This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






In Re the Marriage of:
Ginger Ann L’Allier, petitioner,


Gerald R. L’Allier,


Filed June 19, 2001

Reversed and remanded

Stoneburner, Judge


Anoka County District Court

File No. FX9910057



Jeffrey P. Hicken, Hicken, Scott & Howard, P.A., Suite 300, 2150 Third Avenue, Anoka, MN 55303 (for respondent)


Dianne Wright, McCullough, Smith, Wright & Kempe, 905 Parkway Drive, St. Paul, MN 55106 (for appellant)


            Considered and decided by Crippen, Presiding Judge, Klaphake, Judge, and Stoneburner, Judge.


U N P U B L I S H E D  O P I N I O N




            Appellant father challenges the district court’s labeling of the parties’ parenting plan as providing “sole physical custody” to respondent mother, arguing that the terms of the parenting plan clearly constitute joint physical custody.  Because we cannot determine from the record whether the parties intended for the district court to engage in a “best interests” analysis, and because the district court labeled the agreement “sole physical custody” under a “best interests” standard without any supporting findings, we reverse and remand.



The parties to this dissolution action agreed to a parenting plan that provides for joint legal custody and sets out a detailed schedule for each parent’s time with the children.  The child-support provision states that father “maintains the residence” of the minor children for three months in the summer, during which time he does not pay or receive child support.  The “physical custody” portion of the agreement provides that mother “shall have the children nine months during the school year” and father “shall have the children three months in the summer.”  (Emphasis added.)  Father pays mother guideline support for the nine months she has the children.  The words  “residence,” “have the children,” and “access” are used in the parties’ agreement.  The words “custody” and “visitation” are not used by the parties, other than in reference to using a “visitation expediter” to resolve disputes.[1]  

Although the decree states as a conclusion of law that “[b]oth parties want to maintain the children in the Centennial School District throughout the children’s minority,” the decree also provides that neither party may move the children out of state for the purpose of changing their residence “without the written consent of the other party or until further order of the Court.”  Nothing in the record demonstrates whether the language about removing the children from the state was agreed on by the parties or added by the district court, or what standard the parties expected a court to use in making a determination on a request to move the residence.

The parties dispute whether this arrangement constitutes “joint” or “sole” physical custody.  They stipulated to resolution of all other issues in the dissolution and submitted labeling of the parenting plan, as either joint or sole physical custody, to the district court.[2]  When the parties placed the stipulation on the record, the district court stated:

Now, understand that there’s still an issue to be determined in regards to whether this would be determined joint physical or sole physical custody.  The parties, rather than spend your money and fight only in regards to what we call this, my feeling is that it’s going to be in the best interests of the children if the two of you agree to how the time gets split up.  And I’m not about to tamper with it as long as I feel it’s in their best interests and it’s fair.


The district court then outlined, and the parties agreed to, a process whereby each attorney would submit a two-page brief on the issue, the district court would review the custody evaluation regarding the background and circumstances, decide, and then notify the attorney who was drafting the final papers so that the decision could be included in the final documents.  The district court stated: “It won’t cost you a lot of money and essentially you’re going to end up with what you’ve agreed to and I’ll determine the name.” 

Both parties submitted written arguments to the district court.  Neither argument addressed the best interests of the children.  Father’s brief argued that the language of the parenting agreement falls directly within the statutory definition of joint physical custody.  Mother’s brief highlighted the acrimonious relationship of the parties, quoted some of the custody evaluator’s criticisms of father and the evaluator’s recommendation that mother have sole physical custody, and argued that joint physical custody is appropriate only in exceptional cases. 

The district court communicated its decision to the attorney who drafted the final documents.  The Findings of Fact signed by the district court include a finding that:

After this Court’s review of Petitioner’s and Respondent’s Memorandum as to Physical Custody, the Court finds it is in the best interests of the minor children to designate the parties’ parenting arrangement as sole physical custody to Petitioner.


The decree provides that mother has sole physical care, custody, and control of the children, subject to father’s visitation.[3]  The reference in the parenting plan to father providing for the “residence” of the children in the summer is omitted from the decree.  Father appeals.


            The parties disagree on the standard of review.  Mother argues that the appropriate standard of review is abuse of discretion.  Father asserts that a de novo review applies.  A district court has broad discretion to provide for the custody of the parties’ children.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  An appellate court will not disturb 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).  In this case, however, it is not clear that the district court was asked to provide for custody of the children.  Father argues that the district court’s role was limited to naming the agreement of the parties.  There is some merit to father’s assertion that the standard of review is de novo because the issue involves a question of law: what statutory definition applies to this parenting plan?  See Boldt v. Roth, 618 N.W.2d 393, 396 (Minn. 2000) (applying de novo review to questions of law).  Because we cannot determine from the record whether the parties intended for the court to merely impose a legal label on their agreement without making any changes to the agreement, or whether they consented to have the court engage in a best-interests analysis and modify the language in the agreement, and because the court failed to make any findings to support its finding that it is in the children’s best interest to be in mother’s sole physical custody, we are unable to conduct any meaningful review of this case. 

The label applied to this agreement has potential consequences with regard to changing the residence of the children and with regard to future motions for child-support modifications.  Father discounted these consequences in argument to the district court, seeming to believe that the parties’ agreement precludes a change of residence and that child support will forever remain as set out in the decree.  At oral argument, mother’s counsel asserted that the label controls the agreement and takes precedent over it.  If this is so, the label of sole physical custody controls the residence of the children, supplies the standard to be used in evaluating a request for change of residence, creates a presumption that father’s child-support obligation is not discounted for the time he has the children, and possibly justifies the district court’s reinsertion of the terms “custody” and “visitation” to describe the parent’s time with the children. 

On remand, the district court must clarify whether the parties intended to have the district court make a legal determination without modifying the language of their agreement or to have the district court engage in a best-interests analysis.  If the district court is only to apply a label, it should do so using the language of the parenting plan without modification.  If the court is to engage in a best-interests analysis, the court must make the required findings to support its determination of best interests and may wish to reopen the record to permit the parties to present further evidence, or to permit the parties to argue the best-interests issue.         

            Reversed and remanded.


[1] “Visitation” appears in the final decree in the paragraph awarding each party vacation time with the children: “Each party shall give the other party thirty days notice of their intent to exercise said visitation weeks.” (Emphasis added.)  The record does not show where this notice language came from. 

[2] The parties agreed that it was necessary for the court to label their arrangement but cited no authority requiring such labeling.  Minnesota law currently requires that a parenting plan must designate whether the parents have joint or sole legal and/or physical custody but further provides that the label is only significant for “enforcement of the final judgment and decree where this designation is required for that enforcement and has no effect under the laws * * * that do not require this designation.”  Minn. Stat. § 518.1705, subd. 4 (2000).  At oral argument, counsel for mother asserted that because the current statute is not applicable to this case, the label is significant and overrides anything in the parenting plan that is inconsistent with the label.

[3] Because the labeling resulted in a change in the parenting plan, there is a justiciable controversy.  See Rosenfeld v. Rosenfeld, 529 N.W.2d 724, 727 (Minn. App. 1995) (dismissing appeal on label of physical-custody agreement because of the absence of a justiciable controversy).