This opinion will be unpublished and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

C7-01-1306

 

 

In Re the Paternity, Custody and Support of L.A.Q.:

 

J.P.G., petitioner,

Respondent,

 

vs.

 

C.M.Q.,

Appellant.

 

 

Filed April 9, 2002

Affirmed in part, reversed in part, and remanded

Robert H. Schumacher, Judge

 

Olmsted County District Court

File No. F49951259

 

 

Barbara A. Swisher, Patterson, Ostrem & Swisher, 7 Fourth Street Southeast, Rochester, MN 55904 (for respondent)

 

Carole A. Pasternak, Klampe, Delenhanty & Morris, 300 Broadstreet Building, 300 First Avenue Northwest, Rochester, MN 55901 (for appellant)

 

 

            Considered and decided by Schumacher, Presiding Judge, Hanson, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

            Appellant C.M.Q. (mother) challenges the district court’s award of custody to respondent J.P.G. (father).  Mother contends the court erred by failing to grant her motion for a new trial and by apportioning the costs of her child’s unreimbursed medical expenses equally between the parties.  We affirm in part, reverse in part, and remand.

FACTS

Mother and father are the unmarried parents of L.A.Q., who was 21 months old at the time of trial.  This lawsuit was initiated as a paternity action.  Soon after the action was commenced, a "recognition of parentage" was signed by both father and mother in accordance with Minn. Stat. § 257.75 (1998).  Thereafter, father sought custody pursuant to Minn. Stat. §§ 257.541, subd. 3, 518.156 (2000).  After trial, the district court awarded father sole physical and legal custody.  Mother was awarded liberal visitation.  The court ordered both parties to equally divide the costs of any medical expenses that were not covered by insurance.

D E C I S I O N

            1.         Mother contends the district court erred by failing to grant her motion for a new trial.  A district court's decision to deny a new trial motion is within its sound discretion and will not be disturbed on appeal absent a clear abuse of that discretion.  Myers v. Hearth Techs., Inc., 621 N.W.2d 787, 790 (Minn. App. 2001), review denied (Minn. Mar. 13, 2001).  The court will grant a new trial if, among other things, there is an irregularity in the proceedings, an error of law is made at trial, or the court's decision is not justified by the evidence.  Minn. R. Civ. P. 59.01.  A district court's denial of a motion for new trial is not an abuse of discretion when the causes justifying a new trial, as listed in rule 59.01, have not been shown to exist.  Toysland v. Toysland, 358 N.W.2d 700, 702 (Minn. App. 1984).

Mother argues there was an irregularity in the proceedings because the district court forced the parties to complete the trial within a three-day period and she was consequently denied the opportunity to call certain witness.  The record does not indicate any irregularity in the proceedings.  The district court did not impose an absolute time restraint on the parties but instead simply indicated that the parties should be efficient in their use of time.  Also, mother at no time made any objection or otherwise notified the court that it was imposing an unfair time restraint or was preventing her from adequately presenting her case.  Additionally, mother did not allege insufficient time to present her case until April 24, 2001 during her motion for a new trial; approximately three months after trial.  Cf. Zurn v. Hunt, 409 N.W.2d 8, 11 (Minn. App. 1987) (requiring that, at first suspicion of irregular procedure, attorney bring matter to court's attention, and if irregularity is not brought to court's attention immediately, it may not be raised for first time in motion for new trial).  We conclude from the record that mother was given ample time to examine witnesses and conduct cross-examination. 

Mother also argues that the district court used an incorrect standard of law.  Specifically, mother argues that district court erred by considering the matter before the court to be an initial custody proceeding under Minn. Stat. § 518.17 (2000) instead of a modification of custody governed by Minn. Stat. § 518.18 (2000).  "Determining the proper statutory standard to be applied presents a question of law," which this court reviews de novo.  Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993) (citation omitted). 

At the time L.A.Q. was born, the parties were not married.  After L.A.Q.'s birth, father sought to establish paternity.  Thereafter, a recognition of parentage under Minn. Stat. § 257.75 (1998) was signed by both father and mother.  When a father is determined to be a parent under a recognition of parentage, his right to custody is controlled by statute:

If paternity has been recognized under section 257.75, the father may petition for rights of parenting time or custody in an independent action under section 518.156.  The proceeding must be treated as an initial determination of custody under section 518.17.  

 

Minn. Stat. § 257.541, subd. 3 (2000) (emphasis added).

            Section 257.541 clearly requires the custody proceeding at issue here be treated as an initial determination of custody.  Mother, however, cites Morey v. Peppin, 375 N.W.2d 19 (Minn. 1985), as authority that the statute need not be followed here.  Morey, however, was decided in 1985, eight years before the legislature enacted Minn. Stat. § 257.541, subd. 3.  See 1993 Minn. Laws 1st Spec. Sess. ch. 1, art. 6, § 34.  Moreover, in Morey, the Minnesota Supreme Court treated the custody proceeding as a modification of custody because the father waited two and one-half years after he was adjudicated to be a parent before seeking custody.  Morey, 375 N.W.2dat 24.  Here, father waited only two months after the recognition of parentage was signed to formally pursue custody in court.

            Alternatively, mother advocates the custody proceeding should have been treated as a modification of custody because there was a prior order from a district court judge denying temporary and permanent custody.  There are several indications, however, that this order was not an initial determination of custody.  First, the order makes no findings regarding the best interest of the child required by section 518.17.  Second, the order required that a custody study be undertaken for "the purpose of obtaining a recommendation on the child's best interest."  Third, the order required that a guardian ad litem be appointed "to insure the child's best interest are being considered."  Fourth, consistent with section 257.541, the order simply had the effect of mother retaining custody while the custody study and other proceedings took place.

Mother additionally argues that the court's decision was not justified by the evidence.  When a new trial is sought on the ground that the decision is not justified by the evidence, the decision will stand unless, when viewed in the light most favorable to the decision, it is manifestly and palpably contrary to the evidence.  Raze v. Mueller, 587 N.W.2d 645, 648 (Minn. 1999).  Here, the district court made findings regarding all the best interest of the child factors contained in Minn. Stat. § 518.17, subd. 1(a).  The record supports these findings.  Mother's challenge to the sufficiency of the findings amounts to simply challenging of the various witnesses' credibility or challenging the weight the district court should have given to their testimony.  It is exclusively the province of the fact-finder to determine the weight and credibility to give to each individual witness's testimony.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988); State v. Engholm, 290 N.W.2d 780, 784 (Minn. 1980).  While mother's arguments show that conflicting evidence was offered at trial, the fact that the record might support findings other than those made by the trial court does not establish that the court's findings are defective.  See Crosby v. Crosby, 587 N.W.2d 292, 296 (Minn. App. 1998) (stating that although appellant's recitation of facts "might prompt another trier of fact to different findings, because there is sufficient contradictory evidence to reasonably support the trial court's findings," appellant's evidence "does not render the trial court's findings clearly erroneous"), review denied (Minn. Feb. 18, 1999).

            2.         Mother also contends that the district court erred by apportioning the costs of L.A.Q.'s unreimbursed medical expenses equally between the parties.  The district court has broad discretion in determining child support obligations, and its decision will not be reversed absent an abuse of that discretion.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  "Medical needs of minor children, including insurance coverage, are in the nature of child support."  Korf v. Korf, 553 N.W.2d 706, 708 (Minn. App. 1996); see also Bock v. Bock, 506 N.W.2d 321, 326 (Minn. App. 1993) ("An obligor's liability for medical needs is deemed child support for the purpose of enforcement.").

            The district court ordered both mother and father to maintain medical insurance coverage.  The court also ordered the parties to split the cost of any medical expenses not covered by the insurance.  Minn. Stat. § 518.171, subd. 1(d) (2000) states the following:

Unless otherwise agreed by the parties and approved by the court, if the court finds that the obligee is not receiving public assistance for the child and has the financial ability to contribute to the cost of medical and dental expenses for the child, including the cost of insurance, the court shall order the obligee and obligor to each assume a portion of these expenses based on their proportionate share of their total net income as defined in section 518.54, subdivision 6.

 

Neither party is receiving public assistance.  Both parties are required to maintain medical insurance.  Based on section 518.171, it is clear that each party's contribution to uncovered medical expenses should be proportionate to their net income. 

The district court found that father's net income is $3,418 per month and mother's is $1,471 per month.  Father's share of income is greater than two-thirds the total net income of both parties.  Similarly, mother's share of income is less than one-third the total net income of both parties.  We reverse the equal distribution of the child's uncovered medical expenses and remand to the district court to reapportion those expenses in accordance with section 518.171.

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.