may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Stephen Russel McPadden,
Filed May 27, 1997
Scott County District Court
File No. 9515692
Linda Ojala, Kurzman, Grant & Ojala, 219 S.E. Main St., Suite 403, Minneapolis, MN 55414 (for Appellant)
John R. Hill, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Norwest Financial Center, 7900 Xerxes Ave. S., Bloomington, MN 55431-1194 (for Respondent)
Considered and decided by Huspeni, Presiding Judge, Crippen, Judge, and Willis, Judge.
Appellant challenges the judgment granting her and respondent joint physical custody of their son, awarding the 1996 tax exemption to respondent, and allocating the child care costs. Because we see no abuse of discretion in the judgment, we affirm.
J.D.L. lived with appellant and her boyfriend. J.D.L.'s visitation time with respondent was extended by various court orders; he began overnight weekend visitation in August 1996. This was consistent with the recommendation of J.D.L.'s guardian ad litem, who reported in May 1996 that both parents sought custody, that each parent believed the other should have a significant role in J.D.L.'s life, that both parents and all four grandparents communicated well with J.D.L., that J.D.L. adjusted well to visitation with his father, and that both parents were capable of giving J.D.L. love, affection, and guidance. The guardian recommended joint legal and physical custody and that J.D.L.'s visitation increase until he was spending roughly equal amounts of time with each parent.
Following a hearing, judgment was entered giving the parties joint legal and physical custody and providing for J.D.L. gradually to increase his time with respondent until he is spending alternate weeks with each parent. The court also determined that respondent was entitled to the 1996 tax exemption for J.D.L. and allocated 56% of J.D.L.'s child care costs to respondent and 44% to appellant. Appellant challenges these determinations.
A trial court has broad discretion to provide for the custody of the parties' children. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). An appellate court will not reverse a custody determination unless the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).
Appellant relies on Wopata v. Wopata, 498 N.W.2d 478 (Minn. App. 1993), to argue that joint physical custody is disruptive to children. Her reliance is misplaced. Wopata reversed a grant of joint physical custody because evidence supported findings that the parents were "totally unable to agree," that "significant animosities exist[ed]" between them, that communication between them was impossible, and that they "have attempted to use the children as a weapon against each other." Id. at 482. These findings were held to preclude joint physical custody. Id. The factual findings of the court in the case before us are in stark contrast to those in Wopata.
The district court made detailed findings with regard to each factor under Minnesota's custody statute, noting that both parties "have a strong desire to show love, affection and guidance" for J.D.L. and "are fully supportive of the parenting role of the other"; that while no dispute over a major decision has yet arisen, both parties and the guardian ad litem testified that the parties will be able to develop a method for resolving such a dispute, that it would be detrimental to J.D.L. for either parent to have exclusive control because both "express a desire that the other be a significant parent of [J.D.L.'s] upbringing," and that there is no evidence of domestic abuse.
Appellant also relies on Brauer v. Brauer, 384 N.W.2d 595 (Minn. App. 1986). Again, her reliance is misplaced. Brauer held that "[j]oint physical custody * * * is appropriate in exceptional cases," id. at 599, and upheld a denial of joint physical custody because "[t]he [joint physical custody] agreement collapsed * * * when the parties were unable to work together." Id. at 597. The "exceptional circumstance" needed for joint physical custody has been found to be the ability of the parents to work together. See Veit v. Veit, 413 N.W.2d 601, 605 (Minn. App. 1987) (affirming joint physical custody award where parents had been able to cooperate on joint physical custody arrangement after separation and prior to dissolution); Berthiaume v. Berthiaume, 368 N.W.2d 328, 332-33 (Minn. App. 1985) (upholding joint physical custody award granted to parents who were able to communicate and cooperate on issues regarding their children.)
J.D.L. has been spending time with each parent separately almost since birth. The guardian ad litem reported in October 1996 that J.D.L.'s overnight visitations with respondent had gone well since August, that communication between his parents had improved, and that they share information about J.D.L.'s activities and progress. There is support for the district court's finding that both parties love J.D.L. and will be able to cooperate in resolving disputes concerning him. There was no abuse of discretion in awarding joint physical custody.
2. The Tax Exemption
The trial court has discretion in awarding tax exemptions. See Wopata, 498 N.W.2d at 486 (stating that it was not an abuse of discretion to equalize the parties' income by awarding dependency tax exemptions to one parent). Appellant took the 1995 tax exemption on J.D.L., who was born on September 29 of that year. In 1996, the district court awarded appellant the tax exemption for odd-numbered years and respondent the tax exemption for even-numbered years. Appellant argues that she should also have the 1996 exemption because J.D.L. was in her custody during that year except for his visitation times with respondent and because respondent was not current in his child support obligations.
Appellant's argument that it was improper to award the 1996 exemption to respondent is without merit. There is no requirement that the exemption be awarded to the custodial parent; awarding the exemption is within the trial court's discretion. Id.; see also Fudenberg v. Molstad, 390 N.W.2d 19, 21 (Minn. App. 1986) ("allocation of the exemption is permissible"). Appellant's reliance on Gerardy v. Gerardy, 406 N.W.2d 10 (Minn. App. 1987), for the proposition that the tax exemption must be awarded to the custodial parent, is unpersuasive: in Gerardy, joint physical custody had been reversed and sole custody granted to the party seeking the exemption. Id. at 11. Here, joint physical custody has been granted.
With respect to appellant's claim that respondent was not current in his child support in 1996, we recognize that a custodial parent's execution of a waiver of an exemption should be contingent upon receipt of support. Fudenberg, 190 N.W.2d at 21. It appears that at the time of the decree respondent was $907 in arrears. However, he is now making his current support payments as well as additional payments to eliminate the arrearage. Thus, we find no abuse of discretion in the district court's award of the 1996 exemption to respondent.
3. Child Care Costs
Determinations of child support are within the broad discretion of the trial court. See Rutten, 347 N.W.2d at 50. The court allocated J.D.L.'s child care costs at 56% to respondent and 44% to appellant. This is consistent with what the parties' incomes will be when J.D.L. is spending equal time with each parent and the appropriate child support payment has been made. There is no abuse of discretion in the allocation of child care costs.
Because we see no abuse of discretion in the award of joint physical custody, the 1996 tax exemption, and the child care costs, we affirm.
[ ]1Appellant argues that the district court "summarily adopted" respondent's proposed findings. However, there are sufficient differences between the district court's findings and respondent's proposed findings that the court's independent review is obvious. Moreover, verbatim adoption of a party's findings is not reversible error per se. Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).
[ ]2Minn. Stat. § 518.17, subd. 2 (1996), provides factors to be considered when joint custody is sought:
(a) The ability of parents to cooperate in the rearing of their children;
(b) Methods for resolving disputes regarding any major decisions concerning the life of the child, and the parents' willingness to use those methods;
(c) Whether it would be detrimental to the child if one parent were to have sole authority over the child's upbringing; and
(d) Whether domestic abuse, as defined in section 518B.01, has occurred between the parents.