This opinion will be unpublished and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:

Monica Teresa Brennan-Damario,

f/k/a Monica Teresa Damario, petitioner,





Mark Anthon Damario,



Filed ­­­October 31, 2006


Harten, Judge*


Olmsted County District Court

File No. F4-03-205


Daniel R. Butler, Butler, Huson & Allen, P.A., 2330 U.S. Bank Center, 101 Fifth Street East, St. Paul, MN  55101 (for appellant)


Lawrence Downing, Terence Swihart, Downing, Dittrich & Swihart, 330 Wells Fargo Center, 21 First Avenue SW, Rochester, MN  55902 (for respondent)


            Considered and decided by Klaphake, Presiding Judge; Ross, Judge; and Harten, Judge.

U N P U B L I S H E D   O P I N I O N




            Appellant challenges both the district court’s denial of his motion to modify parenting time on the ground that the matter was not properly before the court and its grant of attorney fees to respondent-mother.  Because we see no error in the district court’s interpretation of the stipulated judgment and no abuse of discretion in the award of attorney fees, we affirm.


Appellant Mark Damario and respondent Monica Damario were married in 1996 and are the parents of two daughters, now nine and six years old.  Appellant is a physician who is on-call some weekends.  Respondent is now employed as a nurse, which requires her to work every other weekend.

The judgment that dissolved the parties’ marriage was based on their stipulated agreement and provided that they would have joint legal custody, the children would reside primarily with respondent, and appellant would have parenting time every other weekend, every Wednesday evening, and four weeks of vacation every year.  It also provided:

[A] Parenting Consultant shall be used to assist the parties with issues that involve the child[ren] of the parties, excluding financial issues related to the child[ren] and modifications of custody, except as otherwise stated below.


The parties have agreed to resolve said issues without the intervention of the court.  The Parenting Consultant shall consult on the issue in controversy with each parent, either individually or jointly, as the Parenting Consultant deems appropriate.


            The Parenting Consultant may decide to try to mediate a resolution with the parties, and/or if mediation is deemed not possible by the Parenting Consultant, then the Parenting Consultant shall arbitrate the issues and advise the parents of his/her decision, in writing.


            This process shall apply to all matters, save and except issues regarding financial matters related to the children and modification of custody, except as set forth below.

             . . . .


            Both parties shall cooperate and operate in good faith to resolve the matter(s) in dispute with the assistance of the Parenting Consultant.

            . . . .


The above procedure(s) shall apply to any claims or controversies regarding the children . . . .


(Emphasis added).

            In January 2005, the parties met with the parenting consultant to discuss, among other things, the arrangements for the weekends respondent worked.  In her “mediation summary” of their meeting, the parenting consultant noted that

[a]fter considerable discussion we revised the calendar for parenting time for the months of Feb. and March and thereafter the parents will work with [respondent’s] work schedule and [appellant] will fill in as the caretaker of the girls on [respondent’s] working weekends if they fall at times he is not regularly scheduled to have [the girls]. . . .

            . . . .


            For now this takes care of the schedule for the girls to spend quality time with each parent.


The parenting consultant asked the parties to call her if they disagreed with any part of the summary.  Neither party called her. 

            Appellant alleges, and respondent does not dispute, that during the summer of 2005 respondent kept the girls on some of the weekends allotted to appellant. Neither party referred this situation to the parenting consultant.

            In September 2005, respondent received a letter from appellant’s new attorney contending her that Minn. Stat. § 518.175, subd. 8 (2004), gave appellant the right, but not the duty, to care for the girls on the weekends respondent worked and that those weekends were additional parenting time for appellant, not time that respondent could offset.  The letter also presented three other matters concerning the children and concluded, “[i]f we fail to get cooperation upon implementation of these requirements, we will expect to undertake Court action to obtain the same by Court Order.”  Respondent’s attorney replied by letter stating, among other things, that the parties should first refer these matters to the parenting consultant.

            Late in October 2005, respondent’s attorney received a letter stating that appellant had arranged for a hearing on 17 November 2005, when he would move the court for an order enforcing the parenting plan by giving him both his alternate weekends and the weekends that respondent worked and giving him compensatory time for four weekends when respondent had wrongfully retained the children.  Respondent’s attorney replied that respondent was willing to meet with the parenting consultant “as required by the Judgment and Decree” and would seek bad-faith attorney fees if the matter proceeded in court.

            Respondent brought a countermotion for, among other alternatives, an order requiring the parties to resolve the issues with the parenting consultant and for attorney fees.  The parenting consultant provided a memo to the district court stating that her January 2005 “mediation summary” was “not a decision [she] made related to parenting time for the parents, but was a summary of our joint meeting and outlined a plan for parenting decided upon by [the parties].”  The parenting consultant noted that, because both parties now had work commitments on weekends and both wanted uninterrupted weekend time with the girls, “there has to be some consideration to reworking the calendar.  I have not been contacted by either of the parents . . . .  Had the parents contacted me an attempt to work out a resolution would have been attempted.”

            Following the hearing, the district court denied appellant’s motion, stating that he had not analyzed appellant’s claims on their merits and would not do so “because this matter should not be in District Court . . . .  Certainly this dispute about parenting time falls within the subject matters to be referred to the parenting consultant.”   The district court explicitly rejected appellant’s argument that respondent’s departure from the arrangements set out in the parenting consultant’s January 2005 “mediation summary” entitled appellant to a district court order: 

The appropriate way to address this complaint under the letter and spirit of this decree would be to take it to [the parenting consultant]; she would consult with the parties, if agreement could not be reached, then she would decide the matter.  If a party refused to comply with that arbitrated outcome, court enforcement could be resorted to.  That is the role of the court in a case in which the parties have so clearly decided to keep disputes about the children outside the judicial process.

            . . . .


[Appellant] may now regret that he agreed to a problem-solving mechanism that starts, every time, with reference of the issue to a specialist familiar with the parties’ situation, rather than with immediate resort to the adversarial system of the District Court.  But that is the procedure agreed to by the parties.


Because the district court found “a sufficiently clear violation of the agreed procedure” by appellant, it awarded respondent $1,000 in attorney fees.

            Appellant now challenges both the district court’s referral of the dispute to the parenting consultant and its award of attorney fees.[1]


            The standard of review for a district court’s decision on a stipulation is de novo.  See, e.g., Shirk v. Shirk, 561 N.W.2d 519, 521 (Minn. 1997) (reviewing de novo district court’s decision to vacate a stipulation).  When parties agree to dissolve their marriage under certain terms, that stipulation becomes a binding contract; in a stipulation, parties are free to bind themselves to obligations that a court could not impose.  Gatfield v. Gatfield, 682 N.W.2d 632, 637 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004).

1.         Application of Stipulated Judgment.

            The parties here agreed to bind themselves to refer disputes concerning their children to a parenting consultant for mediation and, if that proved unsuccessful, for arbitration; they explicitly bound themselves not to initially involve the court in such disputes.  Appellant disputes respondent’s right to offset against his scheduled weekends, the weekends he took the children because respondent was working.  This situation was never presented to the parenting consultant for mediation, much less arbitration.  At this stage, the parties not having exhausted their remedies under the judgment, the district court refused to resolve a dispute that the judgment explicitly excludes from the court’s initial intervention.  See id. at 633 (“The district court may enforce the provisions of a stipulation regarding spouse’s military disability benefits in a marital dissolution action.”); Shirk, 561 N.W.2d at 519 (“Relief from a dissolution judgment based on a stipulation of the parties is available only under Minn. Stat. § 518.145.”).  The district court did not err by concluding that the parties’ dispute at this stage belongs before the parenting consultant, not the district court.[2]

2.         Attorney Fees.

            We will not disturb an award of attorney fees under Minn. Stat. § 518.14, subd. 1 (2004), absent a clear abuse of the district court’s discretion.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998).  Minn. Stat. § 518.14, subd. 1, provides that attorney fees may be awarded against a party “who unreasonably contributes to the length or expense of the proceedings.”  Respondent consistently advised appellant that, in accord with the stipulated judgment, disputes over the children were to be initially addressed not by the district court but by the parenting consultant.  Appellant could have initiated the mediation/arbitration process at any time, but chose to pursue the dispute in district court, thus unreasonably contributing to the length and expense of its resolution.  The award of attorney fees was not an abuse of discretion.


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

[1]Appellant presents argument on several issues that the district court explicitly declined to address.  Therefore, these issues are not properly before this court.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

[2] Appellant refers to the parenting consultant’s January 2005 “Mediation Summary” as a “Mediated/Arbitrated Agreement” to be enforced by the district court.  But both the language of the summary itself and the parenting consultant’s subsequent memo make it clear that the summary was negotiated by the parties, not handed down arbitrarily by the parenting consultant because the parties could not negotiate, and that it was a temporary solution, not a permanent determination of parenting time.