This opinion will be unpublished and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
In re the Marriage of:
Mary Melissa Martin, petitioner,
Kurt Wayne Martin,
Filed August 9, 2005
Crow Wing County District Court
File No. F1-01-0250
Virginia J. Knudson, Borden, Steinbauer & Krueger, P.A., 302 South Sixth Street, P.O. Box 411, Brainerd, MN 56401 (for respondent)
Kurt Wayne Martin,
Considered and decided by Willis, Presiding Judge; Shumaker, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
Pro se appellant father argues that the district court abused its discretion by denying appellant’s motion: (1) for an order directing respondent mother to enroll the parties’ minor child in private school and to limit the school absenteeism of the child; (2) for an order holding respondent in contempt of court; and (3) to reopen judgments entered in this matter. Appellant also sought to remove for prejudice the district court judge assigned to this case, and he appeals from the denial of his notice to remove. Because we find that the district court did not abuse its discretion, we affirm.
The marriage of appellant Kurt Martin and respondent Mary Martin was dissolved by a judgment entered in November 2002. The parties have two children, one of whom, M.M., is a minor and is now 13 years old. The parties share joint legal custody of M.M.; respondent has sole physical custody.
The district court entered an amended and supplemental judgment on May 22, 2003, and a further supplemental judgment on July 8, 2003. By a motion dated May 3, 2004, appellant sought an order granting, inter alia, the following relief: (1) directing respondent to enroll M.M. in private school and to limit M.M.’s school absenteeism to no more than five school days per school year; (2) finding respondent to be in contempt of court; and (3) reopening the judgments entered in May and July 2003. A hearing was held on appellant’s motion on August 3, 2004. In a series of orders dated August 17, 2004; September 22, 2004; and September 23, 2004; the district court denied appellant’s motion. After the hearing on his motion, appellant filed a notice to remove for prejudice the district court judge assigned to this case. The request for removal was denied by the chief judge of the judicial district in an order dated October 1, 2004. This appeal from all four of the orders follows.
D E C I S I O N
Appellant first challenges the denial of his motion to
require respondent to enroll M.M. in private school and to limit M.M.’s
absenteeism. M.M. attended St. Francis
An award of legal custody
includes an award to the legal custodian of “the right to determine the child’s
upbringing, including education.”
In a typical custody dispute, custody decisions are based
on the child’s best interests and are reviewed for an abuse of discretion,
which occurs if a district court makes findings unsupported by the evidence or
improperly applies the law. Minn. Stat.
§ 518.17, subd. 3(a)(3) (2004) (describing best-interests standard); Frauenshuh v. Giese, 599 N.W.2d 153, 156
A child’s “best interests” are defined as “all relevant
factors,” including those listed in Minn. Stat. § 518.17, subd.
1(a)(1)-(13) (2004). Minn. Stat.
§ 518.17, subd. 1(a) (2004). But that
list of best-interest factors assumes that the determination being made by the
district court is an award of custody. In re Paternity of B.J.H., 573 N.W.2d
99, 102 (
Appellant challenges the district court’s findings on the
preferences of the joint custodians; M.M.’s preferences; the wishes of M.M.’s primary
caretaker; and M.M.’s adjustment to her home, school, and community. Findings of fact will not be set aside unless
they are clearly erroneous.
Appellant has not shown that the district court clearly
erred by making these findings, only that he disagrees with them. The district court considered all the
evidence presented, and we defer to the district court’s decisions concerning
its weight and credibility. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (
Appellant also lists certain findings that, on this record, he alleges that the district court could have made. But merely showing that the record could support findings other than those made by the district court does not show that the district court’s findings are erroneous. Vangsness, 607 N.W.2d at 474.
We also reject appellant’s argument that the district
court improperly disregarded the recommendation of the guardian ad litem that M.M.
continue to attend St. Francis. When
awarding custody, a district court may reject a recommendation in a custody
study by explaining why it is rejecting the recommendation or by making
detailed best-interests findings. Rutanen v. Olson, 475 N.W.2d 100, 104 (
We also reject appellant’s argument that M.M., who was 12
years old at the time of the court’s order, was too young to express a school
preference. The district court
considered whether M.M. was old enough to express a preference and found that
she was. The finding is not inconsistent
with caselaw addressing the ages of children found old enough to express
custodial preferences. See, e.g., Maxfield v. Maxfield, 452 N.W.2d 219, 223 (
Finally, appellant notes that under Minn. Stat. § 518.003, subd. 3(b), joint legal custodians have “equal rights and responsibilities” regarding the choice of school for their children, and he argues that the district court violated the equality of decision-making created by this statute when it gave respondent’s school preference more weight than his school preference because she was M.M.’s primary parent. This argument is defective for two reasons. First, while joint legal custodians have equal rights and responsibilities when they are making an education decision themselves, that does not mean that when a district court must make a decision that had been entrusted to the parties, it must, or can, give each parent’s preference equal weight. Second, the district court’s findings do not show that it made its school-choice decision based solely or disproportionately on respondent’s school preference; the findings clearly show that the district court considered all of the relevant evidence in the record and made a reasoned decision. Therefore, the district court did not abuse its discretion by denying appellant’s motion to keep M.M. enrolled in St. Francis.
Appellant also sought an order directing respondent to limit M.M.’s school absenteeism “to no more than 5 days per school year, unless dictated otherwise by written directive of a medical doctor.” The district court found such an order to be impractical and unnecessary. Based on the record and on appellant’s failure to cite any authority for such a request, we conclude that the district court properly denied the requested relief.
Appellant also challenges the denial of his motion to have respondent found in contempt of court.
In the marriage-dissolution action, the parties agreed that respondent would receive the proceeds from the sale of the parties’ cabin and that she would be responsible for the capital-gains tax liability resulting from the sale. In 2003, respondent obtained a judgment in the amount of $15,736.53 against appellant for maintenance and child-support arrearages. Appellant moved to stay the judgment. In an order dated January 9, 2004, the district court denied appellant’s motion but ordered respondent to resolve the tax liability on the cabin sale before initiating “an enforcement action” against appellant for the money judgment. When respondent’s attorney docketed the judgment against appellant, appellant moved for a finding that respondent was in contempt of court, alleging that she violated the court’s order barring an “enforcement action” before she resolved the tax-liability issue.
“Contempt is an
extraordinary remedy that must be exercised with caution.” Burgardt
v. Burgardt, 474 N.W.2d 235, 236 (
The district court’s power to hold an individual in
contempt is permissive, not mandatory.
Respondent claims that she began a payment schedule with the Internal Revenue Service in January 2004. Respondent’s attorney then docketed the judgment, believing that respondent’s tax-liability issues were resolved. But apparently respondent did not make similar arrangements with the Minnesota Department of Revenue. Although it is not clear from the record, one or both of the agencies may have placed liens against appellant’s property. It appears from the record that respondent then contacted the Internal Revenue Service and the Minnesota Department of Revenue, and those agencies agreed to recapture respondent’s capital-gains-tax liabilities from any tax refunds she receives in the future.
The district court concluded that docketing the judgment
did not constitute initiation of an “enforcement action” within the meaning of its
January 9, 2004 order, and it denied appellant’s motion to find respondent in
contempt. The district court interpreted
its own order when it determined that respondent did not violate the January 9,
2004 order. We defer to a district
court’s construction of its own order. LaChapelle v. Mitten, 607 N.W.2d 151,
Appellant also challenges the denial of his motion to
reopen the judgments entered in May and July 2003. The district court has discretion to reopen a
dissolution judgment. Minn. Stat. §
518.145, subd. 2 (2004). And we will not
disturb the district court’s decision whether to reopen a judgment and decree
absent an abuse of discretion. Kornberg v. Kornberg, 542 N.W.2d 379,
A district court may relieve a party from a judgment and
decree, order, or proceeding and may order a new trial or grant other relief on
the grounds of: (1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly discovered evidence;
(3) fraud; (4) a void judgment and decree or order; or (5) satisfaction,
release, or discharge of the judgment.
The original judgment in this case was filed on November 13, 2002. On May 22, 2003, the district court filed amended and supplemental findings of fact, conclusions of law, and order for judgment; and it filed a supplemental judgment on July 8, 2003. In his motion dated May 3, 2004, appellant asked the district court to reopen the “filings” of May 22, 2003, and July 8, 2003. Appellant stated no ground for his requested relief.
The district court found that appellant did not clearly state what “mistake, inadvertence, surprise, or excusable neglect” should allow appellant to be relieved of the judgments. But the district court determined that appellant’s argument appeared to be that appellant made a mistake by sending a June 2, 2003 letter to the district court in which appellant disputed his income as set forth in the amended judgment. Appellant acknowledges in his brief on appeal that, rather than sending a letter to the district court, he should have moved to reopen the judgment, and he argues that because of his mistake in failing to follow the appropriate procedure, he should be relieved from the judgments. The district court denied the motion on the ground that appellant’s failure to follow procedural requirements was not a “mistake” within the meaning of section 518.145, subdivision 2. The district court also found that appellant’s motion was not made within a reasonable time.
Appellant’s motion asked “[t]o re-open the decree of dissolution to the extent the [appellant] may move for amendments to the Court’s filings of May 22, 2003 and July 8, 2003.” Appellant provided no facts or argument in his motion or at the hearing to show that the judgments of May 22, 2003, and July 8, 2003, were the result of mistake or to show any other basis for re-opening judgments under section 518.145, subdivision 2. Appellant argues that he was mistaken as to the procedure for reopening a judgment. But appellant’s procedural error is irrelevant to the issue of whether the judgments were based on mistake. Because appellant has not shown that either the amended and supplemental judgment of May 22, 2003, or the supplemental judgment of July 8, 2003, was the result of mistake, the district court did not abuse its discretion by denying the motion to reopen the judgments.
Appellant challenges the denial of his notice to remove for prejudice the district court judge assigned to this case. Appellant claims that the district court judge was formerly a Brainerd school board member and that appellant had an oral disagreement with him regarding the school board’s management of the district’s resources. Appellant filed his notice to remove on August 24, 2004, three weeks after the hearing on the motion that is the subject of this appeal and more than a year and one-half after the district court judge was first involved in the underlying dissolution action.
“A judge or judicial officer who has presided at a motion
or other proceeding . . . may not be removed except upon an
affirmative showing of prejudice on the part of the judge or judicial
The district court concluded that appellant had not demonstrated prejudice or implied or actual bias as contemplated by the rule and denied the notice to remove. This was not an abuse of discretion.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.