This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-96-2609

In Re the Marriage of:

Ronald R. Frauenshuh, Jr., petitioner,

Appellant,

vs.

Sherrie L. Giese,

f/k/a Sherrie L. Frauenshuh,

Respondent.

Filed May 27, 1997

Reverse in part and remand

Toussaint, Chief Judge

Big Stone County District Court

File No. F494141

Stephen Torvik, Nelson, Oyen, Torvik P.L.L.P, 221 North First Street, P. O. Box 656, Montevideo, MN 56265 (for appellant)

Elizabeth A. Schading, Barna, Guzy & Steffen, Ltd., 400 Northtown Financial Plaza, 200 Coon Rapids Boulevard, Coon Rapids, MN 55433-5894 (for respondent)

Considered and decided by Harten, Presiding Judge, Toussaint, Chief Judge, and Mansur, Judge.[*]

U N P U B L I S H E D O P I N I O N

TOUSSAINT, Chief Judge

Appellant claims the district court erred by not applying the custody modification standard in the parties' stipulated dissolution judgment to his motion to modify custody. Because we conclude that the district court applied the incorrect standard to determine propriety of modifying custody, we reverse in part, and remand.

D E C I S I O N

Determining the proper statutory standard to apply to a custody modification is a question of law. Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993). In reviewing questions of law, this court need not defer to the district court. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984). The standard of review for a denial of an evidentiary hearing for a custody modification is whether the district court abused its discretion. Smith v. Smith, 508 N.W.2d 222, 226-27 (Minn. App. 1993).

The stipulated judgment dissolving the marriage of appellant-father Ronald R. Frauenshuh and respondent-mother Sherrie L. Giese, f/k/a Sherrie L. Frauenshuh, awarded mother physical custody of the parties' child and stated that upon the occurrence of certain facts, any corresponding motion to modify custody would be based on the children's best interests, not Minn. Stat. § 518.18. Because the facts contemplated in the judgment arose, father moved to modify custody. The district court denied the motion, stating that the stipulation could be effective only if the parties had joint physical custody and holding that father's claims did not entitle him to an evidentiary hearing under the statute.

The district court's ruling that joint physical custody is a prerequisite to the stipulation's effectiveness appears to be based on Minn. Stat. § 518.18(e) (1996). That provision requires application of the statutory standard to attempts to modify joint physical custody unless, among other things, the parties stipulate otherwise. Id. The statute, however, does not address cases not involving joint physical custody. Id.; see Dabrowski v. Dabrowski 477 N.W.2d 761, 764-65 (Minn. App. 1991) (enactment of Minn. Stat. § 518.18 (e) was a clarification of the law in reaction to the joint physical custody case of Klecker v. Klecker, 454 N.W.2d 264 (Minn. App. 1990)). This information was available when the parties entered their stipulation in 1994. Also, even if the parties should not have been allowed to stipulate to a standard other than the one in the statute, they did so, the trial court approved the stipulation, judgment was entered thereon, and there was no appeal. See Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370, 147 N.W.2d 100, 103 (1966) ("[e]ven though the decision of the trial court in the first order may have been wrong, if it is an appealable order, it is still final after the time for appeal has expired"); see also Shirk v. Shirk, ___ N.W.2d ___, ___ (Minn. April 10, 1997) (sole relief from an otherwise final judgment is pursuant to Minn. Stat. § 518.145, subd. 2 (1996)).[1]

Because we conclude the district court applied the wrong standard to evaluate the propriety of modifying custody, we remand that issue. See In re Welfare of M.F., 473 N.W. 2d 367, 370 (Minn. App. 1991) (issue remanded where district court applied wrong standard by ruling on a discretionary issue as a matter of law); see also Kornberg v. Kornberg, 542 N.W.2d 379, 387 n.3 (Minn. 1996) (district court's use of wrong standard of proof is "fundamental error"); Taylor v. Taylor, 356 N.W.2d 430, 431-32 (Minn. App. 1984) (custody remanded where party demanded evidentiary hearing and district court modified custody without hearing despite stipulation that hearing would be held on demand).

Because we remand the custody issue, we do not address father's claims that he was entitled to an evidentiary hearing on his claims that the child was integrated into his home or that the child was endangered in his current circumstances. See Minn. Stat. § 518.18 (d) (ii) & (iii) (1996) (custody may be modified if child is integrated into moving party's home or present circumstances endanger child's health).

We deny mother's request for attorney fees.

Whether to reopen the record on remand shall be discretionary with the district court. We express no opinion on how the case should be resolved on remand.

Reverse in part and remand.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1 Mother's citation of unpublished authority from this court to support her position is unpersuasive because the authority is factually distinguishable. Also, this court has addressed the use of unpublished cases. See Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800-01 (Minn. App. 1993) (holding district court erred by relying on unpublished case in addition to stating dangers of mis-citation, unfairness associated with use of unpublished opinions, and that while they may be persuasive, "[t]he legislature has unequivocally provided that unpublished opinions are not precedential").