This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-01-380

 

 

In Re the Matter of:

 

Monica L. Knowlen, petitioner,

Appellant,

 

vs.

 

Ronald Allen Streling,

Respondent.

 

Filed September 4, 2001

Reversed and remanded

Gordon W. Shumaker, Judge

 

Kandiyohi County District Court

File No. F20050061

 

 

 

John E. Mack, Mack & Daby, 26 Main Street, P.O. Box 302, New London, MN 56273 (for appellant)

 

Gregory R. Anderson, Anderson, Larson, Hanson & Saunders, 331 Southwest Third Street, P.O. Box 130, Willmar, MN 56201 (for respondent)

 

Considered and decided by Crippen, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.

 

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

            Appellant Monica L. Knowlen contends that the district court applied the incorrect legal standard in its order modifying a previous child custody order.  We reverse and remand.

FACTS

            Appellant Monica L. Knowlen and respondent Ronald Allen Streling lived together for several years but never married.  During their relationship Knowlen gave birth to two children.  The parties separated and informally agreed to custody and visitation of the children.  When the informal arrangement deteriorated, the parties sought the intervention of the district court.

            The district court’s order dated November 10, 1997, incorporated the parties’ stipulation as to custody and visitation.  In their stipulation “the parties agree that it is in the best interest[s] of their children, as defined by the factors stated in Minnesota Statute Section 518.17 * * *,” that the parties share joint physical custody of the children.

            When the parties became dissatisfied with the stipulated arrangement, they sought a modification of the previous order, each requesting sole physical custody, and they agreed to a custody evaluation.

            The district court held a contested evidentiary hearing on October 23, 2000, and December 14 and 15, 2000, made extensive findings of fact and entered its order on January 30, 2001, modifying the previous order and awarding sole physical custody of the children to Streling.  The court determined that the modification was in the best interests of the children and applied the “best interests” standard because it concluded that the parties had agreed to use that standard:  “Pursuant to a stipulation previously provided by both parties, the court shall apply the Minnesota child custody standards under Minnesota Statute § 518.17.”

            Knowlen contends on appeal that the parties did not stipulate to the application of the standard in section 518.17 and that the court was required to apply the “endangerment” standard in Minn. Stat. § 518.18(d)(iv) (2000).

D E C I S I O N

            The principal issue on appeal is whether the district court applied the correct legal standard in modifying an order respecting the custody of the parties’ children.  The scope of our review of custody determinations is limited to determining whether the district court’s findings are supported by the evidence and whether the court properly applied the law.  Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993).  Knowlen challenges the district court’s finding that the parties agreed to apply a “best interests” standard in the modification proceeding.

            Under the stipulated order of November 10, 1997, the court awarded the parties joint physical custody of their children.  The parties had agreed that joint physical custody would be in the best interests of the children as provided by Minn. Stat. § 518.17 (2000).

            When the parties moved to modify the November 10 order, Minn. Stat. § 518.18(e), regarding the standards for modification, became applicable:

In deciding whether to modify a prior joint custody order, the court shall apply the standards set forth in paragraph (d) unless * * * the parties agree in writing to the application of a different standard * * *.

 

(Emphasis added.)  The district court found that the parties agreed to the application of the standards in Minn. Stat. § 518.17.  The district court’s findings are to be sustained on appeal unless they are clearly erroneous.  Ayers, 508 N.W.2d at 518.  Although the parties did enter a written agreement regarding the custody standards for the initial custody order, the record on appeal contains no written agreement that pertains to the modification.  Thus, the district court’s finding that the parties agreed in writing to a standard different from that provided in section 518.18(d) is clearly erroneous.

            Because of the lack of an agreement to the contrary regarding the modification standard, the district court was required to retain the previous custody arrangement unless it found endangerment, that is, that:

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.

 

Minn. Stat. § 518.18(d)(iv).

            The district court made no findings as to endangerment.  Therefore, on this record, the modification is unsupported in fact and in law.

            Streling argues that even if the court applied the incorrect legal standard, Knowlen waived her right to challenge the modification on appeal because she did not object to the use of the “best interests” standard during any of the district court proceedings.

            Waiver is “a voluntary relinquishment of a known right.”  Flaherty v. Independent Sch. Dist. No. 2144, 577 N.W.2d 229, 232 (Minn. App. 1998) (quotation omitted), review denied (Minn. June 17, 1998).  The essential elements of waiver are intent and knowledge.  Id.  The determination of an intent to waive a right is a question of law.  Id.  As noted, this record contains no express waiver of the requisite modification standard, nor does it support a conclusion that Knowlen knew that the court ultimately would apply the best-interests standard without regard to a consideration of endangerment.  Therefore, the record does not show that Knowlen waived her right to challenge the modification.

            The district court’s findings of fact reflect a thorough and thoughtful consideration of the “best interests” factors.  Nevertheless, the matter must be remanded for findings as to endangerment.  The district court may in its discretion re-open the record in the manner it deems appropriate so as to enable it to make the necessary findings.

            Reversed and remanded.