This opinion will be unpublished and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

A03-161

A03-697

 

In re the Matter of:

 

Brandon Thomas Wixo, et al.,

Respondents (A03-161),

Plaintiffs (A03-697),

 

Nicole Leigh Anderson,

Respondent (A03-697),

 

vs.

 

Anton Ernest Wixo,

Appellant.

 

Filed January 13, 2004

Affirmed

Kalitowski, Judge

 

Wright County District Court

File No. F5-02-2317

 

Richard J. Krambeer, Henningson & Snoxell, Ltd., 6160 Summit Drive, Suite 640, Minneapolis, MN 55430 (for respondent Nicole Leigh Anderson)

 

Lynne M. Ridgway, Gray, Plant, Mooty, Mooty & Bennett, P.A., 1010 West St. Germain, Suite 600, St. Cloud, MN 56301 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Anderson, Judge; and Stoneburner, Judge.

 

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            In this consolidated appeal, appellant Anton Ernest Wixo contends the district court erred by denying him an evidentiary hearing on his motion to modify physical custody of the parties’ son, and in determining his parenting time.  We affirm. 

D E C I S I O N

I.

A district court has broad discretion to provide for the custody of the parties’ children.  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989).  Generally, this court applies an abuse-of-discretion standard to a district court’s decision to deny a petition for modification of custody without holding an evidentiary hearing.  Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997).  But recently this court held that when a district court’s decision relies upon affidavits that are available in the same form to an appellate court, we review the decision de novo.  Griese v. Kamp, 666 N.W.2d 404, 407 (Minn. App. 2003), review denied (Minn. Sept. 24, 2003).  Here, regardless of whether we apply a de novo or abuse-of-discretion standard, we conclude that the district court properly determined that appellant was not entitled to an evidentiary hearing.

 To obtain an evidentiary hearing on a custody-modification motion, the moving party must establish a prima facie case by showing:  (1) a change in the circumstances of the child or custodian; (2) a modification would serve the best interests of the child; and (3) one of the following conditions:  (a) the custodian agreed to the modification; (b) the child was integrated into the family of the moving party with the other party’s consent; or (c) the child’s present environment endangers the physical or emotional health or impairs the child’s emotional development, and the advantages of a change outweigh the harm it would likely inflict on the child.  Minn. Stat. § 518.18(d) (2002); Geibe, 571 N.W.2d at 778.

Here, because the parties moved and now live in the same town in Minnesota, the district court found that a change of circumstances had occurred, but concluded that appellant failed to state a prima facie case for custody modification.  Appellant argues that the district court erred in concluding that he failed to make a prima facie showing that joint physical custody would serve the best interests of the parties’ son.  We disagree.  A grant of joint physical custody is not preferred and will be appropriate only in exceptional cases.  Wopata v. Wopata, 498 N.W.2d 478, 483 (Minn. App. 1993).  Moreover, joint physical custody is not appropriate where the parties cannot cooperate or resolve conflicts.  Id.; see Minn. Stat. § 518.17, subd. 2 (2002).  Here, the district court noted that appellant admitted the parties’ son had witnessed incidents of conflict between the parties, and that communications between the parties revealed “distrust, suspicion and serious discord about matters involving the child.”  Evidence in the record supports the district court’s finding that appellant failed to make a prima facie showing that the parties had the ability to cooperate and resolve conflicts.  Therefore, we conclude that the district court did not err in determining that appellant failed to show that joint physical custody would serve the best interests of the parties’ son.

Appellant also argues that the district court erred in determining that he failed to make a prima facie showing that the parties’ son was not voluntarily integrated into his household.  We disagree.  To establish voluntary integration, a moving party must show that the child has been integrated into his or her family and the other parent consented to this integration.  Minn. Stat. § 518.18(d)(iii); Gibson v. Gibson, 471 N.W.2d 384, 386 (Minn. App. 1991), review denied (Minn. Aug. 12, 1991).  Appellant contends that he established a prima facie case of integration by showing that respondent consented to integration and/or joint physical custody by consenting to a liberal parenting time schedule.  But “there is a difference between joint physical custody and sole physical custody with liberal visitation.”  Rumney v. Rumney, 611 N.W.2d 71, 74 (Minn. App. 2000); see Geiger v. Geiger, 470 N.W.2d 704, 706 (Minn. App. 1991) (stating that liberal visitation does not result in de facto joint physical custody), review denied (Minn. Aug. 1, 1991).  Moreover, we note that parties would be disinclined to cooperate if a noncustodial parent would have grounds to seek modification of custody and child support merely because the custodian allowed liberal visitation.  Here, an earlier order determining custody allowed the parties to agree to additional parenting time.  The record indicates that respondent heeded that advice and granted appellant liberal parenting time with their son.  Therefore, the district court did not err in determining that appellant failed to make a prima facie showing that respondent consented to integration or joint physical custody.

Although appellant argues that he made a prima facie case that the parties’ son was integrated into appellant’s household because the child spent approximately 50% of his days in one year in appellant’s care, the district court found that respondent’s detailed responsive affidavit established that appellant’s actual parenting time with the parties’ son was far less.  See Geibe, 571 N.W.2d at 779 (concluding that while a district court must disregard any directly contrary statements in a nonmoving party’s submissions, it may consider statements in those submissions that explain the circumstances surrounding the moving party’s accusations).  Further, the district court found that, based on appellant’s own affidavit, the parties’ son spent a great deal of time in appellant’s care in large part because respondent would ask appellant to baby-sit their son while she was at work.  We conclude that the district court did not err in determining that appellant failed to establish a prima facie case that the parties’ son was integrated into appellant’s household.  And because appellant failed to establish a prima facie case, we conclude that the district court properly concluded that appellant was not entitled to an evidentiary hearing.

II.

            A district court has broad discretion in deciding parenting time questions and will not be reversed absent an abuse of discretion.  Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).  The ultimate question in all disputes over parenting time is what is in the best interest of the child.  Clark v. Clark, 346 N.W.2d 383, 385 (Minn. App. 1984), review denied (Minn. June 12, 1984). 

            Appellant argues that the district court abused its discretion by:  (1) not awarding appellant parenting time two or more overnight weeknights per week; and (2) not awarding appellant parenting time in the evenings prior to when respondent worked the 7 a.m. to 7 p.m. work shift.  We disagree.

            The parties stipulated to the majority of the provisions contained in the district court’s parenting-time order.  Pursuant to the agreement, the district court arranged a parenting schedule that provided for summer vacations, alternating holidays and school breaks, weekend parenting time for appellant, respondent’s work schedule, and parenting time with a parent in lieu of daycare.  Although omitted from the parenting-time order, the parties also agreed that appellant would have parenting time one weeknight per week from 5:30 to 8:30 p.m.  While appellant may desire more parenting time, on this record we cannot say the district court abused its broad discretion in denying appellant’s motion seeking additional parenting time.

            Affirmed.