This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1181

 

In re the Marriage of:

 

Patricia Anne Moss, petitioner,

Appellant,

 

vs.

 

Abdalla Shebani Abdussayed,

Respondent.

 

Filed January 16, 2007

Affirmed in part, reversed in part, and remanded

Ross, Judge

 

Dakota County District Court

File No. F9-04-15845

 

Elizabeth M. Porter, Burns Law Office, 200 American Bank Building, 14300 Nicollet Court, Burnsville, MN 55306 (for appellant)

 

Abdalla Shebani Abdussayed, 13227 Fremont Avenue South, Burnsville, MN 55337 (pro se respondent)

 

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

U N P U B L I S H E D ††O P I N I O N

 

ROSS, Judge

 

On appeal from a postdissolution judgment addressing custody, parenting time, income, dependent medical insurance, and allocation of marital debt, Patricia Moss argues that the district court abused its discretion by giving Abdalla Abdussayed sole physical custody of their daughter, failing to establish a parenting-time schedule, miscalculating Abdussayedís income, requiring Moss to obtain dependent medical insurance, and allocating marital debt to Moss.† Because the record demonstrates that the district court should have implemented a parenting-time plan but did not otherwise abuse its discretion, we affirm in part, reverse in part, and remand.

FACTS

Patricia Moss petitioned the district court in November 2004 to dissolve her marriage to Abdalla Abdussayed.Moss sought sole legal and physical custody of their minor daughter, ZA-M.† Abdussayed sought joint legal custody and sole physical custody of the child.† The district court dissolved the marriage in August 2005 and reserved all other matters for later resolution.

At a contested hearing in January 2006, the parties presented arguments regarding custody, parenting time, child support, and allocation of their debt.† Mossís prehearing statement indicated that although she still sought sole physical custody she agreed to joint legal custody.The parties stipulated to the admission of a parenting-assessment report completed by a clinical psychologist.† Although the psychologist did not conduct a full custody evaluation, she noted her opinion that neither parent was better suited than the other to be ZA-Mís primary custodian.Following the hearing, at which only Moss and Abdussayed testified, the district court ordered joint legal custody and granted Abdussayed sole physical custody.† It ordered that Moss have ďfair and reasonableĒ parenting time.† The court directed Moss to maintain dependent medical insurance for ZA-M, but stated that Moss and Abdussayed would share the cost of the insurance and any reasonable uncovered healthcare expenses that their daughter incurs.The court allocated all marital debt to Moss.† In April 2006, the district court denied Mossís motion to amend the judgment.† Moss appeals, arguing that the district court abused its discretion by giving Abdussayed physical custody of their child, by not setting a specific parenting-time schedule, by miscalculating Abdussayedís income, by ordering Moss to obtain health insurance for the child, and by ordering Moss to pay the marital debt.

D E C I S I O N

I

We first address Mossís challenge to the district courtís decision to give Abdussayed sole physical custody of ZA-M.† The paramount concern in a custody determination is the best interests of the child.† Olson v. Olson, 534 N.W.2d 547, 549 (Minn. 1995).† The district court must decide custody within the best-interests factors listed in Minn. Stat. ß 518.17, subd. 1(a) (2004).† We review a custody determination for an abuse of discretion.† Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996).

Moss claims that a number of the courtís findings on the best-interests factors are unsupported by the record.Most of the findings that Moss contests, however, relate to credibility and the district courtís resolution of conflicting evidence.† We defer to the district courtís credibility determinations.† Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).† In considering Mossís challenges in light of the record, we hold that the district court did not abuse its discretion in making its custody determination.

Moss first contests the district courtís finding that, although Moss was ZA-Mís primary caretaker when the child was younger, both parents are now caretakers and have a close relationship with ZA-M.† The record does not support Mossís argument that undisputed evidence demonstrates that she remains the childís primary caretaker.Abdussayed testified that he cooks for ZA-M, sometimes helps her with homework, assists with her religious lessons, and has met with teachers of her religion courses when she was having problems. Although Moss places great emphasis on the facts that she transported ZA-M to appointments, she attended school conferences, and cooks for her, Abdussayed testified that Moss often hid these appointments and meetings from him and that Moss usually feeds the child take-out food.† Moss also contests the courtís finding that both parents are close to the child.† Although the record contains ample evidence of an acrimonious relationship between Moss and Abdussayed, she directs us to no evidence in the record that suggests that Abdussayed lacks a close relationship with his daughter.† The parenting-assessment report notes that ZA-M is close to both parents.† The record supports the courtís finding that these factors weigh equally in favor of both parents.

Moss next challenges the district courtís finding that Abdussayed would provide a more stable and permanent environment for their daughter.† The district court found that Mossís claim that Abdussayed would move ZA-M to Libya was not credible, and that Moss ďis unstable enough and self absorbed enough to take the child [from] the relatively stable environment.Ē †The court acknowledged that Abdussayed has some emotional and character concerns, but it nonetheless concluded that he ďis far more stable at this time in his life than [Moss].ĒThe record supports these findings.†The parenting assessor described Moss as mercurial and unpredictable.† Abdussayed testified that he knew the importance of providing their daughter with a stable environment.†† When Moss was asked about balancing custody with her work schedule, she stated, ďI canít fully take on necessarily that full custody right now.Ē† We are not in a position to reweigh the evidence, and we therefore conclude that, despite support for a different finding, the record supports the district courtís finding that Abdussayed would provide a more stable and permanent home for ZA-M.

In addressing the parentsí mental and physical health, the district court found that both Moss and Abdussayed display significant long-term emotional issues, but ďthe situation is more critical with respect to [Moss].Ē† This finding is not clearly erroneous.After evaluating Abdussayed, the psychologist suggested a diagnosis of a general anxiety disorder and narcissistic personality disorder with depressive, self-defeating, and avoidant features.Abdussayed testified that he had not used drugs or alcohol in more than ten years. †Moss has been in therapy for many years and has a history of mental-health concerns.† She has been diagnosed with recurrent major depressive disorder, borderline personality disorder, and dysthymia.In her evaluation of Moss, the psychologist noted that she has had a lifelong struggle with substance abuse and stated that her diagnosis included substance dependence, dysthymic disorder, general anxiety and adjustment disorder, and a personality disorder with antisocial and paranoid features.† The record therefore supports the district courtís finding that Mossís problems ďappear more serious, recurrent, and resistant to change for the benefit of the minor child.Ē

The court found that neither parent was more likely than the other to encourage contact between the child and the noncustodial parent.† Moss rests her challenge to this finding on Abdussayed seeking sole physical custody.† She cites no legal authority for the proposition that a parentís good-faith request for sole physical custody in the childís best interests should be included as a factor against that parent in resolving a custody dispute. And even if such authority exists, her cause is not helped; Moss also sought sole physical custody.† Additionally, Abdussayed testified that he believed that the relationship between a mother and child is important and that he would not restrict Mossís access to ZA-M.† In response to Mossís allegation that he would move the child to Libya, he stated, ďno way I would take her . . . from her mom.Ē† The courtís finding on this factor is not clearly erroneous.† Overall, the record supports the district courtís decision to grant Abdussayed sole physical custody.

Moss argues alternatively that joint physical custody was appropriate because it is the expressed preference of ZA-M, who was twelve years old at the time of the hearing.But Moss did not seek joint physical custody and the parties agreed that only joint legal custody is appropriate.† Joint physical custody is disfavored and the district court found that joint physical custody was not in ZA-Mís best interests.† See Minn. Stat. ß 518.17, subd. 2 (2004) (requiring court to address additional factors when joint custody is considered); In re Custody of J.J.S., 707 N.W.2d 706, 711 (Minn. App. 2006) (noting caselaw that demonstrates joint physical custody is disfavored), review denied (Minn. Mar. 14, 2006); see also Rosenfeld v. Rosenfeld, 529 N.W.2d 724, 726 (Minn. App. 1995) (noting that ďinstability, turmoil, and lack of continuity inherent in [joint physical custody]Ē is usually not in childís best interests). ††The district court noted that the parents are capable of cooperating but that each doubts the otherís ability to do so, that the parents have so far managed to resolve disputes on major decisions concerning ZA-M, that sole custody would not be detrimental to ZA-M, and that no credible reports of domestic abuse exist.† The record supports these findings, and we note that sole custody is particularly warranted in this case because Moss and Abdussayed have repeatedly demonstrated their unwillingness to cooperate with each other.

Although Moss contests additional findings by the district court related to ZA-Mís relationship with extended family, we need not reach these challenges because sufficient evidence supports the district courtís custody determination regardless of these findings.† When a custody decision is supported by ďdefensible findings that address relevant best-interests factors,Ē the law leaves ďscant if any room for an appellate court to question the trial courtís balancing of best-interests considerations.Ē† Vangsness, 607 N.W.2d at 477.† The district court did not abuse its discretion by giving Abdussayed sole physical custody.

II

We next consider Mossís challenge to the district courtís decision regarding parenting time.† In all dissolution proceedings, the district court must, upon the request of either parent, grant parenting time to enable maintenance of a parent-child relationship that will be in the best interests of the child.† Minn. Stat. ß 518.175, subd. 1(a) (2004).† The statutes governing parenting time further provide that ď[u]pon request of either party, to the extent practicable an order for parenting time must include a specific schedule for parenting time, including the frequency and duration of visitation and visitation during holidays and vacations.Ē† Id., subd. 1(c) (2004).

We hold that the district court abused its discretion by refusing to issue a specific parenting-time schedule in this case.† Following arguments on Mossís motion to amend the findings, the court stated that it ďvery carefully considered whether or not to issue a detailed, concrete parenting-time schedule and rejected that in this particular case.Ē† The court noted the partiesí pattern of calling upon police or the court ďto try to enforce the absolute smallest detail of whatever order may be in placeĒ and then explained that its decision was ďto place the responsibility where it belongs, entirely to the parents, to work out parenting time arrangements and not to give any further opportunity to come in and seek enforcement of the very, very specific, concrete parenting time schedule.Ē

We appreciate the district courtís frustration with the partiesí failure to resolve even minor issues without judicial involvement.† Although a district court has extensive discretion to decide questions related to parenting time, however, in this case it did not follow the statutory mandate to issue a parenting-time schedule.† See Manthei v. Manthei, 268 N.W.2d 45, 45-46 (Minn. 1978) (noting courtís discretion to decide visitation issues).In both Mossís petition and Abdussayedís answer, the parties proposed detailed parenting-time schedules.† The courtís desire to place responsibility on the parties is understandable, but the record and the findings in this case demonstrate that a specific parenting-time schedule is particularly necessary.† The court described the dissolution proceedings as contentious, and it found that ZA-M endured ďfrequent hate filled battles of her parents.Ē† The psychologist who evaluated both parents emphasized in her report the importance of ďsetting a schedule that is clearly outlined and minimizes direct parent contact.Ē She further suggested that the parties work with a parenting-time expeditor to help resolve conflicts.† The district courtís decision to grant Moss unspecified ďfair and reasonableĒ parenting time without some guidance or direction is not consistent with the findings that indicate that these parents do not resolve custody issues without substantial conflict to ZA-Mís detriment.† We emphasize that the district court has broad discretion in imposing parenting-time parameters or in designing a specific parenting-time plan, and we express no opinion on what the details of the parameters or plan should be.† But the district court must implement some parenting-time framework, and we remand with instructions to do so.

III

We turn to Mossís challenge to the district courtís finding concerning Abdussayedís monthly income.† A district courtís determination of income is a factual finding that will not be altered on appeal unless it is clearly erroneous.† Ludwigson v. Ludwigson, 642 N.W.2d 441, 446 (Minn. App. 2002).† The district court found that Abdussayedís net monthly income is approximately $1,999.Mossís assertion that this finding is clearly erroneous lacks a factual basis.Abdussayed, who owns an automobile repair shop, submitted his 2004 W-2 tax form as evidence of his income.† Moss did not object to admission of the exhibit.† The form reflects that his gross income was $28,184 and that about $4,380 was withheld for taxes, Medicare, and social security.† Although the district courtís basis for stating that Abdussayed also had a $186 earned-income credit is unclear, any error in that finding is harmless because the error would result in an overstated income.† Without accounting for the credit, the W-2 form reflects that Abdussayedís net income is about $1,984 a month.† The exhibit therefore supports the district courtís finding of Abdussayedís income.† Although Moss claims on appeal that Abdussayed often used substantial amounts of the businessís funds for personal use, she did not develop this point in any testimony or other evidence at the hearing. †When asked on cross-examination if he ever took cash from the business, Abdussayed testified that he occasionally took $50 or $100 for gasoline for the companyís vehicles, but he never took money for personal use.† Moss presented no evidence that Abdussayed had an income greater than that which he claimed.† The district courtís finding of Abdussayedís income therefore is not clearly erroneous.

IV

We are not persuaded by Mossís contention that the district courtís requirement that she secure ZA-Mís medical insurance is an abuse of discretion.† A child-support order must expressly assign or reserve the responsibility of paying for a childís medical insurance.† Minn. Stat. ß 518.171, subd. 1(a)(1) (2004).† Because insurance coverage for a minor is in the nature of a child-support obligation, a district courtís decision on the matter is reviewed for an abuse of discretion.† Casper v. Casper, 593 N.W.2d 709, 714 (Minn. App. 1999).† Moss misstates the district courtís order.† Although the court directed her to obtain medical insurance for their child, the court ordered Moss and Abdussayed to share equally the costs of the insurance. †And although Abdussayed has maintained insurance for ZA-M in the past, Moss did not present any evidence that suggested that she could not obtain insurance.† Similarly, she did not present evidence that she could not afford splitting the expense with Abdussayed.† The district court did not abuse its discretion by requiring Moss to obtain the insurance.

V

We address finally Mossís challenge to the district courtís treatment of the partiesí debt.† Allocation of marital debt is treated the same as division of marital assets.† Dahlberg v. Dahlberg, 358 N.W.2d 76, 80 (Minn. App. 1984).† Apportionment of marital debt is within the district courtís discretion.† OíDonnell v. OíDonnell, 412 N.W.2d 394, 396 (Minn. App. 1987).† Although property division must be equitable, it need not be equal.† White v. White, 521 N.W.2d 874, 878 (Minn. App. 1994).† The district court may consider multiple factors when dividing marital property, including the length of the marriage, sources of income, and the contribution of each party in preserving the property.† Sirek v. Sirek, 693 N.W.2d 896, 899 (Minn. App. 2005).† We will uphold the district courtís property division if it has an acceptable factual basis.† Korf v. Korf, 553 N.W.2d 706, 712 (Minn. App. 1996).

The district court did not abuse its discretion.† The court directed Moss to pay approximately $14,819 of debt.† This amount represents medical expenses incurred between 2000 and 2004.† The parties, who married in 1997 and frequently separated, do not dispute that Moss incurred all of this debt, with the exception of about $294 that the parties incurred jointly.† Abdussayed testified that Moss often misspent money, which contributed to their debt.† Although Moss discusses allocation of the partiesí marital property in support of her argument, the parties reached a settlement before the hearing and the court played no role in dividing the property.† This court has upheld allocation of all marital debt to one party.† See Justis v. Justis, 384 N.W.2d 885, 889 (Minn. App. 1986) (finding no error when district court allocated $30,000 of marital debt to party that incurred debt), review denied (Minn. May 29, 1986).† We find no support for Mossís challenge and conclude that the district court did not abuse its discretion by considering the source of the marital debt and allocating it to Moss.

Affirmed in part, reversed in part, and remanded.