This opinion will be unpublished and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

A03-1124

 

In re the Marriage of:

 

Sharon N. Tori, petitioner,

Respondent,

 

vs.

 

Jose H. Tori,

Appellant.

 

Filed June 29, 2004

Affirmed; motion granted in part and denied in part

Lansing, Judge

 

Hennepin County District Court

File No. DC-262827

 

 

Richard D. Goff, Mary E. Cincotta, Richard D. Goff & Associates, 3908 IDS Center, 80 South Eighth Street, Minneapolis, MN  55402 (for respondent)

 

Jose H. Tori, 5365 Greystone Drive, Apartment 102, Inver Grove Heights, MN  55077 (pro se appellant)

 

            Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

In this appeal from an amended judgment and an order denying posttrial motions in a marital-dissolution proceeding, Jose Tori challenges the district court’s determinations on custody, parenting time, child support, maintenance, property division, and attorneys’ fees.  The district court, in comprehensive and carefully drawn findings, addressed each of these issues in its amended judgment and order on posttrial motions.  Because the judgment and order establish that the district court properly applied the law, reasonably exercised its discretion, and relied on facts fully supported by the record, we affirm.  We also grant, in part, Sharon Tori’s motion to strike documents submitted by Jose Tori as a supplemental record.

F A C T S

            Jose and Sharon Tori were married from August 1993 to March 2003 and are the parents of two minor children.  During the marriage Jose Tori attended medical school and began a residency in a joint psychiatry-and-family-practice program at the University of Minnesota.  In the fall of 1998, he began coursework in the M.B.A. program at the University.  Sharon Tori attended the Carlson School of Management from 1997 to 1999 and obtained her M.B.A. in June 1999.  These educational programs were financed, in part, by student loans.

At the time of dissolution Sharon Tori was employed as a sales representative for a medical-graphics company, with a base gross annual salary of $30,000 and a total income for 2001 of $62,696.  In 2000, Jose Tori earned a salary of $38,809 as a resident physician at the University of Minnesota and $5,763 from Fairview Hospital.  That same year he earned $8,338 for parttime work at the Children’s Doctor’s Office.  From April 2001 through June 2002, he was on paid suspension from his medical residency.  His 2001 income was $49,129.  At the time of the contested dissolution hearing, Jose Tori submitted that he was still able to practice medicine and that he was appealing his termination from employment at the University of Minnesota.  The district court found that it was reasonable for child-support purposes to assume that Jose Tori is able to earn at least $40,000 a year.

Following the contested dissolution hearing, the district court placed sole legal and physical custody of the children with Sharon Tori, provided parenting time for Jose Tori, computed a support obligation for Jose Tori based on imputed income, declined to provide or reserve maintenance for Jose Tori, and ordered him to pay the student loans that he had obtained to finance his education.

Jose Tori sought posttrial relief.  The district court denied relief except for a modification of summer parenting time and imposed conduct-based attorneys’ fees.  Jose Tori appeals, challenging the district court’s (1) custody determination, (2) parenting-time allocation, (3) income imputation for purposes of child support, (4) denial of maintenance or reservation of maintenance, and (5) imposition of conduct-based attorneys’ fees.

D E C I S I O N

            As a preliminary matter, we address Sharon Tori’s motion to strike sections of a supplemental record that Jose Tori filed with this court.  An appellate court may not base its decisions on matters outside the record on appeal.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  The record on appeal comprises “[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any[.]”  Minn. R. Civ. App. P. 110.01.  We reject, for two reasons, Jose Tori’s argument that the motion to strike should be dismissed as untimely.  First, Minn. R. Civ. App. P. 127 governing motions to strike, does not contain a fixed time limit for seeking relief, and Sharon Tori promptly objected to the contents of the supplemental record.  Second, appellate courts have the authority to strike extra-record materials sua sponte to assure compliance with court rules.  Merle’s Constr. Co. v. Berg, 442 N.W.2d 300, 303 (Minn. 1989).

The supplemental record contains documents that are not exhibits and that were not filed with the district court.  We strike, as beyond the record on appeal, Exhibit 118, an exchange of letters between attorneys that was not admitted into evidence; the portion of Volume I that contains entries for dates after April 26, 2001; and Volumes II, III, and V-VII, which are documents not admitted into evidence.  We decline to strike Volume VIII, which contains only copies of this court’s opinions that are referred to in Jose Tori’s brief.

I

            Jose Tori’s primary argument is that the district court should have ordered joint physical and legal custody of the two children or, at minimum, should have structured the custody to permit more active coparenting.  A district court’s custody determination will not be altered unless the district court abused its broad discretion by making findings unsupported by the evidence or improperly applying the law.  In re Custody of N.A.K., 649 N.W.2d 166, 174 (Minn. 2002).  In determining child custody, the district court must consider all relevant factors that affect a child’s best interests, including factors enumerated by statute.  See Minn. Stat. § 518.17, subd. 1 (2002) (listing thirteen best-interests-of-the-child factors).

            When parents seek joint legal or physical custody, the district court must also consider whether the parents are able to cooperate in rearing their children, the methods the parents use for resolving disputes, the willingness of the parents to use dispute-resolution methods, and whether it would be detrimental to the child to have one parent exercising authority over the child’s upbringing.  See Minn. Stat. § 518.17, subd. 2 (2002) (listing factors to be considered when joint custody is sought).

            The district court made extensive, detailed, and carefully considered findings, extracted from a sizable record.  Eleven pages of the fifty-one-page dissolution judgment directly address the custody issue.  The district court made specific findings on each of the statutory best-interests factors and also made specific findings on each of the statutory factors to be considered when a parent seeks joint custody.  The district court again evaluated these factors in issuing its order on Jose Tori’s posttrial motions.

            The district court concluded that sole legal and physical custody of the Tori’s children should be placed with Sharon Tori.  The court carefully and extensively reviewed the Toris’ and their children’s domestic history, physical and mental health, and interaction and interrelationships.  The court evaluated the children’s adjustment to their current circumstances, the stability and instability in their current environment, and their cultural background.  The court also evaluated the disposition of each parent to support and encourage the children’s relationships with the other parent. 

            In addressing the viability of joint custody, the district court specifically found that “[i]t is evident that the [Toris] do not cooperate well with one another” and that the Toris “both acknowledge that they do not cooperate well with one another[.]”  The district court also found it was unlikely that this would change.  The court noted the significant conflicts over parenting-time transfers, removal from daycare and school, and health-care issues.  Based on the Toris’ “intractable difference of opinion and difficulty in working with one another” to address the children’s medical and educational issues, the court concluded that it is in the children’s best interests for one parent to exercise sole legal and physical custody.  See, e.g., Wopata v. Wopata, 498 N.W.2d 478, 482-84 (Minn. App. 1993) (reversing determination of joint physical and legal custody when parents were unable to communicate and cooperate in making decisions on their children’s welfare); Heard v. Heard, 353 N.W.2d 157, 161-62 (Minn. App. 1984) (same).

The district court found that Sharon Tori is the parent better able to provide stability, structure, predictable daily routine, parental authority, and also provide appropriate limits, boundaries, and discipline.  This finding is based on a detailed application of the statutory best-interests factors to the evidence provided at the hearing.  The findings are consistent with the record and justify the district court’s determination that the children’s sole physical and legal custody should be placed with Sharon Tori. 

            Jose Tori raises a number of subsidiary issues that relate to the custody determination:  the lack of a second custody study, Sharon Tori’s credibility on facts that underlie the custody determination, findings on specific factors, delays in the issuance of temporary and pretrial rulings, and restrictions on his ability to travel with the children outside the United States.  We briefly address each of these claimed errors.

            The district court rejected Jose Tori’s request for a second custody study and explained the reasons for that rejection.  A district court’s decision on whether to order an initial or subsequent custody study will not be altered on appeal, absent an abuse of discretion.  Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991).  The district court did not abuse its discretion.  A competent and comprehensive study had already been completed, substantial custody-related evidence was submitted and considered at trial, the person who compiled the study and the expert witness who interviewed the children both testified, and Jose Tori had a full opportunity to challenge or augment any alleged deficiencies in the custody study.

            With respect to credibility, the district court found that the “testimony of both [Toris] was substantially lacking in credibility in many respects.”  The court observed that “[f]erreting the truth from the confusing and often contradictory testimony and evidence submitted at trial has proved a daunting task.”  Significantly, the district court found that Sharon Tori’s lack of honesty revolved around the true nature of the Toris’ domestic relationships and was explainable as the product of embarrassment and self-protection.  The district court factored both Jose and Sharon Tori’s lack of honesty into its determination.  A district court’s credibility determinations are anchored on its opportunity to personally observe the witnesses and to gauge their candor and demeanor.  Appellate courts, for these reasons, defer to the district court’s determination of the credibility of witnesses and the weight to be given their testimony.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).

            Jose Tori’s objections to the district court’s findings on specific best-interests factors are an amalgam of challenges to credibility and weight.  A determination of the credibility and weight to be accorded evidence is the province of the district court.  Id.  Jose Tori has demonstrated no clear error in any finding, and we discern no merit in the argument that the findings should be reversed.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (stating that reversal is warranted only on a demonstration of clear error).

            Allegations of delay in the issuance of temporary and pretrial rulings and difficulty in enforcing the court’s pretrial rulings do not have a dispositive affect on the district court’s final determination.  Minn. Stat. § 518.131, subd. 9(a) (2002).  (Temporary orders do not determine the litigation of rights at trial.)  In an interlocutory order, the district court sanctioned Sharon Tori for moving the children from the family home to Woodbury.  In a custody determination it is the best interests of the children, not the punishment of the parent, that must take priority.  The temporary and pretrial rulings do not provide a basis for reversal.

            Finally, Jose Tori challenges the judgment provision that precludes him from traveling with the children outside the United States.  Prior to trial in May 2002, Jose Tori moved the court for permission to take the children to visit his family in Peru.  Sharon Tori expressed concern that if permission were obtained, he might not return the children to the United States.  In light of the family’s current circumstances, Jose Tori’s employment issues, and the fact that Peru and the United States have no accession with each other in the Hague Convention relating to child abduction, the district court did not abuse its discretion in restricting Jose Tori from traveling internationally with the children unless specifically agreed to in writing by Sharon Tori.


II

            Jose Tori seeks additional parenting time, based partially on events arising after trial.  Parenting-time decisions are discretionary with the district court and will not be altered on appeal absent an abuse of discretion.  Rutten, 347 N.W.2d at 51.  The district court in posttrial motions expanded Jose Tori’s summer parenting time.  Facts arising after trial are not a basis for amended findings.  Rathbun v. W.T. Grant Co., 300 Minn. 223, 238, 219 N.W.2d 641, 651 (1974).  A change in circumstances that warrants modification of parenting time must be raised in a new motion.  See Minn. Stat. § 518.175, subd. 5 (2002).  The district court did not abuse its discretion in the apportionment of parenting time.

III

            The district court found that, although Jose Tori was not practicing medicine at the time of trial, he has the current ability to earn a living.  Relying on Jose Tori’s past employment history, his skills, and his educational background, the court determined that it was reasonable for child-support purposes to assume that Jose Tori has the ability to earn at least $40,000 a year.  Applying the guidelines amount for that income, the court ordered Jose Tori to pay $777 a month in child support.  Jose Tori disputed that determination.

Support “shall” be set based on imputed income if the obligor is voluntarily unemployed or underemployed.  Minn. Stat. § 518.551, subd. 5b(d) (2002).  At trial, Jose Tori testified that he has no restrictions on his ability to practice medicine.  He also testified that during the pendency of a proceeding before the Board of Medicine and during his challenge to the termination of his employment by the University of Minnesota, he did not work because he wanted to be available for the children.  Voluntary underemployment for purposes of Minn. Stat. § 518.551, subd. 5b(d), requires evidence of choice in the underemployment.  Murphy v. Murphy, 574 N.W.2d 77, 82 (Minn. App. 1998).  The district court reasonably found that the record demonstrated not that Jose Tori was incapable of work but that he had elected not to work.  In these circumstances, imputation of income is required.  See Minn. Stat. § 518.551, subd. 5b(d) (stating income “shall” be imputed to voluntarily unemployed or underemployed support obligor); Minn. Stat. § 645.44, subd. 16 (2002) (stating “‘shall’ is mandatory”). 

            Although Jose Tori’s posttrial affidavit stated that the University affirmed his termination, and he is unable to practice medicine, he provides no evidence of an attempt to seek employment in any field of endeavor.  The district court reasonably rejected Jose Tori’s posttrial request for modification of his child-support obligation.

            The amount to be imputed to a support obligor is to be based on the obligor’s “estimated earning ability.”  Minn. Stat. § 518.551, subd. 5b(d).  The $40,000 income imputed to Jose Tori is consistent with the unchallenged finding that the five-year average of Jose Tori’s income for 1997-2001 was $39,632.52.  It is also supported by Tori’s employment skills and educational background.  We affirm the amount of income imputed to Jose Tori.

IV

Jose Tori argues that he should have been provided maintenance or that the district court should have reserved the issue.  Whether to reserve maintenance is discretionary with the district court.  See Prahl v. Prahl, 627 N.W.2d 698, 702 (Minn. App. 2001) (applying abuse-of-discretion standard to maintenance reservation).  The district court concluded that Jose Tori waived spousal maintenance by failing to identify it at pretrial as an issue to be tried.  We agree.  Alternatively, the district court found that he had not demonstrated an inability to support himself.  This finding is consistent with the record.  Even if Jose Tori cannot support himself by practicing medicine, his participation in the University’s M.B.A. program and his educational background demonstrate an ability to earn a non-physician income.  The district court did not abuse its discretion by not reserving maintenance. 

V

            Jose Tori disputed the district court’s requirement that he be responsible for payment of his student loans.  The district court ordered that each of the Toris assume responsibility for their respective student-loan obligations.  Apportionment of debt is discretionary with the district court.  See Justis v. Justis, 384 N.W.2d 885, 888-89 (Minn. App. 1986), review denied (Minn. May 29, 1986).  The district court may apportion a debt to one party even if the other party receives the benefit of that debt.  Dahlberg v. Dahlberg, 358 N.W.2d 76, 80 (Minn. App. 1984). 

The district court found that both of the Toris took out student loans before and during the marriage, that these student loans were used to pay living expenses, that Sharon Tori also used funds from her nonmarital trust to pay marital expenses, and that Jose Tori will receive the benefit of the portion of his student loans spent on his education.  Jose Tori has not shown that the district court abused its discretion in requiring him to pay his own student loans.

VI

            A court has discretion to order conduct-based attorneys’ fees against a party who needlessly contributes to the length or expense of a proceeding.  Minn. Stat. § 518.14, subd. 1 (2002).  The district court ordered Jose Tori to pay Sharon Tori $2,500 in conduct-based attorneys’ fees for having to respond to essentially frivolous posttrial motions.  The court discounted the amount because one posttrial motion resulted in a change in summer parenting time but concluded that the rest of the motions were entirely frivolous.  The court found that the motions were inadequately supported legally and factually, that Sharon Tori “wasted” time and attorneys’ fees responding to the motions which were “largely and substantially meritless—and in many respects simply outlandish.”

The record supports the district court’s characterization of Jose Tori’s motions, and thus supports the order for attorneys’ fees.  Cf. Gales v. Gales, 553 N.W.2d 416, 423 (Minn. 1996) (denying attorneys’ fees on appeal when arguments were “neither frivolous nor asserted in bad faith”); Redmond v. Redmond, 594 N.W.2d 272, 276 (Minn. App. 1999) (allowing conduct-based attorneys’ fees on appeal when arguments were “duplicitous,” “disingenuous” and “lengthen[ed] this litigation, and increase[ed] the expense of these proceedings”). 

            On appeal Jose Tori requests conduct-based attorneys’ fees against Sharon Tori for purportedly misrepresenting facts.  A request for fees on appeal “shall” be submitted by motion.  Minn. R. Civ. App. P. 139.06, subd. 1.  Jose Tori did not move this court for fees on appeal and we therefore decline to consider his request.  If Jose Tori intends the request raised in his brief to relate to fees for conduct in the district court, rather than on appeal, his request is still procedurally deficient.  Any request for conduct-based fees in the district court proceedings must be first raised in the district court.  See In re Bender, 671 N.W.2d 602, 606 (Minn. App. 2003) (declining to address attorney fee issue not raised in district court), review denied (Minn. Jan. 28, 2004); see also Thiele, 425 N.W.2d at 582 (stating appellate courts generally do not address issues raised for the first time on appeal).  Jose Tori did not raise this request in the district court.

            Affirmed.