This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In re the Marriage of:
Patricia Anne Moss, petitioner,
Abdalla Shebani Abdussayed,
Filed January 16, 2007
Affirmed in part, reversed in part, and remanded
Dakota County District Court
File No. F9-04-15845
Elizabeth M. Porter, Burns Law Office, 200 American Bank
Abdalla Shebani Abdussayed,
Considered and decided by Klaphake, Presiding Judge; Worke, Judge; and 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.
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
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 (
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 (
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
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
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.
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†
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
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 (
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 (
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.†
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 (
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.