This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C9-99-1080

In Re the Marriage of:
Stephen Thomas Schmid, petitioner,
Respondent,

vs.

Jenneane Marie Brooks-Schmid,
Appellant.

Filed February 1, 2000
Affirmed
Shumaker, Judge

Hennepin County District Court
File No. 220964

Mary C. Sherman, 1422 West Lake Street, Suite 320, Minneapolis, MN 55408 (for respondent)

Mark A. Gray, 1422 West Lake Street, Suite 320, Minneapolis, MN 55408 (for appellant)

Considered and decided by Shumaker, Presiding Judge, Lansing, Judge, Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

In this appeal, appellant-mother claims the trial court erred in (1) its award to the parties of joint legal and physical custody of their three minor children, (2) its manner of dividing the marital property, and (3) its refusal to award attorney fees. We affirm.

F A C T S

Appellant-mother, Jenneane Marie Brooks-Schmid, and respondent-father, Stephen Schmid, married in 1993. They have three minor children.

In September 1995, father began treatment for alcohol dependency. The following December, mother alleged numerous instances of physical and verbal abuse by father. The district court issued an Order for Protection excluding father from the household. The order was effective for one year, but mother was able to obtain an extension for a second year.

In March 1996, father filed a petition for the dissolution of the partiesí marriage. After a trial, the trial court awarded the parties joint legal and joint physical custody of their three children, despite father's previous domestic abuse. The trial court also awarded mother the partiesí homestead, subject to fatherís lien, and awarded father his truck and his entire 401(k) plan. The court denied attorney fees to both parties.

D E C I S I O N

Joint Custody

The trial court has broad discretion in awarding custody of children. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

Appellate review of custody determinations is limited to whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.

Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985) (citations omitted). On appeal, the trial court's findings of fact will not be set aside unless they are clearly erroneous. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).

Mother challenges the court's award of joint legal and joint physical custody on grounds that the court's findings were clearly erroneous and that the court relied on one "best interests" factor to the exclusion of all others.

Minn. Stat. ß 518.17, subd. 1 (1998), provides a nonexclusive list of factors the trial court must consider in determining a child's best interests. "The court may not use one factor to the exclusion of all others." Id. When either joint legal or joint physical custody is sought by a party, the court must also consider the parents' ability to cooperate in rearing their children; their methods and willingness for resolving disputes; the detriment to the children if one party were to have sole custody; and whether domestic abuse between the parents has occurred. Minn. Stat. ß 518.17, subd. 2 (1998). If either party requests joint legal custody, the court must use a rebuttable presumption that joint legal custody is in the children's best interests. Id. But when domestic abuse has occurred, the court must use a rebuttable presumption that joint legal or physical custody is not in the children's best interests. Id.

Regarding the first two joint custody factors, the trial court found that, although the parties had much difficulty communicating in the past, they are willing to work together in the future to resolve disputes and will use written communication, counseling or church support to help them. See Rosenfeld v. Rosenfeld, 529 N.W.2d 724, 726 (Minn. App. 1995) (an award of joint legal custody affirmed where parties were hostile to each other but trial court found that parties could "set aside their personal feelings for the best interests of the children when required").

On the third joint custody factor, the court found that mother had restricted fatherís visitation in the past and that:

It would clearly not be in the best interest of the children for [mother] to have sole physical custody of the children. * * * [s]he will use this award to make decisions without [fatherís] input, and will reduce [fatherís] access to the children.

The court considered the fourth joint custody factor, namely, that father had committed domestic abuse, but found that the evidence rebutted the presumption that fatherís past conduct disqualified him from joint custody. The court found that the abuse had occurred more than four years ago and had not been repeated. Nor had it affected the partiesí ability to co-parent their children. Furthermore, the children have developed a good relationship with father.

As to the 13 custody factors listed in Minn. Stat. ß 518.17, subd. 1, the trial court found that ten factors favored neither party, two favored mother (primary caretaker and permanence of home), and one factor favored father (encouragement of other partyís relationship with children). Mother argues that because two factors favor her, and one factor favors father, the trial court used only one factor in awarding joint physical custody.

Although most of the factors under Minn. Stat. ß 518.17, subd. 1, favored neither party, the trial court found that mother would most likely restrict fatherís access to the children if she were granted sole physical custody. This finding is supported by the record. Thus, an award of sole physical custody to mother would impair the childrenís contact with father and would not be in their best interest. There is no evidence to show that the district court gave more weight to one factor to the exclusion of all others. Maxfield v. Maxfield, 452 N.W.2d 219, 233 (Minn. 1990) (no set formula on how the district court should weigh and balance the statutory factors, so long as all are credited in the decision-making process). The trial courtís detailed findings on each factor demonstrate that the trial court weighed and considered every factor. We also note that each factor is supported by either documentary evidence, the testimony of the parties, or the family court counselor who conducted the custody evaluation.

The trial court made findings as to each joint custody factor listed in Minn. Stat. ß 518.17, subd. 2. The evidence supports the findings. We hold that the trial courtís findings as to the propriety of an award of joint legal and joint physical custody were not clearly erroneous.[1]

Child Support

The trial court has broad discretion to provide for the support of children. Rutten, 347 N.W.2d at 50. "A partyís support obligation is determined by his or her guideline amount for the period of time the other parent has custody." Valento v. Valento, 385 N.W.2d 860, 863 (Minn. App. 1986), review denied (Minn. June 30, 1986).

Under the access schedule issued by the trial court, mother has the children 79% of the time; father has the children 21% of the time. Based upon these access times, the trial court properly applied the Valento formula to calculate each partyís child-support obligation.

Division of Property

A trial court has broad discretion in dividing property. Rutten, 347 N.W.2d at 50. Absent an abuse of discretion, the trial courtís decision must stand. See id. at 51. On review, we must affirm the trial courtís division of property if it had an acceptable basis in fact and principle even though we might have taken a different approach. Servin v. Servin, 345 N.W.2d 754, 758 (Minn. 1984). Mother disputes the trial courtís division of the homestead, the truck, fatherís 401(k) plan, and marital debt.

The partiesí homestead has a fair market value of $116,800. The parties have approximately $28,672 in equity. The trial court awarded the homestead to mother, but required her to refinance the home in two years, at which time mother is to give father his portion of the equity. This approach is equitable to both parties because the homestead belongs to both as marital property.

Father acquired the truck before the partiesí marriage. During the marriage, the parties took out a $2,000 loan to pay for the balance on the truck. Because the parties used marital funds to pay the loan balance, mother has a partial marital property interest in the truck. But, the court awarded mother the partiesí second automobile. We conclude that the trial court did not abuse its discretion in awarding each party an automobile. The division of marital property need not be mathematically equal; it need only be just and equitable. See Ruzic v. Ruzic, 281 N.W.2d 502 (Minn. 1979).

Father acquired his 401(k) account before marriage. Non-marital property includes property acquired before marriage. Minn. Stat. ß 518.54, subd. 5 (1998). The trial court found that father made no contributions to his 401(k) plan during the marriage. Thus, the account is non-marital and the trial court did not abuse its discretion by awarding the account to father.

A trial courtís apportionment of debt is treated and reviewed as a property division. Justis v. Justis, 384 N.W.2d 885, 889 (Minn. App. 1986), review denied (Minn. May 29, 1986). After determining the proper amount of marital debt and adjusting for child support payments, the trial court apportioned the debt based upon each partyís net income. This method has an acceptable basis in fact because the parties are responsible for debt relative to their respective incomes. Therefore, we hold that the trial court did not abuse its discretion in apportioning the debt.

Attorney Fees

The allowance of attorney fees rests almost entirely in the discretion of the trial court. Solon v. Solon, 255 N.W.2d 395, 397 (Minn. 1977). Mother moved for attorney fees on the basis that she owed $10,000 in fees, and father owed only $2,000 in fees. The trial court found that neither party could afford to pay the other partyís attorney fees and clearly, from the financial situation of the parties, the trial court did not abuse its discretion in its denial of attorney fees to both parties. See Minn. Stat. ß 518.14, subd. 1 (1998) (stating ability to pay attorney fee award is a prerequisite to requiring that a party pay need-based attorney fees).

Affirmed.

[1] Mother argues that she actually has sole de facto physical custody based upon the amount of time she spends with the children. The designation of custody placement depends on its characteristics. Rosenfeld, 529 N.W.2d at 726. Here the trial court intended for both parties to share in the decision making of the children's daily routine. More importantly, the trial court wanted to ensure that father would have equal access to the children. Thus, the trial court did not err in designating the custody arrangement as joint physical custody. See Minn. Stat. ß 518.003, subd. 2(d) (1998) (defining "joint legal custody" as including shared control and residence of children).