This opinion will be unpublished and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
Tracy Leigh O’Brien,
David John O’Brien,
Affirmed in part, reversed in part, and remanded
Hennepin County District Court
File No. DC 272 490
A. Larry Katz, Susan A. Daudelin, Katz, Manka, Teplinsky, Due & Sobol, 225 South Sixth Street, Suite 4150, Minneapolis, MN 55402 (for appellant)
Ellen M. Schreder, Carson, Clelland & Schreder, 6300 Shingle Creek Parkway, Suite 305, Minneapolis, MN 55430-2190 (for respondent)
Considered and decided by Klaphake, Presiding Judge; Halbrooks, Judge; and Wright, Judge.
In this appeal from the district court’s dissolution judgment and decree, appellant-mother argues that the district court (1) misapplied the law when it awarded joint physical custody despite finding that it is not in the children’s best interests; (2) miscalculated the income of each party for child-support purposes; (3) failed to grant appellant a nonmarital interest in the marital homestead; and (4) abused its discretion by ordering her to pay conduct-based attorney fees to respondent-father. We affirm in part, reverse in part, and remand.
Appellant Tracy O’Brien and respondent David O’Brien were married on May 11, 1991. Appellant filed a petition for dissolution on December 5, 2001, and the parties separated in January 2002. The district court granted temporary exclusive use of the marital home and temporary physical custody of the parties’ two minor children to respondent.
At a hearing before a family court referee on June 11, 12, and 23, 2003, and September 4 and 5, 2003, the parties litigated issues related to physical custody, child support, property division, and attorney fees and costs. The parties agreed to joint legal custody, but appellant sought sole physical custody of the children. Respondent initially sought sole physical custody but later requested joint physical custody.
The referee issued findings of fact, conclusions of law, order for judgment, and judgment and decree on March 26, 2004, which was countersigned by the district court. The referee made extensive findings related to the children’s best interests, noting that both parents were loving, capable, and dedicated to their children. The referee then made findings specifically relating to joint custody, as required by Minn. Stat. § 518.17, subd. 2 (2002). After finding that the parties could not cooperate well enough to make joint physical custody a feasible arrangement, that joint physical custody would be detrimental to the children, and that granting respondent sole physical custody was in the best interests of the children, the referee nevertheless granted the parties joint physical custody.
The referee also awarded appellant monthly child support of $101.90 pursuant to the Hortis/Valento formula but granted respondent the marital homestead and ordered him to pay appellant for her marital interest in the property. Finally, the referee ordered that appellant pay $5,000 in conduct-based attorney fees under Minn. Stat. § 518.14, subd. 1 (2002).
Appellant filed a notice of review of the judgment, pointing out the contradictory findings of fact and conclusions of law. Specifically, appellant sought review of the physical custody determination, child-support award, property division, and the attorney fees award, among other issues. In an order dated May 27, 2004, the district court directed the referee to correct the contradictory findings. The referee issued a supplemental order confirming the grant of joint physical custody. But the referee did not alter the findings that joint physical custody would be detrimental to the children. The district court issued a final order dated December 8, 2004, that affirmed the referee’s amended findings without addressing the contradictory findings as to physical custody.
This appeal followed.
review of 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. Silbaugh v. Silbaugh, 543 N.W.2d 639,
best interests of the child is the controlling principle in every custody
determination. To assure proper
consideration of the child’s best interests, the legislature has identified best-interests
factors that a district court must consider when making a custody determination.
The district court’s determination
of a party’s income for the purpose of child support is an issue of fact, which
we will not disturb unless it is clearly erroneous. Ludwigson
v. Ludwigson, 642 N.W.2d 441, 446 (
Appellant testified that when the parties bought their second home, her parents paid $20,000 to have the basement finished. Appellant testified that her parents paid the money directly to the contractors, but the payment was intended as a gift to her alone. There is no other evidence in the record to support her nonmarital interest. It is the province of the district court as fact-finder to determine issues of the weight and credibility of the evidence because “it has the advantage of hearing the testimony, assessing relative credibility of witnesses and acquiring a thorough understanding of the circumstances unique to the matter before it.” Hasnudeen v. Onan Corp., 552 N.W.2d 555, 557 (Minn. 1996); see also Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating that appellate courts defer to district court credibility determinations). Because appellant did not meet her burden to prove a nonmarital interest in the homestead, we affirm the district court’s property division. See Varner v. Varner, 400 N.W.2d 117, 121 (Minn. App. 1981) (“The finder of fact is not required to accept even uncontradicted testimony if the surrounding facts and circumstances afford reasonable grounds for doubting its credibility.”).
Finally, appellant argues that the
district court abused its discretion by awarding $5,000 in conduct-based
attorney fees to respondent. An award of
attorney fees under Minn. Stat. § 518.14, subd. 1 (2002), “rests almost
entirely within the discretion of the trial court and will not be disturbed
absent a clear abuse of discretion.” Crosby v. Crosby, 587 N.W.2d 292, 298
(Minn. App. 1998) (quotation omitted), review
denied (Minn. Feb. 18, 1999). Conduct-based
attorney fees may be awarded only for conduct during the litigation. Geske
v. Marcolina, 624 N.W.2d 813, 819 (Minn. App. 2001). A showing of bad faith is not required for an
award of conduct-based attorney fees.