This opinion will be unpublished and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:

Rebecca Mendala,

n/k/a Rebecca Erickson, petitioner,





John Adam Mendala, III,





Dakota County,



Filed October 30, 2001


Toussaint, Chief Judge


Dakota County District Court

File No. F49813958


Roxy M. Bracewell, R.M. Bracewell, 3470 Washington Drive, Suite 211, Eagan, MN 55112 (for appellant)


Daniel Thomas Westerman, Rosedale Towers, Suite 210, 1700 West Highway 36, St. Paul, MN 55113 (for respondent)


James M. Crow, Assistant Dakota County Attorney, 1560 West Highway 55, Hastings, MN 55033 (for intervenor)


Sharon L. Freiling, Montpetit Freiling & Kranz, 222 Grand Avenue W., Suite 100, South St. Paul, MN 55075-1139 (Guardian ad litem)


            Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Harten, Judge


U N P U B L I S H E D   O P I N I O N


TOUSSAINT, Chief Judge


            Appellant-mother Rebecca Erickson and respondent-father John Mendala stipulated to joint physical custody of their children and that the children would have “extended visitation” with father in California.  In later litigation regarding when the children would return to mother in Minnesota, the district court ruled that the children’s best interests required them to live with father during the school year and have summer visitation with mother.  On appeal, mother alleges the district court improperly modified the stipulation.  Because the stipulation was not a final custody determination and because the district court’s ruling addressed the stipulation’s omissions, we affirm. 



            Mother argues that the stipulation was intended to allow the children to return to her after spending the summer with father and that the district court’s order was such a great alteration of that arrangement that there was a modification of custody under the portion of Ayers v. Ayers which holds that an extensive modification of visitation can be a modification of custody.  Ayers v. Ayers, 508 N.W.2d 515, 520 (Minn. 1993).  Mother’s argument assumes that the stipulation required the children to return to Minnesota at the end of the summer.  The stipulation, however, does not specifically identify a termination date for father’s “extended visitation.”  It states that (1) mother “does not know what her living situation will be for the near future, and she needs some time to get back on her feet;” (2) father wants visitation but “traditional visitation” is “unworkable” because he lives in California; and (3) because the children were out of school for the summer, it was “an opportune time” for father to “take the children to California for extended visitation.”  It then states that the parties agree to joint physical custody, that father “may take extended visitation in California,” and that “[f]urther modification of the visitation schedule requires the agreement of both parties or further Order of this Court.” 

            While incomplete, these provisions are clear.  See Anderson v. Archer, 510 N.W.2d 1, 3 (Minn. App. 1993) (stating whether stipulated provision is ambiguous is a legal question).  Therefore, they must be applied as written and agreed to by the parties.  See Starr v. Starr, 312 Minn. 561, 562-63, 251 N.W.2d 341, 342 (1977) (remarking court cannot construe plain and unambiguous stipulation language).  Because the parties never agreed on the subject, the stipulation lacked a firm termination date for father’s “extended visitation.”  Nor was there a structure for the children’s care after father’s “extended visitation.”  Thus, while the parties agreed to joint physical custody, the stipulation did not finally address all aspects of that custodial arrangement.  See Minn. Stat. § 518.003, subd. 3(d) (2000) (stating “‘[j]oint physical custody’ means the routine daily care and control and the residence of the child is structured between the parties”); City of Chaska v. Chaska Township, 271 Minn. 139, 142, 135 N.W.2d 195, 197 (1965) (stating “final,” when referring to district court’s order or judgment, means matter is “conclusively terminated as far as court issuing [ruling] is concerned”). 

The parties agreed that the only way to address these questions was by agreement or court order.  Therefore, because there was no agreement, the court had to resolve these questions.  Absent a stipulated termination date for father’s extended visitation and a stipulated structure for care of the children after that visitation, it is impossible to compare mother’s access to the children under the stipulation with her access to the children under the district court’s plan and Ayers is inapplicable. 


            Because the stipulation was incomplete, it functionally reserved the questions of the duration of the “extended visitation” and the structure of the children’s post-visitation care.  When support or maintenance are initially reserved and later addressed by the court, they are addressed under the standard for setting, rather than modifying, those obligations.  Bennyhoff v. Bennyhoff, 406 N.W.2d 92, 94 (Minn. App. 1987) (support); Crampton v. Crampton, 356 N.W.2d 768, 771 (Minn. App. 1984) (maintenance).  Initial awards of custody and visitation are governed by the best-interests standard.  See Minn. Stat. §§ 518.17, subd. 3(a)(3) (2000) (custody); 518.175, subd. 1 (2000) (visitation).  Therefore, we reject mother’s argument that the district court erred by basing its ruling on the best-interests standard rather than the standards for modifying custody or visitation. 

            On a record containing conflicting evidence on most of the relevant best-interest factors, the district court resolved the matter consistently with the guardian ad litem’s recommendation and did so with findings that are not clearly erroneous.  See Minn. R. Civ. P. 52.01 (findings of fact not set aside unless clearly erroneous) Vangsness v. Vangsness, 607 N.W.2d 468, 472, 474 (Minn. App. 2000) (noting that, in determining whether findings are clearly erroneous, we view record in light most favorable to findings and defer to district court credibility determinations, and that mere existence of evidence that could support findings other than those made by district court does not render findings defective).  Therefore, we also reject any challenge to the best-interests findings.