This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1219
A05-1562

 

 

In re the Marriage of:

Meagan Ann McSherry,

petitioner,

Respondent,

 

vs.

 

John Eugene Schmidt,

Appellant.

 

 

Filed May 16, 2006

Affirmed as modified
Harten, Judge
*

 

Sherburne County District Court

File No. F6-03-1370

 

William D. Siegel, Beverly K. Dodge, Barna, Guzy & Steffen, Ltd., 400 Northtown Financial Plaza, 200 Coon Rapids Boulevard, Coon Rapids, MN 55433-5894 (for respondent)

 

Timothy A. Sime, Rinke-Noonan, P.O. Box 1497, St Cloud MN 56302 (for appellant)

            Considered and decided by Stoneburner, Presiding Judge, Dietzen, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

HARTEN, Judge

            On appeal in this action dissolving a short-term marriage involving one child, appellant John Schmidt challenges the district court’s decisions (1) reducing his parenting-time; (2) awarding conduct-based attorney fees against him; and (3) ordering him to pay “back child support.”  By notice of review, respondent Meagan McSherry challenges the district court’s decisions granting the parties joint legal custody and awarding the homestead to appellant without adequately compensating respondent for her marital interest.  We modify the date of the award of retroactive child support, but otherwise affirm the district court’s decisions because they are well within its discretion.

FACTS

            The parties were married on 6 June 1998, when their son was almost a year old.  Approximately one year later, respondent moved out of the parties’ homestead.  The child resided in the homestead with appellant until August 2000, when respondent moved to a nearby town with the child and her other son, who was five years older than the parties’ child.

            On 29 March 2002, a child support magistrate ordered appellant to maintain medical insurance for the child or to pay $50 per month toward reimbursement of medical assistance.  The magistrate reserved the issues of ongoing and past support.

            On 6 May 2003, almost four years after the parties’ separation, respondent filed a petition to dissolve the marriage.  On the date scheduled for trial, 8 June 2004, appellant appeared pro se and requested a continuance because his attorney had withdrawn in April 2004 and he had not yet retained another.  The district court granted the continuance over respondent’s objection.  The district court gave respondent temporary physical custody of the child, set out a parenting-time schedule for appellant, and ordered appellant to pay $426 per month in child support.

            Following a three-day trial that was spread over the course of several months, the district court awarded the parties joint legal custody but awarded respondent sole physical custody of the child and granted appellant parenting-time.  The district court ordered appellant to pay $15,856.06 in “back child support” for the period from March 2002 to 8 June 2004, during a period that appellant was to pay temporary child support.  The district court awarded the homestead to appellant, finding that he had given $6,000 to respondent in September 2000 that was “adequate compensation for any martial interest [that she] may have had in the home.”  Finally, the district court ordered appellant to pay $7,500 toward respondent’s attorney fees because some of those fees were “incurred as a result of [appellant’s] failure to disclose information . . . ; his request for a continuance on the day of trial (which was granted); and his motion for a temporary change in custody brought in between segments of trial.”

D E C I S I O N

1.         Retroactive Child Support.

            Appellant argues that the district court abused its discretion by ordering him to pay retroactive child support for a period of time during which no child support obligation existed.  The district court ordered appellant to pay respondent $15,856 for “back child support” from March 2002 to June 2004.  To the extent that the award represents a period of time prior to May 2003, when this dissolution action was commenced, we agree with appellant.

            In cases involving reimbursement for public assistance, retroactive support may be awarded for up to two years preceding commencement of the support action.  County of Washington v. Johnson, 568 N.W.2d 459, 461 (Minn. App. 1997); Minn. Stat. § 256.87, subd. 5 (2004).  In cases like this brought under chapter 518 to establish an initial child support obligation, however, it may be “improper to give a support order retroactive effect.”  Davis v. Davis, 631 N.W.2d 822, 827 (Minn. App. 2001) (reversing order making child support obligation retroactive absent “unusual circumstances not present here”); Korf v. Korf, 553 N.W.2d 706, 710 (Minn. App. 1996) (“[g]enerally, a trial court may not order retroactive child support for dates prior to the commencement of an action under chapter 518,” but recognizing a court’s inherent “power to award retroactive child support “may include such an award in the final decree”).  The power to order retroactive child support derives from the principle that a “parent’s obligation to support his child commences with the child’s birth.”  Jacobs v. Jacobs, 309 N.W.2d 303 (Minn. 1981).  A district court may make a child support obligation retroactive if it considers “all payments made by the obligor since the time of the separation and address[es] all of the parties’ concerns in a single action . . . with full consideration of all the facts and circumstances.”  Korf, 553 N.W.2d at 710-11 (quotation omitted).

            The district court did not address any payments that appellant might have made to respondent during the parties’ separation and appellant’s claim that the parties shared physical custody of the child during much of that period.  Because the district court may not order child support retroactive to dates prior to commencement of the dissolution action without citing some unusual circumstances that are not present here, we affirm the award of retroactive child support, but modify that award to make it retroactive only to May 2003.

2.         Attorney Fees.

            Appellant challenges the district court’s decision to require him to pay $7,500 of respondent’s attorney fees, which totaled approximately $40,000.  The district court found that such an award was appropriate because “some” of her fees were

incurred as a result of [appellant’s] failure to disclose information on the refinancing of the St. Cloud property, his monthly expenses, his income in 2003; his request for a continuance on the day of trial (which was granted); and his motion for a temporary change in custody brought in between segments of trial.

 

While appellant questions whether the award here was based on conduct or need, it is clear that the district court intended its award to be conduct-based because it specifically stated that “it is appropriate that [appellant] pay a fair share of [respondent’s] fees as a result” of his conduct.

            Minn. Stat. § 518.14, subd. 1 (2004), provides for awards of conduct-based attorney fees in the court’s discretion.  Sharp v. Bilbro, 614 N.W.2d 260, 264 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000).  A showing of bad faith is not necessary to support an award of conduct-based fees.  Geske v. Marcolina, 624 N.W.2d 813, 818-19 (Minn. App. 2001).  Such an award is appropriate when a party unnecessarily delays the proceedings by taking “duplicitous and disingenuous” positions or by engaging in conduct that increases the costs of litigation.  Redmond v. Redmond, 594 N.W.2d 272, 276 (Minn. App. 1999); Korf, 553 N.W.2d at 706.

            Appellant complains that respondent never specifically requested conduct-based fees at any time during the proceedings.  Yet, as respondent notes, she requested conduct-based fees, if necessary, in her dissolution petition, at trial, and in her proposed findings.  Moreover, contrary to appellant’s arguments, the record reasonably supports the district court’s findings that appellant’s conduct unreasonably contributed to the length of these proceedings, particularly his actions in requesting a continuance on the day of trial when he knew several weeks beforehand that he had no attorney.  We therefore affirm the district court’s decision to award attorney fees.

3.         Parenting-Time.

            Appellant argues that the district court abused its discretion by deviating from the parenting-time schedule that was successfully established, followed by the parties, and recommended by the custody evaluator.  At oral arguments before this court, appellant withdrew his challenge to the district court’s award of sole physical custody to respondent.

            A trial court has broad discretion when making decisions regarding parenting-time.  Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).  The court must grant parenting-time to “enable the child and the parent to maintain a child to parent relationship that will be in the best interests of the child.”  Minn. Stat. § 518.175, subd. 1(a) (2004).  Detailed findings are unnecessary to support a court’s decision regarding parenting-time, particularly when the court has made detailed findings on the child’s best interests that support not only its custody decision but also its decision regarding parenting-time.

            Here, the district court awarded appellant parenting-time every other weekend, rather than three weekends per month, but increased his time with the child during the summer, holidays, and vacations.  The district court’s decision appears reasonable and is supported by the record.  The parenting-time schedule fashioned by the district court is consistent with the child’s best interests because it slightly reduces the amount of time during the school year that the child will be apart from his half-brother, with whom he has a strong bond; it also limits the number of exchanges between the parties, which are complicated by the open hostility that appellant’s fiancé expresses towards respondent.  The schedule further recognizes the realities of respondent’s current situation:  she is now a custodial parent who works full time, whereas during the parties’ separation and much of these proceedings, she was a student who was not employed outside the home and was able to spend time with the child during the weekdays.  We conclude that the district court’s parenting-time decision is not an abuse of discretion.

4.         Legal Custody.

            Respondent argues that the district court abused its discretion by awarding the parties joint legal custody.          Joint legal custody is presumed to be in a child’s best interests.  Minn. Stat. § 518.17, subd. 2 (2004).  The dissolution statute defines joint legal custody as the equal right to “participate in major decisions determining the child’s upbringing, including education, health care, and religious training.”  Minn. Stat. § 518.003, subd. 3(b) (2004).  When that presumption is challenged, the district court must consider certain factors, including (1) the ability of parents to cooperate in rearing their children; (2) methods for resolving disputes regarding any major decision and the parents’ willingness to use those methods; (3) whether it would be detrimental to the child if one parent were to have sole authority over the child’s upbringing; and (4) whether domestic abuse has occurred.  Minn. Stat. § 518.17, subd. 2.

            Respondent asserts that the district court abused its discretion in awarding joint legal custody because it failed to consider the requisite statutory factors.  Respondent further claims that the district court abused its discretion because it appeared to award joint legal custody as a tool to repair the damaged relationship between the parties.  See Chapman v. Chapman, 352 N.W.2d 437, 441 (Minn. App. 1984) (district court abused discretion by awarding joint legal custody as means of coercing cooperation between parties).  Respondent also insists that joint legal custody is inappropriate in this case because the parents are unable to cooperate and lack the ability to effectively communicate and resolve disputes.  See Wopata v. Wopata, 498 N.W.2d 478, 482 (Minn. App. 1993).

            But, unlike the parties in Chapman and Wopata, the parties here do not have basic differences concerning the child’s health care, education, and general upbringing.  The district court found that it was in the child’s best interests to share legal custody because “[d]uring the years of the parties’ separation prior to the recent conflicts between [appellant’s] fiancé and [respondent], the parties have shown the ability to cooperate with regard to legal custody issues.”  The district court further found that “once the dissolution is final and the stress of conflict reduced, the parties should again be able to jointly resolve major parenting decisions which would certainly be in [the child’s] best interests,” a finding that is consistent with the recommendations of the custody evaluator.  Finally, the district court rejected respondent’s claim of domestic abuse, noting that there was only one incident alleged several years ago, and the parties agreed domestic violence was not an issue at the time of the custody evaluation.  We conclude that the district court’s findings, which included detailed findings on the child’s best interests, adequately addressed the necessary factors and that the district court did not abuse its discretion by awarding the parties joint legal custody of the child.

5.         Homestead.

            Respondent argues that the district court abused its discretion by awarding the homestead to appellant without adequately compensating respondent for her marital interest in the property.  The district court has broad discretion when evaluating and dividing marital property and will not be reversed absent an abuse of that discretion.  Maranda v. Maranda, 449 N.W.2d 158, 164-65 (Minn. 1989).  We must affirm a court’s division of property if it has an acceptable basis in fact and principle.  Servin v. Servin, 345 N.W.2d 754, 758 (Minn. 1984).

            Here, the district court found that the parties purchased the homestead in 1997, prior to the marriage, for $56,650.  The property was placed in appellant’s name.  The parties lived in the homestead for approximately 14 months after they were married, until respondent moved out in August 1999.  The district court found that the parties and appellant’s family “did significant remodeling,” but that when respondent left the home in 1999 many projects were uncompleted.  The district court further found that beginning in 2002, appellant and his fiancé “invested approximately $80,000 toward improving the home, including a room addition, exterior brickwork, patio, and driveway, along with other improvements.”

            The district court found that in September 2000, appellant paid respondent $6,000 for her interest in the home.  The district court determined that this was adequate compensation for any interest that respondent may have had in the home.  As the district court noted, even if the value of the home was $120,000, as respondent claimed, appellant established that he had invested $80,000 into the property, which would leave little or no marital equity in the home to distribute to respondent.  We conclude that the district court did not abuse its broad discretion in determining that respondent was properly compensated for any marital interest that she may have had in the home.

            Affirmed as modified.



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