This opinion will be unpublished and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

A05-1791

 

In re the Matter of:

Elijah Jesse Miller, petitioner,

Respondent,

 

vs.

 

Tiffany Leah Berens,

Appellant.

 

Filed July 11, 2006

Affirmed; motion denied

Willis, Judge

 

St. Louis County District Court

File No. 69-F5-04-650030

 

 

Mark C. Jennings, 509 Board of Trade Building, 301 West First Street, Duluth, MN  55802 (for respondent)

 

William D. Paul, 1217 East First Street, Duluth, MN  55805 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge; Randall, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant mother argues that the district court abused its discretion by awarding appellant and respondent father joint physical custody of their daughter.  But because the district court considered all of the applicable statutory factors in great detail and the record supports its findings, we determine that the district court did not abuse its discretion and affirm its award of joint physical custody.  We further deny respondent’s motion for attorney fees.

FACTS

Appellant Tiffany Berens and respondent Elijah Miller have a now-eight-year-old daughter, K.M.  Berens and Miller, who were never married, separated when K.M. was approximately four years old.  When the parties separated, they had an informal joint-parenting arrangement based on their respective work schedules. 

            In February 2004, Miller brought a petition to adjudicate him to be K.M.’s biological father and to establish custody and visitation rights; Miller asked the court to grant the parties joint legal and physical custody of K.M.  The district court adjudicated Miller to be K.M.’s biological father and granted the parties temporary joint legal custody and gave Berens temporary sole physical custody subject to “liberal parenting time” for Miller.  The district court further appointed a guardian ad litem to “investigate the situation” and to advise the court on the issues of legal and physical custody. 

            Following the guardian ad litem’s recommendation that the parties be awarded joint legal and physical custody, Miller moved for an order granting such joint custody.  In July 2005, the district court granted Miller’s motion.  Berens appeals.


D E C I S I O N

I.

Berens argues that the facts do not support an award of joint physical custody.  A district court has broad discretion in determining custody matters.  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989).  Appellate review of a custody determination 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, 641 (Minn. 1996).   

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.  Minn. Stat. § 518.17, subd. 3(a) (2004); see Minn. Stat. § 518.17, subd. 1(a) (2004) (setting forth list of best-interests considerations).  When parties seek joint legal or physical custody, the district court is further required to consider the parents’ ability to cooperate, their methods of resolving disputes, whether it would be detrimental to the child for one parent to have sole authority over the child’s upbringing, and whether domestic abuse has occurred between the parents.  Minn. Stat. § 518.17, subd. 2 (2004).

To successfully challenge a district court’s findings of fact, a party “must show that despite viewing [the] evidence in the light most favorable to the [district] court’s findings . . . the record still requires the definite and firm conviction that a mistake was made.”  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).  An appellate court defers to the district court’s credibility determinations.  Id. at 472.  District-court findings should assure that the relevant statutory factors have been addressed, satisfy the litigants that their case was fairly resolved, and permit reasoned appellate review.  Rosenfeld v. Rosenfeld, 311 Minn. 76, 82, 249 N.W.2d 168, 171 (1976). 

Berens argues that the district court abused its discretion by ordering joint physical custody, maintaining that the facts show that she and Miller have “great difficulty communicating.”  Berens notes that previous decisions of this court have indicated that joint physical custody is disfavored, particularly when there is evidence of the parties’ inability to cooperate, and that it is appropriate only in “exceptional cases.”  See, e.g., Brauer v. Brauer, 384 N.W.2d 595, 598 (Minn. App. 1986).  Thus, Berens argues that if this court does not reverse the district court’s decision, we should, in the alternative, remand the case for findings as to why “this is an ‘exceptional case’ making joint physical custody appropriate.”  But there is no statutory requirement that a district court make “exceptional-case” findings.  And further, this court recently determined that there is “neither a statutory presumption disfavoring joint physical custody, nor is there a preference against joint physical custody if the district court finds that it is in the best interest of the child and the four joint custody factors support such a determination.”  Schallinger v. Schallinger, 699 N.W.2d 15, 19 (Minn. App. 2005), review denied (Minn. Sept. 28, 2005). 

Our review of the record shows that the record supports the district court’s findings on the best-interests-of-the-child and the joint-custody statutory factors.

A.         Wishes of Parents

The record supports the district court’s findings that Berens sought sole physical custody of K.M. and that Miller sought joint legal and physical custody.

B.         Reasonable Preference of Child

The record also supports the district court’s finding that K.M. was not asked to express a preference and that this was appropriate, given her age. 

C.        Primary Caretaker

The record supports the district court’s finding that the parties parent K.M. on an “equal-time basis.”  In her report, the guardian ad litem found that the time K.M. “spends with each parent is reflective of a joint custody arrangement” and that both parents have provided her with day-to-day care.  Miller testified that he takes care of K.M. when she is sick and takes her to her dentist appointments.  And Miller’s current wife testified that when K.M. stays at their home, Miller “does quite a bit of parenting” and that they both take care of her needs, such as bathing and feeding.

D.        Intimacy of Relationship Between Parent and Child

The record supports the district court’s finding that each parent has a close intimate relationship with K.M. and that the “historical parenting agreement has fostered such [a] relationship” by giving each parent approximately one-half time with K.M.  The guardian ad litem indicated in her report that each parent had a “strongly developed” relationship with K.M.  Both parents testified that they are actively involved in K.M.’s life. 

E.         Interaction and Interrelationship of Children and Parents, Siblings, and Any Other Person Who May Significantly Affect the Child’s Best Interests

 

The record supports the district court’s finding that Miller’s wife, parents, and extended family members are very involved with K.M. and that K.M. is “involved in a positive and beneficial manner” with Miller’s six-month-old child with his current wife.  Testimony indicated that Miller’s wife participates in many activities with K.M., K.M. loves to interact with her new brother, and that K.M.’s paternal grandmother sees K.M. often and has a close relationship with her. 

F.         Child’s Adjustment to Home, School, and Community

The record supports the district court’s finding that K.M. is well adjusted to both of her parents’ homes, her school, and her community.  Miller continues to live in the home that he and Berens used to live in with K.M., and Berens lives approximately eight blocks away.  In her report, the guardian ad litem indicates that K.M. felt it was “fairly easy” to make the transition between the two homes.  The guardian ad litem further testified that K.M.’s counselor and school teacher informed her that K.M. “was doing okay.”

G.        Length of Time Child Has Lived in Environment

The record supports the district court’s finding that K.M. has been raised under a “co-parenting arrangement with both parents throughout substantially all of her life” and that it would be desirable to maintain that continuity.  Although the district court awarded Berens temporary sole physical custody subject to “liberal parenting time” for Miller, the parties modified the schedule so that they each had K.M. approximately half the time.  The guardian ad litem’s report indicates that Berens and Miller each has K.M. approximately half the time and that both parents provide for her day-to-day care.  Miller’s wife testified that K.M. told her that she is happy at both homes.

H.        Permanence of Custodial Home

The record supports the district court’s finding that the parties are not planning to change their current living situations.

I.          Mental and Physical Health of Those Involved

The record supports the district court’s finding that both parents are in good health and possess no known health problems that would adversely affect their ability to parent K.M.

J.         Capacity and Disposition to Give the Child Love

The record supports the district court’s finding that there is no evidence suggesting that either party lacks the capacity to love and give guidance to K.M.  The guardian ad litem testified that both parties love K.M. and have the capacity to raise her.  Berens also testified that Miller takes care of K.M., that K.M. wants to be with him, and that it is good for K.M. to see him.

K.        Cultural Background

The record supports the district court’s finding that there are no cultural issues that would affect which custodial arrangement would be in K.M.’s best interests.

L.         Domestic Abuse

The record supports the district court’s finding that domestic abuse has not been an issue in the parties’ relationship and that none is alleged by either parent. 

M.        Disposition of Each Parent to Encourage Contact by Other Parent

The record supports the district court’s finding that Berens and Miller have cooperated in ensuring that K.M. has “maximized the time spent with the other parent rather than being in daycare or with other persons” and that there is “no indication [that] they will not work in good faith with each other to foster the relationship of the other with the minor child.”  The guardian ad litem testified that the parties are supportive of each other’s involvement in K.M.’s life.

N.        Joint Custody Factors

(a)       Ability of Parents to Cooperate

The record supports the district court’s finding that the parties have been able to put K.M.’s best interests above their personal feelings and have been able to cooperate in raising K.M.  The guardian ad litem’s report states that although the parties do have some arguments, they have both demonstrated flexibility to allow for the other parent’s requests regarding the parenting schedule and to support the other parent’s involvement in K.M.’s life.  The guardian ad litem testified that she recommended joint physical custody because she does not think that the parties disagree often and believes that they can resolve their disputes.  Further, the evidence shows that Berens and Miller have cooperated in making decisions.  For example, the parties worked together to modify the temporary-custody order’s parenting schedule.

(b)       Methods for Resolving Disputes

The record supports the district court’s finding that both parents are willing to use a parenting expeditor or mediator should problems arise in the future.


(c)        Whether It Would Be Detrimental If One Parent Were to Have Sole Authority

 

The district court found that it would be detrimental to K.M. if one parent were to have sole authority over her upbringing because “she has had the benefit of both parents actively involved in her life and making the day to day decisions.”  The record supports this finding; the guardian ad litem testified that it would not be in K.M.’s best interests to spend less time with either of her parents because she is “used to seeing them regularly.” 

(d)       Domestic Abuse

As previously stated, the record supports the district court’s finding that domestic abuse is not an issue.

Because the district court considered all of the statutory factors in great detail and the record supports its findings, we determine that the district court did not abuse its discretion and affirm its award of joint physical custody.  See Schallinger, 699 N.W.2d at 21 (affirming award of joint physical custody when statutory factors set forth in child-custody statute were met). 

II.

Miller moved for attorney fees on appeal, arguing that he is entitled to fees because Berens failed to make a good-faith effort to summarize the evidence tending to sustain the district court’s findings, as required by Minn. R. Civ. App. P. 128.02, subd. 1(c).  But rule 128.02 does not provide a basis for appellate fees; it merely sets forth the requirements for formal briefs.    

Miller’s focus on Berens’s conduct suggests that Miller perhaps seeks conduct-based fees.  Conduct-based fees may be awarded “against a party who unreasonably contributes to the length or expense of the proceeding.”  Minn. Stat. § 518.14, subd. 1 (2004).  But Miller has not established that Berens’s alleged failure to summarize the evidence unreasonably contributed to the length or expense of the appeal.  There is thus no basis for an award of conduct-based fees.

            Because Miller has not provided a substantive basis for a fee award, we deny his motion.

Affirmed; motion denied.