This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
In re the Marriage of:
Bradley Darrell Narveson, petitioner,
Robyn Marie Narveson,
Filed May 29, 2007
Sibley County District Court
File No. 72-FA-05-94
John T. Burns, Jr., Melissa C. Kantola, Burns Law
Office, 200 American Bank Building,
Kenneth R. White, Law Office of Kenneth R. White,
Richard C. Lea,
Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
In this appeal from judgment in a marital-dissolution action, Bradley Narveson challenges the district court’s determinations on child custody, child support, and the division of marital debts and assets. Because the district court properly applied the law, reasonably exercised its discretion, and relied on findings that were either supported by the record or incorporated by stipulation, we affirm.
F A C T S
Bradley and Robyn Narveson were married in August 1996 and dissolved their marriage in June 2006. While the dissolution was pending they continued to live in the same home and to share responsibility for parenting their two children: LBN, who was eight years of age at the time of the dissolution; and PEN, who was five. Under this arrangement, one parent would leave the home each weekend to allow the other to have individual time with the children.
After LBN was born, Robyn Narveson switched to a part-time position as a social worker and Bradley Narveson continued to work full-time. At trial Robyn Narveson testified that she was the children’s primary caretaker and that Bradley Narveson frequently left for work at about 6:30 a.m. and would return home at about 7 p.m. She also testified that since January 2006, Bradley Narveson had been gone from the home overnight nineteen times and did not always tell her or the children in advance.
Bradley Narveson testified that although his job had prevented him from being home with the children in the past, he had taken a new position as a financial analyst and planned to work from home during the days that the children were in his care. He also testified that he had only been away from the home overnight a few times and always left a note or called.
As part of the dissolution proceedings the court appointed a child-custody evaluator. The evaluator drafted a report analyzing the statutory best-interests factors and also testified at the custody hearing. The evaluator recommended joint legal and physical custody. The August 2006 partial judgment granted the Narvesons joint legal custody of the children and provided that Robyn Narveson would have sole physical custody.
After the district court determined the custody issue, the Narvesons stipulated to all but three of the remaining issues. The stipulation provided for division of personal and real property, set forth monthly income and monthly expense amounts, and established that Bradley Narveson would continue to pay for the children’s medical and dental insurance. The three issues that the Narvesons submitted to the court for resolution addressed child support, spousal maintenance, and reciprocal allegations that the parties had dissipated marital assets.
In a posttrial motion Bradley Narveson requested amended findings on the child-custody determination. As part of the motion Bradley Narveson submitted an affidavit containing exhibits not introduced at the hearing. He also submitted an affidavit in which he stated that he only intended to pay the children’s insurance premiums if the court modified its custody order and asked that the district court require Robyn Narveson to assume the entire balance of a jointly held credit-card account and pay one-half of the custody evaluator’s fee. Robyn Narveson submitted responsive affidavits.
The district court issued the final dissolution judgment in August 2006. The district court declined to reconsider the custody determination or to apply the Hortis-Valento formula to calculate child support, reaffirmed that Bradley Narveson was responsible for the children’s insurance premiums, and did not redistribute the costs of the custody evaluation or the division of marital debt. Finally, the district court rejected the Narvesons’ reciprocal claims of dissipation of marital assets. This appeal followed.
D E C I S I O N
courts have broad discretion to resolve child-custody issues. Durkin
v. Hinich, 442 N.W.2d 148, 151 (
The controlling principle in a child-custody determination is the child’s best interests. Pikula, 374 N.W.2d at 711. When making a custody determination, the district court must consider the factors set forth in Minn. Stat. § 518.17, subd. 1(a) (2006), and provide detailed findings. If a parent proposes joint physical custody, the court must also consider the factors listed Minn. Stat. § 518.17, subd. 2 (2006).
The district court’s order and memorandum establish that the court considered all of the best-interests factors and concluded that the balance favored granting Robyn Narveson sole physical custody. Importantly, the court found that Robyn Narveson was the primary caretaker, that the children have a more intimate relationship with their mother, that the children are closer to their maternal grandparents, and that Bradley Narveson had failed to fully implement a plan for increasing the time he spends with the children. The court also observed that Bradley Narveson’s absences demonstrated “that, at least at times, [Bradley Narveson] has put his own wishes above the feelings of the children.” The court concluded by stating, “For that reason, and the others expressed in the Court’s Findings, the Court has provided sole physical custody to [Robyn Narveson].”
Bradley Narveson presents four arguments to support his claim that the district court’s sole-physical-custody decision was an abuse of discretion: (1) two factual findings that served as bases for the court’s order were clearly erroneous, (2) the court placed a disproportionate emphasis on Bradley Narveson’s work-related absences from the home, (3) the court improperly rejected the custody evaluator’s joint-physical-custody recommendation, and (4) the facts weighed in favor of the statutory factors for ordering joint physical custody. We address each of the arguments.
First, Bradley Narveson asserts that the district court clearly erred by finding that he spent several nights away from the home without notifying Robyn Narveson or the children and that his family has limited interaction with the children. To demonstrate error, he relies on his affidavits that challenge these findings. The trial record, however, supports the district court’s findings. Robyn Narveson testified that between January 2006 and April 11, 2006, Bradley Narveson was “gone 19 extra overnights above and beyond his every other weekend being away” and that she did not always receive advance notice of the absences. The custody evaluator testified that the children have frequent contact with Robyn Narveson’s parents because they live in the same neighborhood and that they were not as close to Bradley Narveson’s parents because they did not see them “on a day to day basis.”
the record supports the district court’s finding that Bradley Narveson’s failure
to provide notice “on more than one occasion” when he was absent from the home
indicated that he put his “own wishes above the feelings of the children.” In the findings incorporated into the partial
judgment, the district court found that Bradley Narveson had testified that he
intended to work shorter hours on his parenting days but that he had not yet
demonstrated that he could implement this plan.
These findings rely in part on a credibility determination. The district court acts within its discretion
to make credibility determinations and we do not reweigh credibility on appeal. See Vangsness
v. Vangsness, 607 N.W.2d 468, 472 (
Bradley Narveson contends that even if the findings are not clearly erroneous,
the district court placed disproportionate weight on his work-related absences
and his failure to implement a work-from-home plan. We agree that the child-custody statute
provides that the court shall neither consider one factor to the exclusion of
all others, nor consider factors that do not affect the children.
Bradley Narveson contends that the district court erred in rejecting the
custody evaluator’s recommendation. A
district court may reject an evaluator’s opinion if it either gives its reasons
or makes detailed findings that analyze the same factors the evaluator
examined. Rogge v. Rogge, 509 N.W.2d 163, 166 (
Bradley Narveson contends that the district court should have provided for joint
physical custody because the factors in section 518.17, subdivision 2, support
that result. But the issue on appeal is
limited to whether the district court abused its discretion by making its
custody determination. See Zander v. Zander, 720 N.W.2d 360,
Ancillary to his challenge to the district court’s custody determination, Bradley Narveson raised issues relating to the district court’s refusal to reallocate responsibility for the children’s insurance, the failure to require Robyn Narveson to pay one-half of the custody evaluator’s fee, the parenting schedule, and the denial of a Hortis-Valento calculation for child support.
In support of his argument that Robyn Narveson should be responsible for half of the insurance for the children, Bradley Narveson argues that the insurance-premium order was erroneous because he only agreed to pay the premiums in full if the court awarded joint physical custody. But at the June 20th hearing, after the court had ordered sole physical custody, the Narvesons stipulated to all but three of the remaining issues. As part of that stipulation, Bradley Narveson’s attorney unequivocally stated that, “Mr. Narveson is going to continue the medical and dental coverage for the minor children.”
favor stipulations in marital-dissolution cases, and treat stipulations with
“the sanctity of binding contracts.” Shirk v. Shirk, 561 N.W.2d 519, 521 (
The Narvesons’ stipulation was not conditional. Only later did Bradley Narveson submit an affidavit explaining that his offer of payment was conditioned upon the district court modifying its physical-custody order. Bradley Narveson’s changed position does not constitute a basis for modifying the support order under section 518A.39. Thus the district court’s insurance-premium order was supported by the record.
Bradley Narveson also argues that the district court should have required Robyn Narveson to pay one-half of the custody evaluator’s fee. When a custody evaluator is retained, the district court “shall order all or part of the cost of the investigation and report to be paid by either or both parties, based on their ability to pay.” Minn. Stat. § 518.167, subd. 5 (2006). The district court’s custody-evaluator order stated that the evaluator’s “fees will initially be paid by [Bradley Narveson]. The right of [Bradley Narveson] to seek one-half (1/2) reimbursement of these fees is hereby reserved.”
The district court did not directly address the issue of reimbursement for the evaluator’s fee. Our review of the file, however, indicates that Bradley Narveson’s “request” for reimbursement appears only in his posttrial affidavit relating to other marital-property-division issues and in a letter to the district court relating to other posttrial issues. We reject Robyn Narveson’s argument that Bradley Narveson’s failure to note it as a marital debt during the discussions leading up to the stipulation would necessarily result in a waiver of his claim for reimbursement. But the district court’s ensuing order explicitly released the parties from “any liability, claims, or obligations of any kind or character, whether arising out of the marriage relationship or otherwise.” Thus the order effectively terminated Bradley Narveson’s unexercised right of reimbursement, and Bradley Narveson has not challenged this release either by further action in the district court or on appeal. In addition, we note that the record indicates that Bradley Narveson had a greater ability to pay, and therefore the record could support a judicial determination, under section 518.167, subdivision 5, to require Bradley Narveson to pay the custody evaluator’s entire fee.
The challenges to the parenting schedule and the claim for the Hortis-Valento child-support calculation were contingent on reversing the custody determination. Because we affirm the custody determination, we do not address the parenting schedule or the method used to calculate child support.
The remaining issues relate to division of marital property. Bradley Narveson argues that the district court should have allocated the entire credit-card debt to Robyn Narveson because the debt related to improvement of the home, which she received as part of the marital-property division.
general, property divisions should be affirmed if they have a reasonable basis
in principle and fact. Antone v. Antone, 645 N.W.2d 96, 100 (
Bradley Narveson argues that he proved Robyn Narveson “dissipated” marital
assets because he presented evidence that she wrote several checks totaling
just under $20,000 from the couple’s home-equity line of credit without his
consent and that she failed to rebut that allegation. A party to a marital-dissolution action shall
not, without consent of the other party, transfer, encumber, conceal, or
dispose of marital assets except in the usual course of business or for the
necessities of life.
Bradley Narveson provided the district court with a sworn affidavit listing nine withdrawals totaling $19,700, spanning the time from May 2003 to April 2006. In turn, Robyn Narveson submitted a sworn affidavit explaining the purpose for some of the withdrawals, stating that she had previously addressed others, and asserting that the older withdrawals were beyond the scope of the statute. No additional evidence was submitted. Based on these submissions the district court held that Bradley Narveson failed to provide sufficient evidence of dissipation. Essentially, the disputed facts depend on a factual determinations between disputed testimony that, in turn, relies on a credibility judgment that is committed to the sound discretion of the district court. The district court evaluated the evidence and made a credibility determination on the disputed claims. We defer to the district court in its credibility determination, and we find no clear error in the resulting factual findings. See Vangsness, 607 N.W.2d at 472 (recognizing that district court is required to make credibility determinations that will not be reweighed on appeal).
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art, VI, § 10.