This opinion will be unpublished and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

A03-1962

 

 

In re Amy Marie Simmer, petitioner,

Respondent,

 

vs.

 

Jeffery Robert Simmer,

Appellant.

 

 

Filed July 27, 2004

Affirmed

Robert H. Schumacher, Judge

 

Hennepin County District Court

File No. DC 253810

 

 

Christopher M. Banas, Maury D. Beaulier, Hellmuth & Johnson, PLLC, 10400 Viking Drive, Suite 500, Eden Prairie, MN 55344 (for respondent)

 

Jo Lynn Isaacson, Wellner & Isaacson, PLLP, Glen Oaks Center, 2E South Pine Drive, Circle Pines, MN 55014 (for appellant)

 

 

Considered and decided by Schumacher, Presiding Judge; Halbrooks, Judge; and Forsberg, Judge.*


U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

In this parenting-time-modification appeal, appellant-father Jeffery Robert Simmer argues that the district court (1) should not have modified the equal division of parenting time in the joint-physical-custody award he shared with respondent-mother Amy Marie Simmer to a 70/30% division of parenting time; (2) erred by restricting his parenting time without holding an evidentiary hearing and without making findings under Minn. Stat.  518.175, subd. 5 (2002); (3) erroneously modified child support based on its defective modification of parenting time; and (4) should have awarded him attorney fees. We affirm.

FACTS

The stipulated 2000 judgment dissolving the parties' marriage awarded them joint physical custody of their child but reserved the parenting-time schedule and child support. Parenting-time difficulties followed, mediation did not resolve the difficulties, and both parties sought relief in district court.

In an October 6, 2003 order, the district court imposed a parenting-time schedule causing the child to spend 70% of his time with mother and 30% of his time with father, set father's monthly net support payment under the Hortis/Valento formula, and denied father's request for attorney fees.

D E C I S I O N

1. Noting that the parties originally intended an equal division of parenting time, father assumes that the 70/30% split of parenting time imposed by the district court constitutes a modification of physical custody. Father argues that the modification is defective because mother did not satisfy the requirements for modifying custody set out in Minn. Stat.  518.18(d) (2002), and because the district court did not make findings addressing the requirements of that statute.

The assumption that a change in a joint-physical-custodian's parenting time can constitute a change in physical custody is incorrect. The dispositive element in determining the nature of a stipulated custody arrangement is the label put on the arrangement by the parties and adoption of that arrangement by the court. Nolte v. Mehrens, 648 N.W.2d 727, 730 (Minn. App. 2002); see id. at n.3 (noting that prior case law is superseded to extent it suggests amount of time parent spends with child bears on whether physical custody is sole or joint).

Here, the parties' marital-termination agreement stated that they agreed to joint physical custody, the dissolution judgment based its custody award on that agreement, and, in the current proceeding, the district court stated that "[n]either party has requested that custody be modified." The court set father's monthly net support payment with the Hortis/Valento child-support formula, which is the presumptively appropriate formula for setting support when parties share joint physical custody. Schlichting v. Paulus, 632 N.W.2d 790, 793 (Minn. App. 2001). Thus, consistent with the parties' agreement, the dissolution court's adoption of that agreement and the incorporation of it into the dissolution judgment, the parties' lack of a motion to modify physical custody, and case law, the district court was not modifying the existing joint-physical-custody award. Therefore, Minn. Stat.  518.18 need not have been satisfied here.

2. Alternatively, father argues that the district court improperly modified his parenting time. Generally, the district court has broad discretion in making parenting-time decisions. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995). Except in circumstances not relevant here, a district court may not "restrict" parenting time unless it finds either that parenting time is likely to endanger the child or that "the parent has chronically and unreasonably failed to comply with court-ordered parenting time." Minn. Stat.  518.175, subd. 5 (2002). Father argues that reducing his parenting time from 50% to 30% is a "restriction" that is unsupported by the statutorily-required findings.

A parenting-time modification that results in a reduction of total parenting time is not necessarily a "restriction" of parenting time under Minn. Stat.  518.175, subd. 5. Anderson v. Archer, 510 N.W.2d 1, 4 (Minn. App. 1993). In deciding "whether a reduction constitutes a restriction, the court should consider the reasons for the change as well as the amount of the reduction." Id.

Here, the new parenting-time schedule was largely based on the child starting school and extracurricular activities, as well as mother's move to a new home, the combination of which render father's former mid-week (overnight) parenting time no longer realistic. Because much of the reduction of father's parenting time is the result of benign changes in the circumstances of the parties and the child, we cannot say that this case involves a "restriction" of father's parenting time and a need for restriction-related findings. See id. at 4-5 (noting parenting-time reduction resulting from changed circumstances of parties and children was not "restriction" given reason for reduction and amount of parenting time still allowed to complaining party).

Generally,

[s]ubstantial modifications of [parenting time] rights require an evidentiary hearing when, by affidavit, the moving party makes a prima facie showing that visitation is likely to endanger the child's physical or emotional well being. Insubstantial modifications or adjustments of visitation, on the other hand, do not require an evidentiary hearing and are appropriate if they serve the child's best interests.

 

Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001) (citations omitted), review denied (Minn. Oct. 24, 2001). Citing Braith and similar cases, father argues that the extent of the decrease in his parenting time entitled him to an evidentiary hearing. But while both parties moved for a parenting-time schedule, neither explicitly alleged endangerment. Also, because this case does not involve a "restriction" of father's parenting time, the cases father cites to argue that he is entitled to an evidentiary hearing are distinguishable. Moreover, under the rules, non-contempt motions "shall" be submitted without oral testimony "unless otherwise ordered by the court for good cause shown." Minn. R. Gen. Pract. 303.03(d).

Here, not only did neither party ask for an evidentiary hearing, but also father did not do so despite knowing that the parenting-time schedule proposed by mother would, if adopted, allow him less than the equal division of time assumed by the dissolution judgment. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that appellate courts generally address only issues presented to and considered by district court). An evidentiary hearing was not required in this matter.

3. Father argues that the district court failed to make adequate best-interests findings to justify the reduction of his parenting time. While the district court did not explicitly make best-interests findings, a court-ordered parenting-time schedule was required here. There was no parenting-time schedule in the dissolution judgment, the parties could not agree to a schedule, mediation had been unsuccessful, and both parties moved the district court for a court-ordered schedule.

To the extent father objects to the parenting schedule itself, his proposed schedule would have awarded him a disproportionate amount of the child's free time, particularly during the school year. Because the district court's parenting-time schedule more evenly divides the child's free time, it is consistent with case law favoring a child's ability to have a relationship with both parents. See Archer, 510 N.W.2d at 4 (noting importance of maintaining parent-child relationship with custodial parent and affirming modification of parenting time "necessary" to maintain that relationship); Clark v. Clark, 346 N.W.2d 383, 385 (Minn. App. 1984) (noting intent of visitation statute is to allow child to maintain relationships with both parents), review denied (Minn. Jun. 12, 1984).

4. The district court found that the child will spend about 70% of his time with mother and 30% of his time with father, and set father's net child-support payment under the Hortis/Valento formula. Father argues that if the parties had roughly equal parenting time, the similarity of their incomes would have resulted in a "nominal" net support payment. See, e.g., Valento v. Valento, 385 N.W.2d 860, 862-63 (Minn. App. 1986) (describing Hortis/Valento formula), review denied (Minn. June 30, 1986). Because we affirm the district court's parenting-time decisions, we also affirm its child-support ruling.

5. Father challenges the district court's denial of his requests for need-based and conduct-based attorney fees. Need-based attorney fees "shall" be awarded if the district court finds, among other things, that the payor has the ability to pay the award. Minn. Stat.  518.14, subd. 1 (2002). Here, father does not challenge the finding that mother has a monthly deficit. Because mother lacks an ability to pay fees, the district court's refusal to award need-based fees is "not improper." Peterka v. Peterka, 675 N.W.2d 353, 360 (Minn. App. 2004).

In its discretion, a district court may award "additional" conduct-based fees against a party who unreasonably contributes to the length or expense of a proceeding. Minn. Stat.  518.14, subd. 1. Here, in refusing to grant father's request for conduct-based fees, the district court found that father had not shown that mother's conduct unreasonably contributed to the length or expense of this proceeding. Upon reviewing the file and father's arguments regarding mother's conduct, we must agree with the district court's analysis.

In his brief, and without having filed a motion or supporting documentation, father seeks attorney fees on appeal. Fees on appeal "shall" be sought by motion, and motions for fees on appeal are to be supported by certain documentation. Minn. R. Civ. App. P. 139.06, subd. 1. The lack of a proper motion generally renders a fee award inappropriate. Koes v. Advanced Design, Inc., 636 N.W.2d 352, 363 (Minn. App. 2001), review denied (Minn. Feb. 19, 2002). We decline to award fees at this time[1].

Affirmed.



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

[1] Because Rule 139.06 allows motions for attorney fees to be made "within the time for taxation of costs, or such other period of time as the court directs" and because Rule 139.03 allows taxation of costs "within 15 days after the filing of the decision," it is still possible for father to file a timely motion for fees in this appeal.