This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Affirmed as modified
Anoka County District Court
File No. FX9751963
Richard A. Stebbins, N. Matla Titi, Stebbins & Hegranes, L.L.C., Suite D, 877 Jefferson Avenue, St. Paul, MN 55102 (for appellant)
David L. Garelick, Larry B. Leventhal, Larry Leventhal & Associates, Suite 420, Sexton Building, 529 South Seventh Street, Minneapolis, MN 55415 (for respondent)
Considered and decided by Stoneburner, Presiding Judge; Willis, Judge; and Crippen, Judge.*
Appellant Michael Bongo (father) asserts that the district court abused its discretion by modifying physical custody of the parties’ teenage son to joint custody, rather than granting sole custody to him. Father also alleges that the district court abused its discretion by failing to award child support pursuant to the guidelines; by granting respondent Sharon Norris (mother) the right to claim the tax exemption for the child in alternate years; by ordering father to partially pay mother’s attorney fees, in addition to imposing a civil penalty for willful interference with mother’s parenting time; and by ordering father to post a bond to secure his compliance with mother’s custodial rights. We modify the order to provide that the issue of child support is reserved and otherwise affirm.
The child in this case was 15 years old at the time the district court modified custody. The parties were never married but lived together from 1987 until the early 1990s. Father was adjudicated the child’s father in 1998, and the parties stipulated that mother would have sole physical custody subject to father’s parenting time. In May 2002, father moved for an order granting him sole physical custody of the child, alleging endangerment. Since that time, the parties have made numerous motions, and the district court has issued numerous orders. The district court characterizes the case as “one of the most complicated and perplexing family cases ever heard” by the court.
Shortly after father moved for a change of custody,
the child refused to return to mother’s home in
In July 2002, father relocated from the metro area
In August 2002, the child again ran away from mother
to father’s home, and father declined to return him because the child did not
want to return. The district court
ordered law enforcement to assist and to place the child in detention if he
refused to return to mother. The child
refused to return and was placed at Evergreen Shelter in
In February 2003, the district court awarded mother compensatory parenting time and directed father to “ensure that [the child] participates in parenting time with his mother. . . .” Despite this order, the child did not participate in parenting time with mother, which deprived the guardian ad litem of the opportunity to make an observational home visit with mother and the child.
Mother moved for an order finding father in contempt for willfully violating parenting orders. Father then agreed that parenting time with mother would resume. The child had weekend parenting time with mother in July 2003, but mother never received the two weeks of compensatory time the court ordered.
After a combined hearing on
father’s motion for a change in custody and mother’s contempt motion, the
district court found that there had been a change in circumstances since the
original award of sole physical custody to mother and engaged in an extensive
and thorough analysis of the factors in Minn. Stat. § 518.17, subd. 1(1)–(13)
(2004), to determine if modification of custody was necessary to serve the
child’s best interests. See
I. Award of joint custody
Father argues that the district court’s award of
joint physical custody is contrary to law and not supported by the facts. “The district court has broad discretion in
determining custody” and this court’s role in reviewing custody decisions is
limited “to determining whether the district court abused its discretion by
making findings unsupported by the evidence or by improperly applying the law.” Lemcke v. Lemcke, 623 N.W.2d 916, 919
(Minn. App. 2001), review denied (
A district court may modify a custody order under Minn. Stat. § 518.18(d), if the
moving party demonstrates: (1) a change in circumstances; (2) modification is necessary to serve the child’s best
interests; (3) the child’s present environment endangers
the child’s health or emotional development; and (4) the harm caused by the
change is outweighed by the benefit of the change. Geibe v. Geibe, 571 N.W.2d 774, 778 (
When determining custody, the primary consideration
is the best interests of the child. E.g.,
Frauenshuh v. Giese, 599 N.W.2d 153, 158-59 (
The district court made extensive findings on the child’s best interests in a 26-page order. The district court found that the child has had problems in school and has expressed an “unequivocal” desire to live with father, who supports the child’s involvement in extra-curricular sports and other outdoor activities, and to whom the child believes he more easily relates. The district court found that the child’s preference is reasonable, but has clearly been inappropriately influenced by father, who has told the child that mother is “sick” and used “innuendo to leave [the child] with the strong impression that [mother] does not love [the child] by distorting [mother’s] past conduct.” The district court found that the child has parroted father’s language to the court and guardian ad litem and that father “has coached [the child] in his responses to this Court and the guardian ad litem” and “fostered, and, perhaps, exploited [the child’s] strong will at the expense of [mother].”
The district court found that the child and father have a very close relationship that sometimes “more closely resembles that of friends rather than a healthy parent-child relationship.” The district court noted the custody evaluator’s concern that father is an ineffectual parent, who does not seem to have the ability to exercise healthy parental control, “particularly when it comes to the issue of [the child] seeing his mother,” and is giving the child power and control in areas the child should not have it. The district court found that father frequently treats the child as an equal and “empowers [him] to make choices no child should be making.” The district court found that father is in a position to, but declines to, require the child to maintain a relationship with his mother and that this aspect of the child’s relationship with father is unhealthy. The district court also found that appellant was aware of the child’s plan to run away and encouraged it. Because there is substantial evidence in the record to support these findings, they are not clearly erroneous.
Because of the lack of contact between the child and his mother, the district court found that their current relationship is “nearly non-existent.” The court found that father has played a large part in the decay of the child’s relationship with his mother. The district court noted, however, the custody evaluator’s concern that the child “would behave in a reckless or destructive manner were he to return to his mother’s custody.”
The district court found that father failed to show that mother’s home endangers the child’s emotional or physical health and that under a strict application of the statutory factors the district court would have retained sole custody in mother. But the district court also found that the child is engaging in endangering behavior by running away from mother’s custody and that father has contributed in large part to the circumstances that place the child in danger. The district court found that the child is doing well in his father’s custody except for the continuing conflict over mother’s parenting time.
The district court also made extensive findings on the factors listed in Minn. Stat. § 518.17, subd. 2, relating to joint legal or physical custody. The district court found that the parties do not have the ability to cooperate, but that under the circumstances the district court was left with “no legitimate alternative other than to award joint physical custody to the parties.” And the district court found that despite the parents’ lack of cooperation, the guardian ad litem, parenting-time expeditor, and the therapists involved in this case provide a “safety net” for resolving problems related to joint physical custody.
The district court found that it would be detrimental to the child to award father sole custody of the child and found that the only way to balance the competing factors and ensure that father cannot totally eliminate mother from the child’s life is by awarding joint physical custody. The court ordered the child to reside with father during the school year, with mother having parenting time on alternating weekends and during the child’s spring and winter breaks. The child is to reside with mother during the summer, but father has alternating weekend parenting time.
Father argues that the district court abused its discretion in ordering joint physical custody because it found that the parties have been unable to cooperate. Father notes that previous decisions of this court have indicated joint physical custody is disfavored, particularly when there is evidence of the parties’ inability to cooperate, and is appropriate only in “exceptional cases.” See, e.g., Rosenfeld v. Rosenfeld, 529 N.W.2d 724, 726 (Minn. App. 1995).
courts have discretion to weigh the statutory factors and are not bound by a
set formula as long as all statutory factors are considered. See Maxfield v. Maxfield, 452 N.W.2d
219, 223 (
unable to cooperate with regard to respondent’s parenting time, the
district court also found that the parties have an extensive network of
professionals to provide a safety net for resolving problems related to joint
physical custody, which reflects that the district court gave substantial weight
to the joint-custody factor at Minn. Stat. § 518.17, subd. 2(b), and determined
that methods for dispute resolution are in place to address the problems
related to parenting time. And,
in weighing the propriety of joint physical custody, the district court in this
case clearly gave primary weight to the finding that an award of sole physical
custody to father would be detrimental to the child.
Father also argues the court abused its discretion
by not following the custody evaluator’s recommendation that he have sole
physical custody. The district court has
discretion regarding whether or not to follow a custody recommendation. Rutanen
v. Olson, 475 N.W.2d 100, 104 (
Father argues that the district court did not give
sufficient weight to the child’s preference, but we disagree. The child has been allowed to continue
attending school in
Father also argues that the custodial schedule
established by the district court “bears no resemblance to a true joint custody
arrangement.” But there is no merit to or authority to support
the assertion that the amount of time the parties have primary custody of the
child dictates what legal label will be applied to a custody arrangement. The label “joint physical custody” does not
require an equal 50/50 division of time and can be applied to any arrangement
where the child’s residence and routine daily care are structured between the
parties. Lutzi v. Lutzi, 485
N.W.2d 311, 314 (Minn. App. 1992), citing Minn. Stat. § 518.003, subd.
3(d). “[District] courts may unequally
divide physical custody but still label the arrangement as joint.” Id; c.f.Blonigen v. Blonigen, 621 N.W.2d 276, 283 (
Although this is not the typical case in which joint physical custody is found to be in a child’s best interests, we defer to the credibility findings of the district court as well as the factual findings, all of which are supported by the record. The district court in this case has had the opportunity to observe the parties over a significant period of time, has interviewed the child, and has had input from the custody evaluator and guardian ad litem. We conclude that, under all of the circumstances of this case, the district court did not abuse its discretion by awarding the parties joint legal and physical custody of their child.
II. Child support
The district court originally declined to award child support based on the award of joint custody and the amount of parenting time. In response to father’s motion for amended findings, the district court noted that even if it were inclined to set child support based on the Hortis/Valento formula, it could not have done so because father failed to provide “a scintilla of financial information related to himself or [mother] either by affidavit or at the evidentiary hearing.”
The Hortis/Valento formula is the
presumptively appropriate method of setting child-support when joint physical
custody is awarded. Schlichting v. Paulus, 632 N.W.2d 790, 792 (Minn. App. 2001)
(stating that application of the Hortis/Valento
formula in cases of joint physical custody is an application of child-support
guidelines). But we have held that a
district court did not abuse its discretion by maintaining a current support
order in force when the party requesting modification failed to submit adequate
financial information to support a need for modification. Taflin
v. Taflin, 366 N.W.2d 315, 319 (
The record clearly demonstrates that father has previously been ordered to submit financial information to the district court and has failed to do so, and father did not submit financial information in connection with his motion for modification. But the record does not support the district court’s original decision not to award child support based on the custody arrangement. We modify the district court’s order to reserve the determination of child support until such time as father provides sufficient financial information to the district court to permit a determination of whether the guidelines should apply, and if not, to make appropriate findings on any deviation from guidelines support.
III. Requirement that father post bond to secure future compliance
The district court found that father has previously
interfered with mother’s parenting time and ordered a bond posted to secure
future compliance. The district court
has authority to provide remedies for interference with court-ordered parenting
time. Minn. Stat. § 518.175, subd. 6
(2004); Matson v. Matson, 638 N.W.2d 462,
Father challenges the district court’s authority to use a bond to secure mother’s visitation rights, but argues that he is unable to make the child comply with court-ordered visitation. We disagree. The record demonstrates that when the father wants the child to cooperate with mother’s parenting time, the child cooperates. We find no abuse of discretion in adding a financial incentive for father’s insistence on cooperation.
IV. Tax exemption
The district court has discretion to allocate the federal tax exemptions. Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999). The record contains no financial information on the parties from which this court could conclude that the district court’s decision to award the exemption to the parties in alternate years is an abuse of discretion.
V. Award of attorney fees
Father asserts that the district court abused its discretion by ordering him to pay part of mother’s attorney fees in addition to ordering him to pay a $500 civil penalty for willful interference with court-ordered parenting time. Father provides no authority that combining a civil penalty for interference with parenting time and awarding conduct-based attorney fees constitutes an abuse of discretion, and we find such an assertion to be without merit. Father’s primary arguments against attorney fees appear to be his inability to pay, that his conduct did not contribute to the length and expenses of the proceedings, and that the district court’s findings on conduct-based fees were insufficient to support the award.
“Conduct-based fee awards are discretionary with the
district court.” Sharp v. Bilbro, 614 N.W.2d 260, 264 (Minn. App. 2000), review denied (
Affirmed as modified.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The custody evaluation was completed, but there is no evidence in the record of the results of psychological evaluations for the parents or the child.
 Mother’s shortcomings in fostering her relationship with the child are clearly set out in the court’s findings but do not amount to endangerment.