*1 TODD, (dissenting). Justice join Wahl. in the dissent of Justice
I
YETKA, (dissenting). Justice join Justice Wahl. in the dissent of
I
SCOTT, (dissenting). Justice join Justice in the dissent of Wahl. Marriage Matter of Diane (now Montgom
TISCHENDORF Diane petitioner, Appellant,
ery), TISCHENDORF, Respondent,
Peter Hempel, Appellant.
William J.
No. 51615.
Supreme of Minnesota. Court *2 parties
The principal this proceeding, appellant Montgomery respon- Diane Tischendorf, dent Peter were married in Minneapolis, Minnesota, September 8, Appellant Montgomery is a native citizen of Tis- *3 chendorf is a native of citizen the Federal Republic Germany (West Germany). of parties The child of the and the focus dispute, Tischendorf, of this Thomas born 25, 1970, bright December is a and articu- late child. marriage, After their Wolff, Foster, couple- the lived in Shepard
Oppenheimer, & Kane, the United pursued States and each Donnelly, gradu- P. A. Thomas Catherine Mitsch, 1969, ate studies. Paul, they In moved Rupert and M. for to Ham- Celia St. 51614, burg, Germany, No. West Montgomery in and for Diane where Thomas was 1974, August born. In appellant Tischendorf in No. 51615. re- country turned to this with the child. Truhn, Head & Jerome Truhn and Thom- dispute There some toas whether the Seifert, Minneapolis, Hempel. as V. for family planned had permanently reside Barnett, Ratelle, Vander Vort Hennessy, Germany in West or the United States. Herzog, Hennessy & James and Stasel H. infrequent After visits between the two Wagner, Minneapolis, Dale M. for Peter countries, marriage the deteriorated. Tischendorf. 1976, May respondent petitioned In the German court for divorce and claimed appellant’s ground desertion as a such Appellant shortly divorce. thereafter insti- OTIS, Justice. tuted divorce in proceedings Ramsey the appeals This case involves two relat- County District Court. The German court ed the in trial court. pro- took note of the American dissolution appeal
The first is from the order ceeding but concluded that the American Ramsey July District County Court dated jurisdiction. court was without Appellant 1980, 25, by denying appellant motion appear or in did not defend the German Montgomery, formerly Diane Tis- 11, 1977, Diane proceedings and on March chendorf, sought modify that a prior granted respondent German court a divorce order, prior order. dated The Decem- determining appellant after 26,1979, judgment ber amended 1977 “guilty” After party. respondent’s default re- decree dissolution and directed that proceeding, in Ramsey the American spondent par- allowed visitation County judgment District Court issued a son, Tischendorf, minor ties’ 17, 1977, May and decree on that dissolved country respondent’s both native marriage and awarded the exclusive Germany. West custody appellant. of Thomas to other order appeal from an followed, period In the were there 25, 1980, denying Attorney William Hem- parties unsuccessful efforts both work ap- .pel’s motion to intervene and for his acceptable out an structure. visitation litem fоr pointment guardian as a ad Thom- January respondent formally as Tischendorf. May moved for an of the amendment judgment granted and decree of dissolution modify the conditions for visitation We County prescribed by Ramsey trial court but otherwise District Court rights. to secure definite visitation A affirm. order presented at There was evidence 1979 was made in March of motion later visitation, regular Montgomery’s motion provide hearing appellant and to re- obligations support determine could successful- suggested respondent division between property issue of solve the through of Thomas a Ger- ly gain the court to moved parties. Appellant prevent his return to man court Hennepin case to venue of the change Evidence of Thomas’ reluctance country. hearing on re- continue the County and to Germany psychological and the to travel to motion was Appellant’s motion. spondent’s trip on Thomas was also impact of such a denied. Respondent coun- presented by appellant. motions, respondent’s hearing on After a evidence with an affidavit from tered such 3,May its order dated the trial court issued respon- that indicated his German counsel respondent was entitled provided dent’s detention of Thomas in this both to visitation subject respondent prose- to criminal would ap- specifically Germany. The order West *4 The court also interviewed Thomas cution. Germany in the a visit to West proved to his desire not to travel to about 8, order May The 1979 of 1980. summer visit his father. rights respondent’s visitation also made 14, hearing July the on days Several after a re- conditions included These conditional. 1980, the court for appellant Hempel letter of moved that an irrevocable quirement $10,000 provided be in the amount of granting credit an order him leave to intervene an that Thomas by respondent as assurance guardian for his as ad appointment custody appel- the of be returned to would 1980, 25, July for Thomas. On the litem respondent ex- requirement and a lant judge denying issued his order both trial acknowledging appel- agreement an ecute Montgomery’s appel- motion and appellant jurisdiction to and the lant’s Hempel’s appeals These fol- lant motion. Respondent complied the trial court. of lowed. with these conditions. Respondent’s motion in this court to va- whether Thomas Appellant’s concern over stay of the lower court order was cate a Germany prompted her detained in could be 31, July denied on 1980.1 of the move the court for amendment to an. Appellant Hempel’s motion to intervene 3,1979 was denied order. That motion May 26, 1979, guardian 1977 ad May appointment the and for his and on December Decree of dissolution was Judgment and by litem was denied the trial court because visitation respondent’s to reflect amended (1) required such deni- Minn.Stat. 518.165 § privileges. al, (2) (3) untimely, the motion was the adequately represent- were child’s interests between visitation
Some ed. during March son occurred in Minnesota by also reached agreement An was of 1980. (1980) 518.165 concerns the Minn.Stat. § trip to respect to Thomas’ parties the appointment guardians of in dissolution 22, August August 1 and Germany between provides as follows: proceedings and was made aware 1980. The trial court custody or In all for child objec- proposal and recommended the where legal separation for dissоlution or or before June plan be heard on tions custody or visitation of a minor child is in meeting with counsel on 1980. After issue, may appoint guardian the court a objec- 13,1980, ordered that the court June panel by litem from a established the ad be heard on proposed itinerary tions to interests of the represent court to Thereafter, moved 14,1980. appellant July guardian The ad litem shall advise child. visitation, specifically all deny court to respect custody, support Germany. the court with place scheduled to take mitted evidence would not aid the court in the Respondent order to has also moved for an case, hereby disposition that motiоn is expand to include record before this court sub denied. evidence. Because the certain additional
409
court,
may
may prompt
remand,
The court
enter an
the trial
and visitation.
on
costs,
fees and
select an independent guardian pursuant
order
disbursements
guardian
of the child’s
ad litem.
section
favor
518.165
assure that
in-
against
may
represented.
order
be made
either or
terests are adequately
The
Our
parties, except
any part
of the
merely
both
decision as to this issue
forecloses an
costs, fees,
attempt
and disbursements which
party
either
to select counsel to
parties
incapable
guardian.
court finds the
are
serve as
county.
shall
borne
paying
be
Respondent asserts that appellant
added.)
(Emphasis
Montgomery
appeal
failed to make a timely
of the trial court’s visitation determination
language
of the statute clear
and, therefore,
juris
this court is without
can,
ly contemplates that the court
in its
appeal.
Minnesota,
diction to hear the
In
discretion, appoint
independent guardi
timely
the failure to make a
appeal is a
Appellant Hempel
ap
an.
selected by
jurisdictional defect. Minn.R.Civ.App.P.
Montgomery, was
pellant
not member
126.02; see Schaust v. Town Board Hol
statute,
panel
referenced
lywood Township,
295 Minn.
therefore cannot
considered
be a disin
(1973)(per curiam).
N.W.2d 646
party.2
terested
Appellant
did
Montgomery
not seek re-
addition, appellant
mo
Hempel’s
May 3,
view
order granting
23, 1980,
brought
tion was
privileges
visitation
respondent,
the June
days prior
depar
few
to Thomas’ scheduled
7, 1979 order confirming
May 3,
attempt
ture for
No
Germany.
secure
*5
order,
26,1979
or the December
amendment
guardian
through
for the child was made
original
judgment
and decree of dis-
proceedings
out the
conducted in
or
1979
permitted
solution that
by respon-
visitation
the first half of 1980 when issues of visita
appeal
25,
dent. The
July
from the
1980
delay,
tion were
addressed. Because
this
denying appellant
order
re-
Montgomery’s
the trial cоurt determined the motion
be
to
quest for modification of the visitation
untimely. Minn.R.Civ.P.
expressly
24.01
rights of respondent
timely,
was
however.
provides that
permitted
intervention will be
“[u]pon timely application” of an
Respondent’s
interested
contention is that the mo-
circumstances,
party. Given the
the trial
25,1980
tion that
resulted
order
correctly
court
appellant Hempel’s
denied
the appeal generated
by that order
motion
intervene because it
constituted
attempt by appellant
an
to de-
timely made.
lay the scheduled visitation. Procedural
tactics such
that alleged by respondent
as
The trial court also
concluded that
permitted.
McCrank,
аre not
McCrank v.
proceeding
child’sinterests in this
were ade-
488,
(1953).
239 Minn.
410 489, 198 Tourville, ville v. 292 Minn. N.W.2d grant- may modify an order
The court
curiam).
rights
(1972) (per
whenever
visitation
138
ing
denying
or
the best inter-
would serve
modification
Appellant correctly points out that
child,
shall not
but the court
ests of the
in her
the constitutional issues were raised
unless
rights
visitation
parent’s
restrict
authority
There is also
July 1980 motion.
likely
the visitation
it finds
proposition
constitutional
physical or emotional
endanger the child’s
appeal when the
rights can be asserted on
develop-
his emotional
impair
or
health
justice require consideration of
interests of
spe-
makes
parent
If the custodial
ment.
issues,
had ade
parties
when the
have
such
places
that visitаtion
allegations
cific
issues,
such
and when
quate time to brief
harm, the
parent
danger
custodial
implied
are
in the lower court.
such issues
earliest
hearing at the
hold a
court shall
Wulff,
106, 96
Singleton v.
428 U.S.
S.Ct.
the need to
time to determine
possible
2868,
(1976);
4H
relationship
court
the existence of a constitu-
with
recognized
his father.
appellant
The
right
suggests
during
to travel or not
to travel.
the
tional
visit with Thomas
However,
that such a
1979 and 1980
indicated
father told him
were
right
mature in an
until
there
excellent
does not
individual
schools in Germany
clear,
and made it
at
boy,
he or she
exercise it
In
least to
intelligently.
can
respondent’s
result,
intent was to
reaching
keep
the court
stated:
Germany once he arrived there on visita-
right upon
The
which
constitutional
precise
tion.
diаlogue
counsel,
The
between
is
Lina relies
somewhat broader than she
court,
and Thomas was this:
right
it.
It is
describes
the- fundamental
MR.
Did he
you
KANE:
talk to
about
of an American citizen
reside wherever
going to
during visitation,
school
wishes,
whether in
United States
you
three weeks
were over there?
abroad,
engage
or
and to
in the conse-
THOMAS: Yes.
quent
It
travel.
is
[Citations omitted.]
tive
not an
countries.
theoretical, however, since the
incapable of
not,
one
Thus while
fant
the care and affection of her
desires
bia,
whether in the United States or Colum-
for herself where she wants to live and as
so
es
live
years
chooses,
American citizen she
right
sfc
age
she will as she
which
chаnge
* * *. [Emphasis
twenty-two
as
merely to
obligation
is
of discretion be entitled to decide
of discretion the
to exercise a
n
required
he enjoys
return to the United
today
his residence is a
exercising
whether one so
the case
an American citizen to fix
n
months
be where she can
to remain in one’s na- MR. KANE: Did he talk
Lina
grows
throughout
choice
added.]
jfc
it
some
Acosta,
may
older and reach-
an infant below
* *
right
age,
‡
totalitarian
then,
*.
continuing
desires
residence,
doubtless
infant
States
parents,
his life.
purely
an
if she
enjoy
[*]
in-
or
THOMAS: No. He
COURT:
school
know, one of the reasons for that is at
into details
tacting, seeing
didn’t do it and we
and six another
about the time
some
bids or forbаde
not had a
what is
neglectful
an order of
haven’t heard from
should know that.
What I
[*]
[*]
three
years,
extent
[*]
[*]
* *
called
the winter too?
want
weeks.
lot of contact with
has
but
**
why it
[*]
[*]
a court
been
one thing you ought
you
court.
your
Now
judge
fact
visiting
just
do is in
in accordance with
were between five
[*]
[*]
don’t have to
father from con-
order which for-
your
That
him;
said would
ordered,
about
done;
he has been
[*]
[*]
I
father has
is why you
your
you
you
but going
you.
but to
issued
[*]
[*]
over
best
go
go
*7
In Bergstrom Bergstrom, 296 N.W.2d wondering I am your whether concern (N.D.1980), Supreme the North Dakota going Germany mostly about you to is presented question Court was with the of go mostly you don’t want to or are 8-year-old girl whether an had a constitu- your afraid you father won’t send back compelled tional not to be to reside you stay and will have to there? Norway. Bergs- with her mother in trom court not THOMAS: Because am that did decide constitutional afraid might not me issue it was send back here. because determined that concluding lower court erred in resi- that mostly Is Okay. COURT: because Norway dence was in best interests pictures you your he showed of room or of the child. the house and about talked the schools? THOMAS: Yes. opinion
We are of the at boy, this you COURT: That scares a lot? age years, ability nine lacked building enduring assess the value of THOMAS: Yes. court, having it all the The trial before importance critical matter of such In a son, evidence, finding the find- made a that “the court father and between
the bond words, who, has believes, in his judge a trial on the basis of ings of [Dr. Tischendorf’s] decision, situations, should not be his “agonized” demeanor, personal over and all his The court not- ignored. lightly set aside evidence, the child. that he will return * * * * ed: Dr. Tis- The court is satisfied that father to impossible for Thomas’ It is to the United chendorf will return Thomas meaningful relationship a re-establish August end of and that no at the States brief visits in the United with Thomas security required.” is further visit there is an extended Unless States. his Germany was born in unlikely that the erosion in year it is grandparents reside in that father and can be of his father perception Thomas’ spoke He himself German fluent- country. checked. Although child. his mother ly as a small that Thomas does The court is aware competent spoken command of also had Germany year. going feel like German, permitted grasp she has her son’s However, in the lives of it often occurs hardly seems language lapse. It courts that children do parents and the testimony on the of ex- necessary rely what is deemed best for not want to do whether or a son can perts to determine visiting real fear is not of them. cultivating from a relation- derive benefits being detained in Ger- Germany but of father, particularly his natural ship with fear, genuine This is a many. person good where thе father is a charac- it. The court about court concerned ter, educated, highly responsible profes- in a believes, however, that he will be re- reaching out to en- position, sional and will be safely turned U.S. courage pride his son’s in his roots. To experience. better for the exposure deny opportunity Thomas an for assessing validity of the con European family and culture Thomas, several factors expressed by cerns interests, is not in his best if forebears kept importance should be of critical adequate safeguards imposed guar- are Montgomery of 1980 Mrs. mind. In March antee his return. stipulation as voluntarily entered a formal Accordingly we affirm the trial court’s follows: to visit permit decision to Dr. Tischendorf Summer, 1980, respondent shall b. weeks Germany with his son three period visitation in have months, during the summer but remand for twenty-two (22) days which shall be following court to include the con- the trial commencing at a time selected exercised (1) the letter of credit to ditions: increase week during period of the last $10,000 larger Montgomery Mrs. 28, 1980, first through the July, amount; (2) require Dr. Tischendorf to fur- September, 1980.” week in transportation for an adult round-trip nish apparently mother at that time Thomas’s accompany Thomas to Ger- companion to concerning the likelihood misgivings had no many; (3) require Dr. Tischendorf to obtain returning their son to Tischendorf’s оf Dr. appropriate an order from an German assumption reasonable It is a America. recognize jurisdic- will the exclusive which adoption the initiation of determining tion of American courts for Mrs. stepfather triggered by Thomas’s acknowledges which Thomas’s *8 fulfill the com- Montgomery’s reluctance to duty appel- of German courts to enforce stipulation. she made in her earlier mitment right custody, subject respon- lant’s essential, also, sight not to lose It is stipulated right of visitation. dent’s dealing we with a the fact that are only with visitation custody matter but Remanded. in the interests
rights. may What be best KELLY, J., part no in the considera- took do not to the former status of Thomas as tion оr decision of this case. the latter. necessarily apply to
413 YETKA, (dissenting part). visit Thomas country, Justice in this as he has done. Moreover, as Thomas becomes wiser and majority opinion inso- I concur with the (cid:127) mature, more may he wish to travel far as it remands to the trial court for West Germany paternal grand- to visit his of the four set consideration conditions parents and his father. If he is forced to do hold, however, forth therein. I would now, however, so mandatory nature of right is a constitutional to be there his travel may extinguish his desire to visit compelled country, to leave this based on West Germany in the future. Rather than travel and as fundamental help build enduring relationship an with his Sеe, citizenship. e.g., Kent v. incident father, forcing might the issue at this time 116, 1113, Dulles, 2 357 U.S. 78 S.Ct. opposite have the effect and result in re- (1958). L.Ed.2d 1204 outside the terri- Once sentment. States, jurisdiction tory and of the United deprived guaranty citizen is of the of the WAHL, (dissenting). Justice rights and liberties accorded our consti- particularly tution. This consideration is respectfully must dissent. On the rec- applicable possi- in this situation where it is ord before this court it is evident that gain ble that could order of the trial court is based on an of Thomas in West prevent implicit but clearly finding erroneous his return to the United States. fact that visitation in Germany for 3 weeks Moreover, during the summer months the mere would be in the fact that a citizen is a сhild, Thomas, best interests of the deprive minor does not him of his constitu- at this true, time. It is rights. Specifically, majority tional if dem- and the opinion Thomas places great emphasis fact, the maturity, capacity onstrates and intelli- on the that Di- decision, gence Montgomery, to make an informed ane parent, custodial af- entry judgment providing should allowed to do so. See Belloti v. ter for visita- Baird, 622, 3035, tion, 99 61 agreed by stipulation U.S. S.Ct. formal in March (1979). Alternatively, L.Ed.2d 797 if Thom- of 1980 that Peter Tischendorf would have enough as is not found to be mature visitation with his son for 3 weeks in Ger- decision, that, make the then I many during would hold the summer of 1980. It is also facts, true, however, that, under these where there is a contest before proposed visitation, parents, between the natural the trial court Thomas was reinterviewed appoint independent Perkins, must guardian ad Dr. Kenneth A. a licensed clinical represent boy’s litem to interest. psychologist who had seen Thomas several bright articulate, Thomas is admittedly times since April of and Dr. James H. yet Gilbertson, the majority ability denies him the highly a second licensed and qualified decide himself. When this case first psychologist. clinical Both psy- us, concluded, reached years chologists old. presented affidavits court, He is now 11 and will be 12 later in the the scheduled visitation year. I would the question remand of would not be in the child’s best interests himself, ability tо decide for based apprehension generated because fear and maturity, intelligence perceived considerations of threat to detain him in Ger- age, to the trial court. many. If the trial opinion court still is of the that Thomas The psychologists found Peter Tischen- himself, incapable deciding I would dorf not to psychologically be the bonded require appoint the trial court to an inde- parent nor any to have shown concern for pendent guardian under 518.- Minn.Stat. § Thomas’ own needs or desires. The court- (1980). ordered visitations in this in 1979 I should also add that I cannot see how it proposed before the 1980 summer visitations, is in the best interests of either the child or had failed to establish the mean- parents to force ingful, trusting relationship Thomas to visit West between father *9 Germany hoped at this time. The father is able to and son which had been but reaching In opposite ignored had had the effect. Dr. a decision the court which visit, found, July Perkins after the only weighty psychological evidence of and continually when the father lectured harm to the child but also the court’s own coming to live in boy told the about his Thomas, interview with who indicated that him of his Germany pictures and showed going he was afraid of to Germany and did (which school “new” German could go. not want to The focus of a visitation scarcely peri- attend in a 3-week visitation dеtermination must be what is best for the od), that Thomas was under severe stress determination, making child. In anxiety and result and that “forced fears, not, justified child’s whether or person, particularly involvement with this given should be weight, espe- considerable long away extended vacations from the cially presented when in connection with home,” family compound would his fears and anxieties. uncontroverted testimony that visitation bemay detrimental.
Reviewing
development
of the father-
relationship
July
son
with Thomas in
majority
9-year-old
The
finds that a
boy
boy’s
Dr. Perkins found the
attitude toward
ability
lacks the
to assess the value of build-
changed substantially.
his father had
ing
enduring relationship
with his father
twice,
seeing
He recalled
his father
perceives
it in Thomas’ best interests to
days
once for ten
1979 and once
exposed
family
and culture of his
* * * *
days
for two
March 1980.
His
German forebears
pride
and to take
in his
stranger
father was still a
to him. [But]
* * *
paternal
evidence,
roots. Nowhere is there
longer
pas-
Tom no
was neutral or
however, that it is in Thomas’ best interest
sive in views of his
He
father.
did not
exposed
to be so
at this time in his life
again.
want to see his father
He attrib-
feeling
when he is
threatened and fearful.
kidnap-
uted to his father evil schemes of
ping
Germany
generally
him to
ex-
expressed
Dr. Gilbertson
his concern at
pressed that his father had no real Thomas’ nearness to adolescence and his
or
warmth
interest in him.
need,
ever,
more than
expe-
in that time “to
Dr. Perkins found that Peter Tischendorf’s
rience the security
language,
culture and
plans give very little recognition to Thomas’ meaningful
peer group
help
articulate
wants
that his insistence on the Ger-
social,
final
emotional and sexual skills.”
visitation, knowing
man
the child’s ex- Any major disruption
living
in Thomas’
re-
pressed
traveling
fears of
outside his home
lationship,
emphasized, par-
Dr. Gilbertson
area, was insensitive to the child’s current
culture,
ticularly
would,
a different
at this
emotional and
psychological
spite
state.
point, not be in Thomas’
psy-
best interests
evidence,
of this
the trial court conсluded:
chologically
socially.
impossible,
“It is
father
Thomas’
to re-
meaningful relationship
establish a
Supreme Court,
North Dakota
brief visits to the United States. Bergstrom
Bergstrom,
The detailed exhibits before timely could do to insure Thomas’ safe and (1) a West copy included of the voluminous increasing return letter of credit shows, among court file oth- which German $10,000 larger to a items, amount and adjudged that Diane was the sole er divorce; (2) requiring Peter Tischendorf to party” in the furnish “guilty German Bodenheimer, transportation round-trip affidavit for an adult com- Brigitta accompany Germany professor attorney, panion law Thomas to United States and and an order from appropriate in both the United West and to obtain licensed States Germany, delegate which ex- recognize United German court will States alleged planned to 1. Peter Tischendorf has that he does never reside the United States. acknowledged custody Ramsey County have now and cannot He Dis- obtain law, experts May under two 1979 that he had Thomas German while trict Court considered States, easily moving in German law state that he can obtain United had looked custody. any job presented He docu- both a a house in Minnesota has never arranged ment substantiate Diane’s under had the travel of Diane law. He informed court in the United States in 1974. When German the German Germany see own divorce that Diane had Diane and Thomas traveled to him, abandoned that she had Thomas out him for 2 weeks in he sent them off taken days permission Spain and that he without him. without his for 10 *11 jurisdiction elusive of American courts for that it has been demonstrated that Thomas determining and which ac- can intelligently exercise that right and knowledges has, fact, duty of German that he courts to intelligently exercised right appellant’s right enforce custody, subject remain in this country. respondent’s stipulated right of visita- I would reverse. tion. my part, For if we must face the consti- issue, agree
tutional with Justice Yetka possesses
that Thomas a constitutional
not to be compelled to leave the territory of
the United States. The record discloses