This opinion will be unpublished and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:

Dee Henderson, f/k/a Denise Marie Dittrich, petitioner,





Gregory Duane Dittrich,




Filed July 11, 2006

Affirmed in part and reversed in part

Toussaint, Chief Judge


Washington County District Court

File No. F0-94-1431



Dianne Wright, Wright Family Law & Mediation, P.L.L.C., White Pine Building, 342 Fifth Avenue North, Bayport, MN 55003-1201 (for respondent)


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.



            The 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 (Minn. 2002); Minn. Stat. §§ 257C.01, subd. 3(a) (2004); .03(a)(iii) (2004).[1]  Because no third party was a party to this proceeding and no third party sought custody of the child, the district court could not have awarded custodial rights to mother’s husband.

            The presumptively 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 (Minn. App. 2001).  Therefore, the district court’s equal apportionment of the child’s time between the parties’ homes and its statement that a future order will set support under the Hortis/Valento formula could imply an award of joint physical custody to mother and father.  But neither party sought joint physical custody.  Also, the “[p]hysical custody and residence” of a child is defined as “the routine daily care and control and the residence of the child.”  Minn. Stat. § 518.003, subd. 3(c) (2004).  And it is self-evident that mother, who is incarcerated in another state, cannot provide “care” and “control” for the child on a “routine” and “daily” basis while incarcerated.  Therefore, the district court awarded sole physical custody of the child to father,[2] with the child having liberal access to his step-father and a sibling living in mother’s home.  Father’s argument that the district court should have addressed the statutory joint-physical-custody factors is unpersuasive, as is mother’s argument that the district court did not err by refusing to award father sole physical custody.


            Generally, 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 (Minn. 1999).  Here, after apportioning the child’s time between the parties’ homes, the district court stated that “[s]hould [mother] be released from incarceration during [the child’s] minority, the foregoing schedule shall terminate, and [mother] shall resume [the child’s] legal and physical custody.”  Father argues that this conditional, temporary custody award with an automatic future modification, is prohibited by Wopata v. Wopata, 498 N.W.2d 478, 481-82 (Minn. App. 1993).

            Father’s argument regarding physical custody is unpersuasive.  Mother’s incarceration is scheduled to end after the child reaches age 18.[3]  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 Minn. R. Civ. P. 61 (requiring harmless error to be ignored).

            Mother 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 (Ill. App. 1993).  Modification of legal custody, however, requires satisfaction of Minn. Stat. § 518.18.  In re Welfare of V.H., 412 N.W.2d 389, 391 (Minn. App. 1987).  Here, father admitted that he could not satisfy Minn. Stat. § 518.18.  And while we appreciate father’s candor on this point, we must reverse the modification of legal custody from mother to father.


            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.


            The order 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 (Minn. App. 2003), review denied (Minn. Nov. 25, 2003).  While any argument by mother challenging a support obligation is premature because no support order is at issue in the current appeal, father, in his reply brief candidly admits that the district court cannot consider the income of mother’s husband when setting support.

            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.

[1] Mother argues that, under Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) father’s extraordinary-circumstances argument is not properly before this court because father raises it for the first time on appeal.  But because the extraordinary-circumstances test is used for addressing third-party custody disputes and father made a third-party custody argument in district court, we will address the question.

[2] Because 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 (Minn. App. 2002).

[3] 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.