This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







Jolie Lynn Perez, petitioner,





Chris Andrew Cottrill,



David Carrick and Kathryn Carrick, husband and wife,




Filed March 29, 2005

Reversed and remanded

Toussaint, Chief Judge


Hennepin County District Court

File No. MF 238224


Jolie Lynn Perez, 6125 175th Street West, Farmington, MN 55024 (pro se respondent)


Gerald O. Williams, Jr., McCullough, Smith, Kempe, Williams & Cyr, P.A., 905 Parkway Drive, St. Paul, MN 55106 (for appellant)


Becky Toevs Rooney, 700 Rand Tower, 527 Marquette Avenue, Minneapolis, MN 55402 (for respondents David and Kathryn Carrick)


            Considered and decided by Toussaint, Chief Judge; Hudson, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant challenges the district court’s order denying his request to “change the physical custody”[1] of his children from their grandparents to him, arguing that the district court failed to apply the presumption that a fit parent must be given a superior right to his child over a third party.  Appellant also challenges the district court’s order requiring him to pay 60% of the grandparents’ attorney fees.  Because the district court erred in placing the burden on appellant to justify a change in custody when the dissolution judgment awarded him custody, and because it is not clear what basis or bases the district court relied upon in awarding the grandparents’ attorney fees, we reverse and remand.


            Appellant-father Chris Andrew Cottrill and respondent-mother Jolie Lynn Perez were married in 1989.  Father subsequently enlisted in the United States Marine Corps, and the couple relocated to North Carolina.  The couple began to have marital difficulties and in 1993, they entered into a separation agreement.  On September 15, 1995, a North Carolina district court dissolved the couple’s marriage, incorporating the separation agreement into the judgment.  Under the judgment, father was “granted primary physical custody of the parties’ minor children.”  Shortly after the dissolution was finalized respondents-grandparents drove to North Carolina to pick up the children because father’s military obligations prevented him from providing proper care for his children.  The grandparents returned to Minnesota with the children and have been the children’s primary caretakers since that day.    

In 1998, mother petitioned the Hennepin County District Court for an order modifying the dissolution judgment’s award of custody to father and granting her sole legal and physical custody of the children.  The grandparents moved the district court to join the proceedings as third-party respondents.  In January 1999, the district court, approving the findings and recommendation of the referee, granted the grandparents’ motion. 

In March 1999, the grandparents moved the district court to deny mother’s motion to modify custody and to grant them “the temporary and permanent legal and physical custody of the minor children.”  In July 1999, the district court, adopting the findings and recommendations of the referee, found that “father, on paper, has the primary physical custody, although it was understood that this meant the children would be with his parents,” and that “[t]he applicable standard for a change of custody is endangerment.” The district court then ordered that “[t]he request for a change of [c]ustody is denied for failure to make a prima facie case of endangerment” and that “[t]he children shall remain with their paternal grandparents.” 

Following the July order, the grandparents moved the district court to award them child support and to require mother and father to contribute to their legal expenses.  Father then moved the district court for an order “[p]roviding for the orderly transition of [his] children” from the grandparents’ residence to his residence.  The motion also requested the court to “extend[] the [grandparents’] temporary, de facto custody of the children to a time expressly fixed in the court order either by date or by appropriate circumstances” and to require the grandparents to pay reasonable attorney fees and costs. 

The grandparents subsequently moved the district court to clarify that the July 1999 order had awarded them physical custody of the children.  In the alternative they asked the court to award them permanent legal and physical custody of the children.  In a supplemental motion, the grandparents also requested the court order mother and father to make “a reasonable contribution as and for the support of their minor children” and to make “an equitable contribution to the attorney’s fees and suit costs incurred by the [grandparents].” 

In April 2000, the district court, adopting the recommendations of the referee, issued an order denying “[a]ll motions to change the [p]hysical [c]ustody” of the children from the grandparents.  The court also awarded the grandparents physical custody of the children, ordered father to pay $600 per month in child support, and ordered that “[n]either party shall have attorney fees from the other.” 

Father sought district court review of that order arguing, in part, that the referee erred when he awarded the grandparents custody of the children without an evidentiary hearing to determine if it was appropriate to modify his judicial award of custody.  The reviewing court, recognizing that the dissolution judgment awarded father custody of the children and that there was never an evidentiary hearing addressing modification of custody, found that the referee’s conclusion that the grandparents are the permanent physical custodians of the children was “erroneous and directly contrary to the stipulation in the divorce decree.”  The court also stated, “[Father], as the designated custodian in the divorce decree, is entitled to an evidentiary hearing before a change of permanent physical custody can occur.”  The court reversed the order that had adopted the referee’s recommendation “[i]n regard to the issue of physical custody of the minor children” and ordered the referee to hold an evidentiary hearing “on the sole issue of physical custody.”

For reasons that are unclear, an evidentiary hearing was not held until March 18 and 19, 2002.  Following the hearing, the district court, again adopting the findings and conclusions of the referee, ordered that “[c]onsistent with the direction of the Reviewing Judge, the motion to change [p]hysical [c]ustody from the [grandparents] to the father is denied.”  Neither the referee suggesting the ruling nor the district court adopting it explained how this ruling was “consistent” with the reviewing court’s observations that the dissolution decree awarded father custody and that the award had never been properly modified.  The district court also increased father’s child support obligation to $920 per month, and concluded that all parties are responsible for their own attorney fees.  Father appealed the order to this court.  While the appeal was pending, the grandparents moved the district court for a “new trial” on the issue of attorney fees and moved this court to dismiss the appeal as premature; this court dismissed father’s appeal. 

In October 2003, the district court issued an order requiring father to pay 60% of the grandparents’ attorney fees.  Father sought review of the order in district court and the district court affirmed the order.  Father then filed the instant appeal.  The grandparents filed a notice of review, which this court dismissed, challenging the reviewing court’s order.              




Father argues that the district court erred because it did not apply the presumption that a fit parent must be given a superior right to his child over a third party, citing In re Custody of N.A.K., 649 N.W.2d 166 (Minn. 2002).  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); Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).

We agree that the district court did not afford father the presumption for a parent over a third-party that he was entitled to receive.  See Wallin v. Wallin, 290 Minn. 261, 265, 187 N.W.2d 627, 630 (1971) (stating “[i]t is fundamental that parents have a natural right to the child and in order to deprive a parent of custody in favor of a third person there must be grave reasons shown. . . . the burden is on the contestant to overcome that presumption [in favor of a biological parent].”).  It is clear from the record that the district court did not consider the presumption, let alone whether grave reasons existed to overcome the presumption, because it was operating under the assumption—contrary to the reviewing court’s instructions that father had been judicially awarded custody and could not be deprived of that custody without an evidentiary hearing—that the grandparents had custody of the children and father had the burden to justify a modification of custody from the grandparents. 

When there is a court approved dissolution decree addressing child custody, it is that decree that controls who has “custody” of the children and not where the children actually reside or who is the children’s primary caretaker.  See, e.g. Frauenshuh v. Giese, 599 N.W.2d 153, 157 (Minn. 1999) (stating “when parties have agreed to a specific denomination of physical and legal custody and that denomination has been accepted by the district court, the parties will be bound by it”); see also Minn. Stat. § 257.02 (2004) (“Except in proceedings for adoption or by a consent decree entered under section 257C.07, [2] no parent may assign or otherwise transfer to another parental rights or duties with respect to the permanent care and custody of a child under 14 years of age.  Any such transfer shall be void.”).  Here, the North Carolina dissolution judgment awarded custody of the children to father.   

Once a party has been judicially awarded custody, that party may not be deprived of custody without an evidentiary hearing.  Lutzi v. Lutzi, 485 N.W.2d 311 (Minn. App. 1992).  And a district court “shall not modify a prior custody order . . . unless it finds, upon the basis of facts . . . that have arisen since the prior order or that were unknown to the court at the time of the prior order, that a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child.”  Minn. Stat. § 518.18(d) (2004).  No such hearing has ever occurred here, nor has any court made the findings required under section 518.18 to modify the North Carolina judgment awarding custody of the children to father.  As the reviewing court noted, father has custody of the children and thus, the district court adopting the suggestions of the referee on remand from the reviewing court erred in placing the burden on father to justify changing the physical custody from the grandparents, who did not have custody.  

Having determined that the district court erred, we must address the proper form of relief.  Father admits that a remand is required to determine what is currently in the best interests of these children.  See N.A.K., 649 N.W.2d at 175 (stating the best interests of a child is “the umbrella under which every aspect of custody decisions¾including the parental presumption—falls”).  And we cannot lightly set aside that the fact these children have now resided with the grandparents for a majority of their young lives with little to no participation by either parent in providing day-to-day care. 

Nor can we disregard the fact that since the district court’s order addressing custody, the legislature has enacted Minn. Stat. §§ 257C.01-.06 (2004), which seeks to address the appropriateness of awarding custody to “de facto custodian[s]” and “interested third part[ies].”  See Minn. Stat. § 257C.01, subds. 2, 3 (defining both).  The legislature has explicitly provided that when a de facto custodian petitions for custody of the children, the district court must determine the best interests of the child without “giv[ing] preference to a party over the de facto custodian . . . solely because the party is a parent of the child.”  Minn. Stat. § 257C.04, subd. 1(c).

Here, the grandparents had moved the district court for an award of permanent physical and legal custody of the children, but the district court has never determined whether that motion and the accompanying affidavit were sufficient to entitle the grandparents to an evidentiary hearing on the matter.  See Griese, 666 N.W.2d at 407 (stating elements that must be shown before a party is entitled to an evidentiary hearing on whether to modify judicially awarded custody).  We remand this case with instructions for the district court to address the grandparents’ 1999 motion to be awarded custody of the children in a manner that is consistent with this opinion. 

We note the general rule is that courts “apply the law as it exists at the time they rule on a case,” unless rights that are affected by the amended law were vested before the change in the law.  Interstate Power Co. v. Nobles Cty. Bd. of Comm’rs., 617 N.W.2d 566, 575 (Minn. 2000) (stating rule for appellate courts); McClelland v. McClelland, 393 N.W.2d 224, 226 (Minn. App. 1986) (affirming district court’s use of newly enacted amendment on remand as a reflection of the more general principle that “a court is to apply the law in effect at the time it renders its decision”), review denied (Minn. Nov. 17, 1986).  A party does not have a vested right in a contested issue until a final decision has been reached on that issue.  Rooney v. Rooney, 669 N.W.2d 362, 371 (Minn. App. 2003), review denied (Minn. Nov. 25, 2003).  A final decision has not been reached when a district court’s decision is being reviewed on direct appeal nor is there a final decision when the case is remanded to the district court for further consideration.  Mattson v. Underwriters at Lloyds of London, 414 N.W.2d 717, 720 (Minn. 1987).  On remand, the district court may consider whether the grandparents’ motion can and should be construed as a petition under Minn. Stat. § 257C.03.  But if the district court decides to consider this case under chapter 257C, it must provide findings that such an application is appropriate.  See McClelland, 393 N.W.2d at 227-28 (noting that application of newly enacted amendment also involves considerations of whether it will impose substantially new or unanticipated obligations, or whether it will work a manifest injustice).    


Without citing any authority for its award of attorney fees, the district court ordered father pay the grandparents $9,541, “representing fees properly charged to him for defense of the actions he has pursued in these proceedings.”  Father challenges this award. 

In order to the address the challenge, we must first determine what legal authority the district court used to award attorney fees.  See Geske v. Marcolina, 624 N.W.2d 813, 816 (Minn. App. 2001) (“stating that [b]ecause there are different requirements for a fee award, depending on the authority upon which the award is based, a proper review requires that the district court identify the authority for its fee award.”); see also Barr/Nelson, Inc. v. Tonto’s, Inc., 336 N.W.2d 46, 53 (Minn. 1983) (stating, “[w]e have long held that attorney fees are not recoverable in litigation unless there is a specific contract permitting or a statute authorizing such recovery.”).  The usual authority for granting attorney fees in family matters is Minn. Stat. § 518.14, subd. 1 (2004), which allows a district court to award need-based fees, conduct-based fees or both. 

Here, the district court found that “[the grandparents] do not have the ability to pay all of these fees” and stated “[o]ne of the bas[e]s for awarding fees is to review the action of the parties in continuing the litigation.”  Although these are incomplete statements of the law, we construe the district court’s award to be an attempt to invoke the need-based and the conduct-based prongs of Minn. Stat. § 518.14, subd. 1.  But it is unclear from the district court’s order what percentage of the award was need-based, what percentage was conduct-based, or exactly what conduct justified the award of conduct-based attorney fees.  See Geske, 624 N.W.2d at 816, 819 (stating the district court “must indicate to what extent the award was based on need or conduct or both” and, if based on conduct, what conduct justified the award). 

Because the grounds on which the district court required father to contribute to the grandparents’ attorney fees are not clear, we reverse the award and remand for further consideration.  We note that to the extent the award was based on father’s conduct in continuing to assert that he had custody of the children, an award of conduct-based attorney fees cannot stand.  See Minn. Stat. § 518.14, subd. 1 (stating district court may award conduct-based fees “against a party who unreasonably contributes to the length or expense of the proceedings” (emphasis added)); Rask v. Rask, 445 N.W.2d 849, 855 (Minn. App. 1989) (questioning district court’s fee award when court’s basis was that appellant took a frivolous legal position when, in fact, appellant’s argument was not frivolous).  And an award of conduct-based attorney fees based on delays caused by a party’s status as an active member of the armed services is contrary to the Soldiers’ and Sailors’ Civil Relief Act, 50 U.S.C. § 522 (2000).

Reversed and remanded.

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

[1] The district court’s order adopting the finding and recommendations of the referee states it is denying father’s motion “to change physical custody,” but father has continually asserted he was judicially awarded custody and has never moved the court to “change” physical custody.

[2] Before 2002, and therefore at the time relevant to this appeal, consent decrees were entered under Minn. Stat. § 257.0215.  In 2002, what was Minn. Stat. § 257.0215 was renumbered to become what is currently Minn. Stat. § 257C.07 (2004), and Minn. Stat. § 257.02 was amended to reflect that renumeration.