This opinion will be unpublished and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
In Re the Marriage of:
Warren John Ferber, petitioner,
Sandra Jeanne Ferber,
Filed June 13, 2000
Anoka County District Court
File No. F7922197
William R. Lindman, 2006 First Avenue North, Suite 205, Anoka, MN 55303 (for appellant)
Timothy Casey Theisen, 229 Jackson Street, Suite 105, Anoka, MN 55303 (for respondent)
Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
Appellant father argues that the district court erred in granting respondent mother sole physical custody of the parties’ children even though the district court specifically found that the children were not endangered by the current joint-custodial arrangement. Appellant also challenges the child-support magistrate’s order granting respondent retroactive child support under Minn. Stat. § 256.87, subd. 5 (1998). Respondent moved to dismiss from this appeal the retroactive child-support issue, arguing that appellant failed to appeal from the child-support magistrate’s order. We affirm the district court’s modification of custody, deny respondent’s motion to dismiss, and reverse the child-support magistrate’s order granting respondent retroactive child support.
The marriage of appellant Warren John Ferber and respondent Sandra Jeanne Ferber was dissolved in March 1993, pursuant to a marital-termination agreement. The parties stipulated to joint physical custody of their two children, now ages 15 and 10, and child support was reserved. In October 1996, following a discussion involving both parties and both children, the parties agreed that the children would benefit from making respondent’s home their primary residence so that they could attend school in the district where she lives.
In March 1998, respondent moved for sole physical custody of both children, based on their integration into her home, and the district court issued a temporary order granting the motion. Respondent then moved for retroactive child support under Minn. Stat. § 256.87, subd. 5 (1998). Following a court trial, the district court issued an order granting respondent sole physical custody of the children, setting appellant’s ongoing child-support obligation, and referring the motion for retroactive child support to a child-support magistrate. The child-support magistrate concluded that appellant was required, pursuant to Minn. Stat. § 256.87, subd. 5 (1998), to pay respondent $3,081 in retroactive child support for the period during which the parties shared joint physical custody but the children lived primarily with respondent. This appeal follows.
Appellant argues that modification of custody in joint custody cases is governed by the endangerment standard, and that, because the district court specifically found that no endangerment had been proved by either party, the district court abused its discretion by granting respondent sole physical custody of the children. We disagree.
The district court found that a substantial change in circumstances occurred in October 1996, when the parties agreed that the children should establish their primary residence at respondent’s home and attend school in that district. On the basis of detailed findings, the district court concluded that the children had been integrated into respondent’s family with appellant’s consent and that the parties’ actions had created a modification of physical custody such that “the best interests of the children [were] best served by granting sole physical custody to [respondent] with liberal visitation by [appellant].”
A district court has broad discretion to determine child-custody issues. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). This court will not reverse a custody determination unless the district 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). We will sustain a district court’s findings unless they are clearly erroneous. Id.
The modification of custody orders is governed by Minn. Stat. § 518.18 (1998), which provides:
If the court has jurisdiction to determine child custody matters, the court shall not modify a prior custody order unless it finds, upon the basis of facts * * * that have arisen since the prior order or that were unknown to the court at the time of the prior order, that a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child. In applying these standards the court shall retain the custody arrangement established by the prior order unless:
(i) both parties agree to the modification;
(ii) the child has been integrated into the family of the petitioner with consent of the other party; or
(iii) the child’s present environment endangers the child’s physical or emotional health or impairs the child’s emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.
§ 518.18(d). The required change in circumstances “must be significant and must have occurred since the original custody order; it cannot be a continuation of conditions existing prior to the order.” Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997).
Contrary to appellant’s argument, if the moving party has established that a change in circumstances has occurred and that the modification is in the best interests of the children, integration of the children into the family of one party with consent of the other party is an independent ground for modifying custody. Minn. Stat. § 518.18(d).
Appellant does not challenge the district court’s finding that a significant change in circumstances occurred after the original custody award when the children made respondent’s home their primary residence. Therefore, we must determine whether the district court erred in concluding that (1) modification was in the best interests of the children, (2) integration had occurred, and (3) appellant had consented to the integration.
The district court made extensive findings regarding the best interests of the children, including a finding that the teen-aged daughter wanted to spend the majority of her time at respondent’s home and her eight-year-old brother did not express a preference. The preference of a minor child is one factor considered in custody cases, but is not necessarily determinative. Imdieke v. Imdieke, 411 N.W.2d 241, 242 (Minn. App. 1987), review denied (Minn. Oct. 30, 1987). But a child’s preference is “entitled to considerable weight if the child is of sufficient age to exercise discretion.” Matter of Welfare of L.P.C., 367 N.W.2d 908, 912 (Minn. App. 1985) (citation omitted).
The district court also found that respondent continued to be the children’s primary caretaker, providing daily control and care, and that the children turned to her to discuss important issues. Additionally, the district court found that respondent had provided the children with a stable home and they are now surrounded by friends and involved in activities at their new school. These findings are supported by the record.
The district court also found sufficient evidence to establish that the children had been integrated into respondent’s home. The court found that (1) the children had been living with respondent approximately 71% of the time and that her home had become their home, (2) the children “visited” appellant, (3) respondent’s new husband was involved in the children’s lives, and (4) appellant no longer consistently visited the children during his usual evening visitation hours. The record supports these findings.
Appellant argues that he agreed only to a change in schools, not a change in custody, but the record supports the district court’s finding that appellant agreed to the change in residence.
We conclude that the district court did not err in determining that a substantial change in circumstances had occurred, resulting in integration of the children into respondent’s home with appellant’s consent, and that granting respondent sole physical custody serves the best interests of the children.
2. Retroactive Child Support Under Minn. Stat. § 256.87, subd. 5 (1998)
Following the filing of this appeal, respondent moved to dismiss the issue of retroactive child support on the ground that appellant failed to appeal the child-support magistrate’s order. Because appellant challenges the child-support magistrate’s authority to award respondent retroactive child support under Minn. Stat. § 256.87, subd. 5, we construe the appeal of this issue to be from the district court’s order referring the question of retroactive child support to the child-support magistrate and deny respondent’s motion to dismiss. See Kelly v. Kelly, 371 N.W.2d 193, 195-96 (Minn. 1985) (holding that notices of appeal are to be liberally construed in favor of their sufficiency and are not insufficient due to defects that could not have been misleading). Respondent is not prejudiced by our consideration of the issue. Appellant’s statement of the case provided notice that he intended to raise the retroactive-support issue and respondent has briefed the issue of the magistrate’s authority to award retroactive child support under the statute.
Respondent filed a motion for retroactive child support under Minn. Stat. § 256.87, subd. 5, which provides:
A person or entity having physical custody of a dependent child not receiving public assistance as defined in section 256.741 has a cause of action for child support against the child’s noncustodial parents. Upon a motion served on the noncustodial parent, the court shall order child support payments, including medical support and child care support, from the noncustodial parent under chapter 518. A noncustodial parent’s liability may include up to the two years immediately preceding the commencement of the action. This subdivision applies only if the person or entity has physical custody with the consent of a custodial parent or approval of the court.
The child-support magistrate found that respondent had presented a viable claim under Minn. Stat. § 256.87, subd. 5, and ordered judgment against appellant in the amount of $3,081. Appellant argues that the child-support magistrate erred in ordering retroactive child support under the statute against a parent who had joint physical custody during the time in question. We agree.
Statutory construction is a question of law, which this court reviews de novo. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990). The statute provides that a claim for child support may be brought against a child’s noncustodial parents. Minn. Stat. § 256.87, subd. 5. We conclude that the statute does not contemplate an award of retroactive child support to one parent in circumstances where the parents shared joint physical custody during the period for which retroactive support is sought. Accordingly, the child-support magistrate erred in awarding respondent retroactive child support under Minn. Stat. § 256.87, subd. 5.
Affirmed in part and reversed in part; motion denied.