This opinion will be unpublished and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:

Mary Jeanette Kienholz, petitioner,



Larry Allen Kienholz,


Filed October 21, 1997

Affirmed in part, reversed in part, and remanded

Schumacher, Judge

Kandiyohi County District Court

File No. F6-96-712

John E. Mack, Mack & Daby, P.O. Box 302, New London, MN 56273 (for appellant)

Jon C. Saunders, L. Wayne Larson, Anderson, Larson, Hanson & Saunders, 331 Professional Plaza, 331 Southwest Third Street, Willmar, MN 56201 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Norton, Judge, and Willis, Judge.



Appellant-mother claims the trial court erred by not awarding her custody of the parties' children, in setting her support obligation, and by reserving maintenance. We affirm in part, reverse in part, and remand.


In June 1996, appellant-mother Mary Jeanette Kienholz petitioned to dissolve her marriage to respondent-father Larry Allen Kienholz. An order for temporary relief set father's temporary support obligation. After trial, a December 1996 judgment (a) awarded father physical custody of the parties' children; (b) directed the parties to alternate months caring for the children through August 1997; (c) found father understated his income for purposes of his temporary support obligation; (d) set mother's support obligation after offsetting father's underpayments; and (e) denied both parties maintenance. A February 1997 order addressing mother's posttrial motion reserved maintenance but otherwise denied mother's motion. Mother appeals.


1. Custody awards are based on a child's "best interests." Minn. Stat. § 518.17, subd. 3(a)(3) (1996). Review of custody awards is limited to "whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law * * *. * * * [D]e novo review of the entire record * * * is inappropriate." Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985); see Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993) (same). On appeal, findings of fact are not set aside unless clearly erroneous and the record is reviewed in the light most favorable to the findings. Minn. R. Civ. P. 52.01; Ayers, 508 N.W.2d at 521.

Citing Maxfield v. Maxfield, 452 N.W.2d 219 (Minn. 1990), mother claims the trial court under-emphasized her status as the children's primary caretaker. The trial court, however, stated it "did not minimize [mother's] status as the parent who spent more time with the children." Further, while Maxfield stressed the importance of a child's bond with the primary parent, 453 N.W.2d at 223, immediately after Maxfield, the legislature amended the custody statute to state that "[t]he primary caretaker factor may not be used as a presumption in determining the best interests of the child[.]" 1990 Minn. Laws ch. 574, § 1. Thus, the primary-caretaker factor is not entitled to any more weight than any other best-interest factor. See Hoben v. City of Minneapolis, 324 N.W.2d 161, 163 (Minn. 1982) (where legislature amended statutes immediately after supreme court interpreted them, supreme court stated: "the legislature's prompt reaction to our construction of the applicable statutes indicates not a change in legislative policy but a disagreement with our understanding of the legislative intent").

Mother's claim that the trial court improperly based the custody award on the fact father was "a better talker" or that "the Court preferred to listen to him" is functionally a request that this court reassess the weight and credibility of the parties' testimony. We will not do so. See Sigurdson v. Isanti County, 386 N.W.2d 715, 721 (Minn. 1986) ("[a]n appellate court cannot judge the credibility of a witness or the weight, if any, to be given to testimony") (citing cases).

Mother challenges several findings of fact. On this record, we will not alter the trial court's findings. See McCabe v. McCabe, 430 N.W.2d 870, 873 (Minn. App. 1988) (where record supports any of several findings, including one made by district court, this court defers to district court's findings), review denied (Minn. Dec. 30, 1988).

Contrary to mother's claim, the trial court did not abuse its discretion by considering father's extended family in awarding father custody. See Minn. Stat. § 518.17, subd. 1(5) (1996) (in awarding custody, trial court must consider the "interaction and interrelationship" of the child with any person "who may significantly affect the child's best interests"); Sefkow v. Sefkow, 427 N.W.2d 203, 212 (Minn. 1988) (noting, in custody analysis, that child's "extended family lives in the immediate area"). Mother's reliance on Olson v. Olson, 534 N.W.2d 547 (Minn. 1995) to support her claim is misplaced. Olson is distinguishable.[1]

2. The trial court has "broad discretion" in setting support and will not be reversed absent a "clearly erroneous conclusion that is against logic and the facts on record." Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

Mother claims her extended visitation is functionally de facto joint physical custody and that, under Splinter v. Landsteiner, 414 N.W.2d 213 (Minn. App. 1987), her support obligation through August 1997 should have been calculated under the joint-physical-custody formula set out in Hortis v. Hortis, 367 N.W.2d 633, 636 (Minn. App. 1985). Splinter does not mention the Hortis formula (or any other formula) for determining the amount of "support" to be awarded a noncustodial parent and we decline to read Splinter to require application of a formula it does not mention. We note, however, that the trial court has discretion to equitably apportion visitation expenses. Compare Auge v. Auge 334 N.W.2d 393, 400 (Minn. 1983) (when child is removed from state, trial court may equitably apportion visitation expenses) and Ballard v. Wold, 486 N.W.2d 161, 163 (Minn. App. 1992) (applying Auge to a case not involving removal from Minnesota) with Compart v. Compart, 417 N.W.2d 658, 662 (Minn. App. 1988) (where support was suspended during summer when children lived with noncustodial parent, district court's refusal to increase noncustodial parent's support obligation reversed because, among other things, many of the custodial parent's expenses of running the children's primary home continue unabated even when support is suspended).[2]

Mother challenges the finding of her income. Because mother's employment changed after trial, the trial court properly refused to consider that change in its ruling on mother's posttrial motions. See Rathbun v. W.T. Grant Co., 300 Minn. 223, 238, 219 N.W.2d 641, 651 (1974) (in considering a motion for amended findings, trial court "may neither go outside the record, nor consider new evidence"); Minnesota Mut. Fire & Cas. Co. v. Retrum, 456 N.W.2d 719, 723 (Minn. App. 1990) ("[i]t was not an abuse of the trial court's discretion to deny the motion for a new trial in which [the moving party] raised a new theory and new factual argument[s] for the first time"); see generally, Minn. Stat. § 518.64 (1996) (procedure for modifying support).

Mother also challenges the finding of father's income. A net income finding for support purposes is affirmed if it has a reasonable basis in fact. Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn. App. 1987). Father's temporary support obligation was based on a claimed net monthly income of $1427 but the trial court found father's net monthly income for temporary support purposes "should have been $1612." The judgment does not explain how the $1612 figure was calculated and how to reconcile that figure with the testimony is not obvious. We remand for the trial court to recalculate father's net monthly income or to make additional findings explaining the existing finding. On remand, the trial court shall make any necessary adjustment in the calculation of the amount by which father underpaid his temporary support obligation and the offset of that underpayment against mother's prospective obligation.

3. Absent an abuse of the trial court's "wide discretion" in awarding maintenance, "the trial court's determination is final." Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). While Minn. Stat. § 518.552 (1996) lists factors to be considered in setting the amount and duration of maintenance, no single factor is dispositive and the issue is basically the recipient's need balanced against the obligor's financial condition. Erlandson, 318 N.W.2d at 39-40.

Mother claims she is entitled to maintenance because, without it, she will lack the funds necessary to meet her expenses. The trial court, in its posttrial order, functionally agreed but denied maintenance based on father's inability to pay. Because we remand for the trial court to reevaluate father's income, we also remand for the trial court to make any necessary alteration in its maintenance determination.

In addressing father's ability to pay maintenance and his assumption of the parties' debts, mother claims the trial court failed to consider that part of the debt is a mortgage on the house and, as a result, father has an asset as well as the debt. Because father must make the mortgage payments on the house, his possession of the house does not increase his ability to pay maintenance. Also, mother's claim that father's possible future discharge of his debts in bankruptcy should be considered is premature. If father obtains a bankruptcy discharge, mother may move to modify maintenance at that time. Minn. Stat. § 518.64. Because mother cites no authority to support her claim the trial court should have compelled father to file bankruptcy by ordering him to pay maintenance, that claim is waived. Schoepke, 290 Minn. at 519-20, 187 N.W.2d at 135.

4. Whether to reopen the record on remand is discretionary with the trial court.

Affirmed in part, reversed in part, and remanded.

[ ]1 Mother claims the lack of expert testimony on the inappropriateness of some of her conduct renders the evidence "anecdotal" and "impressionistic." Because mother neither cites authority requiring expert testimony to support a custody award nor further develops her claim, it is waived. See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (assignment of error based on "mere assertion" and not supported by argument or authority is waived unless error is obvious).

[ ]2 To the extent mother claims the joint-physical-custody formula should be applied after September 1997, she failed to raise the issue in the trial court and we do not address it. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (generally, appellate courts address only the issues presented to and decided by the district court).