This opinion will be unpublished and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: 

Laurie Ann Marden, petitioner,





Kevin Richard Marden,



Filed December 2, 2003

Affirmed in part and reversed in part

Halbrooks, Judge



Hennepin County District Court

File No. DC 259 834



Geraldine Carlen Steen, Beckman & Steen, 14550 Excelsior Boulevard, Suite 206, Minnetonka, MN 55345 (for appellant)


Edward M. Cohen, Jr., Cohen & Friedberg, Ltd., 3015 Ottawa Avenue South, St. Louis Park, MN 55416 (for respondent)


Jean Peterson, C-562 Hennepin County Government Center, 300 South 6th Street, Minneapolis, MN 55487 (guardian ad litem)



            Considered and decided by Hudson, Presiding Judge, Randall, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges a district court order modifying the custody of the parties’ children and awarding child support.  Appellant argues that the district court (1) applied the wrong standard of review; (2) abused its discretion by splitting custody of the parties’ children and by ignoring the custody evaluation; (3) mischaracterized the custodial arrangement; (4) should not have required the recommendation of a therapist for any future motion to modify custody; (5) set child support in a manner that was inconsistent with the children’s custodial arrangement; and (6) inequitably divided the children’s unreimbursed medical costs.  Because we conclude that the district court applied the correct standard of review, did not abuse its discretion in splitting the custody of the children, did not mischaracterize the custodial arrangement, and correctly awarded child support, we affirm the district court on those issues.  We reverse the district court with respect to its requirement that a therapist’s opinion support any future motion for modification of custody and the court’s allocation of unreimbursed medical costs.


Appellant Laurie Marden-Mckee and respondent Kevin Marden separated in July 2000.  The parties resolved several issues by a marital termination agreement, but asked the district court to determine the issues of permanent physical custody and child support for their three minor children:  R.M., S.M., and J.M.[1]  From the bench on January 31, 2002, the district court awarded (a) the parties their marital homestead as tenants in common; (b) appellant the right to occupy the house and have temporary physical custody of all three minor children through October 31, 2002; and (c) respondent permanent physical custody of the minor children and occupancy of the homestead as of November 1, 2002.  The district court also ruled that either party could have “de novo” review of the custody award “by Court Services” if, by July 15, 2002, the party seeking review made a motion and a motion hearing was scheduled to take place before October 1, 2002. 

Before entry of the judgment, appellant purchased respondent’s interest in the homestead.  While the judgment acknowledged this fact, it did not alter the date that respondent was to become the children’s physical custodian.  The judgment stated that the parties could move to “re-evaluate” the custody award at any time during the “transitional phase” of the custody order, but did not reiterate the court’s earlier statement that such a motion would be addressed de novo. 

On August 7, 2002, appellant moved for permanent physical custody of the children and appointment of a guardian ad litem (GAL).  The district court appointed a GAL and directed her to conduct interviews and propose a change in custody if the current and contemplated future custodial arrangements were harmful to the children.  The GAL’s report stated that the November 1 change in custody would be “extremely harmful to these boys,” that the oldest minor child strongly preferred to stay in the marital homestead, and that it would be best to keep all three minor children together.  She also recommended referring the matter to Family Court Services for an updated custody/parenting-time evaluation.  Following receipt of the GAL’s report, appellant moved for expedited relief, requesting a modification of the judgment to award her permanent physical custody.

Following a subsequent in-chambers conference, the district court adopted several of the GAL’s proposed findings, including that “the relationship between the children is very important; they should stay together.”  The parties agreed to an abbreviated procedure to determine whether the change in custody would be harmful to the children, and the district court postponed the custody change scheduled for November 1.  In its October 23 order, the district court noted the discrepancy between the standard for addressing a custody-modification motion articulated from the bench and the standard recited in the judgment and ruled that, because neither party had requested a referral to Court Services, the procedure for the de novo review discussed from the bench had not been followed.  This order was made nunc pro tunc to August 23. 

After personally interviewing the older two minor children, the district court issued a February 19, 2003 order containing findings that (1) the GAL recommended that appellant be awarded sole physical custody of all the children, but that the court was not adopting that recommendation; (2) the oldest minor child preferred to live in the marital homestead (appellant’s residence); (3) the judgment should be modified to give the parties joint physical custody of the oldest minor child; and (4) respondent would retain permanent physical custody of the two youngest minor children.  Regarding child support, the district court treated appellant as if she had sole physical custody of the oldest minor child, ordered each party to pay guideline child support for the child(ren) in the other parent’s custody, offset the obligations, and ordered appellant to make a net monthly payment to respondent of $64.70 per month.  The district court also made appellant solely responsible for all uninsured medical expenses.  This appeal follows.



We begin with a threshold issue raised by respondent.  Noting that the dissolution judgment was entered in May 2002 and that appellant moved to modify custody in August 2002, respondent argues that the district court erred in addressing appellant’s motion because Minn. Stat. § 518.18(a) (2002) precludes a motion to modify custody within one year of entry of a dissolution judgment.[2]  Without commenting on the propriety of the unstipulated, unappealed custody provision in the judgment,[3] we note that it states that “during the transitional phase” of the custody award, “either party” could move “to reevaluate this custody order” and if that should happen, the district court would “review the permanent award of custody.”  The time to appeal the judgment has now expired.  While this language articulates a custody-modification process that is different from what was articulated by the court from the bench, both statements of the process allowed a motion to modify custody to be made less than one year after entry of the dissolution judgment.  Therefore, we reject respondent’s argument that the district court should not have heard appellant’s motion.  Cf. Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370, 147 N.W.2d 100, 103 (1966) (stating “[e]ven though the decision of the [district] court in the first order may have been wrong, if it is an appealable order it is still final after the time for appeal has expired”); Erickson v. Erickson, 506 N.W.2d 679, 680 (Minn. App. 1993) (stating expiration of time for appeal precludes a party from seeking to modify a judgment because of alleged judicial error).


Appellant argues that the district court improperly used a harm-based standard to decide appellant’s motion to modify custody, rather than the de novo standard that the district court articulated from the bench.  We disagree.  The order from which the appeal is taken does not mention endangerment or harm as the threshold for modifying custody.  The district court’s findings of fact indicate that it utilized a best-interests standard in its determination.  Further, even if we assume that the district court used a harm-based standard, appellant’s argument that the district court erred in doing so is based on her assumption that the district court lacked the ability to alter, or was bound by, the “de novo” custody-modification standard articulated from the bench in January 2002.  That assumption is incorrect.  At the close of the January hearing, several issues were still unresolved.  Therefore, the judge’s statements from the bench did not finally resolve the case and the district court could revise its rulings, including its recitation of a “de novo” standard for modifying custody.  Minn. R. Civ. P. 54.02. 


Citing both the GAL’s recommendation that the children remain together and the preference in Minnesota caselaw against split custody, appellant challenges the district court’s order to split the custody of the children and the court’s failure to award her sole physical custody of all three minor children.

Our review of a custody-modification decision 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) (quotation omitted).  A district court’s findings of fact will be sustained unless they are clearly erroneous.  Minn. R. Civ. P. 52.01; Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  Findings of fact are “clearly erroneous if the reviewing court is left with the definite and firm conviction that a mistake has been made.”  Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000) (quotation omitted).  When determining whether findings are clearly erroneous, we view the record in the light most favorable to the district court’s findings.  Id. 

Appellant argues that the district court failed to give adequate deference to the GAL’s recommendation that the children remain together.  A custody award contrary to that recommended by an expert can be affirmed if there are detailed best-interests findings or an explanation of why the recommendation was rejected.  Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991).  Here, the GAL’s recommendation was consistent both with statements by experts previously involved in the case and with prior statements by the district court.  But the GAL’s recommendation was somewhat equivocal; her report ultimately concludes that she believes that the case “requires further consideration” and that she “respectfully recommend[s] that the Court refer this matter to Family Court Services for an updated custody/parenting time evaluation.”  After receipt of the GAL’s report and before splitting custody of the children, the district court (a) interviewed the two older minor children in order to determine their reasonable custodial preferences; (b) recognized that the oldest minor child was 17; (c) found, based on the interview with the oldest minor child, that it was in that child’s best interests to be in the parties’ joint physical custody; and (d) found that it was in the best interests of the younger minor children to be in the sole physical custody of respondent.  On this record, we decline to hold that the district court’s decision to split custody is erroneous. 

Appellant argues that she should have been awarded sole physical custody of the oldest minor child.  We disagree in light of the fact that the child is 17 and has an undisputed preference to live in the marital homestead while continuing to have a relationship with respondent.  See Minn. Stat. § 518.17(2), (4)-(6) (2002) (stating best-interests considerations include child’s reasonable preference, intimacy of child’s relationship with each parent, interaction of child with parents and siblings, and child’s relationship to home, school, and community); Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991) (noting “overwhelming” weight is given to custodial preference of older teenager); Johnson v. Johnson, 424 N.W.2d 85, 86, 88 (Minn. App. 1988) (noting district court may give considerable weight to preference of children as young as eight years old).  To the extent that appellant argues that she should have been awarded sole physical custody of the two younger minor children, we also reject that argument.  Appellant’s argument is based on her position that an award of split custody is improper.  We have already determined that the district court did not abuse its discretion in splitting the custody of the children. 

Appellant further alleges that the district court’s findings are inadequate to support its custody rulings.  While there is validity to appellant’s assertions regarding the district court’s written findings, based on our review of the multiple orders involved in this proceeding and our cognizance of the fact that, under Minn. R. Civ. P. 52.01, a district court’s statements from the bench can be considered as findings of fact, we cannot say that the findings were so inadequate as to render the rationale for the district court’s rulings unintelligible.[4]


Citing Minn. Stat. § 518.003, subd. 3 (2002)’s definition of “joint physical custody” as a custodial arrangement in which “the routine daily care and control and residence of the child is structured between the parties[,]” appellant argues that the district court erred by mischaracterizing the physical custody of the oldest minor child as “joint” and in characterizing the physical custody of the younger two minor children as “sole” in respondent.  The basis for appellant’s position is her assertion that the routine daily care and control of the oldest minor child is with appellant while the parties equally split the routine daily care and control of the younger two children. 

This court has noted that, while not stated in the statute, “joint physical custody traditionally involves an equal sharing of residential care.”  Lutzi v. Lutzi, 485 N.W.2d 311, 314 (Minn. App. 1992).  We have also noted that “[c]learly . . . sole physical custody with visitation also results in structuring the residence and care of the children between the parties” and, hence, the district court “may unequally divide physical custody but still label the arrangement as joint.”  Id.  Thus, the amount of residential care a parent provides for a child is not dispositive regarding whether a custodial arrangement is “joint.”  See Nolte v. Mehrens, 648 N.W.2d 727, 730 n.1 (Minn. App. 2002) (stating, in context of stipulated custody arrangement, “[a]lthough it could be argued that some earlier caselaw indicates that discerning whether a physical-custody award is sole or joint requires an examination of the amount of time the parties spend with their child, Ayers [v. Ayers, 508 N.W.2d 515, 520 (Minn. 1993)] and its progeny have superseded such cases”). 

Here, the district court ordered that the oldest minor child could “live at the residence of his choosing” and stated that he intended to reside with appellant at “present.”  Because the extent of residential care that respondent will actually provide for the oldest minor child is unclear, the district court was not precluded from ruling that the parties had joint physical custody of the oldest minor child.  Also, because Minn. Stat. § 518.003, subd. 3(c), gives a parent with sole physical custody the right to determine “the routine daily care and control and the residence” of the children in the parent’s physical custody, the extent of the residential care for the younger two children that will be provided by appellant will depend on respondent.  Therefore, we cannot say that the district court erred in its characterizations of custody.


Appellant challenges the portion of the district court’s order that precludes future motions to modify custody that are not supported by a therapist’s recommendation.  Because the “transitional phase” of the custody award has passed, the statutory custody-modification time limits are now applicable.  Absent an agreement, the parties may not move to modify custody for two years unless the moving party can show endangerment or a persistent and willful denial of parenting time.  Minn. Stat. § 518.18(b), (c) (2002).  To the extent that a letter from the child’s therapist would be necessary before the court would consider whether a child is presently endangered, the requirement could unnecessarily delay the district court’s determination of whether endangerment exists.  Therefore, we reverse the portion of the district court’s order requiring a therapist’s recommendation as a prerequisite to a future motion to modify custody. 


In determining the parties’ support obligations, the district court (a) set appellant’s support obligation for the two children in respondent’s sole physical custody at the guideline amount; (b) treated the oldest minor child, for whom the parties have joint physical custody, as if he were in appellant’s sole physical custody and set respondent’s support obligation for that child at the guideline amount; (c) offset the parties obligations to each other to arrive at a net monthly payment from appellant to respondent of $64.70; and (d) ruled that when the oldest minor child emancipates, appellant’s support obligation to respondent would be the guideline amount. 

To the extent that appellant challenges the district court’s requirement that respondent pay her support as if she had sole physical custody of the oldest minor child, we note that, because this ruling awards appellant more support than she is presumptively entitled to receive, she is not aggrieved by the decision and cannot appeal it.  See Twin Cities Metro. Pub. Transit Area v. Holter, 311 Minn. 423, 425, 249 N.W.2d 458, 460 (1977) (stating “[a] party who is not aggrieved by a judgment may not appeal from it”); Schlichting v. Paulus, 632 N.W.2d 790, 792-93 (Minn. App. 2001) (stating presumptively appropriate guideline support obligation in joint physical custody cases is the obligation calculated under the Hortis/Valento formula).  To the extent that appellant asserts that her support obligation to respondent for the two children in his sole physical custody is excessive because the parties have equal control and residence of those children, she is essentially arguing for a downward deviation from her guideline support obligation for those children.  This question was not presented to the district court and is not properly before this court.  Therefore, we do not address it.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).


Appellant’s final argument is that the district court erred when it ordered appellant to bear the entire burden of the unreimbursed medical expenses.[5]  In the parties’ marital termination agreement, executed on January 30, 2002, the parties stipulated that each party would pay “50 percent of the minor children’s unreimbursed medical, dental, and hospitalization expenses.”  This was also reflected in the judgment.  It appears that the district court sua sponte altered the terms of the parties’ stipulation so that appellant would be solely responsible for any unreimbursed medical expenses.  The court did not explain the reasoning behind this change.

Stipulations are treated and interpreted as binding contracts, and as such, district courts should “only reluctantly alter the terms of a stipulation.”  Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981); Prange v. Prange, 437 N.W.2d 69, 70 (Minn. App. 1989).  Moreover, the district court does not have authority to modify child support on its own initiative.  Rogers v. Rogers, 606 N.W.2d 724, 728 (Minn. App. 2000), aff’d and rev’d on other grounds, 622 N.W.2d 813 (Minn. 2001); see also Minn. Stat. § 518.64, subd. 1 (2002) (allowing modification of child support on motion of either party).  Medical support provisions are treated as child support.  Bock v. Bock, 506 N.W.2d 321, 326 (Minn. App. 1993).  Therefore, the district court abused its discretion when it sua sponte altered the parties’ stipulation with regard to unreimbursed medical expenses.  That portion of the district court’s order is, therefore, reversed.  

            Affirmed in part and reversed in part.

[1]  The parties’ oldest child, D.M., is emancipated.

[2] Respondent did not file a notice of review with this court.  Therefore, his challenges to the various aspects of the district court’s rulings are not properly before this court.  See Minn. R. Civ. App. P. 106 (requiring respondent to file notice of review to obtain review of an issue); Arndt v. Am. Family Ins. Co., 394 N.W.2d 791, 793-94 (Minn. 1986) (holding court of appeals properly declined to address issue argued by respondent where respondent failed to file notice of review).  We address respondent’s argument on this point because the argument might be jurisdictional in nature.  Cf. Clark v. Clark, 358 N.W.2d 438, 440 (Minn. App. 1984) (stating that because a motion to modify custody had been made within one year, “the trial court could have jurisdiction of the present motion only if father could show that mother interfered with his visitation or that she endangered or impaired the minor child’s development” under Minn. Stat. § 518.18(b), (c)); but cf. Chapman v. Dorsey, 230 Minn. 279, 288, 41 N.W.2d 438, 443 (1950) (stating appeal decided on merits that does not address issue of appellate jurisdiction is not precedential authority on the issue of appellate jurisdiction).

[3] Cf. Frauenshuh v. Giese, 599 N.W.2d 153, 158-59 (Minn. 1999) (addressing propriety of parties stipulating to non-statutory standard for modifying custody under preparenting-plan version of Minn. Stat. § 518.18).

[4] We note that much of the confusion evidenced in this record appears to have its origin in the unique combination of the atypical rulings in this case and the unusual manner in which the case proceeded.  We recognize that family matters put a premium on the abilities of the parties, counsel, and the district court to creatively resolve disputes.  To avoid unnecessary litigation and expenditure of resources, as well as to simplify subsequent district and appellate court proceedings, however, we strongly encourage the parties and the district court to do so within the substantive and procedural structures set out by the relevant statutes, rules, and caselaw. 

[5] At present, there appears to be no evidence of any unreimbursed medical expenses.