This opinion will be unpublished and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

A15-0197

Thomas C. Rubey, petitioner,

Appellant,

vs.

Valerie A. Vannett,

Respondent. 

Filed December 7, 2015

Affirmed

Halbrooks, Judge

Washington County District Court

File No. 82-F8-02-004611

Thomas Rubey, Woodbury, Minnesota (pro se appellant)

Valerie Vannett, Apple Valley, Minnesota (pro se respondent)

Considered and decided by Halbrooks, Presiding Judge; Rodenberg, Judge; and 

Stoneburner, Judge.



 

U N P U B L I S H E D O P I N I O N

HALBROOKS, Judge

In this parenting-time dispute, appellant Thomas C. Rubey argues that the district 

court (1) erred by considering the guardian ad litem’s (GAL) report and (2) violated his 

 



 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to 

Minn. Const. art. VI, § 10. 
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First and Fourteenth Amendment constitutional rights. Because we conclude that the 

district court did not abuse its discretion by admitting and relying on the GAL’s reports, 

structuring Rubey’s parenting time around the child’s confirmation class, or requiring 

him to provide transportation for parenting time and to the child’s activities during his 

parenting time, we affirm.

FACTS

Rubey and respondent Valerie Ann Vannett were married in 1999, had a child, 

A.R., in 2001, and separated in 2002. In the 2004 dissolution judgment, Vannett was 

awarded sole physical and legal custody of A.R. Rubey appealed, but this court 

dismissed the appeal on the ground that it was untimely. Rubey subsequently petitioned 

the supreme court for review, which was granted. The supreme court reversed this court 

and remanded for consideration on the merits of the appeal. Rubey v. Vannett, 714 

N.W.2d 417 (Minn. 2006). On remand, we reversed the district court’s dissolution 

judgment and remanded the question of custody to the district court. Rubey v. Vannett, 

No. A05-0310 (Minn. App. May 15, 2007), review denied (Minn. Aug. 7, 2007). 

In September 2009, the district court awarded the parties joint legal custody, but 

gave Vannett sole physical custody of A.R. Rubey requested amended findings and 

ultimately appealed the order to this court. This court affirmed the custody decision but 

reversed as to certain medical expenses. Rubey v. Vannett, No. A10-0673 (Minn. App. 

Feb. 15, 2011), review denied (Minn. Apr. 19, 2011). In December 2013, Rubey moved

the district court to expand his parenting time and to equally divide transportation during

parenting time. 
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Rubey requested that (1) his parenting-time schedule be modified; (2) he receive 

an additional three weeks of parenting time during the summer vacation; (3) the off-duty 

parent be allowed to contact A.R. by telephone until 10:00 p.m.; (4) each party be 

required to respond to requests for changes in the parenting-time schedule within 24 

hours; (5) each party be required to share information about A.R.’s extracurricular 

activities; (6) each party have the right of first refusal to watch A.R. if she was alone for 

more than eight hours; (7) the parties be required to share equally in the transportation to 

and from parenting time; (8) his child-support obligation be reduced; and (9) he be 

awarded the right to claim A.R. as an income-tax deduction in odd years. The district 

court appointed a GAL “to make recommendations regarding temporary and long-range 

parental access.” 

The GAL interviewed the parties and A.R.; she did not interview a list of people 

provided by Rubey because she felt that the conflict over parenting time was largely an 

issue between the parties. In her report, the GAL recommended that Rubey have 

visitation from 6:00 p.m. Wednesday until 6:00 p.m. on Friday, despite his request that 

the Wednesday pickup time be changed to 3:00 p.m. The 6:00 p.m. pick-up allowed A.R.

to participate in confirmation class and a dance class that ended at 5:45 p.m. Each parent 

was to have three weeks of summer vacation time, so long as the vacation time did not 

conflict with A.R.’s “3 week competitive dance practice and try-out time.” Each parent 

was responsible for informing the other of any activities and signing up the other parent 

to receive information. Rubey was responsible for transportation for all exchanges, 

although each parent was responsible to transport A.R. to her activities, including dance, 
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during his or her parenting time. The GAL noted that Vannett has “continued insecurity” 

about picking A.R. up at Rubey’s house, which was the basis for the transportation 

recommendation. In general, the GAL commented that as a teenager, A.R. would have 

more activities and social occasions and the parties would have to be more flexible. 

The GAL filed a follow-up status report two days before the motion hearing on 

June 2, 2014. The recommendations were unchanged, but the GAL reported that A.R. 

told her there had been a problem because a dance recital conflicted with Rubey’s 

birthday, when he would have parenting time. A.R. was placed under a great deal of 

stress because she was afraid she would be unable to participate or that Rubey would 

appear and pull her off the stage. A.R. reported that her father had been very angry over 

the first GAL report and that she was “almost scared to see him.” The GAL spoke with 

Rubey by telephone and reported that she “was bullied, yelled at, and forced to deal with 

Mr. Rubey’s attempted intimidation.” 

At the evidentiary hearing, Rubey testified, as did his mother and the GAL. From 

the record, it is clear that these parents do not communicate well, that A.R. is a busy, 

happy child who particularly enjoys dance, and that Rubey resents the dance activities 

and religious education because it infringes on his parenting time. Rubey wants A.R. to 

engage in other activities, despite her clear preference for dance, and views it as a 

“wedge” in his relationship with A.R. Overall, Vannett has been more accommodating 

and willing to switch her parenting weekends to coincide with dance activities so that it 

does not impede Rubey’s parenting time.
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In its August 11, 2014 order, the district court noted that it would modify the 

“decision-making provisions” of a parenting plan only if modification is in A.R.’s best 

interests. The district court used the best-interests factors of Minn. Stat. § 518.17 (2014)

to conclude that the GAL’s recommendations should be adopted. Relevant to this appeal, 

the district court ordered the parenting schedule to remain as it was in order to 

accommodate A.R.’s dance and religious activities, gave each party three weeks of 

vacation during the summer and evenly divided the school holidays between the parties, 

and directed Rubey to continue to provide transportation for all parenting-time

exchanges. Rubey moved for amended findings and a new trial, which the district court 

denied. This appeal follows.

D E C I S I O N

Rubey argues that the district court improperly relied on the GAL’s reports 

because they were not properly admitted into evidence, were not made in accordance 

with the statutory standard, and, as to the second report, was not submitted in a timely 

manner. “Procedural and evidentiary rulings are within the district court’s discretion and 

are also reviewed under an abuse-of-discretion standard.” Braith v. Fischer, 632 N.W.2d 

716, 721 (Minn. App. 2001), review denied (Minn. Oct. 24, 2001). We will reverse the 

district court’s evidentiary ruling only if the court abused its discretion and the objecting 

party was prejudiced by the ruling. Melius v. Melius, 765 N.W.2d 411, 417 (Minn. App. 

2009). 

The district court may, in its discretion, appoint a GAL in a proceeding where 

custody or parenting time is in dispute. Minn. Stat. § 518.165, subd. 1 (2014). “The 
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[GAL] shall advise the court with respect to custody and parenting time.” Id. The 

GAL’s duties include conducting an investigation to determine facts relevant to the 

situation, advocating on behalf of the child’s best interests, maintaining confidentiality, 

monitoring the child’s best interests, and presenting a written report on the child’s best 

interests that includes conclusions and recommendations. Minn. Stat. § 518.165, subd. 2a 

(2014). The GAL’s report is admissible under the rules of evidence as a business record. 

See Minn. R. Evid. 803(6); J.W. ex rel. D.W. v. C.M., 627 N.W.2d 687, 697 (Minn. App. 

2001), review denied (Minn. Aug. 15, 2001). 

Minn. Stat. § 518.165, subds. 1, 2a, provide that a GAL “shall advise the court 

with respect to custody and parenting time” and “shall . . . present written reports on the 

child’s best interests that include conclusions and recommendations.” The first GAL 

report bears an annotation that it was filed with the district court on March 8, 2014; the 

second GAL report bears an annotation that it was filed with the district court on June 2, 

2014. Both reports include an acknowledgment that they were provided to the district 

court, Rubey, Vannett, and Rubey’s attorney. The GAL reports are part of the district

court file. Under Minn. R. Gen. Pract. 303.03, which sets forth the requirements for 

motion practice in family court proceedings, motions are generally submitted on 

“affidavits, exhibits, documents subpoenaed to the hearing, memoranda, and arguments 

of counsel.” The district court’s order appointing the GAL directs the GAL to prepare a 

written report and provide it to the court, the parties, and their counsel, which the GAL 

did. 
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These facts distinguish this matter from Rew v. Bergstrom, in which members of 

the supreme court, in a series of footnotes, expressed disagreement about whether the 

GAL report had been admitted into evidence. See 845 N.W.2d 764, 783 n.6, 799 n.4,

805-06 n.2 (Minn. 2014). The GAL report in Rew, although physically located within the 

district court file, did not have a file stamp, while the GAL reports here do. Id. at 783 

n.6. Further, as the district court noted in its order denying Rubey’s motion for amended 

findings, neither Rubey nor his attorney objected to the court’s receiving the GAL reports 

into evidence or to the late submission of the second report.

Rubey also argues that the GAL reports do not conform to the statute because the 

GAL did not interview a list of suggested contacts that he provided to her. The GAL 

explained that she focused on the parties because the conflicts about parenting time and 

transportation arose between the parties, and she felt it was unnecessary to contact others 

on the list, which included A.R.’s piano teacher and some of Rubey’s friends. Rubey’s 

attorney cross-examined the GAL at some length about her failure to interview Rubey’s 

suggested contacts. At most, this would affect the weight to be given to the GAL’s 

reports, a matter within the district court’s province. Minn. R. Civ. P. 52.01.

The district court did not abuse its discretion by admitting the GAL reports into 

evidence and considering them in making its decision.

II.

Rubey raises three constitutional claims: (1) the district court’s order requiring 

him to transport his child to dance class infringes on his due-process rights related to the 

care and control of his child; (2) the district court’s order tailoring his parenting time so 
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that his child can attend church and confirmation classes violates his First and Fourteenth 

Amendment rights regarding religious freedom; and (3) his equal-protection rights were 

violated by the district court’s order requiring him to provide all transportation during his 

parenting time. 

Rubey argues that the district court’s order scheduling parenting time so that A.R.

can participate in dance and confirmation class deprives him of a fundamental right to the 

“care, custody and control” of his child, as set forth in Troxel v. Granville, 530 U.S. 57, 

65, 120 S. Ct. 2054, 2060 (2000). Troxel involved the right of a parent to control 

grandparent visitation time. Under Washington state law, any person could petition the 

court for visitation rights and the court could grant visitation rights over the parent’s 

objection if the court determined it would be in the child’s best interests. 530 U.S. at 67, 

120 S. Ct. at 2061. The Supreme Court held that the parent was denied her fundamental 

due-process right to control of her children by the breadth of the statute, which usurped a 

fit parent’s right to act in the best interests of her child. Id. at 69-70; 120 S. Ct. at 2062. 

The facts in this case are not those in Troxel. Here, parents are involved in a 

dispute over parenting time with their own child. In this situation, the district court must

resolve questions of the parties’ competing interests in parenting time so as to “enable the 

child and the parent to maintain a child to parent relationship that will be in the best 

interests of the child.” Minn. Stat. § 518.175, subd. 1(a) (2014). 

The district court has broad discretion in deciding parenting-time questions. 

Suleski v. Rupe, 855 N.W.2d 330, 334 (Minn. App. 2014). In matters involving child 

custody or parenting time, “[t]his court has . . . justified infringements of other 
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fundamental rights by finding the best interests of the children to be a compelling state 

interest.” Geske v. Marcolina, 642 N.W.2d 62, 68 (Minn. App. 2002). “It is well 

established that the ultimate question in all disputes over visitation is what is in the best 

interest of the child.” Braith, 632 N.W.2d at 721 (quotation omitted). 

The district court did a careful analysis of A.R.’s best interests. Both parents and 

the GAL stressed that A.R. loves dance. It is evident that Rubey resents the time that 

A.R. devotes to dance and refuses to attend her recitals or encourage her, despite some lip 

service to the contrary. The district court also noted that Rubey was moody, that A.R.

reported he was “grumpier and mad a lot and that she was almost scared to see him.” 

The GAL commented that Rubey’s attitude toward A.R.’s activities created stress and 

that the GAL was concerned about A.R.’s psychological well-being. There are sufficient 

findings in the record to sustain the district court’s determination that it is in A.R.’s best 

interests that parenting time be arranged around her activities. Under these 

circumstances, the district court’s decision did not improperly infringe on Rubey’s dueprocess rights.

Rubey argues that the district court’s accommodation of A.R.’s confirmation class 

and church attendance in the parenting-time schedule infringes on his First Amendment 

rights. In Sina v. Sina, 402 N.W.2d 573, 576 (Minn. App. 1987), father argued that the 

court’s refusal to permit him to expose his child to a third religion, when the dissolution 

judgment made specific provisions for religious activities, was a denial of his 

fundamental religious rights under the Constitution. This court stated:
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We acknowledge and strongly support the constitutional 

freedom of individuals as expressed by the first amendment to 

pursue the religion of their choice and expose their children to 

their religion. . . . [H]owever, the parties have put the issue of 

the children’s best interests before the court, and absent a 

clearly erroneous determination of the child’s best interests, 

we are obligated to affirm that decision.

Id. 

Here, Rubey and Vannett have submitted the dispute to the district court for 

resolution. According to Vannett’s affidavit, A.R. was baptized and raised in the church 

and wanted to be confirmed; Rubey “has been verbally derisive to his daughter about her 

attendance at the church and has attempted to interfere with confirmation by showing up 

at the church on Wednesdays and demanding she leave with him.” Based on these facts, 

the district court did not abuse its discretion by structuring parenting time so that A.R.

could attend confirmation class.

Finally, Rubey argues that the district court’s order that he continue to provide all 

transportation for his parenting time deprives him of his right to equal protection. Like 

all other parenting-time decisions, we review this decision for an abuse of discretion. 

Suleski, 855 N.W.2d at 334. The district court set forth its reasoning, relying on the GAL 

report that described the strained relationship between the parties, and noting that Rubey 

was intimidating and Vannett had “continued insecurity in going to Mr. Rubey’s house.” 

In her status update, the GAL described a telephone conversation with Rubey, in which 

she was “bullied, yelled at, and forced to deal with Mr. Rubey’s attempted intimidation.” 

This record provides a factually sufficient basis for the district court’s order, which was 

not an abuse of discretion. See State ex rel. Swanson v. 3M Co., 845 N.W.2d 808, 816 
11

(Minn. 2014) (“A district court abuses its discretion when it bases its decision on an 

erroneous view of the law or when it renders a decision that is contrary to the facts in the 

record.”).

Affirmed.