This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-99-1660

 

In Re the Marriage of:

Billie A. Berg, petitioner,

Appellant,

 

vs.

 

James E. Berg,

Respondent.

 

Filed April 25, 2000

Affirmed in part; appeal dismissed in part

Randall, Judge

 

Polk County District Court

File No. F0-98-965

 

Patti J. Jensen, Lindquist, Jeffrey & Jensen, P.A., 610 Second Avenue Northeast, P.O. Box 329, East Grand Forks, MN 56721 (for appellant)

 

Jeffrey S. Remick, Odland, Fitzgerald, Reynolds, Remick & Widseth, P.L.L.P., 201 1/2 North Broadway, P.O. Box 457, Crookston, MN 56716 (for respondent)

 

Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Amundson, Judge.


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

RANDALL, Judge

Appellant challenges a dissolution judgment and asserts the district court abused its discretion by (a) awarding the parties joint physical and legal custody of their minor children; (b) using incorrect figures in applying the Hortis-Valento formula to calculate child support; (c) requiring appellant to pay the balance owed on a certain credit card; and (d) denying her request for attorney fees and costs. Appellant also requests attorney fees on appeal.[1] We affirm in part, dismiss in part, and deny appellant's request for fees on appeal.

D E C I S I O N

I. Joint Physical Custody

Appellant asserts that the district court abused its discretion by ordering joint-physical custody. She requests only a change in the label attached to the custody arrangement, however, and not a change in the schedule itself. The schedule the district court incorporated into its decision is virtually identical to the schedule proposed by the Guardian Ad Litem (GAL). Appellant agreed to this schedule at trial, and she does not challenge it on appeal.


In Rosenfeld v. Rosenfeld, 529 N.W.2d 724, 726-27 (Minn. App. 1995) appellant requested only a change in label from "joint" to "sole" physical custody and did not challenge the district court's ordered physical custody arrangement. This court recognized that "the designation of a placement depends on its characteristics, not its label" and concluded that because appellant sought only a change of label, there was no justiciable controversy. Id. (citation omitted). In concluding there was no justiciable controversy and dismissing the portion of the appeal relating to the joint physical custody award, this court determined that a change in label would not affect any adverse rights or conflicting interests of the parties and would provide no significant relief. Id.

Similar to Rosenfeld, there is no justiciable controversy here. Appellant seeks only a change in the label of the custody arrangement and not a change in the physical custody schedule.[2] Thus, this portion of her appeal is dismissed.


II. Joint Legal Custody

Although not entirely clear from appellant's brief, it appears appellant is also challenging the joint legal custody award. Because a change in legal custody would change the parties' rights, there is a justiciable controversy on this issue. See Minn. Stat. 518.003, subd. 3(b) (1998) (stating joint legal custody means both parents have equal rights and responsibilities, including right to participate in major decisions determining child's upbringing).

The district court has broad discretion in making custody decisions and will not be reversed on appeal absent an abuse of that discretion. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). The district court's findings of fact will be upheld unless they are clearly erroneous. Minn. R. Civ. P. 52.01.

The district court must consider 13 different factors when making custody decisions and an additional four factors when joint physical or legal custody is sought. See Minn. Stat. 518.17, subd. 1(a) (listing factors that must be considered by district court when making custody decisions), subd. 2 (1998) (listing factors district court must consider when making joint custody decisions). Appellant is seemingly challenging only the district court's findings on the factors related to domestic abuse and cooperation between the parties. See Minn. Stat. 518.17, subd. 1(a)(12) (stating in making custody determinations court must consider whether domestic abuse had effect on child), subd. 2(a), (b), (d) (stating when joint custody sought, court must consider parents' ability to cooperate in raising children, methods for resolving disputes about major life decisions concerning child, and whether domestic abuse has occurred between parents). When domestic abuse has occurred between the parties, there is a rebuttable presumption that joint legal or physical custody is not in the child's best interests. Minn. Stat. 518.17, subd. 2. Further, "joint legal custody should be granted only where the parents can cooperatively deal with parenting decisions." Wopata v. Wopata, 498 N.W.2d 478, 482 (Minn. App. 1993) (quotation omitted).

Regarding the parties' ability to cooperate, the district court found that although the parties avoided face-to-face communication during the pendency of the dissolution proceedings, the parties communicated by telephone and in writing. The court also noted that appellant had occasionally invited respondent to her home to watch the children when appellant had job obligations and noted the parties' cooperation during appellant's insurance agent training in 1999, which required appellant to spend extended periods of time in the Twin Cities. In considering the factor addressing the parties' methods for resolving disputes on major decisions in their children's lives and the parties' willingness to use those methods, the court determined that the parties were in agreement on most medical, religious, and educational issues. The court went on to cite appellant's testimony that she believed the parties could cooperate.

After review of the record, we conclude that the parties' testimony and the guardian ad litem's testimony support the district court's findings on the parties' ability to cooperate. Thus, the district court's findings are not clearly erroneous.

The district court also found that the confrontations between the parties did not rise to the level of statutorily defined domestic abuse and that the confrontations had not had any adverse impact on the children. The court determined that the domestic abuse factor was neutral in the court's determination of custody.

Appellant introduced trial evidence that immediately before she petitioned for a dissolution the parties had a number of heated arguments. She testified that respondent would grab her arm and pull her out of bed, leaving red marks on her arm. On one occasion respondent did kick the bed, and accidentally kicked appellant. Respondent denied ever intentionally abusing appellant. The only evidence of possible child abuse involved an incident during the parties' separation when appellant saw a red mark on the youngest child's face, which she believed came from respondent slapping the child. Respondent did not concede that he slapped the youngest child but conceded that he physically removed the child from appellant's home on one occasion and reported that he once slapped the older child's face.

The district court was under no obligation to believe appellant's testimony. See Minn. R. Civ. P. 52.01 (stating district court judges witnesses' credibility). Further, even assuming the district court believed appellant's testimony, the presumption against joint legal custody in cases where domestic abuse has occurred is a rebuttable presumption. See Minn. Stat. 518.17, subd. 2 (stating rebuttable presumption against joint legal and physical custody if domestic abuse occurred between parties). There is no evidence that the alleged abuse against appellant was an ongoing pattern during the parties' relationship. There is no evidence that this abuse continued after respondent moved out of the home. In regard to the alleged child abuse, both instances occurred when appellant was apparently attempting to discipline the children. There is no evidence that he has slapped the children on other occasions. See generally Uhl v. Uhl, 413 N.W.2d 213, 217 (Minn. App. 1987) (affirming custody award to parent who abused child where, among other things, abuse was non-repetitive). Further, appellant herself does not appear to believe that respondent is a threat to the children. She has not requested respondent's time with the children be limited or requested supervised visitation.

Given that (a) any abuse that took place between these parties happened outside of the children's sight; (b) there is no evidence of ongoing abuse between the parties or toward the children; and (c) since the alleged abuse, the parties have demonstrated that they can cooperate with regard to the children without resorting to domestic abuse, the district court did not make a clearly erroneous finding by determining that domestic abuse should not affect the custody determination.

Because the findings that appellant challenges regarding cooperation and domestic abuse are not clearly erroneous, the district court did not abuse its discretion by awarding the parties joint legal custody

III. Child Support

The district court has broad discretion in setting child support and will not be reversed absent an abuse of that discretion. Rutten, 347 N.W.2d at 50.

Appellant asserts that the district court incorrectly determined that the children spend equal time in each party's care and thereby improperly applied the Hortis-Valento formula in setting child support. Appellant fails to recognize that the district court did not conclude that the children spend equal time with each parent. Instead, the district court's calculations demonstrate its determination that appellant has physical custody of the children 55% of the time and respondent has custody the remaining 45% of the time.[3]

Further, although she makes a complicated argument by attempting to calculate the time the children spend with each party to the half-hour, appellant's calculations do not include: (a) the hours the children spend in school; (b) holidays, birthdays, and school breaks evenly divided between the parties; (c) the eight weeks the children spend with respondent in the summer; or (d) the hours the children spend with respondent every day after school. According to appellant's figures, the children spend approximately 29% of their time with respondent. After including the time the children spend with respondent that appellant did not include in her calculations and subtracting the hours the children spend in school from the total time the children spend with either parent, we conclude that there is a basis in the record for the district court's finding that the children will spend 55% of their time with appellant and 45% with respondent. The district court's determination was not erroneous. The district court properly applied the Hortis-Valento formula.

IV. Credit Card Debt

The district court has broad discretion in dividing marital debt and must be affirmed if its decision "has an acceptable basis in fact and principle, even though this court may have taken a different approach." Bliss v. Bliss, 493 N.W.2d 583, 587 (Minn. App. 1992) (citation omitted), review denied (Minn. Feb. 12, 1993).

Appellant asserts that the district court abused its discretion by ordering her to pay the $3,670 balance on a credit card. Appellant's only argument supporting her assertion that she should not have to pay this debt is her assertion that she was not aware that respondent made the charges and she did not approve them. Appellant does not dispute that this debt was incurred during the marriage. Thus, the only issue is whether the district court abused its discretion in apportioning the debt to appellant.

The district court awarded appellant $110,434.76 in assets and awarded respondent $70,208 in assets. The district court also apportioned $45,856.65 of debt to appellant and $11,870.12 of debt to respondent. See Justis v. Justis, 384 N.W.2d 885, 889 (Minn. App. 1986) (recognizing debt is apportionable as part of marital property settlement and division of marital debts treated same as division of assets), review denied (Minn. May 29, 1986). Of the net estate, appellant was awarded over 52.5%. This is easily within a district court's discretion. See Swanson v. Swanson, 583 N.W.2d 15, 18 (Minn. App. 1998) (recognizing division of marital property need only be just and equitable and need not be mathematically equal), review denied (Minn. Oct. 20, 1998). The district court properly directed appellant to pay the balance owed on the parties' AT&T MasterCard.

V. Attorney Fees - District Court

The district court has discretion in awarding attorney fees. Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987).

Under Minn. Stat. 518.14, subd. 1 (1998), the court may award a party attorney fees and costs if the court finds that (a) such fees are necessary for the party to make a good-faith assertion of his or her rights and will not unnecessarily contribute to the proceeding's length and expense; (b) the party from whom the fees are sought has the means to pay them; and (c) the party to whom the fees are awarded does not have the means to pay them. The court may also award fees against a party if that party "unreasonably contributes to the length or expense of the proceeding." Minn. Stat.  518.14, subd. 1.

Appellant asserts that she testified at trial that she did not have the means to pay her attorney fees. The district court makes credibility determinations and is free to reject a witness's testimony. See Minn. R. Civ. P. 52.01 (stating due regard should be given to district court to judge witness credibility). Also, the district was presented with all of the parties' financial information. Both parties have gross incomes over $30,000, appellant received 52.5% of the parties' marital property, and neither party sought spousal maintenance. On these facts, the district court did not abuse its discretion by concluding that appellant was not entitled to a need-based attorney fees award.

The facts also support the district court's decision not to order conduct-based attorney fees. Appellant contends that respondent's actions in the three or four days before trial significantly increased her attorney fees. Appellant does not explain what specific actions respondent undertook that caused an increase in her fees. Further, there is no support in the record for appellant's contention that the proceedings were extended by respondent's indecision about his custody requests. Because appellant makes only unsupported assertions in her challenge to the district court's refusal to award her conduct-based attorney fees, she has not demonstrated that the district court abused its discretion.

VI. Attorney Fees - On Appeal

Appellant also requests attorney fees on appeal. Appellant makes no argument and provides no authority supporting her attorney fees request. We award none. See Melina v. Chaplin, 317 N.W.2d 19, 20 (Minn. 1982) (stating issues not briefed on appeal are waived).

Affirmed in part; appeal dismissed in part.



[1] Respondent filed a notice of review, but his brief fails to address the issues cited in his notice of review. Thus, he has waived those issues. Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (stating issues not briefed on appeal are waived).

[2] We note that changing the label of this custody arrangement would not affect the amount of child support respondent has been ordered to pay. the district court implemented the Hortis/Valento method of determining child support generally applied in joint custody arrangements, which allows each parent to pay support only for the amount of time the children spend in the other party's care. See Tweeton v. Tweeton, 560 N.W.2d 746, 747 Minn. App. 1997) (stating formula requires parent to pay guideline support only for period of time other parent has custody), review denied (Minn. May 28, 1997). This formula may be applied regardless of the label placed on the custody arrangement. See id. at 748-49 (holding Hortis/Valento formula may be applied when each parent provides significant amount of care for children, regardless of whether arrangement is labeled joint physical custody).

[3] Appellant challenges only the figures used by the district court in applying the Hortis/Valento formula. She does not challenge the district court's use of the formula itself. After determining the parties' net incomes, the court multiplied the product of the statutory support percentage and the parties' net monthly incomes by the percentage of time the children spend in the other party's care. See Valento v. Valento, 385 N.W.2d 860, 863 (Minn. App. 1986) (holding under Hortis formula, when parties share physical custody of children, each parent's support obligation is guideline amount during time other party has custody), review denied (Minn. June 30, 1996). The court then subtracted appellant's obligation from respondent's and determined that respondent owes appellant $133.25 in child support each month. See Tweeton, 560 N.W.2d at 748 (recognizing, in applying Hortis/Valento formula, court subtracts amount owed by parent owing lesser amount from amount owed by parent owing greater amount, and parent owing greater amount pays resulting net amount).