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Weber v. W.P.W.

December 10, 2002

IN RE: ALAN ROBERT WEBER, PETITIONER, RESPONDENT, BETH MARIE DALBEC, RESPONDENT,
v.
W.P.W., APPELLANT, AND IN RE: ALAN ROBERT WEBER, PETITIONER, APPELLANT,
v.
BETH MARIE DALBEC, RESPONDENT.



Wright County District Court File No. F6972200

Considered and decided by Toussaint Chief Judge, Kalitowski Judge, and Halbrooks Judge.

SYLLABUS BY THE COURT

1. Minn. Stat. § 525.6175 (2000), which permits a minor who is at least 14 years old to express a preference for an individual as a guardian ad litem in a probate proceeding, is not applicable to a custody-modification proceeding.

2. Evidence that an older child wishes to live with the non-custodial parent does not establish a significant change in circumstances if the non-custodial parent has manipulated the older child's preference.

The opinion of the court was delivered by: Halbrooks, Judge

Affirmed

OPINION

In this consolidated appeal, appellant W.P.W. disputes the district court's denial of his motion to appoint a guardian ad litem under Minn. Stat. § 525.6175 (2000), the statute governing the appointment of guardians in probate matters, and appellant Alan Weber challenges the district court's refusal to conduct an evidentiary hearing on his motion to modify custody. Because (1) Minn. Stat. § 525.6175 applies to the appointment of guardians in probate matters only, (2) Weber failed to establish a prima facie case for modification under the Nice-Petersen factors and Minn. Stat. § 518.18(d) (Supp. 2001), (3) the district court's order did not violate W.P.W.'s right to counsel, and (4) the remaining issues raised do not provide a basis for relief, we affirm.

FACTS

This matter arises out of a very acrimonious custody battle. The marriage of appellant Alan Robert Weber and respondent Beth Marie Dalbec was dissolved on February 2, 1998. Following the parties' stipulation, the court awarded Dalbec sole legal and physical custody of the couple's children, appellant W.P.W. (now age 15) and C.W.W. (now age ten). Weber was granted reasonable and liberal visitation.

On December 21, 2001, W.P.W. brought a motion pursuant to Minn. Stat. §á525.6175 (2000) to appoint his maternal uncle, Bradley Dalbec, as his guardian adálitem (GAL). W.P.W.'s objective in making the motion was so that Bradley Dalbec could assist him with a motion for a change of custody to live with his father.

On January 22, 2002, Beth Marie Dalbec filed a motion, inter alia, to dismiss W.P.W.'s motion and to obtain supervised visitation between W.P.W. and Weber. In her responsive affidavit, Dalbec alleged that Weber manipulated and emotionally harmed W.P.W.

On February 14, 2002, W.P.W. filed a second motion that sought a change of permanent and temporary physical custody to his father subject to reasonable visitation with his mother. Weber simultaneously filed a motion, seeking, inter alia, to obtain permanent and temporary physical custody of both minor children and to appoint Bradley Dalbec as GAL for both minor children. Dalbec opposed both motions.

On March 8, 2002, the court issued an order denying, with prejudice, W.P.W.'s motion for the appointment of Bradley Dalbec as GAL and his motion for a change in custody. The court found that W.P.W. lacked standing to bring a motion for change of custody and that the procedure for appointment of a GAL in family law cases is properly set forth in Minn. R. Gen. Pract. 904.01 and not Minn. Stat. § 525.6175.

The court dismissed, without prejudice, Weber's motions for modification of custody and a finding that the property settlement was fully paid on the basis that the motions were untimely. The court ordered the appointment of a GAL and scheduled an evidentiary hearing for April 26, 2002, on the issues of whether or not Weber's visitation should be restricted and whether his child support obligation was commensurate with the child support guidelines. The court also ordered the GAL to issue a report on the visitation issue and ordered Weber to produce pertinent wage information before the hearing. Additionally, the court ordered that the attorney for W.P.W. and Weber's attorney should not meet with or discuss issues relating to the litigation with the children without first bringing a motion before the court.á

In a report dated April 10, 2002, the GAL expressed concern that, "Mr. Weber and [W.P.W.] use the exact same words and phrases [in reference to Dalbec and the court proceedings]," and that "[t]he parroting was incredible." The GAL also reported that W.P.W. said that Weber helped him to "set my mom up" and "encouraged" misbehavior to cause his mother to "throw" him out. The GAL noted that, "[n]either child indicated being in any type [of] emotional or physical danger or being neglected [by Dalbec]." The GAL concluded that, although Weber had endangered W.P.W.'s emotional health and impaired his emotional development by putting him in the middle of a bitter custody dispute, supervised or restricted parenting time would not benefit W.P.W. because of his age and his bond to his father. ...


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