This opinion will be unpublished and

may not be cited except as provided by

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






In re the Marriage of:

DeeAnn R. Powers, petitioner,





Matthew K. Powers,



Filed March 14, 2006


Randall, Judge


Winona County District Court

File No. F1-02-1740


Mark A. Merchlewitz, Benson & Merchlewitz, 174 Main Street, Winona, MN  55987 (for respondent)


Michelle M. Guillien, O’Flaherty Heim Egan, Ltd., U.S. Bank Place, Tenth Floor, 201 Main Street, P.O. Box 1147, LaCrosse, WI  54602-1147 (for appellant)

            Considered and decided by Minge, Presiding Judge; Toussaint, Chief Judge; and Randall, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal in this dissolution, appellant-father argues (a) the district court abused its discretion by awarding the parties joint physical custody, when that award was contrary to the custody evaluator’s recommendation, was unsupported by findings explaining the failure to adopt the evaluator’s recommendation, was based on non-statutory considerations, and was otherwise unsupported by the record; and (b) he should have been given an equitable restitution award for his contributions to respondent-mother’s education.  After filing her motion for review, respondent argues that the district court erred in utilizing the May 13, 2003, pre-trial conference date as the date for valuing the parties’ marital retirement accounts.  We affirm on all issues. 


            Appellant Matthew Powers and respondent DeeAnn Powers were married on October 23, 1993.  The couple had two children during the marriage, J.D.P., born September 29, 1994, and J.I.P., born April 5, 1996.  At the time the parties were married, appellant was employed as a full-time pharmacist, and respondent was a college student and part-time pharmacy technician.   

            In June 1998, the parties relocated from Wisconsin to Denver, Colorado, to permit respondent to obtain her pharmacy degree.  Respondent graduated in 1999, and the parties continued to live in Colorado until 2002, at which time the couple moved to Winona, Minnesota.  According to appellant, the couple moved because respondent was unhappy with her position in Colorado, and she was able to obtain a pharmaceutical position in Winona.  

            In May 2002, the couple separated.  For more than one year after their separation, the parties were able to live under an informal joint custodial arrangement where the children would spend two weeks with appellant, and then one week with respondent.  In June 2003, the district court issued a temporary order implementing a formal custody arrangement, which placed the parties and their children on an alternating one week schedule.  The order also mandated that the parties participate in mediation in an attempt to resolve the custody dispute.  Shortly thereafter, pursuant to the parties’ stipulation, the district court issued an order appointing Mary Chase Borgen, a clinical social worker at Catholic Charities in Winona, to conduct a custody study.       

            After numerous postponements, a trial was held July 21-22, 2004, with the issues being: (1) physical custody of the minor children; (2) appellant’s claim for equitable recognition of his contribution toward respondent’s acquisition of various degrees; and (3) the use of a valuation date for several of the parties’ marital retirement accounts.  At trial, Borgen recommended that the parties share joint legal custody with sole physical custody awarded to appellant.  Borgen testified that appellant was the psychologically stronger parent, and that appellant’s parenting style presented more structure and predictability for the children than respondent’s parenting style.  Borgen also testified that the children had become adjusted to the fact that appellant had been the children’s primary caretaker for the 15 months prior to her study.  Borgen further testified that the parties’ communication was “minimal,” and “could present some difficulty for the two children,” but when “push came to shove,” the parties were able to communicate and problem solve for their children.

            The district court issued an order on January 14, 2005, declining to follow the recommendation of the custody evaluator, and awarding joint physical custody to the parties.  The court also denied appellant’s claim for an equitable award under DeLa Rosa for his contributions toward respondent’s education.[1]  Finally, the district court used the original pre-trial conference date of May 13, 2003, as the date for valuing the marital retirement accounts.  Appellant now appeals the custody and DeLa Rosa claims, and respondent filed a notice of appeal concerning the valuation date for the parties’ marital retirement accounts.


            Appellant argues that the district court abused its discretion in awarding the parties joint physical custody.  This court’s review of custody decisions is narrow and “limited to 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) (citation omitted).  This court will sustain a district court’s findings unless they are clearly erroneous. La Chapelle v. Mitten, 607 N.W.2d 151, 158 (Minn. App. 2000), review denied (Minn. May 16, 2000).  When there is conflicting evidence, appellate courts defer to the district court’s determinations of credibility.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).

            District courts make custody determinations based on the best interests of the child, and balance the 13 factors enumerated in Minn. Stat. § 518.17, subd. 1 (2004).  The law “leaves scant if any room for an appellate court to question the trial court’s balancing of best-interest considerations.”  Vangsness v. Vangsness, 607 N .W.2d 468, 477 (Minn. App. 2000).

            Appellant argues that the district court’s joint custody award was an abuse of discretion because the award is contrary to the recommendations of the custody evaluator and unsupported by the evidence.  We disagree.  The district court is not bound by an independent evaluator’s recommendations regarding custody.  Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991).  When credible evidence outweighs a custody evaluator’s recommendation, the district court’s decision not to follow the evaluator’s recommendation does not constitute an abuse of discretion, provided the district court’s detailed findings support the conclusion that its custody determination is in the best interests of the child.  Id.

            Here, Borgen recommended that sole physical custody be awarded to appellant on the condition that he not move the children more than 30 miles from Winona.  The recommendation was premised on the parties’ inability to communicate effectively, Borgen’s opinion that the children need the stability of spending the majority of their time in one home, and appellant’s more effective parenting style.  The district court acknowledged Borgen’s recommendation, but noted that her recommendation was based, in part, on “her belief that the parents have communication issues and strong negative feelings about one another.”  The district court found that although the parties harbor negative feelings toward each other, the parties “do not openly exhibit their feelings in front of the children.”  The district court also found that Borgen acknowledged that the children were content with the current parenting arrangement, and noted “that the least possible disruption in their life is very important.”  The district court further noted the parties’ communication issues, but found that the parties do not have a problem communicating about the children.   

            Appellant contends that the district court abused its discretion in awarding joint physical custody because there is an abundance of evidence demonstrating that the parties do not communicate effectively.  A grant of joint physical custody will only be appropriate in “exceptional cases.”  Brauer v. Brauer, 384 N.W.2d 595, 598 (Minn. App. 1986).  For example, this court affirmed a grant of joint physical custody where the record indicated that the parties had been able to cooperate in maintaining a joint custody arrangement on their own for almost three years during the period between their initial separation and divorce.  Veit v. Veit, 413 N.W.2d 601, 605 (Minn. App. 1987).  Similarly, this court affirmed a grant of joint legal and 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.  Berthiaume v. Berthiaume, 368 N.W.2d 328, 332-33 (Minn. App. 1985).

            After addressing the best interest factors contained in section 518.17, subd. 1, the district court considered the additional factors contained in Minn. Stat. § 518.17, subd. 2 (2004).  The district court made detailed findings concerning the parties’ communication issues, and noted the parties’ strong differences of opinions on the issue of public versus private school.  But the court found that despite their “obvious personality differences and their anger and frustration with one another,” the parties have “the unique ability to put these differences aside when it comes to their children.”  The district court comprehensively and thoroughly considered the statutory factors and concluded that joint physical custody was appropriate.  Although there is support in the record for appellant’s argument that joint physical custody was not appropriate, there is more than enough support for the district court’s findings.  We conclude the district court did not abuse its discretion in awarding the parties joint physical custody of their two minor children.


            Appellant argues that the district court abused its discretion in denying his claim for equitable recognition of his contribution toward respondent’s advanced degree. Where one spouse foregoes the immediate enjoyment of earned income to enable the other to pursue an advanced education on a full-time basis, the district court has the equitable authority to provide an award to the working spouse, and its decision will not be reversed absent an abuse of discretion.  DeLa Rosa v. DeLa Rosa, 309 N.W.2d 755, 758 (Minn. 1981).  To qualify for an equitable recovery, there must be a significant sacrifice and foregoing of the enjoyment of earned income on the part of the working spouse.  Ellesmere v. Ellesmere, 359 N.W.2d 48, 51 (Minn. App. 1984).

            Appellant argues that under DeLa Rosa, he should be compensated for the financial support he provided respondent during the period of her schooling.  In support of his claim, appellant cites Wilson v. Wilson, 388 N.W.2d 432 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986), where this court affirmed the district court’s equitable award of $21,409, which was based on the conclusion that the parties’ separation occurred too shortly (two years) after husband’s completion of his periodontal degree to allow the parties to acquire any significant assets with which to reimburse wife for her extensive financial contributions to his education.  Appellant asserts that based on the short amount of time between the acquisition of respondent’s degree and the parties’ separation, along with (1) the fact that he relocated twice at respondent’s request; (2) his utilization of premarital assets to support the family during respondent’s schooling; and (3) the foregoing of earned income following the moves during his periods of employment, that he demonstrated a significant sacrifice under DeLa Rosa.

            Respondent argues that under Ellesmere, appellant is not entitled to an equitable recovery.  In Ellesmere, this court determined that the parties’ lifestyle was unaffected by the wife’s education.  359 N.W.2d at 51.  This court held that because the husband was unable to demonstrate that the cost of his wife’s education required substantial sacrifice, the husband was not entitled to an equitable recovery of the support and educational expenses he provided his wife during their marriage.  Id. at 51-52.

            The present case has similarities to both Wilson and Ellesmere.  The parties here separated about three years after respondent obtained her degree.  Like Wilson, this was a relatively short amount of time for respondent’s increased income to reimburse appellant for his financial contributions and sacrifices to respondent’s education.  Nevertheless, the record also shows that while respondent was in school, the parties resided in a home they had purchased, owned multiple cars, and obtained various assets and “toys.”  Therefore, like Ellesmere, the record indicates that the parties’ lifestyle was relatively unaffected by respondent’s education.  

            Also, although appellant asserts that the family moved to Colorado to further respondent’s education, the record reflects that a number of reasons precipitated the move.  These reasons include:  (1) appellant had family in Denver; (2) the parties were having marital problems, and the couple thought the move to Colorado would add stability to the marriage; (3) the parties wanted to live in the mountains; and (4) respondent could take an internship in the Denver area as well as finish her degree.  Further, the record reflects that before the parties moved to Colorado, the couple rented a house from respondent’s mother.  But shortly after the couple moved to Colorado, the couple was able to buy a house in the Denver area, indicating that both parties benefited from the move.  Finally, despite appellant’s testimony that he had to make significant career sacrifices in order to facilitate the two moves (from Wisconsin to Colorado and from Colorado to Winona), the record indicates that appellant was able to obtain gainful employment in each of the new locales.  The district court did not abuse its discretion in denying appellant’s claim for an equitable (monetary) recognition of his contributions toward respondent’s advanced degree.


            Respondent argues that the district court abused its discretion in utilizing the May 13, 2003, pre-trial conference date as the date for valuing the parties’ marital retirement accounts.  The district court “shall value marital assets for purposes of division between the parties as of the day of the initially scheduled pre-hearing settlement conference, unless a different date is agreed upon by the parties, or unless the court makes specific findings that another date of valuation is fair and equitable.”  Minn. Stat. § 518.58, subd. 1 (2004).  Generally, the valuation and division of pension rights is a matter for the district court’s discretion.  Taylor v. Taylor, 329 N.W.2d 795, 798 (Minn. 1983).  This court will not reverse unless the district court has abused that discretion.  See Ronnkvist v. Ronnkvist, 331 N.W.2d 764, 766 (Minn. 1983).

            Here, the district court set May 13, 2003, the initial pre-trial date, as the valuation date of the parties’ assets.  The district court also scheduled the trial for the summer of 2003.  But according to respondent, a custody study forced the postponement of the trial until the summer of 2004.  Respondent claims that between the time of the original pre-trial conference and the trial date, the pension accounts of the parties increased by $10,000.  Respondent argues that because there was a substantial change in the value of the assets, the district court should have used a different valuation date.

            It is respondent’s burden to show that the valuation date is inappropriate, and respondent fails to demonstrate how the May 13, 2003 valuation date is inequitable.  The district court’s valuation date considers both appreciable and depreciable assets, and is supported by acceptable bases in fact and principal.  See Minn. Stat. § 518.58, subd. 1 (stating that the initially scheduled pre-hearing conference date is the presumptively appropriate date for valuing marital property).  The district court did not err by utilizing the May 13, 2003 pre-trial conference date as the date for valuing the parties’ marital retirement accounts.      


[1] See DeLa Rosa v. DeLa Rosa, 309 N.W.2d 755 (Minn. 1981).