This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-96-1223

In Re the Marriage of:

Debra Kay Wittner, f/k/a

Debra Kay Brunelle, petitioner,

Appellant,

vs.

Jeffrey Clifford Brunelle,

Respondent.

Filed November 5, 1996

Affirmed

Willis, Judge

Lansing, Judge, Dissenting

Beltrami County District Court

File No. F7931059

Jana Austad, Kief, Fuller, Baer & Wallner, Ltd., 514 American Avenue, P.O. Box 880, Bemidji, MN 56619 (for Appellant)

Timothy R. Faver, Faver & Schluchter, 207 Fourth Street, NW, Bemidji, MN 56601 (for Respondent)

Considered and decided by Kalitowski, Presiding Judge, Lansing, 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 Debra Kay Wittner challenges (1) the district court's decision to continue joint physical custody of the parties' minor child and (2) the district court's denial of her motion to reopen the record. We affirm.

FACTS

Appellant Debra Kay Wittner and respondent Jeffrey Clifford Brunelle were divorced in 1993. They agreed to share joint legal and physical custody of their child, C.R.B., and agreed that physical custody would change twice each week. In November 1994, Wittner accepted employment in Grand Forks, North Dakota. She moved for sole physical custody of C.R.B., or alternatively, for a modification of the custody schedule to provide that the parties would alternate custody on a weekly basis. The parties voluntarily agreed to the custody schedule modification, and Wittner relocated from Cass Lake to Grand Forks. C.R.B. began spending alternate weeks in Cass Lake with Brunelle and in Grand Forks with Wittner.

In September 1995, the district court denied Wittner's motion for sole physical custody. Wittner appealed, alleging the district court (1) should not have applied the endangerment standard of Minn. Stat. § 518.18 and (2) erred by deciding that joint custody continued to meet the best interests requirement of Minn. Stat. § 518.18(d). This court reversed and remanded, holding that (1) application of the endangerment standard was error because Minn. Stat. § 518.18(e) eliminates mandatory consideration of endangerment if the modification request is precipitated by one party moving out of state and (2) the district court made insufficient findings to determine whether continuing joint custody served C.R.B.'s best interests. Wittner v. Brunelle, C2-95-2157, unpub. op. at 7 (Minn. App. Apr. 2, 1996). This court remanded "to enable the [district] court to * * * determine pursuant to Minn. Stat. § 518.17 whether maintaining joint custody would serve C.R.B.'s best interests." Id.

Wittner moved to reopen the record on remand and, after considering the affidavits attached to her motion, the district court denied her motion. The court amended its findings and again denied the motion for custody modification. Wittner appeals (1) the district court's determination that continuing joint custody is in C.R.B.'s best interests and (2) the district court's denial of the motion to reopen the record.

D E C I S I ON

I.

A district court must consider the "best interests of the child" in making custody determinations. Minn. Stat. § 518.17, subd. 1 (1994). The court is to determine the child's best interests by considering all relevant factors described in Minn. Stat. § 518.17, subd. 1. See Sefkow v. Sefkow, 427 N.W.2d 203, 212 (Minn. 1988). "The court may not use one factor to the exclusion of all others." Minn. Stat. § 518.17, subd. 1.

The district court "is accorded broad discretion" in making custody determinations. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). This court will not "overturn the [district] court's finding[s] of fact unless clearly erroneous." J.E.P. v. J.C.P., 432 N.W.2d 483, 486 (Minn. App. 1988) (citing Minn. R. Civ. P. 52.01).

As to the trial court's conclusions on the ultimate issues, * * * the reviewing court reviews under an abuse of discretion standard.

Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn. 1990).

Wittner asserts that the existing joint custody is not in C.R.B.'s best interests because (a) when C.R.B. begins school, moving her between states weekly will hinder her academic and social progress, (b) C.R.B. is suffering from the strains of the current custody schedule, and (c) Wittner is C.R.B.'s primary caretaker and C.R.B. should, therefore, be with her.

Wittner first contends that the district court should have found that when C.R.B. begins school, the weekly changes in custody will have an adverse effect on her. On remand, the district court found that "the child is well adjusted and attached to the community of Cass Lake, Minnesota, and her Head Start school" and that

[w]hile the situation may change, especially if the petitioner still resides outside of the area in the fall of 1997, that situation may arise in any custody case. The Court can only speak to the situation as it exists at the time of its Order. Here, the child's best interests are best served by remaining in joint custody.

While the district court made no findings regarding how the parties would facilitate post-Head Start schooling in two different states, the court did address "the child's adjustment to * * * school" under Minn. Stat. § 518.17, subd. 1(6) (1994).

This court's remand advised the district court that "[f]indings on the issue of schooling are critical." Wittner, unpub. op. at 7. However, this court did not remand for the district court to analyze solely that issue. Rather, the district court was asked on remand "to determine pursuant to Minn. Stat. § 518.17 whether maintaining joint custody would serve C.R.B.'s best interests." Id.

The district court made findings regarding C.R.B.'s adjustment to school as required by the statute and the terms of the remand, and on the record before us we cannot conclude that the district court's findings on this issue were clearly erroneous. The district court acknowledged that circumstances may change, but declined to make findings on schooling issues that may arise in the future. We do not conclude that was an abuse of the court's discretion.

Wittner also argues that modifying joint custody would serve C.R.B.'s best interests because C.R.B. suffers as a result of the current weekly custody changes. The district court found that "there is no evidence that [C.R.B.] suffers from the week to week custody schedule." Wittner relies on a statement by C.R.B.'s counselor that alternating custody weekly "burdens [children] with constant readjustment * * * with a new authority figure in their lives and a new value system and a new social system." However, C.R.B.'s counselor also testified that he had not observed any adverse effect of the custody arrangement on C.R.B. C.R.B.'s paternal grandmother and Head Start teacher both also testified that they had noticed no detrimental impact of the custody schedule on C.R.B.

Wittner next contends that she is and has been C.R.B.'s primary caretaker and she should, therefore, be granted sole custody of C.R.B. The district court found, however, that neither parent is the primary caretaker. The parties agree that before the divorce they both spent time with C.R.B. and developed a positive relationship with her. They also agree that they have provided approximately equal amounts of primary care since Wittner remarried. There is sufficient evidence in the record to support the court's finding that neither parent is the primary caretaker.

Even if Wittner were the primary caretaker, that determination "does not necessarily control who gets custody." Maxfield, 452 N.W.2d at 222 n.2; see also Minn. Stat. § 518.17, subd. 1(a) (1994) (role of primary caretaker "may not be used as a presumption in determining the best interests of the child.").

There is sufficient record evidence to support the district court's findings that C.R.B. is well adjusted to school, that C.R.B. is not suffering from the existing custody schedule, and that neither parent is the primary caretaker. Further, the court need not make specific findings regarding each factor "if the findings as a whole reflect that the [district] court has taken the relevant statutory factors into consideration in reaching its decision." Peterson v. Peterson, 393 N.W.2d 503, 505 (Minn. App. 1986). The issue before this court is not the wisdom of the custody schedule that the parties have agreed to or whether that schedule is in C.R.B.'s best interests. Rather, this matter is before us on the larger issue of Wittner's request for a change of custody. We conclude that the district court did not abuse its broad discretion in determining the continuation of joint custody is in C.R.B.'s best interests.

We note, as did the district court, that the parties may themselves remedy the disadvantages of the custody schedule. The parties voluntarily created the existing schedule; they can voluntarily change it.

II.

Wittner also contends that the district court's denial of her motion to reopen the record on remand was clearly erroneous. She asserts that the remand was meaningless unless the district court took additional evidence.

A district court's decision to deny an evidentiary hearing will not be reversed unless the court abused its discretion. Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992).

The district court stated in its order on remand that it believed Wittner's proffered evidence either related to matters that had already been considered or did not affect determination of C.R.B.'s best interests. Because (1) it appears that the district court considered the affidavits attached to the motion to reopen and (2) a "trial court may deny a motion for modification of a custody order without a hearing if facts in the accompanying affidavits, assuming they are true, do not show sufficient justification for the modification," Ross v. Ross, 477 N.W.2d 753, 755 (Minn. App. 1991), we find that the district court did not abuse its discretion by denying Wittner's motion to reopen the record.

Affirmed.

LANSING, Judge (dissenting)

I respectfully dissent. A decision that a five-year-old child should alternate school attendance weekly between Cass Lake and Grand Forks, North Dakota is, in my opinion, an abuse of discretion. The evidence, without exception, indicates that such an arrangement is not in the child's best interests, and the parents agree.

We remanded this case just six months ago in part because we found "no support in the record for the trial court's conclusions that no decision need be made at present and that the parties may revisit the issue of schooling at a later date." Wittner v. Brunelle, C2-95-2157, unpub. op. at 6-7 (Minn. App. Apr. 2, 1996). We further stated that "[f]indings on the issue of schooling are critical: evidence already in the record points to problems with attending school in two different states; because [C.R.B.] will start kindergarten within a few months, a decision on custody cannot be postponed for the two years assumed by the trial court." Id. at 7.

On this second appeal the record is even less persuasive that the weekly change in residence is in C.R.B.'s best interests. While the district court may have found, as the majority points out, that C.R.B. is "well adjusted and attached to * * * her Head Start school," this finding does not help the decision because C.R.B. should now be in kindergarten. C.R.B. turns six years old on November 30, 1996. The principals of the elementary schools that C.R.B. would be attending agree that both the academic and social progress of a young learner will be impeded by alternating schools weekly. Each parent also acknowledges that weekly changes in C.R.B.'s schooling are not in her best interests.

There are some indications, despite the parents' inability to agree on one school, that joint legal and physical custody may be in C.R.B.'s best interests. But continuing joint physical and legal custody does not dictate a divided school schedule. The district court had a motion both to restructure visitation and to change physical and legal custody from joint to sole custody. Even if a week-to-week arrangement best fits C.R.B.'s parents' schedules, the "wishes of the child's parent[s]" are but one factor and "[t]he court may not use one factor to the exclusion of all others" in fashioning a custody arrangement. Minn. Stat. § 518.17, subd. 1 (1994). Courts have a statutory obligation to consider a child's schooling in evaluating the child's best interests. Minn. Stat. § 518.17, subd. 1(a)(6) (1994). Failing to order a custody arrangement or a structured division of time that will afford C.R.B. the continuity, uniformity, and stability she will need in order to succeed socially and academically as a young student is an abuse of discretion. I would reverse and remand to the district court with a directive to fashion an arrangement that is less disruptive to the child's schooling.