This opinion will be unpublished and

may not be cited except as provided by

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







James L. Gander,






Connie Koebke Barsic, f/k/a Connie Gander,




Filed January 2, 2002

Affirmed in part; reversed in part and remanded

Anderson, Judge


Olmsted County District Court

File No. FX883561


Jeffrey D. Bagniefski, Bagniefski & Murakiami, PLLP, Barrister Hall, 9 First Street NW, P.O. Box 6, Rochester, MN  55903-0006 (for respondent)


Jill I. Frieders, O’Brien & Wolf, L.L.P., 206 South Broadway, Suite 611, P.O. Box 968, Rochester, MN  55903-0968 (for appellant)


            Considered and decided by Crippen, Presiding Judge, Anderson, Judge and Huspeni, Judge.*

U N P U B L I S H E D  O P I N I O N


            On appeal from district court orders in two separate post-dissolution modification proceedings arising from the same divorce decree, appellant Connie Koebke Barsic, f/k/a Connie Gander, argues the district court erred by (1) granting respondent James Gander retroactive child support; (2) imputing income to appellant to determine her ongoing child support obligation; (3) eliminating respondent’s ongoing child support obligation in excess of the statutory maximum; (4) terminating respondent’s support obligation for a child in appellant’s custody before the child’s eighteenth birthday; (5) granting the parties joint physical custody of a child previously in appellant’s sole physical custody; (6) requiring appellant to contribute to guardian ad litem fees; and (7) awarding appellant an inadequate amount of attorney fees.   Respondent also requests bad-faith attorney fees on appeal.  We affirm the district court orders in part, reverse in part and remand, and deny respondent’s request. 


            Appellant and respondent were divorced in 1989, after 11 years of marriage.  The stipulated dissolution decree awarded appellant physical custody of the parties’ four minor children, J.G. (born 1980), R.G. (born 1982), E.G. (born 1985), and D.G. (born 1986), and required that respondent pay child support.  In 1992, the district court granted respondent sole physical custody of J.G.  In 1993, appellant relocated to Madison, Wisconsin and, by court order, retained custody of R.G., E.G., and D.G.  J.G. remained in Rochester, Minnesota with respondent. 

1.  Child Support Facts

In March 1998, D.G. suffered an anoxic brain injury in a strangulation accident, possibly a suicide attempt, in appellant’s home.

In June 1998, appellant moved for (1) increased child support, retroactive to December 1996, based on respondent’s increased income; (2) increased monthly support to defray the increased cost of caring for D.G.’s special needs arising from his brain injury; and (3) attorney fees.

            On February 17, 1999, the district court (1) ordered an increase in respondent’s child support obligations for the period from December 1996 to June 1998; (2) ordered respondent to pay an extra $200 in monthly child support for D.G.’s care; and (3) awarded appellant attorney fees.  In making the retroactive award, the court did not reduce respondent’s obligation by the amount of appellant’s child support obligation for J.G., who from December 1996, to June 1998, lived with respondent.

Respondent appealed the February 17, 1999 support order to this court.

On December 7, 1999, we affirmed the retroactive child support modification, the extra support for D.G., and the attorney fees.  Gander v. Barsic, No. CX-99-858, 1999 WL 1102337 (Minn. App. Dec. 7, 1999).  We reversed the district court and remanded for statutorily required fact-finding to determine whether respondent’s support obligation between December 1996 and June 1998 should be offset by the support due from appellant for J.G. during that time.  Id.

On remand, the district court considered both appellant’s retroactive support obligation for J.G. and appellant’s retroactive and ongoing support obligation for E.G., who had been in respondent’s temporary custody since August 10, 1999. 

The district court determined appellant’s average monthly income between December 1996 and June 1998, calculated the guidelines support due to respondent for J.G. during that time, and ordered that appellant pay respondent $4,032 in retroactive support for J.G.

To determine appellant’s retroactive and ongoing support obligation for E.G after August 1999, the district court determined appellant’s earning capacity and imputed income to her based on her education and work experience.  The district court then ordered appellant to pay respondent $3,217.50 in retroactive support for E.G., for the ten months E.G. lived with respondent, and $321.75 monthly as ongoing support for E.G.

The court also ordered that (1) respondent continue to pay $200 monthly as ongoing additional support for the care of D.G.; (2) respondent’s obligation to support R.G., in appellant’s custody, would end on June 1, 2000; and (3) respondent pay appellant attorney fees of $1,000.  Respondent moved for amended findings on the additional $200 for D.G.’s care.  On February 6, 2001, the district court amended the support order by eliminating respondent’s additional $200 monthly obligation.

2.  Custody Facts

In February 1999, respondent moved to modify E.G.’s custody.  In August 1999, the district court granted respondent temporary custody of E.G. pending a full evidentiary hearing, and appointed a guardian ad litem.  On January 22, 2001, following a seven-day evidentiary hearing, the district court granted the parties joint physical custody of E.G. and ordered the parties to share the cost of the guardian ad litem.

Appellant challenges the January 22, 2001 custody order and the September 28, 2000 support order, as amended on February 6, 2001.



            Appellant argues that the district court abused its discretion by granting respondent retroactive child support from December 1996 to June 1998.[1]  Appellant challenges the district court’s interpretation of our December 7, 1999 remand instructions.  Appellant claims this court, by recognizing her very limited assets, essentially excused her from any retroactive support obligation.  But the district court, acting consistently with our earlier mandate, made findings acknowledging and confirming appellant’s challenging financial circumstances.  Because those findings are sufficient to excuse appellant’s retroactive noncustodial support obligation, we agree with appellant, and reverse the district court’s $4,032 retroactive child support award to respondent.

            Retroactive modification of child support is within the district court’s discretion.  Guyer v. Guyer, 587 N.W.2d 856, 859 (Minn. App. 1999), review denied (Minn. Mar. 30, 1999).

            From December 1996 to June 1998, respondent had physical custody of J.G., and appellant had physical custody of the other three children.  In a split-custody case such as this, each parent must pay child support, in the amount required by the statutory guidelines, for any children in the other parent’s custody; the support awards are then offset so that only one payment is made for the balance.  Sefkow v. Sefkow, 427 N.W.2d 203, 216-17 (Minn. 1988) (stating offset calculation procedure in split custody cases);    see generally Minn. Stat. § 518.551, subd. 5(b) (2000) (providing guidelines for support).

Failure to apply the Sefkow procedure in split custody cases is a deviation from the child support guidelines.  Cf. Broas v. Broas, 472 N.W.2d 671, 673 (Minn. App. 1991) (indicating that failure to use the Valento formula (the offset procedure used in joint physical custody cases) is a deviation from the child support guidelines).  Courts may deviate from the guidelines if they make explanatory findings addressing the parents’ income and resources.  Ver Kuilen v. Ver Kuilen, 578 N.W.2d 790, 792  (Minn. App. 1998). 

In February 1999, the district court awarded appellant retroactive child support without applying the Sefkow offset procedure to determine appellant’s obligation for the child in respondent’s custody.  The court made no findings to justify this deviation.  In December 1999, this court remanded with instructions to conduct “fact-finding on [the] issue” of appellant’s “income and ability to pay child support during the period from December 1996 to July 1998.”  Gander, 1999 WL 1102337, at *2.  We also noted that

Although the record indicates that [appellant’s] income was minimal and that she likely did not have the ability to pay child support, making the denial of an offset ultimately within the court’s discretion, there is no indication that the court made those considerations. 




Appellant argues that on remand, the district court erred by requiring appellant to pay retroactive Sefkow support.  We agree. 

When a district court receives no specific directions on remand as to how it should dispose of a matter, it may act in any way not inconsistent with the remand order.  Duffey v. Duffey, 432 N.W.2d 473, 476 (Minn. App. 1988).

In our remand order, we directed the district court to reexamine the propriety of a deviation and to make the findings necessary to sustain whatever support obligation it considered appropriate.  On remand, the district court found that appellant’s monthly expenses during the relevant period exceeded her income, but nonetheless required that she pay retroactive support.

The finding that appellant was unable to meet her monthly expenses is consistent with our first opinion and sufficient to support deviation from the guidelines.  See Swalstad v. Swalstad, 394 N.W.2d 856, 858 (Minn. App. 1986) (holding that mother had no obligation to pay noncustodial support when her resources did not exceed “the needs of herself and the children in her custody” (citation omitted)); Linderman v. Linderman, 364 N.W.2d 872, 875 (Minn. App. 1985) (in split custody situation, wife with excess resources was required to be sole support of custodial children).  In light of the findings supplied on remand, it is clear that retroactive support was inappropriate.  The district court abused its discretion by imposing a retroactive support obligation on appellant after finding that she lacked assets.

We therefore reverse the district court’s retroactive child support award to respondent as inconsistent with the findings concerning appellant’s income from December 1996 to July 1998.


            The district court imputed income to appellant to determine her noncustodial support obligation for E.G., who was in respondent’s physical custody from August 10, 1999.  Appellant maintains the district court erroneously imputed half-time income to her without making the requisite statutory findings.  Respondent argues that the district court should have imputed full-time income to appellant.  We affirm the district court’s calculation of appellant’s imputed income.

The district court enjoys broad discretion as to imputed income calculations.  See Murphy v. Murphy, 574 N.W.2d 77, 82-83 (Minn. App. 1998) (applying abuse-of-discretion standard of review to ALJ’s determination of child support based on imputed income). 

Minn. Stat. § 518.551, subd. 5b(d) (2000), permits a court to calculate child support based on imputed income if the court finds that a parent is voluntarily underemployed.  Imputed income is

the estimated earning ability of a parent based on the parent’s prior earnings history, education, and job skills, and on availability of jobs within the community for an individual with the parent’s qualifications.


Id.  Appellant claims her underemployment was not voluntary, but caused by the extra time required for D.G.’s care.  She also claims the district court failed to make findings on her qualifications and job availability.

The district court, in imputing only half-time income to appellant, accounted for the extra time she needed to care for D.G.  Appellant repeatedly asserts that she was unable to work full time due to her obligations to D.G.  But the district court did not require that she work full time, and did not impute full-time income to her.  Appellant never asserted that she is unable to work half time.  The district court allowed appellant to use one half of her potential working time, free of imputation, to care for D.G.  This approach is reasonable in light of the record. 

            The district court made the requisite statutory findings concerning appellant’s qualifications and job availability.  The court found that appellant had received a master’s degree in social work from the University of Wisconsin, Madison, in 1995; that appellant had five years, from the beginning of her degree program, to get experience in the social work field; and that appellant herself testified that she could expect to earn between $40,000 and $50,000 upon completion of her degree.

            Appellant’s imputed income was neither excessive, as appellant would have it, nor excessively small, as respondent claims.  The district court’s imputation is consistent with the evidence in the record and is not clearly erroneous.  See Minn. R. Civ. P. 52.01 (district court findings of fact not set aside unless clearly erroneous); see also Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997) (noting appellate court must not reweigh evidence and find own facts). 


Appellant challenges the February 6, 2001 order eliminating respondent’s $200 monthly obligation, in excess of the child support guidelines, to assist with D.G.’s care.  We affirm the district court on this issue.  

In February 1999, the district court first imposed the upward deviation, which was affirmed by this court and continued by the district court on remand in October 2000.  Respondent then moved for amended findings, and the district court granted the motion by amending its order to eliminate respondent’s $200 supplemental obligation.  Appellant objects to the amended order as “without explanation,” “without logic,” and “inconsistent with the facts of the case and the other findings made by the court.”

We review a child support modification for an abuse of discretion, and will reverse only if the modification is contrary to the logic and the facts on the record.  See Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999). 

In its February 2000 amended order, the district court acknowledged appellant’s “extraordinary expenses” and “loss of income” because of D.G.’s special needs.  But the court discontinued the additional $200 support payment, in light of respondent’s ongoing maximum guidelines obligation, appellant’s significant earning potential, and the court’s decision to limit appellant’s imputed income to just one-half of her potential income.   

The district court’s conclusion is hardly illogical or without explanation and the district court did not abuse its discretion when it eliminated respondent’s additional $200 monthly support payment for the care of D.G.


Appellant argues the district court erred by incorrectly determining the date of R.G.’s emancipation, thereby depriving appellant of child support due her from respondent.  We agree.

Barring an order to the contrary, a child support obligation terminates when the child is emancipated, or ceases to be a child for the purposes of Minn. Stat. § 518.54, subd. 2 (2000), which defines “child” as “an individual under 18 years of age [or] an individual under age 20 who is still attending secondary school * * * .”  See Minn. Stat. § 518.64, subd. 4(a) (2000).

We review the district court’s application of this statue de novo.  Krech v. Krech, 624 N.W.2d 310, 311-12 (Minn. App. 2001).

Under the statute, respondent was obligated to support R.G. as long as R.G. was an unemancipated minor.  R.G. turned 18 on August 7, 2000.  The district court determined that R.G. became emancipated upon his graduation from high school in June 2000, and that respondent’s support obligation ended upon R.G.’s graduation.  But because R.G. graduated from secondary school before the age of 18, the correct emancipation date is August 7, 2000, R.G.’s eighteenth birthday. 

We therefore reinstate respondent’s support obligation to R.G. for the period between R.G.’s high school graduation and his eighteenth birthday, on August 7, 2000.


Appellant claims the district court abused its discretion by ordering the parties to share equally the fees for E.G.’s guardian ad litem, appointed on August 10, 1999.  Appellant argues that because her income is below the poverty line, the court was statutorily prohibited from ordering her to pay the fees.  We disagree, and affirm the district court’s assignment of guardian ad litem fees.

We first note that when the district court appointed a guardian ad litem for E.G. on August 10, 1999, it informed the parties that any associated expenses would be shared equally between them.

A district court has broad discretion to award guardian ad litem fees, and its award will not be disturbed absent an abuse of that discretion.  See J.L.B. v. T.E.B., 474 N.W.2d 599, 605 (Minn. App. 1991), review denied (Minn. Oct. 11, 1991). 

Minn. Stat. § 518.165, subd. 1 (2000), provides for the permissive appointment of a guardian ad litem in a custody-modification proceeding.

In no event may the court order that costs, fees, or disbursements be paid by a party * * * whose annual income falls below the poverty line as established under [42 U.S.C. § 9902(2)].


Minn. Stat. § 518.165, subd. 3(a) (2000).

            Appellant maintains her actual monthly income is $210.68, far below the applicable federal poverty line.  Appellant rejects as “erroneous” the district court’s decision to impute income to her to determine her ability to pay the guardian ad litem fees. 

Minn. Stat. § 518.165, subd. 3(a), does not define the term “income.”  But other Minnesota statutes do define “income” for the purpose of spousal maintenance and child support determinations, and authorize courts to impute income to voluntarily un- or underemployed individuals.  See Minn. Stat. §§ 518.54, subd. 6 (2000) (defining income), 518.551, subd. 5b(d) (2000) (authorizing imputation of income). 

The district court, following the child support statute, imputed income in excess of the applicable poverty line to appellant to determine her ongoing child support obligation.  We cannot conclude the district court erred by imputing the same income to appellant to assess her share of the guardian ad litem fee and thereby rejecting her claim of poverty. 

We therefore reject appellant’s proposal that we deviate from the established statutory income calculation method by attributing different incomes to her for different purposes.  See Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987) (stating “the task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court”), review denied (Minn. Dec. 18, 1987).  The district court did not err or abuse its discretion by imputing income to appellant, by determining that appellant’s imputed income exceeded the poverty line, or by requiring that appellant pay one half of the guardian ad litem fee.

Appellant argues in the alternative that because her imputed income and her “cash flow” are less than half of respondent’s, it would be “unconscionable” to require her to pay one-half of the fees.  This argument is without merit because in light of the imputation of income to appellant, disparity of actual income has no bearing on the appropriate apportionment of fees. 

We affirm the district court’s equal division of guardian ad litem fees between the parties.


Appellant next argues that the district court abused its discretion by awarding respondent temporary sole physical custody of E.G., and then by awarding the parties joint physical custody of E.G.  Appellant claims that neither award was supported by the requisite statutory criteria.  Respondent joins appellant in arguing that the joint-custody award was erroneous; each party, however, wants sole physical custody of the child, now 16 years of age.

District courts have broad discretion to determine custody matters.  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989).  Our review of custody determinations “is limited to whether the [district] court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.”  See Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985) (citations omitted).  A district court’s findings will be sustained unless they are clearly erroneous.  See id.  Deference must be given to the district court’s credibility determinations.  Minn. R. Civ. P. 52.01.

Child custody is awarded based on the best interests of the child.  Minn. Stat. § 518.17, subd. 3(a)(3) (2000).  The law currently “leaves scant if any room for an appellate court to question the trial court’s balancing of best-interests considerations.”  Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000).

A.  Temporary Custody Modification

Respondent moved for a change of E.G.’s custody in April 1999, alleging that appellant’s custody endangered E.G.  A court can modify a custody order if it finds that (1) “a change has occurred in the circumstances of the child or the parties”; (2) “the modification is necessary to serve the best interests of the child”; (3) “the child’s present environment endangers the child’s physical or emotional health”; and (4) “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) (2000); see also Geibe v. Greibe, 571 N.W.2d 774, 778 (Minn. App. 1997). 

The party moving for custody modification under § 518.18(d)(iv) must make a prima facie case of endangerment arising from the child’s present custodial placement.  See Ross v. Ross, 477 N.W.2d 753, 755 (Minn. App. 1991); see also Nice-Petersen v. Nice-Petersen,310 N.W.2d 471, 472 (Minn. 1981) (holding modification appropriate when the child’s physical or emotional health or development is endangered).  The court must hold an evidentiary hearing if the moving party’s documents indicate the change in circumstances required for a change in custody.  See Nice-Petersen, 310 N.W.2d at 472.  When reviewing affidavits, the court should accept the alleged facts as true.  Smith v. Smith, 508 N.W.2d 222, 226 (Minn. App. 1993).

Here, respondent submitted an affidavit to the district court in April 1999 stating that E.G., then age 14, had repeatedly expressed a desire to live with respondent, and that this expression constituted a change of circumstances.  The affidavit also alleged endangerment, mentioning D.G.’s March 1998 brain injury while in appellant’s custody.  Finally, respondent claimed that it would be in E.G.’s best interests to live with him.  The court found the affidavit sufficient to require a Nice-Petersen evidentiary hearing. 

Appellant argues the evidentiary hearing was not warranted.  But evidentiary hearings are strongly encouraged when the party seeking a custody modification alleges present endangerment to a child’s health or emotional well being.  Ross, 477 N.W.2d at 756.  Here, respondent raised concerns about the dangers associated with appellant’s custody of the children after D.G. suffered brain damage while in appellant’s custody.  The district court appropriately granted the evidentiary hearing. 

Appellant argues that even if the hearing was warranted, the district court erred by granting respondent temporary custody of E.G. until the hearing, and by delaying the hearing for 18 months.  A court may, in a custody matter, grant an order for temporary custody pending final disposition of the proceeding.  Minn. Stat. § 518.131, subd. 1 (2000).  Appellant’s statement that “no cases reflect temporary changes in custody before an evidentiary hearing is held” is incorrect.  See Dabrowski v. Dabrowski, 477 N.W.2d 761, 763 (Minn. App. 1991) (noting that district court temporarily granted custody to moving parent pending outcome of evidentiary hearing).

The custody hearing was not unduly delayed.  The record shows this case developed rapidly between the temporary grant of custody and the evidentiary hearing.  In that time, the guardian ad litem submitted two reports.  Respondent brought the child support issue before this court and, on remand, before the district court a second time.  This activity belies appellant’s claim that the district court abused its discretion by scheduling the custody hearing for December 2000.

            Appellant argues that E.G.’s expressed preference to live with respondent is due to respondent’s manipulation, and does not constitute a bona fide change in circumstance. 

            “A child’s strong preference to change residence after a custody decree can constitute a change in circumstances.”  Geibe, 571 N.W.2d at 778(citation omitted); see also Eckman v. Eckman, 410 N.W.2d 385, 389 (Minn. App. 1987) (finding a 16-year-old’s preference to change residence constitutes a change in circumstances).  The district court found that E.G. had a clear preference to relocate to respondent’s custody.  This finding was supported by an in camera interview with E.G. and two guardian ad litem reports.  One report recommended that E.G. should remain in respondent’s custody, “if preference of the child be the controlling factor in this case.”  The district court did not find that respondent’s manipulation of E.G. was sufficient to call the validity of the preference into question.

Appellant asks that we reconsider the evidence and reach a conclusion different from that of the district court.  This request is inappropriate.  See Dobrin, 569 N.W.2d at 202 (noting appellate court must not reweigh evidence and find own facts); Minn. R. Civ. P. 52.01 (district court findings of fact not set aside unless clearly erroneous).  We agree with the district court’s finding that E.G.’s custody preference constituted a change in circumstances.

            Appellant disputes the district court’s finding that a custody modification serves E.G.’s best interests.  The district court considered all of the relevant statutory best interests factors listed in Minn. Stat. § 518.17, subd. 1 (2000), considered guardian ad litem reports, conducted an in camera interview with E.G., read countless filings by the parties, and presided over a seven-day evidentiary hearing. 

The district court recognized that E.G.’s parents have different parenting styles and custody wishes; that E.G. prefers to live with respondent; that E.G. had, at the time of the hearing, been living with respondent for 18 months; that E.G. had developed a more intimate relationship with respondent and with E.G.’s siblings since moving in with respondent; that E.G. had adjusted well to school and home life; and that E.G. was pursuing his religious practices while in respondent’s custody.  The guardian ad litem also found that it was in E.G.’s best interests to be in respondent’s care.

The district court did not abuse its broad discretion by finding that a custody modification was in E.G.’s best interests.

Appellant argues, correctly, that E.G.’s strong custody preference alone did not constitute endangerment.  See Geibe, 571 N.W.2d at 778 (noting that “preferences alone do not provide sufficient evidence of endangerment to mandate a hearing”).  But respondent also points to D.G.’s possible suicide attempt, which is sufficient to allege endangerment for the purposes of a prima facie modification case.  See id. (noting that danger to emotional development can constitute endangerment). 

            The December 1999 guardian ad litem report stated that despite D.G.’s accident, “there was no endangerment issue that warranted removal of [E.G.] from his mother’s home.”  But the district court must take allegations contained in a motion for an evidentiary hearing as true.  The district court did not abuse its discretion by conducting an evidentiary hearing on the custody modification.

The district court found that living with appellant endangered E.G.’s emotional health and development, and specifically noted that appellant afforded E.G. a lack of trust, freedom, and privacy.  The court also found that even if D.G.’s injury was not attributable to any danger created by appellant’s custody, it nonetheless burdened E.G.’s emotional development.  This finding, as well as the finding that the likely harm to E.G. from a change in environment is outweighed by the advantage of that change, is supported by the record and is not clearly erroneous.

            The district court’s decision to modify E.G.’s custody appropriately weighed E.G.’s preference in light of his age.  A teenage child’s residence preference is relevant to three of the four custody modification factors.  See id. (noting importance of teenager’s preference to determining a change in circumstances, the child’s best interests, and endangerment).  Considering a teenager’s custody modification, we have noted that

[a] critical factor in reaching our conclusion is the age of the child.  The choice of an older teenage child is an overwhelming consideration in determining the child’s custody or in deciding whether he is endangered by preserving the custodial placement he opposes.


Ross, 477 N.W.2d at 756.  The predominant importance of the choice of an older child is well settled.  See id. (listing cases giving great weight to the preferences of children as young as 12 1/2 in custody modification proceedings).  Here, E.G. was 14 when respondent first moved for a change in custody, and his preference was very significant in the overall determination of his custody. 

            The district court did not abuse its discretion when it concluded that respondent presented a prima facie case sufficient to warrant an evidentiary hearing on E.G.’s custody, and did not abuse its discretion by deciding to modify E.G.’s custody. 

B.  Joint Physical Custody

The district court awarded the parties joint physical custody of E.G.  Each party argues both that the district court failed to make the statutory findings required to support an award of joint physical custody and that they should be awarded sole physical custody of the child.

1. Findings: In deciding whether to award joint physical custody, the district court must consider the parents’ ability to cooperate in childrearing and their willingness to resolve disputes regarding major decisions affecting the child as well as whether it would be detrimental to the children if one parent were to have sole authority over the child’s upbringing.  Minn. Stat. § 518.17, subd. 2 (2000); see Wopata v. Wopata, 498 N.W.2d 478, 482-84 (Minn. App. 1993). 

Here, while the district court erred by awarding joint physical custody without making the findings required by Minn. Stat. § 518.17, subd. 2, a remand for findings would be inappropriate.  On this record, and in light of the parties’ demonstrated enthusiasm for avoiding reasonable settlement in favor of unnecessarily acrimonious litigation, their admissions that they cannot cooperate are functionally admissions that joint custody is inappropriate.  Indeed, as respondent notes, if the parties were “capable of amicably agreeing on important custody decisions, this current appeal, and the trials preceding it, would never have been necessary.”  Moreover, even if the parties’ admissions that they cannot cooperate were not construed as a mutual admission that joint physical custody is inappropriate, this sad record requires the conclusion that this case is, as a matter of law, most assuredly not the “exceptional case” required for an award of joint physical custody.  See, e.g., Veit v. Veit, 413 N.W.2d 601, 605 (Minn. App. 1987) (affirming a grant of joint physical custody where parties were able to cooperate in maintaining joint physical custody arrangement for almost three years between separation and divorce); Peterson v. Peterson, 393 N.W.2d 503, 506 (Minn. App. 1986) (noting “[a] long line of cases have established that joint physical custody is not a preferred situation”); Wopata, 498 N.W.2d at 483 (stating “[a] grant of joint physical custody will only be appropriate in “exceptional cases”) (quoting Brauer v. Brauer, 384 N.W.2d 595, 598 (Minn. App. 1986)); Berthiaume v. Berthiaume, 368 N.W.2d 328, 332-33 (Minn. App. 1985) (affirming award of joint legal and physical custody where record showed parties shared parenting philosophies and were able to communicate and cooperate regarding major decisions in children’s lives). 

The extent of the animosity and acrimonious litigation that have characterized this dissolution from its inception requires the conclusion that joint physical custody is not in E.G.’s best interests and is inappropriate in this case.  See Greenlaw v. Greenlaw, 396 N.W.2d 68, 74 (Minn. App. 1986) (ruling district court abused its discretion by awarding joint physical custody where parties’ difficulties were so significant and pervasive as to preclude cooperation); Heard v. Heard, 353 N.W.2d 157, 162 (Minn. App. 1984) (ruling district court abused its discretion by awarding joint physical custody where parties could not cooperate or resolve their own disputes).  Thus, the district court’s error in failing to make the findings necessary to support an award of joint physical custody was rendered harmless by its error in awarding joint physical custody.  For this reason, we need not remand for the district court to make findings regarding joint physical custody.  Cf. Minn. R. Civ. P. 61 (requiring harmless error to be ignored); Grein v. Grein, 364 N.W.2d 383, 387 (Minn. 1985) (refusing to remand custody modification made without adequate findings where remand would not alter result).

2. Endangerment: In cases involving an “elder teenager,” the child’s custodial preference is not just a “critical factor” of “predominant importance,” but an “overwhelming consideration,” in determining both the proper custodial placement of the child and whether the child is endangered in a particular placement.  Ross, 477 N.W.2d at 756.  And the wisdom (or lack thereof) of the child’s preference does not necessarily limit the weight the court must the child’s preference.  See id. at 757 (noting that evidence might show an elder teenager’s custodial preference “is as foolish as it is firmly held” and that “[o]ften” such evidence “does very little to diminish the weight of the child’s preference”). 

Here, E.G. will be 18 in about a year.  The district court both received extensive oral and documentary evidence regarding E.G.’s custodial preference and conducted an in camera interview with E.G.  After considering this evidence, the district court found that E.G. clearly preferred to live with respondent.  Appellant has not shown, and on this record could not show, this finding to be clearly erroneous.  Indeed, the record suggests E.G. has apparently consistently expressed his preference since he was age 14.  Given the strength and duration of E.G.’s custodial preference, awarding sole physical custody of E.G. to appellant would not only be contrary to the “overwhelming” consideration of E.G.’s strong and consistent preference, but it would emotionally endanger him.  See State ex rel. Feeley v. Williams, 176 Minn. 193, 197, 222 N.W. 927, 928 (1929) (noting that disregarding older child’s custody preferences could make her “feel that she had been subjected to injustice and unnecessary harshness, which might leave scars upon her disposition or character”); Geibe, 571 N.W.2d at 778 (noting “the dubious practicality of ordering a teenager to live where she does not want to live and the independent damage to a child’s psyche from the ‘imaginary’ wrong of having her preference overruled”).

The organizing principle for all custody decisions the best interest of the child.  Minn. Stat. § 518.17, subd. 3(a)(3); see e.g., Frauenshuh v. Giese, 599 N.W.2d 153, 158-59 (Minn. 1999) (acknowledging children’s best interests are “paramount” concern in resolution of custody issues); Pikula, 374 N.W.2d at 711 (stating guiding principle “in all custody cases” is best interests of child); State ex. rel. Flint v. Flint, 63 Minn. 187, 189, 65 N.W. 272, 272 (1895) (noting “paramount” question in custody dispute is “what would be most for the benefit of the infant”).  As a matter of law, it cannot be in a child’s best interests to be endangered. 

Thus, on this singularly gloomy and cheerless record, not only is joint physical custody unavailable, but appellant cannot be awarded custody of E.G.  As a result, this court is put in the bizarre position of either remanding for findings of fact regarding the propriety of awarding custody to respondent when (because each of the other custodial options has been foreclosed), those findings would serve no purpose, or of directing that custody be awarded to respondent.  We are exceptionally uncomfortable with the idea of directing a custody award as a matter of law.  Cf. Wopata, 498 N.W.2d at 483 (noting that there, a custody award on appeal would be an unacceptable excursion into fact finding or an inappropriate expansion of the proper standard of review).  We are even more uncomfortable, however, with extending this proceeding by remanding for additional findings that will not only not alter the result, but will give these parties yet another opportunity to engage in expensive, pointless, and unnecessary custody litigation.  We therefore remand for the district court to grant respondent sole physical custody of E.G., establish a reasonable visitation schedule for appellant, and determine what support, if any, appellant shall provide for E.G.



Appellant argues that the district court abused its discretion when it ordered respondent to pay appellant $1,000 in attorney fees.  Appellant argues this amount is insufficient because her legal fees and costs are nearly $20,000 and the court’s inadequate award is unsupported by the requisite statutory findings.

            “An award of attorney fees rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion.”  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotation omitted), review denied (Minn. Feb. 18, 1999).  A district court awards attorney fees when it finds that an award is necessary for a party to assert his or her rights in an action; that the payor has the financial means to pay the fees; and that the payee lacks the means to pay the fees.  Minn. Stat. § 518.14, subd. 1 (2000).

            The district court did not make specific findings on each of the three statutory criteria.

However, a lack of specific findings on the statutory factors for a need-based fee award under Minn. Stat. § 518.14, subd. 1, is not fatal to an award where review of the order “reasonably implies” that the district court considered the relevant factors and where the district court “was familiar with the history of the case” and “had access to the parties’ financial records.”


Geske v. Marcolina, 624 N.W.2d 813, 817 (Minn. App. 2001) (quoting Gully, 599 N.W.2d at 825-26). 

The district court’s order indicates a consideration of the relevant factors and a familiarity with both the history of the case and the parties’ financial records.  Despite appellant’s dissatisfaction with the amount of the award, it was not a clear abuse of the district court’s discretion.  We affirm the award.


Respondent argues that he is entitled to at least $5,000 in appellate attorney fees under Minn. Stat. § 549.211 (2000) and Minn. Stat. § 518.14, subd. 1 (2000), because appellant has brought this appeal in bad faith.  Minn. Stat. § 549.211 authorizes this court, in its discretion, to award reasonable attorney fees when a party acts in bad faith by asserting frivolous or unfounded claims solely to harass or delay proceedings.  See Allstate Ins. Co. v. Allen, 590 N.W.2d 820, 823 (Minn. App. 1999) (stating that award of appellate attorney fees is within the appellate court’s discretion).  We may also award fees against a party who “unreasonably contributes to the length or expense of the proceeding,” Minn. Stat. § 518.14, subd. 1, “regardless of the recipient’s need for fees and regardless of the payor’s ability to contribute to a fee award.”  Geske, 624 N.W.2d at 818. 

            Respondent argues that appellant is “unreasonably and selfishly” pursuing “baseless legal controversy” entirely devoted to obtaining “money” “with no factual, moral, or legal basis.” 

“A party seeking attorneys’ fees on appeal shall submit such a request by motion under Rule 127.”  Minn. R. Civ.App. P. 139.06, subd. 1.  Because respondent did not file a Rule 127 motion for attorney fees on appeal, he is not entitled to attorney fees.  See In re Marriage of Crockarell, 631 N.W.2d 829, 837 (Minn. App. 2001), review denied (Minn. Oct. 16, 2001).

Even aside from respondent’s failure to file a Rule 127 motion, his request for fees is without merit and borders on the absurd.  By way of illuminating the extremely weak position from which respondent makes this motion, we feel compelled to quote at length, and adopt, the language of the district court, which wrote in February 1999 that

[i]n reviewing this file, the Court notes that the record shows a continuing pattern by [respondent] of inappropriate ex parte communications to the Court; a number of discharges by [respondent] of counsel so that [respondent] is pro se, but soon thereafter retains counsel once again; a plethora of motions seeking relief on a variety of issues; and always a great many irrelevant, inappropriate, and unreasonable claims and issues.  [Respondent] on at least three occasions was found to be in contempt of court.


The court further noted that the case file, at the time, contained “at least eight file folders, over 200 documents filed, plus exhibits, approximately 26 motions (98% + by [respondent]), and require[d] a ‘dolly’ to transport.”

            Since that time, the file has grown apace, with both parties engaging in behavior similar to that described by the district court.  The number of documents filed before this appeal exceeded 350.  Attempting to divine who has the greater fault here would be folly of the first order and we find no reason to single out one party for appellate sanctions.  Respondent’s request is denied.

Affirmed in part; reversed in part and remanded.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.


[1] This court’s earlier decision in this matter clearly stated that the relevant period, for the calculation of appellant’s retroactive support obligation for J.G., is 19 months, from December 1, 1996, to June 30, 1998.  See Gander, 1999 WL 1102337, at *2.  But the district court, on remand, only considered the 16-month period from December 1, 1996, to March 31, 1998.  In order to comply with our earlier decision, we use the 19-month period here to determine appellant’s obligation.