This opinion will be unpublished and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:

William P. Clark, petitioner,





Wendy I. Clark,




Filed August 17, 2004

Affirmed in part, reversed in part, and remanded;

motion denied
Forsberg, Judge*


Hennepin County District Court

File No. DC 277005



Karim El-Ghazzawy, El-Ghazzawy Law Offices, LLC, 701 Fourth Avenue South, Suite 300, Minneapolis, MN 55415 (for respondent)


David R. Forro, Caldecott & Forro, P.L.C., 431 South Seventh Street, Suite 2485, Minneapolis, MN 55415 (for appellant)


            Considered and decided by Stoneburner, Presiding Judge, Schumacher, Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N


            In this dissolution matter, appellant challenges the district court’s award of joint legal and joint physical custody.  Appellant also argues that the district court erred in denying her request to set child support and in not granting her request for a new trial.  In addition, appellant requests need-based attorney fees on appeal.  We affirm in part, reverse and remand with regard to the setting of child support, and deny appellant’s motion for attorney fees.


            The parties, appellant Wendy Clark and respondent William Clark, were married on March 7, 1987, and separated on June 7, 2002.  They have two minor children, A.W.C., age 16, and A.R.C., age 9.

            On March 3, 2003, after two days of trial testimony, the parties reached a settlement agreement in their dissolution action.  In part, the agreement called for joint legal custody, joint physical custody, and the appointment of a guardian ad litem to assist the parties with parenting arrangements, but did not include a parenting schedule.  The agreement also called for the reservation of child support and an award of the minor children’s derivative social security benefits to respondent.  On June 2, 2003, the judgment and decree dissolving the parties’ marriage was entered, adopting the parties’ stipulation. Thereafter, appellant moved for “amended Findings of Fact and Conclusions of Law, or, in the alternative, a new trial.”  The district court upheld the settlement agreement and denied appellant’s motions.


1.         Appellant argues that the district court erred in adopting the parties’ stipulation regarding joint legal and joint physical custody because the record and findings show that the parties lack the ability to cooperate regarding the children.  Appellate review of custody determinations is limited to determining 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).

Appellant agreed by stipulation to the award of joint legal and joint physical custody.  See Shirk v. Shirk, 561 N.W.2d 519, 521 (Minn. 1997) (stating that stipulations are a judicially favored means of simplifying and expediting dissolution litigation and are accorded the sanctity of binding contracts).  Nevertheless, even if a case involves a stipulation, parties cannot enter a custody agreement that is against the best interests of the children.  LaChapelle v. Mitten, 607 N.W.2d 151, 160 (Minn. App. 2000); review denied (Minn. May 16, 2000).  When a grant of either joint legal or joint physical custody is contemplated, the court must consider the ability of the parents to cooperate, methods for resolving disputes and the parents’ willingness to use those methods, and whether it would be detrimental to the child if one parent were to have sole authority over the child’s upbringing.  Minn. Stat. § 518.17, subd. 2 (2002).

            Here, the district court found that the parties had been unable to work cooperatively regarding parenting issues.  But the court also found that there was a significant probability that either party would utilize his or her position as sole custodian to usurp the other’s parenting role.  Neither party disputes these findings, and they are consistent with the Hennepin County Custody Evaluation dated January 27, 2003.  See Wilson v. Moline, 234 Minn. 174, 182, 47 N.W.2d 865, 870 (1951) (stating appellate court need not “discuss and review in detail the evidence for the purpose of demonstrating that it supports the trial court’s findings”).  On this record and findings, the court awarded joint legal and joint physical custody, with the appointment of a guardian ad litem.

            This record reveals that the district court acknowledged its obligation to go beyond the stipulated agreement and considered the best interests of the children.  When the parties have problems working together, Minn. Stat. § 518.17 requires that the district court exercise its discretion by weighing their ability to cooperate with the detriment that would be caused to the children if one parent were to have sole authority over their upbringing.  See, e.g., LaChapelle, 607 N.W.2d at 160 (concluding the record supported finding that joint legal custody would be in child’s best interests despite evidence of the parties’ inability to cooperate).  Because the findings sufficiently address the statutory factors, we conclude that the district court did not abuse its discretion in awarding joint legal and joint physical custody.

2.         Appellant argues that the district court erred in adopting the parties’ stipulation of joint physical custody because the court’s dissolution judgment does not include a sufficiently explicit parenting schedule.  Joint physical custody is defined as an arrangement in which the routine daily care, control, and the residence of the child is structured between the parties.  Minn. Stat. § 518.003, subd. 3(d) (2002).  When “the parties have agreed, by stipulated decree, to joint legal and joint physical custody . . . and the court has accepted that denomination, the parties will be bound by it.”  Ayers v. Ayers, 508 N.W.2d 515, 520 (Minn. 1993).

            Here, with the assistance and advice of counsel, the parties agreed to joint physical custody.  The district court adopted the parties’ stipulation and designated appellant’s residence as the children’s primary residence and granted respondent “reasonable and liberal parenting time.”  The court did not impose a day-to-day parenting schedule, but did grant “broad powers” to the guardian ad litem “to insure that [respondent] is able to re-establish and move toward normalization of the relationship between him and the children.” 

Thus, although the district court did not include a specific schedule for day-to-day parenting time, the parties have shared responsibility for the physical custody of the children pursuant to their stipulation.  See Lutz v. Lutz, 485 N.W.2d 311, 314  (Minn. App. 1992) (stating joint physical custody does not require an absolute equal division of time; rather, it is only necessary that physical custody be the shared responsibility of the parties).  Moreover, we note that neither party requested a parenting schedule as part of the stipulated agreement and neither party objects to the guardian ad litem’s authority in this matter.  See Clark v. Clark, 642 N.W.2d 459, 464 n.1 (Minn. App. 2002) (“Generally, arguing an issue in a posttrial motion or on appeal, even one previously raised in the district court, on a theory other than the theory upon which that issues was initially argued to the district court precludes the district or appellate court from addressing the newly raised theory.”).  For these reasons, we cannot say that the district court abused its discretion in accepting the parties’ stipulation to the denomination of joint physical custody.

            3.         Appellant’s motion for amended findings of fact and conclusions of law included a request that the district court set respondent’s child support.  Respondent argues that the district court, in denying appellant’s request to set support, properly focused on the stipulation when little more than a year had passed since the agreement.  See, e.g., O’Connor v. O’Connor, 386 N.W.2d 395, 397-98 (Minn. App. 1986) (finding party was bound by initial agreement to reserve issue of child support because little more than one year had passed since agreement).

            Contrary to respondent’s argument, the district court’s reason for denying appellant’s request is not clear from the court’s order or written memorandum.  We acknowledge that a stipulation is an important consideration in determining child support because it represents the parties’ acquiescence in a settlement.  McNattin v. McNattin, 450 N.W.2d 169, 171 (Minn. App. 1990).  Nevertheless, where child support is originally reserved, the subsequent setting of support is treated as an initial matter.  Davis v. Davis, 631 N.W.2d 822, 827 (Minn. App. 2001). 

            Under Minn. Stat. § 518.551, subd. 5(a) (2002), the court may require either or both parents to pay child support in “an amount reasonable or necessary for the child’s support.”  In setting support, the district court must consider all relevant factors, including the financial circumstances and needs of the parties and the financial, educational, and emotional needs of the children.  Minn. Stat. § 518.551, subd. 5(c) (2002).  In a joint custody case, the father is required to pay his guideline amount only during the time when the mother has custody and vice-versa.  Valento v. Valento, 385 N.W.2d 860, 862 (Minn. App. 1986), review denied (Minn. June 30, 1986).

            Because the parties stipulated that the setting of child support should be reserved, a determination with respect to support should be made under Minn. Stat. § 518.551, subd. 5, with reference to the parties’ stipulation.  We remand to the district court for the necessary findings.  The district court may receive further evidence on the matter as it deems appropriate.

            4.         Appellant argues that the district court erred in denying her motion for a new trial.  But the denial of her request for a new trial cannot be appealed where the parties entered into a stipulation and no trial was held.  See Johnson v. Johnson, 439 N.W.2d 430, 431 (Minn. App. 1989) (“A motion for anew trial is an anomaly where there has been no trial and the denial of such a motion is not appealable.”). 

            5.         Appellant filed a motion with this court requesting more than $9,000 in need-based attorney fees and costs for this appeal.  Under Minnesota law, a court shall award need-based attorney fees, costs, and disbursements if it finds that (1) the receiving party needs the award to pursue the party’s rights in the proceeding; (2) the paying party has the ability to pay attorney fees; and (3) the receiving party does not have the ability to pay them.  Minn. Stat. § 518.14, subd. 1 (2002).

            Appellant argues that she should be awarded attorney fees because respondent “has been awarded and accessed over $250,000 [in] cash and bonds in just the last 18 months.”  The record before us includes the parties’ monthly budgets at the time of the dissolution, approximately one year ago.  The record contains minimal information regarding appellant’s current assets and does not explain what specifically became of the $83,901 she received after the dissolution upon the sale of the parties’ homestead.  On this record, there is insufficient information to determine whether appellant can pay her own attorney fees on appeal.  See Gales v. Gales, 553 N.W.2d 416, 423 (Minn. 1996) (denying party’s request for appellate attorney fees where party did not provide court with current financial information).  Appellant’s motion for need-based attorney fees is denied.

Affirmed in part, reversed in part, and remanded; motion denied.


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