This opinion will be unpublished and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
In re the Marriage of:
Connie Aileen Cepek n/k/a
Connie Aileen VanValkenburg, petitioner,
Scott Anthony Cepek,
Filed December 14, 2004
Dakota County District Court
File No. F4-94-15085
John T. Burns, Jr., Burns Law Office, 115 American Bank Building, 14300 Nicollet Court, Burnsville, Minnesota 55306 (for appellant)
Terry H. Rueb, Rueb & Karl Law Office, 2500 West County Road 42, Suite 110, Burnsville, Minnesota 55337 (for respondent)
Considered and decided by Hudson, Presiding Judge; Kalitowski, Judge; and Klaphake, Judge.
U N P U B L I S H E D O P I N I O N
On appeal in this custody-modification dispute, appellant-mother argues that the record does not support modification of legal custody, and the district court erred by awarding joint legal custody. Appellant also argues that the district court improperly awarded conduct-based attorney’s fees for conduct occurring outside the current litigation process. Finally, appellant argues that the record does not support the reimbursement of visitation expenses awarded by the district court, or the modification of visitation ordered by the district court. We affirm.
Appellant contends that the district court’s findings were insufficient to support modification of legal custody. Appellate review of custody-modification cases is limited to whether the trial court abused its discretion by either making findings unsupported by the evidence or improperly applying the law. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996). Where the issue on appeal is the sufficiency of the evidence supporting the trial court’s conclusions, those conclusions will not be disturbed absent an abuse of discretion. Sharp v. Bilbro, 614 N.W.2d 260, 263 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000).
Modification proceedings are governed by Minn. Stat. § 518.18(d) (2002), which provides that a court may order modification if the district court finds (1) a change in the circumstances of the child or custodian; (2) that modification is necessary to serve the best interests of the child; (3) that the child’s present environment endangers the child’s physical or emotional development, and (4) that the harm likely to be caused by a change of environment is outweighed by the advantages to the child. See Minn. Stat. § 518.17, subd. 1(a) (Supp. 2003) (listing the 13 best-interests factors).
The evidence demonstrates the requisite change in circumstances. In order to support a custody modification, a change in circumstances must be significant and must have occurred since the original custody order. Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989), review denied (Minn. June 21, 1989). The district court found that the five-month lapse in visitation and corresponding emotional harm constituted a material change in circumstances from the prior order. Appellant argues that the five-month lapse in visitation is not sufficiently significant because visitation resumed thereafter according to schedule, appellant poses no future obstacle to respondent’s exercise of parenting time, and the family is progressing in their counseling sessions. But the district court focused its analysis on the effect that appellant’s conduct had on the children, not the conduct itself. The district court found that the children now possess a polarized view of their parents and that both children have become alienated from respondent since the prior order. The district court’s conclusion that this alienation is a significant change in circumstances is therefore not an abuse of discretion.
The district court’s findings likewise support the conclusion that the children are presently endangered. For an existing or potential threat to a child’s emotional health or physical safety to constitute endangerment, there must be “a showing of a significant degree of danger.” Sharp, 614 N.W.2d at 263 (quotation omitted). The district court found that the children are presently endangered because, due to appellant’s inadvertent conduct, the children now possess an unhealthy antipathy toward respondent. Moreover, intensely negative attitudes toward a parent become a drain on a child’s future emotional development, even though the child is presently clinically unaffected. See Sharp, 614 N.W.2d at 263 (noting testimony that the parent’s failure to understand the scope of the child’s problem will cause that child emotional damage); Eckman v. Eckman, 410 N.W.2d 385, 389 (Minn. App. 1987) (holding that evidence of a child’s isolation supported modification because of the potential to affect the child’s emotional growth). Accordingly, the district court did not abuse its discretion.
Finally, the district court did not abuse its discretion in concluding that modification was in the children’s best interest. Whether modification of custody is in the best interests of the child is determined by an examination of the 13 factors outlined in Minn. Stat. § 518.17, subd. 1(a). The district court reviewed Dr. Gilbertson’s thorough analysis of each of the best-interest factors and adopted Dr. Gilbertson’s recommendation for a change in custody. In addition, the district court noted that the change in circumstances—the lapse in visitation and the accompanying animosity toward respondent—and the finding of endangerment to the children’s emotional health made modification necessarily in the children’s best interest.
A determination that joint custody is appropriate will not be disturbed on appellate review unless the district court abused its discretion. Wopata v. Wopata, 498 N.W.2d 478, 481 (Minn. App. 1993). Where a grant of joint custody is contemplated, in addition to the 13 best-interests factors, the district court must consider the following:
(a) The ability of parents to cooperate in the rearing of their children;
(b) Methods for resolving disputes regarding any major decision concerning the life of the child, and the parents’ willingness to use those methods;
(c) Whether it would be detrimental to the child if one parent were to have sole authority over the child’s upbringing; and
(d) Whether domestic abuse . . . has occurred between the parents.
Minn. Stat. § 518.17, subd. 2 (2002). Under the statute, it is rebuttably presumed that joint legal custody is in the best interests of the child. Id. If the district court determines that domestic abuse has occurred, however, the presumption is against joint legal custody. Id.
Appellant argues that the award of joint custody was improper because the district court did not consider the requisite statutory factors. Appellant correctly notes that the district court failed to specifically address the joint-custody factors in its October 9, 2003, order modifying custody. But this lack of specificity does not constitute clear error. “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).
Here, the findings as a whole demonstrate that the district court considered the relevant statutory factors. The district court found that the current custody arrangement is adversely affecting the children and opined that some change must be implemented to legitimize respondent’s role as a parent and counteract appellant’s inadvertent communication that respondent is unfit. Moreover, the district court found that both parents had the capacity and disposition to physically care for the children, and both parties would provide the requisite care, nurturing, and protection. Finally, the district court found no evidence of any formal findings that respondent was abusive toward appellant, or that respondent posed a current threat to appellant. Therefore, the district court did not err in presuming that joint custody was in the best interests of the children and did not abuse its discretion in awarding joint legal custody.
Appellant further argues that joint custody is inappropriate because the evidence in this matter does not support the finding that the parties are capable of cooperating. Here, the court found no evidence of conflicts between respondent and appellant related to issues such as education, health care, or religion. Rather, the court found conflict relating to the implementation of respondent’s parenting time schedule. See Berthiaume, 368 N.W.2d at 332–33 (upholding joint custody award despite evidence that the parties could not cooperate during dissolution proceeding because the record did not indicate that the parties had basic differences concerning the general upbringing of their children). As such, the district court did not clearly err in finding the parties sufficiently capable of cooperation to navigate a joint legal custody arrangement.
Appellant contends that the district court’s award of joint custody was an improper tactic designed to send a message to appellant and coerce appellant and the children into giving respondent additional recognition. It is an abuse of discretion for a court to award joint custody as a means of coercing cooperation between the parties. Chapman v. Chapman, 352 N.W.2d 437, 441 (Minn. App. 1984). The district court awarded joint custody as a tool to repair the damaged relationship between respondent and the children. The district court did not improperly apply joint custody as leverage for cooperation.
Appellant argues that the district court improperly awarded respondent attorney’s fees based on conduct that occurred outside of the litigation process. An award of attorney’s fees under Minn. Stat. § 518.14, subd. 1 (2002), rests almost entirely within the district court’s discretion and will not be disturbed absent an abuse of that discretion. Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999). Minn. Stat. § 518.14, subd. 1, authorizes a district court to award “additional fees, costs, and disbursements against a party who unreasonably contributes to the length or expense of the proceeding.” Conduct occurring outside the litigation process of the current proceeding cannot provide the basis for a conduct-based award. Sammons v. Sammons, 642 N.W.2d 450, 459 (Minn. App. 2002). The party who moves for conduct-based attorney’s fees has the burden to show that the other party’s conduct unreasonably contributed to the length or expense of the proceeding. Geske v. Marcolina, 624 N.W.2d 813, 818 (Minn. App. 2001).
The district court awarded respondent $15,000 in attorney’s fees because “[t]he numerous motions and the added expense of the current litigation between the parties is the result of the actions of petitioner as is shown by the affidavits and now the testimony of Dr. Gilbertson,” and because appellant’s desire to distance herself from respondent, including her move to Elk River, had been the cause of most of the motions between the parties. The court further found that appellant has acted in bad faith to unnecessarily delay the proceedings, and the conduct-based award would deter future delays. While the district court did not limit its analysis to events that unreasonably contributed to the length of the current proceedings, or the proceedings initiated by respondent’s June 2002 motion, the district court based its finding on appellant’s bad-faith measures designed to delay implementation of Dr. Gilbertson’s recommendations. Thus, there is sufficient evidence in the record underlying the court’s finding of bad faith conduct in the current proceedings, and therefore the district court did not abuse its discretion by awarding attorney’s fees.
Appellant argues that the district court improperly awarded respondent reimbursement for vacation expenses he incurred in anticipation of parenting time because the court failed to make specific findings explaining its rationale. A district court’s award of parenting time expenses under Minn. Stat. § 518.175, subd. 6(c)(4) (2002), will not be overturned absent an abuse of discretion. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995). Here, the district court found that appellant could have, and should have, adjusted her vacation schedule to accommodate respondent’s plans. While respondent’s notice was not timely by ten days under the decree, he could not purchase tickets until he was positive about his available dates for travel. The district court adequately explained its rationale for the award and did not abuse its discretion.
Finally, appellant argues that the district court’s modification of respondent’s parenting schedule providing respondent with additional weekend parenting time is not in the children’s best interests because it requires the children to spend too much time away from their extra-curricular activities, friends, and religious instruction. Modification of a visitation order is required whenever it would serve the best interests of the child. Minn. Stat. § 518.175, subd. 5 (2002). The district court has broad discretion to determine the child’s best interests in the area of visitation. Rutten v. Rutten, 347 N.W.2d 47, 51 (Minn. 1984). The court awarded respondent additional parenting time based on Dr. Gilbertson’s conclusion that it was necessary to repair the children’s relationship with respondent. As such, the modification was not an abuse of discretion.
 Neither the district court nor Dr. Gilbertson made specific findings as to whether the harm caused by the change in environment is outweighed by the advantages. Here, the omission is harmless as a matter of law because that finding is implicit in the endangerment determination. See Eckman, 410 N.W.2d at 389 (upholding modification without explicit advantage findings because the advantage was implicit in other factors).
 The district court’s October 9, 2003, order further justified its award of attorney’s fees by noting that appellant had substantially more income than respondent. Because this reference to need-based fees constituted one sentence in the order without any further support, this court will examine the award as conduct-based.