This opinion will be unpublished and

may not be cited except as provided by

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







In re County of Washington,



Alicia N. Nguyen, petitioner,





John Ned Lindell,




Filed June 18, 2002


Huspeni, Judge*



Washington County District Court

File No. F4986723



Douglas H. Johnson, Washington County Attorney’s Office, Child Support Division, Washington County Government Center, 14949 62nd Street North, Stillwater, MN 55082 (for respondent Washington County)


Del A. Blocher, Cummins, Gervais & Blocher, Ltd., 365 Fifth Avenue North, Stillwater, MN 55082 (for respondent Nguyen)


Karl M. Ranum, Ranum Law Offices, 104 North Main Street, Stillwater, MN 55082 (for appellant)



            Considered and decided by Toussaint, Presiding Judge, Willis, Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N


            A Wisconsin court granted appellant and respondent “shared physical placement” of their children.  Appellant challenges subsequent rulings by a Minnesota court that “shared physical placement” is not the equivalent of joint physical custody and that child support need not be set under the Hortis/Valento formula.  Because the Minnesota district court’s ruling is consistent with the law and the record, we affirm.


            In a March 2000 amended judgment, a Wisconsin court adopted a stipulation by appellant John Lindell and respondent Alicia Nguyen stating that they would have “[j]oint physical placement” of their children.  The stipulation also set out a schedule of time the children would spend with each parent.[1]  In the amended judgment, however, the Wisconsin judge crossed out the word “joint” in the phrase “joint physical placement” and replaced it with “shared.”  The record does not indicate any challenge by the parties of this alteration by the Wisconsin judge.  In April 2001, appellant, then unemployed, moved a Minnesota court to, among other things, reduce his support obligation and to impose a support obligation on respondent.  After a hearing, the child support magistrate reduced appellant’s support obligation to the guideline amount but did not impose a support obligation on respondent.  The district court, in affirming the magistrate’s order and denying appellant’s motion to recognize the Wisconsin judgment as granting respondent joint physical custody and modifying the support obligations according to the Hortis/Valento formula, stated:

It is very clear by [the] * * * handwritten amendment to the Order that [the Wisconsin judge] only wished the parties to have joint legal custody.  “Shared physical placement” is not the same as “joint physical custody.”  * * *  This is clearly not a joint custody matter.  * * *  That because [respondent] has sole physical custody of the children, this parenting arrangement is inappropriate for a Hortis/Valento analysis and deviation.


            This appeal resulted.


            Generally, whether to modify child support is discretionary with the district court.  Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986).  Here, the crux of the parties’ dispute is whether the amended Wisconsin judgment granting the parties “shared physical placement” of their children is the equivalent of a grant by a Minnesota court of joint physical custody, and hence whether the Hortis/Valento support formula should be used to set support.  See Schlichting v. Paulus, 632 N.W.2d 790, 793 (Minn. App. 2001) (addressing application of Hortis/Valento support formula). 

            Absent ambiguity in the judgment, it is not proper for a court to interpret a stipulated judgment.  Starr v. Starr, 312 Minn. 561, 562-63, 251 N.W.2d 341, 342 (1977).  Whether a judgment is ambiguous is a legal question reviewed de novo.  Halverson v. Halverson, 381 N.W.2d 69, 71 (Minn. App. 1986).  What an ambiguous judgment provision means is a factual question.  Emerick on Behalf of Howley v. Sanchez, 547 N.W.2d 109, 112 (Minn. App. 1996).  We review a district court’s findings of fact under a clearly erroneous standard.  Minn. R. Civ. P. 52.01.

            The Minnesota district court did not explicitly state that the amended Wisconsin judgment was ambiguous regarding whether the custodial arrangement set forth there was the equivalent of joint physical custody.  The Minnesota district court did, however, review the terms of the arrangement, conclude that “[t]his is clearly not a joint custody matter,” and refused to apply the Hortis/Valento formula.  If the Minnesota district court implicitly determined ambiguity in the Wisconsin judgment, that determination is certainly a proper categorization of the phrase “shared physical placement.”  Wisconsin law does not define that phrase, and it is unclear just what custody arrangement was intended.

            The Minnesota district court resolved any ambiguity in the Wisconsin judgment in favor of a determination that it granted sole physical custody to respondent with visitation in appellant.  We agree with that resolution, which recognizes that the Wisconsin custodial arrangement is tantamount to what, in Minnesota, would be a custody-with-visitation arrangement.  The parties’ stipulated schedule of the time the children would spend with appellant, and the Minnesota district court’s finding as to what time the children were actually spending with appellant both describe what, under Minnesota law, would be considered “visitation.”         

            The district court’s resolution of any ambiguity in favor of sole physical custody is also consistent with Minnesota’s historic and strong disfavor for joint physical custody.  See, e.g., Molto v. Molto, 242 Minn. 112, 115, 64 N.W.2d 154, 157 (1954) (stating that “[d]ivided custody of a child between two different homes and two different home influences should not be encouraged even where both homes are proper, since the shunting of a child back and forth is likely to cause disturbance and contention between the child and the custodians”) (emphasis added); Mansfield v. Mansfield, 230 Minn. 574, 576, 42 N.W.2d 315, 316-17 (1950) (stating “[w]e have often declared that shunting back and forth between divorced parents is usually not in the best interests of the child, but each case must be determined on its own facts” (footnote omitted)); Kaehler v. Kaehler, 219 Minn. 536, 539, 18 N.W.2d 312, 314 (1945) (stating “the divided custody of a child of such tender years is not desirable.  Regularity in the daily routine of providing the child with food, sleep, and general care, as well as stability in the human factors affecting the child’s emotional life and development, is essential, and it is difficult to attain this regularity and stability where a young child is shunted back and forth between two homes”); Wopata v. Wopata, 498 N.W.2d 478, 483 (Minn. App. 1993) (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)); Brauer, 384 N.W.2d at 598 (Minn. App.1986) (stating “[j]oint physical custody, because of the divisiveness inherent in such a scheme, can rarely be in the best interests of a young child, and it is appropriate only in exceptional cases”) (citing McDermott v. McDermott, 192 Minn. 32, 36, 255 N.W. 247, 248 (1934)); see also Minn. Stat. § 518.17, subd. 2 (2000) (listing factors to be considered when joint legal or joint physical custody is sought and, on request of at least one party, creating a presumption favoring joint legal custody, but not joint physical custody). 

            The clearly articulated and long-standing disfavor of joint-physical-custody arrangements reflected in Minnesota caselaw requires that, absent irrefutable evidence that a custodial arrangement is the equivalent of a joint-physical-custody arrangement, all doubts be resolved against that disfavored custodial status.  Therefore, we cannot say that the district court clearly erred in rejecting appellant’s argument that the amended Wisconsin judgment created the equivalent of a joint-physical-custody arrangement and mandated invocation of the Hortis/Valento support formula. 

            Lastly, we note that while Wisconsin law does not define “shared physical placement,” it defines “physical placement” as

the condition under which a party has the right to have a child physically placed with that party and has the right and responsibility to make, during that placement, routine daily decisions regarding the child’s care, consistent with major decisions made by a person having legal custody


Wis. Stat. § 767.001(5) (1999-2000) (emphasis added).  Thus, in Wisconsin, the rights of a child’s physical caretaker are explicitly subordinate to the rights of the child’s legal custodian.  And, in Wisconsin, a legal custodian has

the right and responsibility to make major decisions concerning the child, except with respect to specified decisions as set forth by the court or the parties in the final judgment or order.


Wis. Stat. § 767.001(2)(a) (1999-2000).  Thus, under Wisconsin law, the scope of a legal custodian’s rights are more flexible and case-dependant than is typical under Minnesota law.  It follows, we believe, that the rights of a child’s physical caretaker under a Wisconsin judgment are much more dependant on the terms of the judgment than on the relevant statutes, as in Minnesota.

            In view of the applicable Wisconsin and Minnesota statutes and caselaw, we find no error in the Minnesota district court’s interpretation of the Wisconsin amended judgment, and the court’s determination that “shared physical placement” did not create the equivalent of a grant of joint physical custody and did not invoke application of the Hortis/Valento support formula.



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

[1] Under that schedule, the children were to be with appellant every other weekend, one weekday evening each week, two weeks in the summer, one week in the winter, and alternating holidays throughout the year.  The Minnesota district court noted in its order denying application of the Hortis/Valento formula that “[Appellant] currently spends one weeknight overnight and one weekend day as visitation with the two minor children.”