This opinion will be unpublished and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
Dee Henderson, f/k/a Denise Marie Dittrich, petitioner,
Gregory Duane Dittrich,
Filed July 11, 2006
Toussaint, Chief Judge
Patricia A. O’Gorman, Patricia A. O’Gorman, P.A., 8750 90th Street South, Suite 207, Cottage Grove, MN 55016 (for appellant)
Considered and decided by Toussaint, Chief Judge; Dietzen, Judge; and Harten, Judge.*
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
The district court ruled that, after respondent-mother and custodial parent Dee Henderson, f/k/a Denise Marie Dittrich, was incarcerated, the parties’ child would equally split his time between the home of mother and her current husband and the home of appellant-father Gregory Duane Dittrich. On appeal, father argues (a) the district court improperly awarded joint physical custody of the child to mother’s husband and father, despite mother’s husband not being a party to the parents’ custody proceeding; (b) mother’s incarceration should have entitled father to custody of the child; and (c) the record shows that the joint-custody factors were not considered here. Mother notices review of the award to father of sole legal custody and certain statements by the district court about child support. We affirm in part and reverse in part.
district court ruled that, during mother’s incarceration, the child’s time
would be equally split between father’s home and mother’s home, but failed to identify
who had physical custody of the child. Father
argues that the district court abused its discretion by “denying” him custody
without finding the existence of extraordinary circumstances. The extraordinary-circumstances test is used
to address custody disputes between parents and third parties. In re
Welfare of N.A.K., 649 N.W.2d 166, 176 (
appropriate guideline support obligation in joint-physical-custody cases is the
obligation that is calculated under Hortis/Valento
formula. Schlichting v. Paulus, 632 N.W.2d 790, 792-93 (
custody awards are discretionary with the district court and will not be
altered on appeal unless the district court abused its discretion by making
findings unsupported by the record or improperly applying the law. Frauenshuh
v. Giese, 599 N.W.2d 153, 156 (
argument regarding physical custody is unpersuasive. Mother’s incarceration is scheduled to end after
the child reaches age 18. Therefore, it is not clear that there
will be a future modification of physical custody. Also, Wopata
is distinguishable. There, the district
court purportedly put sole legal custody in each parent during the six months
each year that the children lived with each parent. On appeal, this court held that the
alternating award of legal custody was defective because (a) it constituted an
award of joint legal custody and it was beyond dispute that the Wopata parents lacked the ability to
agree regarding their children that is required for an award of joint legal
custody; and (b) the automatic alternation of legal custody between the parents
“institutionalized a process which by its terms violates Minnesota statutory
mandates intended to prevent the frequent modifications of custody[.]” Wopata,
498 N.W.2d at 482 (citing Minn. Stat. § 518.18)). Here, the district court awarded father sole
physical custody. And while Wopata involved two changes in custody
each year, this case involves one unavoidable incarceration-required change of
physical custody, and, possibly, a second change in physical custody which,
because the child will then be about three months from his 18th birthday, will
likely have only nominal impact. See Ross
v. Ross, 477 N.W.2d 753, 757 (Minn. App. 1991) (stating “[t]here is serious
question when dealing with [an elder teenager] whether trial courts can
practically contradict the child’s choice even if it was shown to be misguided”).
On this record, any error regarding
physical custody is harmless. See
argues that the district court should not have awarded father sole legal
custody of the child absent father’s satisfaction of Minn. Stat. § 518.18
(2004). See Minn. Stat. § 518.18 (reciting standard for modifying
custody). “Legal custody” is defined as
“the right to determine the child’s upbringing, including education, health
care, and religious training.” Minn.
Stat. § 518.003, subd. 3(a) (2004).
While incarceration does not necessarily preclude the incarcerated
parent from being a child’s legal custodian, it can impair that parent’s
ability to function in that capacity. Naylor v. Kindred, 620 N.E.2d 520, 528 (
Though argued in the context of mother improperly attempting to exercise “surrogate” custody through her husband while mother is incarcerated, the crux of father’s “surrogate” custody argument is that the child will spend too much time with mother’s husband, whose custodial fitness was not reviewed by the court.
Generally, a nonparent seeking visitation with a child must move or petition the court to be awarded that visitation. Minn. Stat. § 257C.08, subds. 2(a), 4 (2004) (child’s grandparents, great grandparents, and person other than foster parent with whom child lived for at least two years); Minn. Stat. § 518.175, subd. 5 (2004) (modification of parent’s parenting time). Here, mother’s husband filed no motion or petition.
Generally, visitation is discretionary with the district court and is awarded to the extent it is in the child’s best interests. See Minn. Stat. § 518.175, subd. 1 (a) (2004) (parenting time); Minn. Stat. § 257C.08 (2004) (grandparents and persons with whom child has lived); Gray v. Hauschildt, 528 N.W.2d 271, 273 (Minn. App. 1995) (discretionary nature of visitation awards). Here, the child has lived with mother and her husband since 1995, and with his sister since mother and her husband adopted that child in 1997. Father admitted that the parties’ child was not endangered while living in mother’s home. And the district court found that the child “is doing extremely well in his present custodial situation [in mother’s home]” and “has a close relationship with both his sister and [mother’s husband.]” These findings, and other aspects of this record, convince us not to alter the district court’s apportioning of the child’s time between the homes of mother and father because the apportionment of the child’s time is consistent with his best interests.
from which this appeal is taken states that a separate order will set child support
using the Hortis/Valento support formula
and that, “[i]n ascertaining [mother’s] available income from all sources for
child support purposes, the Magistrate will consider a reasonable amount of
income from her present spouse apportioned for [the child’s] reasonable
necessities.” Mother correctly notes
that considering the financial circumstances of her spouse when setting support
is inconsistent with Minn. Stat. § 518.551, subd. 5(b)(1) (2004), and a
substantial body of case law. See, e.g., Eisenschenk v. Eisenschenk, 668 N.W.2d 235, 242 (
While we cannot grant father all the relief he seeks on appeal, we commend him for the frankness with which he proceeded before this court.
Affirmed in part and reversed in part.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
Mother argues that, under Thiele v. Stich,
425 N.W.2d 580, 582 (
use of the Hortis/Valento
child-support formula when one parent has sole physical custody is a deviation
from the guideline support obligation, use of that support formula in this case
will require findings of fact to support that deviation. See Nolte
v. Mehrens, 648 N.W.2d 727, 730 (
 Mother told the district court that she was entitled to “two hundred some-odd days taken off the back end [of the sentence].” If mother’s sentence is reduced by seven months, she could be released about three months before the child reaches age 18.