This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Affirmed; motion granted
Cass County District Court
File No. F4030542
Virginia J. Knudson, Borden, Steinbauer & Krueger, P.A., 302 South Sixth Street, Box 411, Brainerd, MN 56401-0411 (for respondent)
Patricia A. Aanes, Erickson, Pearson & Aanes, 319 South Sixth Street, Box 525, Brainerd, MN 56401 (for appellant)
Considered and decided by Klaphake, Presiding Judge; Stoneburner, Judge; and Forsberg, Judge.*
In this appeal from a custody award, appellant J.S.C. (mother) argues that the district court abused its discretion by awarding joint physical custody when neither party sought it, improperly limited mother’s ability to move and retain primary residence of the children, and violated her constitutional right to travel and equal protection by limiting her ability to move. We affirm.
Mother and respondent J.A.E. (father) were never married but lived together and have two daughters, S.E., born on December 31, 1997, and M.E., born on June 6, 1999. Mother has a son from a previous relationship. When the parties separated, father petitioned for custody of S.E. and M.E. While the petition was pending, father extracted a temporary custody-sharing agreement from mother by refusing to return the children from visitation until she agreed to his terms. Mother, in turn, denied that father is the biological parent of S.E. and M.E. Prior to trial, however, the district court imposed a parenting schedule and the parties stipulated to father’s paternity.
At the custody trial, each parent sought joint legal and sole physical custody of the children. The court-appointed custody evaluator recommended that the parties have joint legal and joint physical custody. Mother’s expert witness recommended that the parties have joint legal custody and the mother have sole physical custody. The district court awarded joint legal and joint physical custody and ruled that if mother, who had moved approximately 300 miles from the home she had shared with father, returned to live within 20 miles of father, the children would reside with her and father would have parenting time two evenings per week and every other weekend. In the event mother chose not to reside within 20 miles of father, the children would reside with father and mother would have parenting time two evenings per week and every other weekend, with the weekday parenting time to occur in the county where father resides. The judgment provided a deadline for mother to move. This appeal followed.
Mother argues that the district court abused its discretion by awarding joint physical custody because neither party sought joint physical custody and no evidence about joint physical custody was presented at trial. Mother asserts that the district court’s findings do not address the factors required by Minn. Stat. § 518.17, subd. 2 (2002), for an award of joint physical custody. Where, as here, there was no motion for a new trial, appellate court may review substantive issues of law properly raised at trial as well as whether the evidence supports the findings of fact, and whether the findings of fact support the conclusions of law and the judgment. Alpha Real Estate Co. v. Delta Dental Plan, 664 N.W.2d 303, 310 (Minn. 2003); Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976).
The district court has broad discretion in determining custody matters. Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989). This court, therefore, views the evidence in the light most favorable to the district court’s findings. Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn. 1993). Appellate review of a custody determination is limited to whether the district 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). We will reverse a district court’s finding of fact only when it is clearly erroneous. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). A finding of fact is clearly erroneous if an appellate court is left with the “definite and firm conviction that a mistake has been made.” Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).
The guiding principle in all child custody cases is whether the arrangement would be in the best interests of the children. Pikula, 374 N.W.2d at 711. Joint physical custody is generally considered a disfavored custodial arrangement, appropriate only in exceptional cases where the parties are able to cooperate. Rosenfeld v. Rosenfeld, 529 N.W.2d 724, 726 (Minn. App. 1995); Wopata v. Wopata, 498 N.W.2d 478, 483 (Minn. App. 1993). In addition to considering the best-interest factors of Minn. Stat. § 518.17, subd. 1 (2002), to award joint physical custody, the district court must make findings addressing the joint physical custody factors of Minn. Stat. § 518.17, subd. 2. Those factors include: (1) the ability of the parents to cooperate in the rearing of their children; (2) the methods for resolving disputes on any major decision concerning the child’s life and the willingness of the parents to use those methods; (3) whether it would be detrimental to the child for one parent to have sole authority over the child’s upbringing; and (4) whether domestic abuse has occurred between the parents. Minn. Stat. § 518.17, subd. 2. The statute requires the district court to “make detailed findings on each of the factors . . . and explain how the factors led to its determination that joint custody would be in the best interests of the child[ren].” Id. But the district court “need not make a specific finding for each of the statutory factors, nor must each factor be specifically addressed by the trial court. It is sufficient if the findings as a whole reflect that the trial court has taken the relevant statutory factors into consideration in reaching its decision.” Berthiaume v. Berthiaume, 368 N.W.2d 328, 332 (Minn. App. 1985).
In this case, the district court found that, in the past, the parties have had difficulty cooperating with one another regarding parenting time, as evidenced by father’s withholding of the children to extract a temporary custody-sharing agreement, and mother’s paternity challenge and move to a different community. But the record shows that the parties initially cooperated under a flexible parenting arrangement and the parties agreed to joint legal custody, which is evidence of their ability to cooperate in reaching major decisions about their children. Although the district court did not explicitly state that the parties are currently able to cooperate, a finding that the parties are able to cooperate is implicit in the district court’s statement that “it is only by [the parties’] cooperation that the best interests of the children can be assured,” and the record supports the implicit finding.
Mother also claims that the district court failed to make a finding regarding the methods for resolving disputes on any major decision concerning the children. The district court stated in its conclusions of law, however, that “[i]n the event the parties are unable to agree on parenting time issues, a parenting time expeditor will be appointed by the Court with expenses to be shared equally by the parties.” Therefore, the district court appropriately addressed this factor.
The district court found that it would not be in the best interests of the children to grant one party sole control over the upbringing of the children. Mother argues that this finding is not “detailed” as required by statute. But the district court determined that both parties are fit to care for the children, the parties co-parented the children, both parties have the capacity to give love and affection, and that these children “need both parents.” The district court also found that, although mother may be better equipped to raise the children on her own, father is more willing to do so. Considering the findings as a whole, we conclude that the finding that it would be detrimental to the children for one parent to have sole authority over their upbringing is sufficiently detailed.
Mother asserts that there is no evidence showing that the requirement that she must live within 20 miles of respondent will promote stability and regularity in the children’s lives. The district court found that the parties co-parented the children and that it is in the children’s best interests to live near father. Significantly, the district court also found that mother’s move “resulted in a lessening of the contact that [father] would normally have with the children.” Because the parties successfully co-parented the children, common sense supports the conclusion that moving the children away from one parent disrupted the stability and regularity of their lives, despite the finding that the children were adjusting well to the new community. During the hearing, the district court asked each parent whether he or she would be willing to move so that the children would be near both parents and each said yes.
Mother argues that the district court’s order makes it impossible for her to utilize her parenting time with the children during the week if she chooses to remain in her new location. But if the children remain with mother in her new location, father’s weekday parenting time will be equally affected. In fact, the record demonstrates that after mother moved away, father’s weekday contact with the children was primarily by telephone.
Because the findings sufficiently address the statutory factors, we conclude that the district court did not abuse its discretion by granting joint physical custody to the parties.
II. Conditional primary residence
Mother argues that the district court failed to apply a “presumption” in favor of allowing a parent to relocate her residence, absent a showing by the other party that the move would not be in the best interests of the children, citing Auge v. Auge, 334 N.W.2d 393 (Minn. 1983). But Auge does not apply to an initial custody determination, nor does it address joint physical custody situations. Ayers, 508 N.W.2d at 520 (declining to adopt the argument that removal presumption in Auge should be expanded to joint physical custody cases). In Auge, the custodial parent requested permission to move the child to Hawaii for part of the year. The district court denied the custodial parent’s request without an evidentiary hearing. The supreme court held that it was error for the district court to deny the custodial parent’s request without an evidentiary hearing because denial of the request effected a modification of custody. Id. at 396. The court further held that, in Minnesota, there is a presumption in favor of removal, subject to the non-custodial parent’s ability to rebut the presumption by showing that the move would not be in the child’s best interests. Id. at 397.
The Auge court, however, declined to decide the appropriate rule for cases involving “joint custody.” Id. at 396 n. 2; see also Ayers, 508 N.W.2d at 519 (stating: “[i]n Auge we held that a custodial parent in Minnesota is presumptively entitled to remove his or her child to another state, but specifically declined to decide the rule for cases involving joint custody.”). And a little over a year after Auge was decided, this court held that the Auge presumption does not apply to an initial custody determination. Stangel v. Stangel, 355 N.W.2d 489, 490 (Minn. App. 1984), review denied (Minn. Feb. 6, 1985). Stangel affirmed the district court’s award of sole custody to the mother and the district court’s decision to allow the mother to move to Louisiana with the child, but held that, rather than applying the Auge presumption, the district court “should have treated the proposed move as simply another factor to balance in determining who should have custody under Minn. Stat. § 518.17 (1982).” Id.
The ruling in Stangel that the Auge presumption does not apply in initial custody determinations was reiterated in LaChapelle v. Mitten, 607 N.W.2d 151 (Minn. App. 2000), review denied (Minn. May 16, 2000). LaChapelle involved an initial custody dispute between a lesbian couple and the biological father of the child. Prior to the custody hearing, Mitten, the woman who gave birth to the child, requested the court’s permission to move with the child to Michigan for employment reasons. Id. at 157. The court granted Mitten’s request pending further proceedings. After a full custody hearing, Mitten was awarded sole physical custody on the condition that she and the child reside in Minnesota. Id. at 158. Mitten appealed arguing that a conditional custody award based on place of residence was an abuse of discretion. Id. The LaChapelle court began its analysis of the issue by stating that:
In an initial custody proceeding, a trial court treats a proposed change of residence by a party as one factor to balance in determining custody of a child. Stangel v. Stangel, 355 N.W.2d 489, 490 (Minn. App. 1984), review denied (Minn. Feb. 6, 1985). A proposed change of residence bears directly on several of the best-interests factors in section 518.17. The factors stressing stability and continuity of care are of particular importance in light of a parent’s proposed move to another state. Also important are the intimacy of the relationships between each parent and the child; the interaction of the child with parents and other people who affect the child’s best interests; the child’s adjustment to home, school, and community; and the permanence, as a family unit, of the existing or proposed custodial home. Minn. Stat. § 518.17, subd. 1(a)(4), (5), (6), (7), and (8) (1998).
Id. at 162. LaChapelle affirmed the district court’s conditional custody award based on the child’s best interests as a whole. “The lack of statutory authority explicitly allowing conditional custody awards does not preclude such an award when it is in the child’s best interest.” Id. at 162-63 (citing DeLa Rosa v. DeLa Rosa, 309 N.W.2d 755, 758 (Minn. 1981) (in family cases, the district court has inherent power to grant relief as facts and equities require)).
Moreover, in Ayers, the supreme court held that when parties share joint physical custody and the primary caregiver requests to move out of state, the endangerment standard of Minn. Stat. § 518.18(e) applies, not the Auge presumption, because the party is actually requesting a modification of custody. Ayers, 508 N.W.2d at 520. The Ayers case further supports the position that the Auge presumption only applies in modification proceedings where the parties do not share joint physical custody. In initial custody determinations, the best-interests analysis continues to apply, even when one party is contemplating a move.
Mother also relies on Imdieke v. Imdieke, 411 N.W.2d 241 (Minn. App. 1987) to support her proposition that the Auge presumption applies when a custodial parent wants to relocate within the state. But Imdieke is factually distinguishable. The issue in Imdieke was whether the district court erred in awarding a split custody arrangement, not whether the district court erred by awarding a conditional custody award based on location of residence. The Imdieke court, citing Auge, merely stated that the mother should not be penalized for having to move after the family home was sold to pay down the father’s debts. Id. at 244.
In this case, the district court properly considered mother’s move as one factor in the best-interests analysis. The district court found that until the separation, the children lived in a stable, satisfactory environment co-parented by mother and father, both parties have the capacity to give the children love and affection, and mother’s move decreased the amount of time the children were able to spend with father. The district court also found that the children have maternal and paternal grandparents in the area where father lives. The district court concluded that “[i]f the [mother] wishes to have the children in her care the majority of the time, she will be required to live in proximity to the home of the [father]. This in the Court’s opinion serves the best interests of the children.”
Mother claims that the district court’s conditional award was arbitrarily focused on a specific community, rather than on whether custody with either parent specifically serves the children’s best interests. We disagree. The evidence supports the district court’s finding that mother and father shared all of the parenting duties, and that remaining in the community where they have always lived, close to extended family with the parents continuing to co-parent, is in the best interests of the children.
Mother also argues that there is no evidence in the record that her move separated the children from their father. This claim is without merit. Father testified that although mother has been meeting him halfway between their homes to facilitate weekend visitation, much of his weekday contact has been by telephone. He testified that mother did not list him as an emergency contact at the girls’ school because he lived too far away.
Mother argues that the 20-mile restriction is arbitrary and must be overturned. Although 20 miles is a somewhat arbitrary limit, common sense supports some reasonable limit on the driving distance between the parents’ residences to facilitate the co-parenting that the district court found to be in the children’s best interests. Mother further argues because father’s ability to move is unrestricted, she could be required to move again to stay within 20 miles of him. But this issue is not before us at this time. Failure to apply the Augepresumption was not error, and, because the evidence supports the district court’s finding that it is in the children’s best interests to live primarily in the area where they have lived with both parents, it did not abuse its discretion.
III. Constitutional arguments
Mother argues that requiring her to live within 20 miles of father if she is to have primary care and custody of the children violates her fundamental right to travel and the equal protection clauses of the United States and Minnesota Constitutions. Because mother did not move for a new trial, these constitutional arguments were not raised below and this court could decline to consider them. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (appellate courts will generally not consider matters not argued and considered before the district court). But, in the interests of justice and court economy, we will address the issues.
“The right to travel is inherent in the concept of our country as a federal union; hence the right to travel is a fundamental constitutional right under the federal constitution.” Mitchell v. Steffen, 504 N.W.2d 198, 200 (Minn. 1993). Included in the right to travel is the right to “live and settle down anywhere one chooses in this country without being disadvantaged because of that choice.” Id. at 201. “The nature of the disadvantage or hardship involved is important to the level of review a restriction on the right to travel receives.” LaChapelle, 607 N.W.2d at 163. Here, the hardship imposed on appellant is the loss of primary care and custody if she does not move back to the Pine River area. This loss implicates the fundamental right to raise one’s child and therefore, triggers strict scrutiny. Id. (citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212 (1972) (fundamental interest of a parent in the companionship, care, custody, and management of children)).
Because a fundamental right is implicated and therefore subject to strict scrutiny, the deprivation may only be upheld if it is justified by a compelling state interest. Id. In this case, the compelling state interest is the protection of the best interests of the child. Id. In LaChapelle, the court addressed a similar argument. Mitten argued that the award of sole physical custody conditioned on her return to Minnesota violated her fundamental right to travel. The court rejected this argument and concluded that the conditional award did not restrict Mitten’s right to remain out of state; the court only required Mitten to return to Minnesota if she wished to maintain sole physical custody. Id. at 164. Therefore, the burden on Mitten’s right to travel arose from her desire to remain the child’s sole physical custodian.
This case is similar. The district court specifically found that it would be in the children’s best interests to live in close proximity to their father and extended family in the area where they had always lived. Mother was awarded primary care and custody of the children conditioned on her return to that area. This conditional award does not restrict mother’s right to remain in her new location; the district court only requires her to move if she wishes to maintain primary custody of the children.
Mother’s equal protection argument is also without merit. Equal protection prevents the government from making distinctions among people when applying the law, unless the distinction serves a legitimate governmental interest. R.B. v. C.S., 536 N.W.2d 634, 637 (Minn. App. 1995). In LaChapelle, Mitten also argued that an arrangement requiring her to live where she does not want to live for the convenience of the child’s father and her former partner violated the equal protection clauses of the Minnesota and United States Constitutions. The LaChapelle court concluded that, because custody decisions in Minnesota are based on the application of the best-interests standard, which focuses solely on the interests of the child, the standard applies equally to all parents. 607 N.W.2d at 165.
In this case, the district court used a best-interests analysis focusing on the needs of the children and concluded that it is in the children’s best interests to live in close proximity to both parents in the area where they have always lived, close to extended family. The district court’s reasoning appears to apply equally to either parent who chose to move away from the other parent.
Appellant moved to strike portions of respondent’s brief as being outside of the record on appeal. See Mitterhauser v. Mitterhauser, 399 N.W.2d 664, 667 (Minn. App. 1987) (matters outside the record may not be considered by an appellate court and must be stricken). We agree that the statements made in respondent’s brief are not sufficiently supported by the record. Therefore, the statements are stricken, and this court did not consider them in reaching its decision in this matter.
Affirmed; motion granted.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 In their briefs, the parties refer the temporary custody-sharing agreement as a “parenting plan.” But the arrangement is not a “parenting plan” as defined by Minn. Stat. § 518.1705 (2002), and therefore, we will not refer to it as such.