This opinion will be unpublished and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

C2-01-1553

 

In Re the Marriage of:
Joyce Marie Davis, petitioner,
Appellant,

vs.

Michael Terry Davis,
Respondent.

 

 

Filed April 23, 2002

Reversed in part and remanded

Stoneburner, Judge

 

Clearwater County District Court

File No. F300178

 

 

Douglas P. Johnson, Law Offices of Legal Services of Northwest Minnesota, 215 North Fourth Street Northwest, Box 1883, Bemidji, MN 56619 (for appellant)

 

Mike Davis, c/o Josh Davis, Box 183, Bagley, MN 56621 (respondent pro se)

 

Tim Arneson, Route 2, Box 70, Shevlin, MN 56676 (guardian ad litem)

 

 

            Considered and decided by Anderson, Presiding Judge, Harten, Judge, and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N

STONEBURNER, Judge

 

Appellant mother challenges the district court’s denial of posttrial motions seeking relief from a dissolution judgment.  Mother alleges that the district court abused its discretion by awarding the parties joint physical custody of their two minor children and made erroneous, inadequate findings to support such an award.  Mother also alleges that the district court abused its discretion by disproportionately dividing the parties’ property and by failing to make adequate findings on property values.  Because we agree that the district court applied an incorrect legal standard for awarding custody and because the district court’s findings are inadequate, we reverse in part and remand.

FACTS

 

Mother and respondent father were married in 1976 and have four children.  Two of the children have reached the age of majority.  The two minor children, R. D. and A.D. were ages nine and eleven, respectively, at the time of trial.  The children have all been home schooled in a religious-based program.  Mother was primarily responsible for the home schooling during the marriage but father also participated.  The minor children are approximately two grades ahead of their age groups, according to standardized achievement tests.  The guardian ad litem, who has observed the minor children with both parents, testified that the children are friendly, happy, outgoing, bright, and likeable.

Mother moved out of the family home in July 1999 and initially took R.D. and A.D. with her.  She made arrangements to enroll the children in public school, but father took the children, refused to let mother have contact with them for several months and began home schooling them himself.  Mother sought a temporary custody order.  In response, the district court awarded temporary joint legal and physical custody of the children, with each parent having the children three and one-half days per week.  Father continued to home school the children.

Father considers mother’s actions sinful and against scripture.  Father has attempted to enlist his congregation in the marital dispute and sent a letter to many of his acquaintances detailing mother’s conduct.  Father wrote a letter to one of his adult sons graphically detailing mother’s actions and stating that he and the minor children “are praying fervently” about mother. 

Father followed and watched mother to obtain evidence of her activities.  After he entered her mobile home without her permission, mother obtained a harassment restraining order against him.  Father violated the order and was arrested and charged for the violation.  The order expired in December 2001.  The record before this court does not indicate the outcome of the charges or whether the restraining order has been renewed or continued.  Despite his actions and statements reviling mother’s conduct, father has expressed his desire for reconciliation if mother would repent.

Although mother testified that the children were excited about trying public school, the guardian ad litem testified that the children expressed a strong preference to continue home schooling.  They also expressed a desire to live with father, but explained to the guardian ad litem that the preference is because the homestead offers “more space to play.”  The guardian ad litem’s report and testimony advocated continued contact with both parties as a way to continue to maximize each parent’s involvement with the children.  The guardian ad litem recommended joint legal custody for the express purpose of giving father sole control over education and mother sole control over religious training based on the guardian ad litem’s assessment that father is using religion to vilify mother.  The guardian ad litem noted father’s extreme emotional reactions and testified, in support of his recommendation for joint legal and physical custody rather than sole legal and physical custody to mother, that “one way to assure that [father] would go over the edge would be to hammer him.” 

At trial, each parent requested sole legal and sole physical custody of the children, but in written argument following trial, father requested joint legal and joint physical custody.  Father also requested that the children be permitted to maintain the schedule they had followed during the nine months that the temporary joint custody order was in effect, noting that the children had done well with this schedule.[1]  Mother continues to request sole legal and physical custody and proposes parenting time for father on alternate weekends, one weeknight, a holiday schedule and alternate weeks during the summer. 

Mother testified that she would abide by a court-ordered visitation schedule. Father testified that he would let mother see the children “under some conditions” which were not described in detail.

The parties stipulated to the value of the homestead but disagreed over the value of the personal property.  During the marriage, the parties raised bison and had fencing and a corral for the bison.  Mother valued the bison, corrals, and fencing at over $23,000 and presented expert testimony on the value of this property.  Father testified that he sold the bison, fence, and corral for $6,500 but was keeping the bison at the homestead until the new owner was able to take them.  The district court made a finding that the bison, corral, and fencing had a value of $24,600 and did not address the sale. 

Mother testified that father’s tools have a value of $25,000.  Father testified that he sold most of his tools to meet family expenses, that the total value was only $2,500, and that he has about $250 left in tools.  Mother valued the parties major appliances at $1,300; the International tractor at $1,000; the syrup-making equipment at $2,000; the bulldozer at $4,000; the sawmill at $500; the Case tractor at $300; father’s guns at $500, but admitted that some of the guns came from his father.  Father valued the appliances at $710; the International tractor at $750; the syrup-making equipment at $200; the bulldozer at $400; the sawmill at $250; the Case tractor at $75 and the guns that were not given to him by his father at $100.  Mother wanted some items of personal property located at the homestead but did not give a value for those items.  Father valued those items at $1,300.  Mother had three sewing machines valued at $1,800 and wanted the entertainment center, which father valued at $1,000.  Although there was some testimony about the entertainment center having been a gift to mother, neither party asserted a claim that any property was non-marital in written final argument and neither party proposed findings on non-marital property.       

The district court awarded sole legal custody of the minor children to mother and awarded joint physical custody to mother and father, with the children continuing to spend 3 and one-half days of each week with each parent.  Child support was, by agreement of the parties, left to the child support officer’s determination.  

The district court, without making specific findings on the value of personal property, adopted father’s proposed property division, including a $965 deduction from mother’s lien against the homestead, to compensate for the disparity in the value of personal property awarded, using father’s valuations. 

The district court awarded the homestead to father and granted mother a lien against the homestead for one-half of the stipulated value of the homestead (minus the $965 father calculated was necessary to equalize the personal property award) payable after the youngest child reaches majority or is otherwise emancipated.  In addition, the court awarded father the bison, corral, and fencing (not included in father’s proposed property division), which is valued at $24,600.  The court made no findings about non-marital property.

Mother moved for an amended judgment or a new trial.  The district court amended the judgment to specify a deadline for payment of the marital lien but otherwise denied mother’s motions.  The district court reasoned that mother’s acquiescence in having father home school the children was the equivalent of a request for joint physical custody that relieved the court of the necessity of making specific findings on the award of joint physical custody.  The district court declined to make additional findings about the parties’ property, characterizing it as essentially without value.  This appeal followed.

 

D E C I S I O N

1.         Custody award

In reviewing the custody award, this court did not consider any portion of father’s appendix that was not part of the district court record.  Minn. R. Civ. P. 110.01.  A district court has broad discretion in making custody determinations.  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989); Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  An appellate court’s review of a custody determination is limited to whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996); Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).

            Here, mother contends that the district court abused its discretion by awarding mother and father joint physical custody of their children because (1) the district court failed to make any of the findings required for an award of joint physical custody; (2) the district court misread the statute governing custody when it determined that joint physical custody is in the best interests of the children; (3) the district court made statements in its memorandum that are not justified by the record; and (4) the district court’s award of joint physical custody of the children to mother and father undermines mother’s role as the sole legal custodian of the children.

            Mother contends that the district court failed to make any of the necessary findings required for an award of joint physical custody.  A district court must consider the following factors when making a custody determination where joint physical and/or legal custody is sought:

(a)               The ability of parents to cooperate in the rearing of their children;

(b)              Methods for resolving disputes regarding any major decision concerning the life of the child, and the parents’ willingness to use those methods;

(c)              Whether it would be detrimental to the child if one parent were to have sole authority over the child’s upbringing; and

(d)              Whether domestic abuse * * * has occurred between the parents.

 

Minn. Stat. § 518.17, subd. 2 (2000).  Courts must apply a rebuttable presumption that joint legal custody is in the best interests of the children if either parent or both request joint legal custody.  Id.  If a district court awards joint physical custody to the parties and one of the parties objects to such an award, then the district court must make “detailed findings on each of the factors [in the above subdivision] and [must] explain how the factors led to its” conclusion that joint physical custody would be in the best interests of the children.  Id.

            The district court awarded mother and father joint physical custody of the children without making any findings on the specific statutory factors related to joint custody.  In response to mother’s post-trial motions, the district court stated that:

[Mother] herself requested, at least by implication, that her children remain in contact with their father and be home-schooled by them. [sic]  The Court’s recollection is that [mother] wavered on the issue in her request to the Court, and this is part of what makes this an exceptional case.  Acting as the parent and educator of one’s children, at the request of the other parent, appears to be a request for joint physical custody given the time the children must spend with the other parent.

 

* * * *

 

Furthermore, there is a rebuttable presumption that joint custody is in the best interest of the children if a party requests it.

 

* * * *

 

In summary, dissolution laws are written for the average family, not the exceptional one.  In this situation all indications are that where the parties did not cooperate, joint legal and joint physical custody is inappropriate.  There are no guidelines to guide a Court in situations where the wife doesn’t get along with her former husband, yet trusts him enough to educate the party’s children.  There is no middle ground here – it is an all or nothing proposition, not a half in/half out request.  The parties must either not get along, in which case joint physical is inappropriate, or get along enough to make joint custody appropriate.

 

The record, however, does not support the district court’s conclusion that mother requested joint physical custody by acquiescing in father’s home-schooling the children.  Mother clearly requested sole legal and physical custody and objected to joint legal and joint physical custody.  Under these circumstances, the district court was statutorily required to make the findings outlined in Minn. Stat. § 518.17, subd. 2. 

            The district court also abused its discretion by applying a rebuttable presumption that joint physical custody is in the children’s best interests.  “Joint physical custody * * * is not a preferred arrangement.”  Wopata v. Wopata, 498 N.W.2d 478, 482 (Minn. App. 1993) (citation omitted).  Joint physical custody is only appropriate in “exceptional cases.”  Id. at 483 (quotation omitted).  Generally, joint physical custody is awarded in cases where the parties are able to demonstrate that they can cooperate in “maintaining a joint custody arrangement.”  Id. 

            Mother also argues that the district court’s award of joint physical custody renders its award of sole legal custody to mother meaningless.[2]  “Legal custody” is defined as “the right to determine the child’s upbringing, including education, health care, and religious training.”  Minn. Stat. § 518.003, subd. 3 (2000).  The joint custody award, structured with each party having the children for one-half of each week precludes mother from determining education matters.  Religious-based home schooling by father and the district court’s grant of parenting time to father on the day he recognizes as the Sabbath, guarantees father’s continuing control over the religious training of the children.  Because the district court applied the wrong legal standard, failed to make mandatory findings supporting an award of joint physical custody, and joint physical custody effectively undermines the award of sole legal custody to mother, we reverse the district court’s use of a presumption favoring joint physical custody and remand the issue of custody for application of the correct statutory standard and findings consistent with the statutory requirements. 

            We appreciate that the district court is faced with an exceptional family.  The record supports the court’s apparent agreement with the guardian ad litem that the children’s best interests will be served by continuing to receive a substantial amount of care from each parent.  An award of sole physical custody, however, does not determine the amount of parenting time each parent will have. 

With the exception of the finding and conclusion that mother requested father to home-school the children, the district court’s remaining findings regarding the children and the custody issue are supported by the record.  On remand, the district court may, in its discretion, take additional testimony and evidence on the custody issue.  

2.         Property valuation/division

            A district court has “broad discretion over the division of marital property” and an appellate court will only “disturb the division on appeal” if the district court abused its discretion in dividing the property.  Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (Minn. App. 2000) (citation omitted), review denied (Minn. Oct. 25, 2000).  For this court to conclude that the district court abused its discretion, the district court’s fact-findings must be “against logic and the facts on [the] record.”  Rutten,347 N.W.2d at 50.

            An appellate court may only reverse a district court’s valuation of an asset if it is “clearly erroneous on the record as a whole.”  Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975) (citations omitted); see also March v. March, 435 N.W.2d 569, 572 (Minn. App. 1989).  An appellate court does not require the district court to be exact in its valuation of assets; “it is only necessary that the value arrived at lies within a reasonable range of figures.”  Johnson v. Johnson, 277 N.W.2d 208, 211 (Minn. 1979) (citing Hertz, 304 Minn. at 145, 229 N.W.2d at 44). 

            Mother contends that the district court clearly erred by refusing to value some of the parties’ personal property including tools, bison, fencing, a bulldozer, tractors and other items because there cannot be meaningful appellate review of a district court’s property division without findings regarding the value of that property.  At the time a district court dissolves a marriage, it must “make a just and equitable division of the marital property of the parties without regard to marital misconduct, after making findings regarding the division of the property.”  Minn. Stat. § 518.58, subd. 1 (2000).  The district court must consider the following factors in its findings regarding the division of marital property:

[T]he length of the marriage, any prior marriage of a party, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, needs, opportunity for future acquisition of capital assets, and income of each party.  The court shall also consider the contribution of each in the acquisition, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker. 

Id.    

            A district court’s findings may only be “set aside” if they are clearly erroneous.  Minn. R. Civ. P. 52.01.  If the “record is not clear and the facts are in dispute, findings of fact by the [district] court * * * should be made.”  Roberson v. Roberson, 296 Minn. 476, 478, 206 N.W.2d 347, 348 (1973).  A district court’s findings “should be supported by a statement of its rationale for the division of the assets” especially in cases where the district court’s division of personal property is disproportional.  Dick v. Dick, 438 N.W.2d 435, 437 (Minn. App. 1989).

            The district court awarded mother the personal property she requested.  The district court, in fact, used the exact wording mother proposed in the personal property award.  Mother complains that the court did not make findings on the value of property, but a review of the record demonstrates that, with the exception of the value of the bison and related equipment, the district court adopted the values proposed by father in written argument.  Father’s testimony provides support in the record for those values.  See Ferguson  v. Ferguson, 357 N.W.2d 104, 107 (Minn. App. 1984) (stating that because parties to a dissolution are presumptively familiar with value of their property, they may testify regarding its value) (citing Lehman v. Hansford Pontiac, Co., 246 Minn. 1,6, 74 N.W.2d 305, 309 (1955)).  Despite mother’s much higher valuation, we cannot say that mother showed that the district court’s valuation of the assets was clearly erroneous.[3]  The district court, however, also awarded father the bison, fencing, and corral, valued at $24,600, which makes the property award to father exceed the award to mother by a substantial amount.  The record and findings do not explain this disparity in the award of property in light of the district court’s apparent intent to make an equal division of property.[4]  Because of the lack of findings, we are unable to evaluate whether the award of the bison, fencing and corral is an abuse of the district court’s discretion and we remand for additional findings on the award of this substantial asset.  The district court may, on remand, adjust the award of other property, if necessary and may reopen the record for additional evidence in its discretion.

3.         Non-marital property

            Mother alleges that the district court erred by ruling that the entertainment center was not her non-marital property.  The classification of property as either marital or non-marital is a question of law but “a reviewing court must defer to the [district] court’s underlying findings of fact.”  Olsen v. Olsen, 562 N.W.2d 797, 799-800 (Minn. 1997) (citation omitted).  If a reviewing court is “left with the definite and firm conviction that a mistake has been made,” then the court may find the district court’s decision clearly erroneous “notwithstanding the existence of evidence to support such findings.”  Id. (citation omitted).  “Non-marital property” includes personal property “acquired by either spouse before, during, or after the existence of their marriage [that]   * * * is acquired as a gift * * * made by a third party to one but not to the other spouse.”  Minn. Stat. § 518.54, subd. 5 (2000).

            Mother testified at trial that her brother made the entertainment center for her because she asked him to make her one but there is no evidence that the item was to be a gift given solely to mother.  We infer from the record that the district court considered all of the parties’ disputed property to be marital property and that the record supports that determination.  

            We reverse the district court’s use of the wrong legal standard for addressing the issue of physical custody and remand for application of the correct standard and for  findings consistent with the statutory requirements.  We remand the issue of the property division, specifically the award of the bison, corral and fencing, for additional findings.

            Reversed in part and remanded.

 



[1] In his pro se response to mother’s appeal, father reasserts his desire for sole legal and physical custody but father did not file a notice of review challenging the district court’s custody award.  Father’s submissions to this court indicate that father will not willingly abide by any court order he opposes.

[2] There is no appeal from the award of sole legal custody to mother.

[3] Mother complains that the court did not value the Lund boat awarded to father, but mother proposed awarding the boat to father and did not offer any testimony about the value of the boat.

[4] The district court’s intent to equalize the property division can be inferred from the offset in mother’s lien against the homestead, proposed by father to equalize the property award, and adopted by the district court.