This opinion will be unpublished and

may not be cited except as provided by

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




In Re the Marriage of:

Ramona Wilson, n/k/a Ramona Larson, petitioner,



Donald Wilson,


Filed September 9, 1997


Parker, Judge

Dissenting, Crippen, Judge

Washington County District Court

File No. F3933146

Rebecca H. Frederick, 7301 Ohms Lane, Suite 430, Edina, MN 55439 (for appellant)

Gregory P. Seamon, Esq., 700 Saint Paul Building, Six West Fifth Street, St. Paul, MN 55102 (for respondent)

Considered and decided by Parker, Presiding Judge, Crippen, Judge, and Short, Judge.



Appellant Donald Wilson contests the district court's decision to allow respondent Ramona Wilson, n/k/a Ramona Larson, to remove the parties' minor son (born May 1984) from the state of Minnesota. He also challenges the amended judgment and decree requiring him to pay one half the expenses for transportation of the child for visitation. We affirm.


1. Motion to Remove

The scope of review of custody determinations is limited to whether the district court abused discretion by making findings unsupported by the evidence or by improperly applying the law. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996); Ayers. v Ayers, 508 N.W.2d 515, 518 (Minn. 1993). This court must sustain the district court's findings unless clearly erroneous, but it need not defer to the lower court on questions of law. Ayers, 508 N.W.2d at 518.

The district court dissolved the parties' marriage in June 1994 with a judgment and decree based on a mediated agreement. The parties agreed to share joint legal custody of their minor child, and respondent was designated the sole physical custodian subject to a "timeshare" arrangement. Under that agreement, appellant exercised substantial visitation.

In August 1994, respondent moved from White Bear Lake to Stillwater; appellant moved for a change of custody. The district court denied the motion and permitted the move because appellant failed to make a prima facie showing of a threat to the child's emotional health or development. Appellant then also moved to the Stillwater area and exercised liberal visitation.[1]

In the fall of 1996, respondent moved the district court for leave to remove the child from Minnesota; appellant opposed the motion and moved to deny removal or to change custody. The district court determined that the proper standard for review of the motion was under Minn. Stat. § 518.18(d) (1996) and rejected appellant's request for an evidentiary hearing, ruling that he failed to present a prima facie case showing a threat to the emotional or physical well-being of the child. The court granted the motion to remove.[2]

Appellant first contends the district court erred as a matter of law in requiring him to show endangerment to the child because the parties had, functionally, a joint physical custody arrangement. He asserts that when the parties moved to Stillwater, they modified their "timeshare" arrangement so that the child was with each parent 50 percent of the time. He alleges that the change became a "de facto modification" from sole physical custody in respondent to joint physical custody. Thus, respondent's request to remove the child to another state was a request for a modification of custody and he was not required to show endangerment.

In Ayers, a mother moved for permission to remove her children from the state. 508 N.W.2d at 517. The supreme court held that the parties' stipulated decree, which stated that the parties had joint physical custody, determined the type of custody those parties shared, regardless of the actual time split. Id. at 520. The court recognized that joint physical custody does not require an absolute equal division of time, stating that

[c]ustody provisions contained in a stipulated decree must be accorded a good deal of deference, in that they represent the terms specifically agreed to by the parties and adopted by the court. Where, as here, the parties have agreed, by stipulated decree, to joint legal custody and joint physical custody of their children and to the specific terms for the implementation of that custody, and the court has accepted that denomination, the parties will be bound by it. Although this holding will require careful drafting by the parties in the first instance, it will provide more certainty in resolving future disputes.

Id. (emphasis added). The supreme court concluded that the mother's motion to move the children was a motion to modify the joint custody order and therefore must be evaluated under the "best interests" standard, rather than the "endangerment" standard. Id. (relying on Minn. Stat. § 518.18, subd. (e) (1992)).

Because this judgment and decree, based on the parties' stipulation, stated that respondent would have sole physical custody, the parties are bound by the denomination accepted and applied by the court. Therefore, the district court properly concluded that respondent retained sole physical custody of the child and reviewed the motion based on that determination.

Appellant next contends the language of the judgment and decree required the court to use the best interests standard only, rather than the endangerment standard, when reviewing custody of their child. The judgment and decree stated:

g. The parties' agree that with mutual consent, any part of this schedule can be modified to meet the minor child's needs. The parties' further agree that the current custody agreement is valid until the minor child is 14 years old. At that time, the parties agree to review the minor child's custody arrangements to include his wishes and developmental needs based on Minn. Stat. § 518.17, Best Interests of the Child. Should the parties, either by themselves or through a mutual person, fail to resolve custody differences, they may access the Washington County Domestic Relations Unit, in writing, for no more than three sessions of mediation counseling, without further Order of the Court, and share expenses.

h. The parties agree to review this custody arrangement should either of them move 100 miles or more from the Twin Cites area.

(Emphasis added).

While the agreement provides for "review" of the custody arrangement in the event that one party moves 100 miles or more from the Twin Cities area, it is silent on the standard to be applied in that review. Appellant argues that inclusion of the "best interests" language with regard to the review when the child turns 14 indicates an adoption of this standard whenever the parties review custody issues. However, because the standard was specifically mentioned with regard to review under subpart "g," but not mentioned under subpart "h," respondent argues that the parties did not adopt the best interests standard.

The district court did not address the meaning of the term "review" with regard to subpart h. The provision does not state that the parties intended to contract contrary to existing law or to incorporate a different standard from that set forth in statute and case law for removal from the state. The subpart merely provides for "review" when either of the parties moves more than 100 miles from the Twin Cities. While this provision may have created an agreement to discuss custody arrangements in the event of such a move, it did not alter the standard for review when the parties disagreed and the issue came before a court of law. Thus, the district court was bound to follow existing law when ruling on this matter.

Minnesota law provides that a custodial parent is presumptively entitled to remove a child to another state. Auge v. Auge, 334 N.W.2d 393, 396 (Minn. 1983) (based on Minn. Stat. § 518.18). This presumption applies even when the parties share legal custody of the child. Silbaugh, 543 N.W.2d at 641 (citing Gordon v. Gordon, 339 N.W.2d 269, 271 (Minn. 1983)). To defeat the presumption, the party opposing removal must offer evidence to establish that the removal is not in the best interest of the child and would endanger the child's health and well-being, or that the removal is intended to interfere with visitation. Id. Unless the party contesting the removal can make a prima facie showing against removal, permission to remove may be granted without a full evidentiary hearing. Id.

The supreme court recently addressed this issue in Silbaugh. There, the parties stipulated to joint legal custody of their minor children, with primary physical custody granted to the mother. 543 N.W.2d at 640. The father received liberal visitation, which he consistently exercised. Id. When the mother sought to move the child's residence to Arizona, the father opposed the move. Id. The court held that the district court properly granted the removal without an evidentiary hearing because the father failed to make a prima facie showing that removal of the children from the state was not in their best interests and endangered their health or emotional well-being, or was designed to interfere with his visitation rights. Id. at 642.

While we recognize that appellant spent a substantial amount of time with the child prior to removal, the law is clear as to the standard to apply when a custodial parent seeks permission to move the child's residence out of state. Under this unequivocal direction from the supreme court, we conclude that the district court properly required appellant to make a prima facie showing of endangerment to the child's health or well-being. Because appellant failed to make that showing, we affirm the district court's decision to grant removal without an evidentiary hearing.

We note that the decree specifically provides for review of the custody arrangement under the best interests standard when the child reaches 14 years of age. Appellant will have the opportunity to have custody revisited at that time under that standard. We observe that that may be a more appropriate time to assess the effects of the new living situation on the child's well-being.

2. Transportation Costs

The district court has extensive discretion in deciding visitation questions and will not be reversed absent an abuse of discretion. Manthei v. Manthei, 268 N.W.2d 45 (Minn. 1978); Al-Zouhayli v. Al-Zouhayli, 486 N.W.2d 10, 12 (Minn. App. 1992). On February 18, 1997, the district court considered the visitation issues regarding the removal of the parties' child to South Dakota. The court amended the original judgment and decree, setting forth a visitation schedule (until the child reaches the age of 14) and ordering that each party be responsible for the transportation costs when picking up or returning the child.

Appellant contends the district court abused discretion in ordering each party to pay one half of these transportation costs. Because the district court's action was well within its broad discretion on such matters, we affirm.


CRIPPEN, Judge (dissenting)

In our decision today, we affirm an unwarranted application of the Auge presumption that a parent should be free to remove the child to another state. See Auge v. Auge, 334 N.W.2d 393, 399 (Minn. 1983) (adopting presumption favoring removal from state). Auge is now Auge-Silbaugh; the original holding was recently found to mean that a party opposing the other parent's removal of a child from Minnesota must show not only that the change is not in the child's best interests, but also that it will endanger the child. Compare Auge, 334 N.W.2d at 399 (where the court "hold[s]" that "[m]otions by the custodial parent to permit removal to another state shall be granted unless the party opposing the motion establishes by a preponderance of the evidence that the move is not in the best interests of the child") with Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996) ("[t]o defeat [the Auge removal presumption] the party opposing removal must offer evidence which would establish that the removal is not in the best interests of the child and would endanger the child's health and well-being").[3]

1. Shared care

The June 1994 divorce judgment provides that respondent Ramona Wilson "shall be designated" as the sole physical custodian and grants "timeshare arrangement" contacts[4] to appellant Donald Wilson for at least 5 nights and 4 days during each 14-day period. During the summer months, the judgment permits appellant's care of the child for 7 of 14 days. In addition, the judgment gives appellant the opportunity for up to four weeks for summer vacations, as well as time with the child on various holidays. Significantly, the judgment provides that the parties can modify the timeshare arrangement at any time "to meet the minor child's needs."

Appellant's undisputed affidavit shows that he moved to Stillwater in July 1995 to be nearer to his son and that both parents reached an agreement in June 1996 to alternate weeks of care for the child.

Solely because the June 1996 agreement of the parties did not modify the portion of the judgment naming respondent as the custodial parent, appellant is nominally a "noncustodial parent." Because the current custodial arrangement functions to make appellant a half-time custodian, his technical status as a noncustodial parent does not reflect the reality in this case. Because I would have the court conclude that appellant is functionally a joint physical custodian of the child, I would also conclude that the child is entitled to have his future care determined according to his best interests.[5]

2. Legislative developments

Despite the wish to immediately describe the law that governs the case, a discussion of the issue will be inadequate without first examining matters of history and theory that shape the law and make the issue important.

The application of Auge-Silbaugh in circumstances like these contradicts a well-established development of Minnesota statutory law on child custody. Twenty years ago there was enthusiasm evident in the Minnesota Legislature and the Minnesota Supreme Court for the notion, lying at the heart of Auge, that a child should be spared any further disruptive experiences by placing custody with one parent whose prerogatives in providing care for the child are only modestly limited to accommodate the interests of the other parent. This approach has its roots in the 1973 publication of Goldstein, Freud and Solnit, Beyond the Best Interests of the Child. Auge, 334 N.W.2d at 396 n.3. Early fervor for this point of view produced reform of child custody statutes, including the addition of provisions to Minnesota law that markedly limit the judicial power to modify child custody judgments. See Minn. Stat. § 518.18 (1996). Most notable for purposes of this case, the stability-is-best-for-the-child idea produced Minnesota's judicial effort to accommodate the wishes of custodial parents to move with their children to another state. Auge, 334 N.W.2d at 393.

Already when it was written, the Goldstein text conflicted with Minnesota statutory law that protected the child's relationship with each parent.[6] And subsequent legislation shows repeated and growing efforts to balance the child's need for stability with an aim to save both of the child's parental relationships. Most notable in this regard is the expanded employment of shared child custody arrangements, probably accompanying the growing involvement of fathers in the lives of their children.[7] Assuming that Auge-Silbaugh survives the legislative pattern of law-making to preserve a child's relationships with both parents, it is inappropriate for this court to extend its impact beyond those now less-common cases where there is a custodial parent and the other parent has no more than routine visitation contacts.

3. Appellate precedents

Because our application of the law in this case disregards a child's relationship with a parent who has shared greatly in his care, it is in direct conflict with the developing scheme of law on child custody placements in Minnesota. Moreover, the error is definable by reference to the language and the concepts of Auge itself.

Auge was originally announced for the then-traditional circumstances where a custodial parent's proposed move out of state was challenged by a noncustodial parent who was attempting to protect visitation contacts. A scant fifteen months after Auge was decided, this court confronted the conflict already evident between Auge and the growing preference of Minnesota law to protect parents who share in child caretaking. We held that Auge had no logical bearing on a case of joint physical custody where the parties were "equally involved with the child's care." Hegerle v. Hegerle, 355 N.W.2d 726, 731 (Minn. App. 1984).[8] Neither this court nor the Supreme Court subsequently has questioned Hegerle. The Supreme Court endorsed its concept in 1993. Ayers, 508 N.W.2d 515, 518-20 (affirming denial of removal premised on best interests of child; declining to consider "extending" Auge to joint custody cases; deferring to relationship with parent who enjoyed only alternating weekend contacts with the child during the school year). Minnesota's appellate courts never before have applied Auge to circumstances where the parents divided custody.

The trial court's holding depends on both Auge and Silbaugh. The court held that appellant's objections were unfounded in the absence of a showing of child endangerment, employing the standard stated in Silbaugh. But Silbaugh, although involving a noncustodial parent with liberal visitation rights, did not involve parents who fully shared the caretaking role. There is no suggestion in Silbaugh that the noncustodial parent claimed a distinction based on the quantity of his contacts with the child, and the court had no occasion to discuss whether the rule it stated would apply in a joint custody case or in circumstances tantamount to joint custody.

Without putting matters of form above the court's paramount concern for the best interests of children, there can be no statement of cause to use the label of the Wilson custody arrangement as grounds to distinguish this case from the circumstances in Hegerle. The primary aim of Minnesota child custody law, never questioned for over a hundred years, is to protect the child's best interests, even when the courts must act without statutory support. State ex rel. Flint v. Flint, 63 Minn. 187, 65 N.W. 272 (1895); see Olson v. Olson, 534 N.W.2d 547, 549 (Minn. 1995) (tracing history of the paramount nature of a child's best interests); In re Welfare of M.P., 542 N.W.2d 71, 74 (Minn. App. 1996) (same); see generally DeLa Rosa v. DeLa Rosa, 309 N.W.2d 755, 758 (Minn. 1981) (in a divorce case, the court has "inherent power" to grant relief as justice and equity require). The interests of a child in shared custody circumstances are different than those of the child whose primary care is given by one parent while the other parent exercises only visitation rights. Further, the interests of neither child are changed by the designation the parties have given to the arrangement. As such, the paramount nature of the child's best interests demands that the substance of the custodial relationship be elevated over the form given it by the parties.

4. Additional considerations

In three other respects, our holding conflicts with the letter and spirit of Minnesota family law. First, the choice to put form above substance is premised on the holding in Ayers, 508 N.W.2d at 520. The Ayers court required respect for a stipulated judgment provision stating that the parents were joint custodians, even though the children's mother provided most of the child care and evidently lived several hundred miles from the father's residence. It is important to observe that Ayers was issued in the context of preserving a child's relationship with a care-sharing parent. And Ayers upheld a trial court decision that employed the best interests standard to deny the mother's proposed move to another state. Ayers is a significant demonstration of judicial efforts to avoid alteration of shared custody arrangements by steps for removal of the child that are found to contradict the child's best interests.

Second, as a means of reasoning to a good end, this case could be examined on the premise that the custody language employed in a judgment should give way to the reality of a "de facto" custody arrangement. We last reviewed the history of this concept in Lutzi, 485 N.W.2d at 314, where we observed:

We have previously denied the claim of a "de facto" joint physical custody placement, but this holding occurred in circumstances where the noncustodial parent enjoyed only a liberal visitation schedule. Geiger v. Geiger, 470, N.W.2d 704, 706 (Minn. App. 1991), pet. for rev. denied (Minn. Aug. 1, 1991). Geiger did not denounce the notion that a still larger visitation arrangement might make the noncustodial parent a de facto joint physical custodian.

What we said in Lutzi is not altered by the respect shown in Ayers for a declared joint physical custody award. As observed above, Ayers must be noted for its respect for joint custody relationships. Moreover, Ayers wrestled with the uncertainties of recognizing when the predominance of care by one parent goes beyond the possible scope of joint caretaking. There is nothing unclear about the de facto arrangement in the circumstances before us. In this case, the parties are in fact joint custodians.

Finally, it should be noted that the elevation of form in this case shows disregard for a matter of fact that was highly regarded by the parties and the trial court when a stipulation and judgment were completed in 1993. Recognizing deference to the child's best interests in light of his age, it was determined that his custody would be reviewed according to his best interests, expressly including his choice of action, when he attains age 14 in May 1998. To require a 600 mile move of the child less than one year before this review contradicts both the initial determination of the parties and the trial court to serve the child's best interests and the fundamental aim of the courts to serve the same end.

Here, once again, an inappropriate application of law to a family's individual circumstances produces the worst of both worlds for the child. On the one hand, his removal conflicts with the aim of the law to preserve the child's relationship with each of his parents. On the other hand, we should look at the roots of Auge and Silbaugh, which lie in the concept that stability of the child should not be unduly disturbed. Even that principle is offended by our holding. Independent of the matter of shared parenting by the parties, Auge-Silbaugh unduly threatens the stable circumstances of a 13-year-old child whose custodial care is to be reviewed on the occasion of his next birthday.

I respectfully dissent. And because I believe that the decision in this case resolves a current and critical issue of law, I would elect to include our opinions among the officially published dispositions of the court.

[ ]1The district court noted that the child spent alternating weeks with each parent. Appellant's affidavit states that he had the child 43 percent of the time. Respondent's supplemental affidavit estimates appellant's visitation to be 35 to 40 percent of the time.

[ ]2Appellant moved to stay execution of the order. The district court denied the motion and awarded respondent attorney fees. In a special term order, this court dismissed the portion of the appeal from the attorney fee award as premature.

[ ]3Although the Silbaugh opinion states an initial burden to "clarify the standard for removal of children to another state when the noncustodial parent opposes the move," the court recites the noncustodian's burden of proof without discussing the language of Auge. Silbaugh, 643 N.W.2d at 640. It is unclear whether Silbaugh represents a deliberate correction of the burden-of-proof holding in Auge, which Minnesota's courts since have regularly employed. The Auge holding cited to Minn. Stat. § 518.18(d) (1982), which, although stating the endangerment standard for modification cases, also states the ultimate aim to serve the child's best interests. Auge, 334 N.W.2d at 399-40. Evidently, the best interests standard was announced in Auge as a trade-off that employs a child-centered exception to temper the presumption favoring a move. In 1993, this view of the law was restated Ayers v. Ayers, 508 N.W.2d 515, 520 (Minn. 1993) (affirming a best interests determination against a move by one joint custodian; observing that application of Auge, if it were to occur in a joint custody case, would permit the objecting parent to overcome the presumption upon establishing by a preponderance of the evidence that the move is not in the best interests of the children.) The Silbaugh endangerment statement cites to Sefkow v. Sefkow, 427 N.W.2d 203, 214 (Minn. 1988) (in a statement not material to the holding, noting that endangerment must be shown to avoid removal; attributing rule to a statement in Auge's syllabus that conflicts with what the Auge opinion advances as its "holding"); see Barrie v. Northern Assurance Co., 99 Minn. 272, 273, 109 N.W. 248, 249 (1906) (finding authority in language of opinion that is inconsistent with court syllabus).

[ 4]Except for summer vacation experiences, the judgment does not refer to appellant's contacts as visitation rights.

[ 5]Arguably, appellant is entitled to even more. If the courts were to accord to appellant's de facto status as joint physical custodian the same deference as in a declared joint physical custody case, (a) appellant's objections would be determined on the basis of the child's best interests, and (b) respondent, who proposes to substantially alter the custody arrangement, would bear the burden to show that removal of the child to western South Dakota is best for the child. See Minn. Stat. § 518.18(e) (1996) (providing that the joint custodian who asks permission to remove the child from the state need not show that present circumstances endanger the child's welfare).

[ 6]The 1971 recodification of Minnesota's marriage dissolution laws established that (a) a noncustodial parent was entitled to such visitation "as will enable the child and the noncustodial parent to maintain such child to parent relationship as will be beneficial to the child"; (b) where the noncustodial parent has visitation rights, court consent is needed for moving the residence of a child to another state; and (c) unwarranted denial of or interference with duly established visitation "may be sufficient cause for reversal of custody." 1971 Minn. Laws 1971 ch. 172, § 1.

[ 7]In 1978 the Minnesota Legislature added to the code a provision that prohibits restriction of visitation rights without a showing, inter alia, that the present arrangement endangers the child. 1978 Minn. Laws ch. 772, § 42. The legislature first provided for joint physical custody in 1981 Minn. Laws ch. 349, §§ 2 and 5. On numerous subsequent occasions, the legislature enacted laws that expand the role of parents once cast routinely in the role of "noncustodial parent." 1984 Minn. Laws ch. 484, § 2 (defining crime for depriving a parent either of rights to custody or visitation); 1986 Minn. Laws ch. 406 § 1 (establishing rebuttable presumption for joint legal custody arrangements); id., § 3 (providing for compensatory visitation benefits); 1988 Minn. Laws ch. 668, § 12 (granting both parents rights to specified, vital information bearing on the child's care); id., § 14 (establishing grandparent visitation rights); 1989 Minn. Laws ch 248, § 2 (adding primary caretaking as best interests factor but expressly prohibiting the use of this [or any] factor to the exclusion of all others); id., § 6 (providing for visitation expeditor to resolve visitation disputes); 1990 Minn. Laws ch. 574, § 13 (declaring that the primary caretaker factor may not be used as a presumption in determining the best interests of the child); 1991 Laws ch 266, § 1 (adding provision that applies endangerment standard to proposals to modify joint custody, except for a parent seeking permission to move); 1993 Laws ch. 322, § 7 (restating parents' rights of access to child care information); 1995 Minn. Laws ch. 257, art. 1, § 20 (permitting courts to grant child care responsibilities to noncustodial parents during working hours of custodial parent); 1996 Laws ch. 391, art. 1 (substantial revision of statutes to (a) enhance enforcement of visitation rights; (b) permitting civil fine to penalize violation of visitation rights; (c) expand role of visitation expediters; and (d) permitting judicial districts to provide for mandatory visitation dispute resolution).

[ 8]In retrospect, some of the rationale of Hegerle may be flawed. The holding rests in part on the notion that denying removal is not the "modification" of a joint custody placement in the same way that it would constitute the modification of a sole-custody placement with the parent who proposes to remove the child from the state. Hegerle, 355 N.W.2d at 731. In fact, where parents have equally shared in child care, a decision leaving primary care with one child now constitutes a modification. Minn. Stat. § 518.18(e) (enacted seven years after Hegerle in 1991 Minn. Laws ch. 266, § 1); Ayers, 508 N.W.2d at 520; Lutzi v. Lutzi, 485 N.W.2d 311, 315-316 (Minn. App. 1992). But Hegerle is precisely in accord with Minnesota's clear effort to distinguish between respect for the freedom of a sole caretaker and deference to the child's interests in protecting relationships with each of two care-sharing parents.