This opinion will be unpublished and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

A04-799

 

 

In re Sabine Ursula Warford, petitioner,

Respondent,

 

vs.

 

Jemahl Warford,

Appellant.

 

 

Filed December 21, 2004

Affirmed as modified

Robert H. Schumacher, Judge

 

Hennepin County District Court

File No. DC 272181

 

Michael J. Froelich, 701 Fourth Avenue South, Suite 500, Minneapolis, MN 55415 (for respondent)

 

Brian L. Sobol, Susan A. Daudelin, Katz, Manka, Teplinsky, Due & Sobol, Ltd., 225 South Sixth Street, Suite 4150, Minneapolis, MN 55402 (for appellant)

 

Considered and decided by Toussaint, Chief Judge; Schumacher, Judge; and Minge, Judge.

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

ROBERT H. SCHUMACHER, Judge

Appellant husband Jemahl Warford challenges the district court's order awarding respondent wife Sabine Ursula Warford sole physical custody of the parties' two minor children and apportioning the parties' property. He also contends the court erroneously failed to reserve the issue of spousal maintenance. We affirm the custody award and division of property but modify the judgment and decree so as to reserve spousal maintenance.

FACTS

The parties were married in 1993 and had children in 1998 and 2000. During the marriage, wife was employed as a computer consultant by a company she started in 1998; husband worked in a metal shop. Throughout the marriage, the parties kept their earnings in separate accounts; maintained separate checking and savings accounts; and had separate credit cards in their own names save for one jointly issued credit card on which wife paid the bills. Wife also made the payments on husband's car and his car insurance.

In October 2001, wife filed a petition for dissolution of the marriage. At some point between that date and January 2002, wife informed husband that she would no longer make the payments on his credit cards, his car, or his car insurance. In December 2001, she stopped making the credit-card payments; in January 2002, she stopped making the car and car-insurance payments.

In February 2002, the district court ordered a custody evaluation. In March 2002, husband filed a motion for temporary relief. In May 2002, the district court issued a temporary order providing, in relevant part, that "[e]ach party shall continue to make the payments on the credit card debts as they are currently being paid" and that "[b]oth parties shall continue to maintain all policies of . . . auto . . . insurance currently in effect with no changes in coverage . . . pending the outcome of this proceeding." Appellant filed a motion to amend the temporary order; in November 2002 the district court issued an order stating that the May order "require[d wife] to continue to maintain payment of the automobile insurance during the pendency of this proceeding [and] to continue to make payments on the credit card debt as the parties had been doing prior to appearing before the Court."

A trial was held to resolve, among other issues, child custody and the division of marital property. The child-custody evaluator testified to the results of the evaluation he submitted to the court in July 2002. The evaluation recommended that wife be awarded sole physical custody, observing that joint physical custody was inappropriate in light of husband's "silence" toward wife and his "unwillingness to communicate" with her. The evaluation also stated that husband appeared "emotionally overwhelmed by the hurt of the divorce" and repeatedly "tried to show that [wife] was unfaithful and of questionable character." The evaluation set forth a recommended parenting schedule.

At trial, husband testified that during the pendency of the proceedings, he had paid $12,500 in car payments, car insurance, and credit-card payments that he argued wife was required to pay pursuant to the temporary orders of May and November 2002. Husband argued that the property division should include a reimbursement for those payments.

In August 2003, the district court issued a 27-page order that, among other things, awarded wife sole physical custody of the children, subject to a visitation schedule; awarded the parties joint legal custody of the children; and declined to reimburse husband the $12,500 he maintained was due him pursuant to the May and November 2002 temporary orders. As to custody, the court applied the factors set forth in Minn. Stat.  518.17, subd. (1) (2002) and found that in light of the conceded inability of the parties to communicate and cooperate on behalf of the children as evinced by the fact that the parties had not had a direct personal conversation for over a year joint physical custody was inappropriate.

As to the division of property and the $12,500 husband maintained was due him, the district court rejected husband's argument that the May 2002 temporary order required wife to pay husband's car, car-insurance, and credit-card payments throughout the proceedings. The court observed that between October 2001 and January 2002, wife informed husband that she would no longer make the payments on his credit cards, his car, or his car insurance, and that she stopped doing so by January 2002. The court then reasoned that the May temporary order required the parties to maintain their financial obligations as they existed at the time of the order, that is, as of May 2002. The court concluded that because wife had stopped making payments on husband's behalf in January 2002, she had no continuing obligation in May 2002 to make such payments, regardless of whether she had made those payments during the marriage.

D E C I S I O N

1. Husband challenges the district court's award of sole physical custody to wife, arguing joint physical custody was appropriate. Our review of a custody determination is limited to whether the trial 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). Determinations of child custody must be based on the best interests of the child. Minn. Stat. 518.17, subd. 3(a)(3) (2002). When considering the best interests of the child, the district court must make detailed written findings that reflect the court's consideration of factors set forth in Minn. Stat. 518.17, subd. 1(a). Rogge v. Rogge, 509 N.W.2d 163, 165 (Minn. App. 1993), review denied (Minn. Jan. 28, 1994). The district court's findings of fact will "not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the [district] court to judge the credibility of the witnesses." Minn. R. Civ. P. 52.01.

Joint physical custody is not preferred, is not generally in a child's best interests, and is appropriate "only" in exceptional cases. Rosenfeld v. Rosenfeld, 529 N.W.2d 724, 726 (Minn. App. 1995); Wopata v. Wopata, 498 N.W.2d 478, 483 (Minn. App. 1993). When deciding whether to award joint physical custody, a district court must consider certain statutory factors that focus on the parents' ability to cooperate in making parenting decisions. Bateman v. Bateman, 382 N.W.2d 240, 249 (Minn. App. 1986), review denied (Minn. Apr. 24, 1986); see Minn. Stat. 518.17, subd. 2 (2002) (listing joint-custody factors).

Husband argues the district court's award of sole physical custody constituted an abuse of discretion because the court (1) gave undue weight to husband's difficult financial situation; (2) failed to give sufficient weight to the children's bi-racial heritage; and (3) failed to give sufficient weight to his role as primary caregiver of the children. We disagree.

The record does not support husband's argument that the district court gave undue weight to husband's financial difficulties in reaching its conclusion that joint physical custody was "not practically feasible." The court did consider that husband "has taken minimal steps to relieve his financial burden" such as his failure to consolidate his debts or refinance his vehicle. But the court also considered husband's failure to explain how he would care for the children while working from 3:00 to 11:00 p.m. and going to school, as he planned to do. The court specifically observed that husband provided no details about arrangements for the children's care when he would not be available aside from speculation that his brother could care for the children. The court found that husband appeared unable to "put the children's needs ahead of his own" and that husband's "desire for sole or joint physical custody is not based on practicality or the best interests of the children [but on wife's] decision to divorce [and] her greater income." Husband's arguments with respect to his financial situation are based primarily on his repeated assertion that he is being treated less fairly than wife would be were she in his financial situation. This position is speculative and the district court gave it little weight.

As to the children's racial heritage, the district court found that "the fact that the children are racially mixed is irrelevant in terms of determining which parent should have physical custody of the children." Appellant argues that awarding wife sole physical custody will prevent him from discussing his experiences as a member of a minority race with the children and from supporting the children "through whatever experiences they might encounter as members of that race." But the district court found that husband presented no evidence that wife had prevented him from discussing these issues with the children and no evidence concerning husband's plans to expose the children to their racial heritage. These findings are not clearly erroneous.


Husband also argues that his role as primary caretaker was given insufficient weight by the district court in determining the best interests of the children. The district court considered and weighed the evidence in making the best-interests evaluation and concluded that regardless of whether husband was the primary caretaker an assertion that the court did not credit and that wife disputes the statutory factors considered in their totality justified awarding wife sole physical custody. And although the court acknowledged husband's ability to parent the children, "the fact that appellant and respondent are equally qualified to raise the children does not mean that they are qualified to raise them jointly." Wopata, 498 N.W.2d at 483.

In light of the findings concerning the failure of the parties to communicate or work together in parenting, this situation did not present an exceptional circumstance warranting joint physical custody. Cf. Berthiaume v. Berthiaume, 368 N.W.2d 328, 332-33 (Minn. App. 1985) (affirming award of joint physical custody where the record reflected that the parties shared the same parenting philosophies and were able to communicate and cooperate regarding the major decisions in their children's lives).

2. Husband argues the district court abused its discretion by failing, in its division of property, to give him $12,500 reimbursement for car, car-insurance, and credit-card payments he made during the pendency of the proceedings. District courts have broad discretion over the division of marital property, and this court will not alter a district court's property division absent a clear abuse of discretion or an erroneous application of the law. Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (Minn. App. 2000), review denied (Minn. Oct. 25, 2000).

Husband's argument is based upon his interpretation of the May 2002 temporary order, as reiterated in the November 2002 temporary order. In those orders, the district court stated that the parties were to continue the debt and insurance payments as they existed at the commencement of the proceedings. Husband maintains that because wife made the payments during the marriage, she was required to continue doing so during the dissolution proceedings. In the order from which appeal is taken, the district court found that wife had informed husband prior to January of 2002 of her intention to cease all payments on his behalf. The court then interpreted its own May 2002 order to mean that wife was obligated to make only those payments she was making at the "commencement of this proceeding, and not how the parties managed their finances during the marriage." We accord great deference to the district court's interpretation of its own decree. Johnson v. Johnson, 627 N.W.2d 359, 363 (Minn. App. 2001), review denied (Minn. Aug. 15, 2001).

The district court, interpreting its own order, properly declined to divide the property so as to reimburse husband for the car, car-insurance, and credit-card payments he made during the proceedings.

3. The parties agree that the district court's findings and conclusions as to temporary spousal maintenance are ambiguous and inconsistent. After finding that husband was entitled to temporary spousal maintenance and that wife was entitled to child support, in approximately the same amounts, the court wrote that rather than have the parties exchange payments, "in lieu of temporary spousal maintenance, [husband's] obligation to pay child support and childcare contribution will be reserved for a period of 24 months." The court did not explicitly award spousal maintenance or reserve the issue for reconsideration after the 24-month period. "When the district court . . . neither awards [maintenance] nor retains jurisdiction to award [maintenance] at some future time, its jurisdiction to do so is lost following the dissolution of marriage." Berger v. Berger, 308 Minn. 426, 428, 242 N.W.2d 836, 837 (1976). In order to preserve the district court's jurisdiction over spousal maintenance, we modify the judgment and decree so as to reserve spousal maintenance.

Affirmed as modified.