This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
In re the Marriage of:
Lisa Dickey Cashin, petitioner,
Jim Lee Cashin,
Filed January 7, 2003
Ramsey County District Court
File No. FX971841
Leland S. Watson, 836 Wells Fargo Midland Building, 401 South Second Avenue, Minneapolis, MN 55401; and John F. Gilsdorf, Gilsdorf & Askvig, 1712 Firstar Center, 101 East Fifth Street, St. Paul, MN 55101 (for appellant)
Jim Lee Cashin, 22350 Bataan Street NE, East Bethel, MN 55011 (pro se respondent)
Considered and decided by Peterson, Presiding Judge, Willis, Judge, and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
Appellant-mother challenges the district court’s denial of her motion to remove a parenting-time expeditor. We affirm in part and reverse in part.
The marriage of appellant Lisa Dickey Cashin (“mother”) and respondent Jim Lee Cashin (“father”) was dissolved in 1999. The district court awarded the parties joint legal custody of their two sons, M.B.C., now age 18, and S.D.C., now age 15. But mother received physical custody of the sons, and father received parenting time on alternating weekends and holidays.
In 1998, during the pendency of the dissolution action, the district court appointed, under Minn. Stat. § 518.1751 (2002), a parenting-time expeditor for the Cashins for a two-year term. In October 1998, this expeditor recommended, and the district court later ordered, parenting time with father scheduled for four-day periods, from Thursday evening to Monday evening, that occurred over alternating weekends.
In August 2000, after the first expeditor’s term expired, the district court appointed Ann H. McNattin as expeditor for the Cashins. The order appointing McNattin gave her the authority to
resolve visitation disputes of the parties by enforcing, interpreting, and clarifying the visitation provisions of [the decree of dissolution] as well as all subsequent Orders of this Court.
The order also required the parties to pay equally the cost of McNattin’s services and that she would serve until June 30, 2005, when S.D.C. will be 18 years old. As expeditor, McNattin continued to schedule father’s parenting time for four-day periods over alternating weekends.
Over time, mother’s working relationship with McNattin deteriorated. Mother alleges that McNattin (1) continually made parenting-time decisions based solely on discussions with father and refused to mediate between the parties, (2) inappropriately handled an incident involving a “contract” between mother and M.B.C., and (3) disproportionately billed mother for her services.
The “contract” incident involved father’s scheduled parenting time. After the dissolution, father moved to a home 25 miles from mother’s home and the sons’ school. Mother believed that the extra commute on Mondays and Fridays between father’s new home and the school caused M.B.C. to be tardy and caused his grades to decline. She asked M.B.C. to sign a “contract” stating that if he were tardy again or if his grades continued to suffer, he would “lose further visitation on school nights at [his] dad’s.” When McNattin learned of the “contract,” she wrote a letter to mother describing the agreement as an “illegal” attempt to modify father’s right to parenting time and sent copies of the letter to the two sons. Mother believed that the letter undermined her authority as a parent with both sons.
A dispute over billing also emerged between mother and McNattin. As mother’s disappointment with McNattin’s performance grew, mother became curious about McNattin’s qualifications as an expeditor. Mother’s attorney asked McNattin for proof that she was eligible, under Minn. Stat. § 518.1751, subd. 2, to serve as the Cashins’ expeditor. McNattin billed only mother for the time spent providing the requested proof, and mother refused to pay. McNattin then sued mother in conciliation court for the unpaid fees. The conciliation court judge dismissed McNattin’s claim without prejudice and encouraged her to raise it in the district court, where mother was planning to bring a motion to remove McNattin as expeditor.
Mother then brought a motion asking the district court to remove McNattin as expeditor and to require McNattin to apportion all fees equally pursuant to the order appointing her. Father did not appear in the proceeding; McNattin submitted a “countermotion in support of equitably apportioned expediting fees” and addressed the district court at the hearing on mother’s motion.
The district court’s order (1) denied mother’s motion to remove McNattin; (2) directed that all fees incurred before the date of the hearing be divided equally; (3) directed that fees incurred thereafter be divided equitably; (4) allowed McNattin to decide how fees should be equitably divided in the future; and (5) provided that either party could appeal a fee division to the district court, but that the “costs of the appeal shall be borne by the party if their appeal fails.”
Mother now challenges the district court’s order in this court. She argues that the district court abused its discretion by (1) refusing to remove McNattin as expeditor, (2) delegating to McNattin the power to apportion her fees equitably, and (3) ordering that the party appealing apportionment will bear the costs of any unsuccessful appeal.
D E C I S I O N
Mother challenges the district court’s refusal to remove McNattin as the parenting-time expeditor. The district court has “broad discretion” in deciding parenting-time issues, Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995), and we review a refusal to remove a parenting-time expeditor on an abuse-of-discretion standard, cf. In re Welfare of J.G.W., 429 N.W.2d 284, 286-87 (Minn. App. 1988) (observing that this standard applies to a refusal to remove children’s psychotherapist), aff’d, 433 N.W.2d 885 (Minn. 1989).
The parenting-time-expeditor statute provides that
upon the court’s own motion, the court may appoint a parenting time expeditor to resolve parenting time disputes that occur * * * after a decree is entered.
Minn. Stat. § 518.1751, subd. 1 (2002).
A “parenting time expeditor” is a neutral person authorized to use a mediation-arbitration process to resolve parenting time disputes. * * * [But] if it becomes apparent that the dispute cannot be resolved by an agreement of the parties, the parenting time expeditor shall make a decision resolving the dispute.
Id., subd. 1b(c) (2002).
If a parenting time expeditor has been appointed on a long-term basis, a party or the expeditor may file a motion seeking to have the expeditor removed for good cause shown.
Id., subd. 5a (2002).
Minnesota law recognizes that time spent with the noncustodial parent is in the best interests of the child. See Minn. Stat. § 518.175, subd. 1(a) (2002). Thus, we conclude that a district court should use its discretion to remove an expeditor only when continuing the expeditor’s services is no longer in the child’s best interests. Cf. In re Guardianship of Kowalski, 392 N.W.2d 310, 314 (Minn. App. 1986) (applying best-interests analysis to district court’s refusal to remove a guardian), review denied (Minn. Oct. 17, 1986).
Mother contends that McNattin is biased against her, acts unilaterally and refuses to mediate between the parties, and violated the confidentiality provision of section 518.1751 by sending copies of the letter concerning the “contract” incident to the sons. We are not persuaded that the district court abused its discretion by concluding “after a review of the file that [McNattin] is fulfilling her duties on a complex, difficult case.”
The statute gives an expeditor the authority to make decisions on parenting-time issues, if necessary. See Minn. Stat. § 518.1751, subd. 1b(c). Although the order appointing McNattin states that she must try first to mediate disputes between the Cashins, the statute represents a delegation of a certain amount of discretion to an expeditor to decide when a “mediation” process has broken down and when an “arbitration” process would more likely result in a solution. Mother’s emphasis on the “mediation” aspect of this process ignores that the statute provides that the expeditor “shall [ultimately] make a decision resolving the dispute” if negotiations are fruitless. Id.
Nor has mother demonstrated that sending copies of the letter concerning the “contract” to the sons violated the confidentiality provision of the parenting-time-expeditor statute.
Notes, records, and recollections of parenting time expeditors are confidential and must not be disclosed to the parties, the public, or anyone other than the parenting time expeditor unless:
(1) all parties and the expeditor agree in writing to the disclosure; or
(2) disclosure is required by law or other applicable professional codes.
Id., subd. 4a(c) (2002). Mother argues that the letter was a note, record, or recollection of the expeditor. We disagree. Father forwarded the “contract” to McNattin, and she had a duty to clarify its impact, if any, on father’s parenting-time rights. Therefore, McNattin’s letter was a formal communication between expeditor and parent made in the normal course of her duties as expeditor. Sending copies of the letter to the children may have had the effect, as mother claims, of undermining to some extent mother’s authority as a parent and thus may have been unwise, but because the letter did not otherwise disclose McNattin’s private notes, records, or recollections, the confidentiality provision in the statute was not violated.
Under a less deferential standard of review, we might be persuaded that a different expeditor could resolve the Cashins’ parenting-time disputes more harmoniously. But here we cannot conclude that McNattin’s service as expeditor is no longer in the children’s best interests. Therefore, the district court did not abuse its discretion by refusing to remove McNattin as expeditor, and we affirm that part of the district court’s order.
Mother also challenges those parts of the district court’s order providing that (1) the expeditor could apportion her fees equitably in the future, and (2) if a party chooses to appeal the expeditor’s apportionment, the “costs of the appeal shall be borne by [that] party if their appeal fails.” We review the district court’s order concerning apportionment of the expeditor’s fees and the costs of any appeal of that apportionment under an abuse-of-discretion standard. Cf. Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (reviewing district court’s award of attorney fees), review denied (Minn. Feb. 18, 1999).
The parenting-time-expeditor statute provides:
In its order appointing the expeditor, the court shall apportion the fees of the expeditor among the parties, with each party bearing the portion of fees that the court determines is just and equitable under the circumstances.
Minn. Stat. § 518.1751, subd. 2a (2002). Although the order appointing McNattin requires the parties to pay equally the costs of the expeditor, the statute also provides that “[a]fter fees are incurred, a party may by motion request that the fees be reapportioned on equitable grounds.” Id.
Here, McNattin submitted a “countermotion in support of equitably apportioned expediting fees.” Although McNattin is not a party to the dissolution proceeding, her “countermotion” was essentially a motion for equitable reapportionment under Minn. Stat. § 518.1751, subd. 2a. McNattin had a claim against mother for unpaid fees and was denied a forum when the conciliation court judge dismissed her claim and encouraged her to raise it in the district court. By granting McNattin the relief she requested, the district court effectively allowed McNattin to intervene on the ground that mother’s motion involved how McNattin’s fees would be apportioned, both retroactively and prospectively. Cf. Minn. R. Civ. P. 24 (providing for intervention of parties with an interest in the proceeding). Thus, the district court did not abuse its discretion by considering McNattin’s “countermotion.”
Mother further contends that the district court improperly delegated to McNattin the power to apportion fees. Mother correctly observes that a district court must exercise its own independent judgment and not delegate legal decisions to non-judicial personnel. See Young v. Young, 370 N.W.2d 57, 66 (Minn. App. 1985), review denied (Minn. Sept. 13, 1985). But because either mother or father can appeal McNattin’s apportionment to the district court, we conclude that the effect of the order is to allow McNattin to make only a recommendation regarding apportionment and that it is, therefore, not an improper delegation. See id. at 65-66. Thus, the district court did not abuse its discretion by allowing the expeditor to determine in the first instance how to equitably apportion her fees between the parties.
But the district court’s order regarding the “costs of the appeal” of any apportionment is more problematic. The district court may award costs in a dissolution action, but only after finding:
(1) that the fees are necessary for the good-faith assertion of the party’s rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;
(2) that the party from whom fees, costs, and disbursements are sought has the means to pay them; and
(3) that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.
[And the district court may award additional costs] against a party who unreasonably contributes to the length or expense of the proceeding.
Minn. Stat. § 518.14, subd. 1 (2002). Here, the district court’s order appears to award in advance costs to the party opposing an unsuccessful appeal, without making the findings required by the statute. We therefore conclude that the district court abused its discretion on this issue, and we reverse that part of its order providing that a party who unsuccessfully appeals a fee apportionment will bear the costs of the appeal, without further inquiry or findings.
Affirmed in part and reversed in part.