This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






In re the Marriage of:


Bryan Jay Huft, petitioner,





Rebecca Jane Wellumson Huft,



Filed July 8, 2003

Affirmed in part and Reversed in part

Kalitowski, Judge


Hennepin County District Court

File No. DC253960


Kathryn A. Graves, Katz, Manka, Teplinsky, Due & Sobol, Ltd., 225 South Sixth Street, Suite 4150, Minneapolis, MN 55402 (for respondent)


M. Sue Wilson, Nicole Mayer Hill, M. Sue Wilson Law Offices, P.A., Two Carlson Parkway, Suite 150, Minneapolis, MN 55447 (for appellant)


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

U N P U B L I S H E D   O P I N I O N


            In this custody and support dispute, the district court made a custody award that gave appellant final decision-making authority for 19 months after judgment was entered but granted respondent “full” joint legal custody if he completed various tasks and therapies within that 19-month period.  Appellant argues (1) the district court lacked authority to order a conditional, future award of joint legal custody; (2) the district court abused its discretion by granting respondent’s untimely motion for amended findings modifying child support; and (3) the district court abused its discretion when it ordered appellant to name respondent as beneficiary of a life insurance policy.  By notice of review, respondent contends the district court erred by (1) determining that appellant had overpaid on her maintenance obligation and by crediting the overpayment against respondent’s property award; and (2) awarding attorney fees to appellant.  We reverse the custody award, the modification of child support, and the order requiring life insurance and affirm the maintenance set-off and award of attorney fees.




            Review of custody determinations “is limited to whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.”  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). 

Appellant contends the district court improperly applied the law by imposing “modified” joint legal custody.  We agree with appellant that the district court did not have authority under Minnesota law to order a conditional, future award of joint legal custody.

The court ordered that for the first 19 months following the entry of the judgment, appellant would have final decision-making authority over any major decisions concerning the children.  During those 19 months, the parties were required to attend joint divorce counseling, and respondent was required to take a parenting class and go to therapy for depression and anger management.  After 19 months, if respondent completed the requirements, “modified” joint legal custody would automatically become “full” joint legal custody, unless appellant filed a motion objecting. 

Legal custody is defined by statute as “the right to determine the child’s upbringing, including education, health care, and religious training.”  Minn. Stat. § 518.003, subd. 3(a) (2002).  Joint legal custody means “both parents have equal rights and responsibilities, including the right to participate in major decisions determining the child’s upbringing, including education, health care, and religious training.”  Minn. Stat. § 518.003, subd. 3(b) (2002). 

Here, the district court did not grant the parties equal rights and responsibilities.  Rather, the court directed appellant to consult with respondent regarding legal custody issues, but also awarded appellant “tie-breaking” authority over any major decisions in the children’s lives.  According to Minn. Stat. § 518.17, subd. 3(a)(1) (2002), legal custody of the minor children “shall be sole or joint [.]”  Thus, there is no provision in the statute for “modified” joint legal custody that changes automatically after certain conditions have been met.  And even when a parent is awarded sole legal custody, the law expects the parent to consult with the other parent regarding major decisions.  See Minn. Stat. § 518.17, subd. 3 (each parent has a right of access to school, medical, dental, religious training and other important records and information about the minor children).

Moreover, we have long recognized the need for stability and finality in custody proceedings.  See Wopata v. Wopata, 498 N.W.2d 478, 482 (Minn. App. 1993) (statutory scheme designed to prevent frequent modifications of custody).  In fact, “Minnesota law rests on a presumption that stability of custody is in a child’s best interests.”  Geibe v. Geibe, 571 N.W.2d 774, 780 (Minn. App. 1997) (citation omitted).  Because the custody arrangement here mandates an automatic change in legal custody, we conclude that it does not serve the goals of the statutory scheme and is prohibited by the plain language of the statute.

Further, the district court apparently did not believe joint legal custody was appropriate under the facts here, or it would have simply awarded joint legal custody, without requiring respondent to fulfill certain conditions.  In addition, by requiring appellant to file a motion objecting to the automatic change in custody, the court placed the burden of proof on the wrong party.  Under Minn. Stat. § 518.18 (2002), the noncustodial parent is required to move for a modification of custody and demonstrate a change in circumstances.  Under the district court’s order, appellant, the custodial parent, has the burden of showing that a change in circumstances has not occurred.   

Because “modified” joint legal custody as ordered by the district court does not serve the stability and security of the children, we reverse the district court’s award of “modified” joint legal custody.  And because the district court’s award of “tie-breaking” authority over major decisions to appellant is in effect an award of sole legal custody, we award appellant sole legal custody of the parties’ two children.

            Appellant also argues that the district court erred in allowing the introduction of her entire deposition into evidence and in not allowing her to call a rebuttal witness.  But because we reverse the district court’s award of “modified” joint legal custody, it is not necessary for us to address appellant’s claimed evidentiary issues from the trial.


            Appellant contends the district court abused its discretion in modifying respondent’s child support obligation because his motion to amend was untimely.  We agree.

            The judgment was entered on October 2, 2001.  Respondent mailed notice of entry of the judgment on October 10, 2001.  Pursuant to Minn. R. Civ. P. 52.02 and 59.03, a party must serve notice of a motion for amended findings within 30 days after service of notice of the filing of the decision or order.  Respondent filed a “Responsive Notice of Motion and Motion” on November 21, 2001, more than 40 days after service of the notice of entry of the judgment.  Respondent also filed an “Amended Responsive Motion” on February 8, 2002, nearly 90 days after the deadline, requesting amendments to the provisions of the judgment regarding child support and medical support.

Over appellant’s objection, the district court avoided the issue of the untimeliness of respondent’s motions by denying the motions brought under Minn. R. Civ. P. 52 and finding that respondent “also asserted that the court made certain mathematical errors and omissions in setting the support amounts.”  But the affidavit accompanying respondent’s motion did not allege that the court made clerical or mathematical errors or omissions.  Rather, respondent specifically requested that the court grant a downward deviation in child support.

            According to Minn. R. Civ. P. 6.02, “the court * * * may not extend the time for taking any action under Rules 4.043, 59.03, 59.05, and 60.02 * * * .”  If a party misses the deadline to file a motion to amend, then the district court does not have jurisdiction to hear the motion.  Ferraro v. Ferraro, 364 N.W.2d 821, 822 (Minn. App. 1985).    Therefore, we conclude that the district court lacked jurisdiction to consider respondent’s motion to amend child support.

            Respondent now argues that the motion made on February 8, 2002, was made under Minn. Stat. § 518.64, subd. 2 (2002), and was not a posttrial motion governed by Minn. R. Civ. P. 52.  We are not persuaded.  The motion dated February 8, 2002, makes no mention of Minn. Stat. § 518.64, subd. 2.  Further, nowhere in the motion does respondent allege, or even mention, that there has been a substantial change in circumstances.  The language of respondent’s motion specifically requests an amendment, not a modification, to child support.

            Because the district court lacked jurisdiction to consider respondent’s motion to amend child support, we reverse the district court’s award of a downward deviation in child support and reinstate the support provisions contained in the parties’ original judgment entered on October 2, 2001.

            Because we reverse the district court’s downward deviation in child support based on the untimeliness of respondent’s motion, we do not address appellant’s argument that the court’s findings were inadequate to support a deviation from the guidelines.


            A district court has broad discretion to provide for the support of the parties’ children.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  There must be a clearly erroneous conclusion that is against logic and the facts on the record before this court will find that the district court abused its discretion.  Id. (citation omitted).

            Appellant argues that the district court erred by sua sponte requiring appellant to name respondent as the beneficiary on the first $100,000 of any life insurance policy she may obtain.  We agree.

            Pursuant to Minn. Stat. § 518.64, subd. 4, “death of a parent obligated to support the child” does not terminate the provisions for child support in the judgment.  By statute, an “obligor” is defined as

a person obligated to pay maintenance or support.  A person who is designated as the sole physical custodian of a child is presumed not to be an obligor * * * .


Minn. Stat. § 518.54, subd. 8 (2002).  Therefore, a district court “has the power to order a child support obligor to obtain or maintain life insurance to secure child support payments.”  Emerick on Behalf of Howley v. Sanchez, 547 N.W.2d 109, 112 (Minn. App. 1996).

            Pursuant to the parties’ judgment, appellant has sole physical custody of the children, and respondent is required to pay child support, making him the obligor.  This court has previously held that it is error for a district court to require the custodial parent to maintain $25,000 in life insurance and name the children as beneficiaries.  Goar v. Goar, 368 N.W.2d 348, 353 (Minn. App. 1985). 

It is desirable that the children be protected in the event of loss of either parent.  However, neither the trial court nor respondent cites any authority under which a custodial parent, already obligated to discharge the substantial financial responsibilities associated with having custody of minor children, may be required to assume the additional burden of insurance.


Id.  Thus, we conclude that the district court lacked authority to require appellant, the sole physical custodian, to maintain a life insurance policy and name respondent as the beneficiary.


            We review a district court’s maintenance award under an abuse-of-discretion standard.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).  For this court to conclude the district court abused its discretion with respect to an award of spousal maintenance, the district court’s findings must be “against logic and the facts on [the] record.”  Rutten, 347 N.W.2d at 50 (citation omitted).  In other words, “[f]indings of fact concerning spousal maintenance must be upheld unless they are clearly erroneous.”  Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992) (citation omitted).

The district court found that the spousal maintenance payments from July through November of 2000, totaling $3,375, were an overpayment to respondent.  Therefore, the court credited $3,375 against respondent’s property award.  The overpayment occurred because respondent obtained a second job and failed to notify appellant, while she continued to pay unnecessary temporary spousal maintenance.

Respondent argues that the district court abused its discretion when it modified the temporary spousal maintenance award and credited the overpaid maintenance payments against his property award.  We disagree.

The court has equitable authority in family law cases to grant relief as the facts and equities require.  DeLa Rosa v. DeLa Rosa, 309 N.W.2d 755, 758-59 (Minn. 1981).  With the spousal maintenance payments, respondent’s net monthly income was substantially greater than appellant’s net monthly income, even though appellant was caring for the children approximately half of the time.  Thus, we conclude it was within the court’s broad discretion to consider the overpayment as an advance on respondent’s share of the property award.  See Lyon v. Lyon, 439 N.W.2d 18, 22 (Minn. 1989) (stating that maintenance depends on need).


            Minn. Stat. § 518.14, subd. 1 (2002), allows conduct-based fees to be awarded “against a party who unreasonably contributes to the length or expense of the proceeding * * * .”  An award of attorney fees under Minn. Stat. § 518.14, subd. 1, “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).  The district court must make findings regarding conduct-based fees “to permit meaningful appellate review” of the award.  Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1992).

            Here, the court found that respondent’s conduct was more confrontational than appellant’s and justified an award of modest attorney fees in the amount of $7,731.  This amount took the form of a cancellation of respondent’s lien against the parties’ homestead.

            Respondent argues that the district court’s findings are inadequate.  We disagree.  The district court identified the conduct of respondent that unreasonably contributed to the length and expense of the litigation.  Moreover, appellant was forced to initiate several motions because respondent failed to act according to the court’s instructions.  For example, respondent failed to pay his support obligations in a timely manner, refused to endorse the 2000 federal and state income tax refund checks, improperly used one of appellant’s credit cards, initially refused to participate in the vocational evaluation, and failed to disclose that he had gotten a second job.

            Thus, we conclude the district court did not abuse its discretion in awarding appellant modest, conduct-based attorney fees.

            Affirmed in part and reversed in part.

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