent. Minn.Stat. § 645.16. “An ambiguity exists only where a statute’s language is subject to more than one reasonable interpretation.” State v. Mauer, 741 N.W.2d 107, 111 (Minn.2007). “Statutory interpretation is a question of law that we review de novo.” State v. Al-Naseer, 734 N.W.2d 679, 683 (Minn.2007).

The Domestic Abuse Act, MinmStat. § 518B.01 (2006), “provides a process whereby domestic abuse victims may petition for protection and relief.” Burkstrand, 632 N.W.2d at 209. It provides for “an action known as a petition for an order for protection in cases of domestic abuse” and requires that a petition for an OFP “allege the existence of domestic abuse.” Minn.Stat. § 518B.01, subd. 4. If the petition “alleges an immediate and present danger of domestic abuse, the court may grant an ex parte order for protection.” Id., subd. 7(a). Otherwise, after giving notice to the alleged abuser and holding a hearing, the court may grant the petitioner a wide array of relief in an OFP. Id., subd. 6(a). In particular, the court may “establish temporary parenting time with regard to minor children of the parties on a basis which gives primary consideration to the safety of the victim and the children.” Id., subd. 6(a)(4). Because section 518B.01, subd. 6(a)(4), authorizes a court to award temporary parenting time in an OFP proceeding, the district court had the authority to award Garcia parenting time in the March 2006 OFP unless he is excluded from the scope of the statute.

Beardsley argues that Garcia is excluded from the scope of section 518B.01, subd. 6(a)(4), because he is an unadjudicated father whose paternity has been acknowledged in an ROP. Under MinmStat. § 257.75, subd. 1 (2006), a child’s father and a child’s mother “who was not married to the child’s father nor to any other man when the child was conceived [or] * * * born may” acknowledge under oath in an ROP “that they are the biological parents of the child and wish to be recognized as the biological parents.” An ROP is “a basis for bringing an action to award * * * parenting time to either parent,” and, subject to exceptions not implicated in this case, an ROP “has the force and effect of a judgment or order determining the existence of the parent and child relationship.” Minn.Stat. § 257.75, subd. 3 (2006). Such a “judgment or order of the court determining the existence * * * of the parent and child relationship is determinative for all purposes.” Minn.Stat. § 257.66, subd. 1 (2006). Therefore, D.G. is Garcia’s “minor child” for purposes of section 518B.01, subd. 6(a)(4), which authorizes a district court to “establish temporary parenting time with regard to minor children of the parties.”2

*738A father whose paternity has been acknowledged in an ROP may commence an action to determine parenting time “pursuant to chapter 518 without an adjudication of parentage,” but “[u]ntil an order is entered granting custody to another, the mother has sole custody.” Minn.Stat. § 257.75, subd. 3. Minnesota Statutes § 257.541, subd. 3, also permits an ROP father to commence an action to determine parenting time under chapter 518, providing as follows:

If paternity has been recognized under section 257.75 [the ROP statute], the father may petition for rights of parenting time or custody in an independent action under section 518.156. * * * An action to determine custody and parenting time may be commenced pursuant to chapter 518 without an adjudication of parentage. These proceedings may not be combined with any proceeding under chapter 518B.

Relying on section 257.75, subd. 3, and section 257.541, subd. 3, Beardsley argues that chapter 518 is the exclusive means by which Garcia may obtain parenting time and that the district court therefore lacked authority to award him temporary parenting time in the March 2006 OFP. But because section 257.75, subd. 3, and section 257.541, subd. 3, provide that an ROP father “may” petition for parenting time under chapter 518, the statutes are permissive rather than mandatory. See Minn. Stat. § 645.44, subd. 15 (2006) (“ ‘May’ is permissive.”). These provisions do not state that chapter 518 is the exclusive means by which an ROP father may obtain parenting time. We have said “that before a statute may be construed as mandatory it must contain negative terms importing a plain legislative intent that acts authorized therein are to be performed only in a prescribed manner * * * or language manifesting a positive legislative prohibition against their performance in ways other than those specified.” Agassiz & Odessa Mut. Fire Ins. Co. v. Magnusson, 272 Minn. 156, 165, 136 N.W.2d 861, 868 (1965). Neither section 257.75, subd. 3, nor section 257.541, subd. 3, excludes an ROP father from the scope of section 518B.01, subd. 6(a)(4).

Beardsley also argues that the prohibition against combining a chapter 518 action to determine custody or parenting time with a domestic abuse proceeding, see Minn.Stat. § 257.541, subd. 3, reflects the legislature’s determination that it is improper to address parenting time issues for ROP fathers in OFP proceedings. But Garcia never sought or received a custody or parenting time order under chapter 518; rather, he sought and received a temporary order for parenting time as part of an OFP proceeding under section 518B.01. Accordingly, the prohibition against combining a chapter 518 action with a domestic abuse proceeding has no bearing on the outcome of this case.

We also reject the dissent’s conclusion that an ambiguity exists as to whether a district court has the statutory authority to award temporary parenting time in an OFP to an unadjudicated father whose paternity has been acknowledged in an ROP. Section 518B.01, subd. 6(a)(4), authorizes a court to award temporary parenting time in an OFP proceeding, and an ROP father is not excluded from the scope of that statute. The dissent creates an ambiguity where none exists by reading an exclusivity requirement into section 257.75, subd. 3, and section 257.541, subd. 3.

We especially reject the dissent’s assertion that the silence of section 518B.01, subd. 6(a)(4), regarding “who can ask for this relief or to whom this relief can be *739awarded” contributes to the ambiguity. The dissent cites Burkstrand v. Burkstrand, 632 N.W.2d 206 (Minn.2001), and MBNA America Bank, N.A v. Commissioner of Revenue, 694 N.W.2d 778 (Minn.2005), for the proposition that silence on an issue can create an ambiguity in statutory language.

The statute at issue in Burkstrand was Minn.Stat. § 518B.01, subd. 7(c) (2000), which provided that when a district court issues an ex parte OFP, a hearing must be held within 10 days of the court’s receipt of a request for a hearing by the respondent and within 7 days of the issuance of the OFP if the hearing is requested by the petitioner. 632 N.W.2d at 209. The district court issued an ex parte OFP on December 28, 1999, but the hearing was not held until January 21, 2000. Id. at 207-08. Minnesota Statutes § 518B.01, subd. 7(c), did not specify the consequence of holding a hearing outside the statutory time frame, and the parties disputed whether the district court’s failure to comply with the statutory time frame resulted in the loss of subject matter jurisdiction. Burkstrand, 632 N.W.2d at 210. We concluded that the statute was ambiguous in light of the statutory silence on the issue. Id.

We also recognized that statutory silence can create ambiguity in MBNA where a taxpayer filed its refund claims for corporate franchise tax after the expiration of the refund filing period set forth in Minn.Stat. § 289A.40, subd. 1 (2004). 694 N.W.2d at 779-80. Minnesota Statutes § 270.0603, subds. 1(3), 3 (2004), required the Commissioner of Revenue to provide a statement explaining the procedures for filing refund claims to a taxpayer “contacted with respect to the determination or collection of a tax,” and it was undisputed that the taxpayer’s assessment did not explain these procedures. MBNA 694 N.W.2d at 781-82. The parties disputed the effect of the nonconformity on the refund filing period, and we concluded that the silence of section 270.0603 on the subject created ambiguity. MBNA 694 N.W.2d at 782.

In both Burkstrand and MBNA the relevant statutes were completely silent on the contested issues — the consequence of a district court’s failure to comply with the statutory time frame in Burkstrand and the effect of a nonconforming assessment on the refund filing period in MBNA. Section 518B.01, subd. 6(a)(4), in contrast, authorizes a district court issuing an OFP to establish temporary parenting time. The dissent thus suggests that even where the facts of a case fall within the scope of a general statutory rule, the statute is ambiguous if it does not explicitly address the particular facts of the case. Put another way, the effect of using silence to create an ambiguity under these circumstances would be to use silence to vitiate otherwise valid statutory authority. We refuse to apply the ambiguity-created-by-silence principle recognized in Burkstrand and MBNA here where a general grant of statutory authority to award parenting time already exists.

Finally, we reject the dissent’s contention that our decision “has the perverse consequence of rewarding acts of domestic violence.” The decision to award temporary parenting time in an OFP is within the discretion of the district court, which is required to give “primary consideration to the safety of the victim and the children.” Minn.Stat. § 518B.01, subd. 6(a)(4). In this case, the district court did not make any findings that domestic abuse had actually occurred, Beardsley did not allege that Garcia had ever threatened or committed an act of violence against D.G., and the district court, in the interests of safety, properly limited the temporary parenting *740time award to 2 hours a week at a supervised facility. “[T]he discretion of the trial court in deciding questions relating to visitation is extensive,” Manthei v. Manthei, 268 N.W.2d 45, 45 (Minn.1978), and the facts of this case indicate that the district court acted within its discretion in awarding temporary parenting time to Garcia.

We have stated that “we will not read into a statute a provision that the legislature has omitted, either purposely or inadvertently.” Reiter v. Kiffmeyer, 721 N.W.2d 908, 911 (Minn.2006). Beardsley argues that we should effectively rewrite section 257.541, subd. 3, to read, “If paternity has been recognized under section 257.75, the father may petition for rights of parenting time or custody [only] in an independent action under section 518.156.” The prerogative of amending a statute in such a fashion belongs to the legislature, not to this court. Accordingly, we hold that the unambiguous language of Minn. Stat. § 518B.01, subd. 6(a)(4), authorizes a district court issuing an order for protection to award temporary parenting time to an unadjudicated father whose paternity has been acknowledged in an ROP.

Affirmed.

MAGNUSON, C.J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

. Beardsley had previously obtained an OFP against Garcia that expired on February 28, 2006.

. We agree with the dissent that an ROP does not automatically entitle an ROP father to parenting time with his child. But there is no statutory language supporting the dissent's assertion that "the ROP statute stat[es] that a ROP father has no right to parenting time.” Rather, an ROP father may obtain the right to parenting time pursuant to an action to deter*738mine parenting time or, as in this case, in an OFP under section 518B.01, subd. 6(a)(4).