Rosemary Sjodin, petitioner,
Charles R. Sjodin,
Cheryl M. Prince and Natalie I. Wyatt-Brown, Hanft, Fride, O'Brien, Harries, Swelbar & Burns, P.A., 1000 First Bank Place, 130 West Superior Street, Duluth, MN 55802 (for appellant)
Larry M. Nord, Orman & Nord, 1301 Miller Trunk Highway, Suite 400, Duluth, MN 55811 (for respondent)
Considered and decided by Short, Presiding Judge, Amundson, Judge, and Harten, Judge.
Appellant Rosemary Sjodin challenges the district court's order, findings of fact, and conclusions of law, arguing that it was an abuse of discretion for the district court to: (1) accept, in substance, husband's proposed findings and order; (2) award joint physical custody; (3) deny child support to wife; (4) deny spousal support to wife; and (5) refuse to award attorney fees to wife. We affirm.
By agreement, since separation, husband has remained, and will remain, at the family home. Wife lives elsewhere with another person and states that the situation is temporary. Both parents are actively involved with the children.
Robert Jokela, the custody evaluator, recommended a joint physical custody arrangement, with the children alternating every two weeks. Jokela stated that if joint custody was not possible, and if wife remained inflexible, it was his recommendation that husband have sole physical custody of the children. Jane Levenson, the children's day care provider, also supported the joint custody arrangement. If the joint custody arrangement did not work, Levenson supported husband having sole physical custody of the children. Candace Beauchamp, the guardian ad litem, confirmed that the children appeared to be doing well and preferred joint custody.
Jokela expressed concern regarding the emotional stability of wife noting her prior psychological counseling and treatment with anti-depressants. Levenson also testified wife had occasional mood swings.
According to the record, husband has been flexible in working with the joint custody arrangements. Wife, however, has been unwilling to consider any arrangement other than her sole physical custody with a school year visitation schedule and longer summer visits. Husband previously pursued sole physical custody, but now has expressed conviction that joint physical custody is in the children's best interest.
Husband's gross monthly earnings at the time of trial were approximately $2,452.55. His average net monthly earnings were approximately $1,528.88, calculated by subtracting a pension contribution, health insurance premium, and taxes, including self-employment tax. Husband's monthly budget for him and the children, based on joint custody was $1,931.15. Husband met his budget by postponing estimated income tax payments.
Wife testified that her net earnings totaled $675.14 per month. At the time of trial, wife was guaranteed a minimum of 16 hours per week at $25 per hour from her part-time employment at Bridge Rehabilitation. Based on this guaranteed employment, her net earnings were approximately $700 every two weeks. Wife presented a monthly budget of $2,786 for herself and the children, based on full custody and paying all expenses of the home she shares.
The district court acknowledged that it accepted, in substance, husband's proposed findings and order. Additionally, the district court awarded joint physical custody, denied child and spousal support to wife, and refused to award attorney fees to wife. This appeal followed.
I. Husband's Proposed Findings
Here, the district court forthrightly acknowledged in its memorandum that it had "essentially adopted [husband's] proposed findings." The court also noted that it had conscientiously considered the statutory factors as contained in Minn. Stat. § 518.17, subd. 1 (1997), to determine the best interests of the children. When discussing the best interests of the children, the court stated
[t]he scales are slightly tipped toward the father on the basis of stability of home situation and of personality. The children would naturally be in their comfort zone with their father.
The district court further stated that the parents' failure to communicate reflected the "personality differences in the parents, and may be a significant reason for the divorce, however, very minor problems only have resulted regarding parenting."
The district court's adoption of husband's proposed findings does not itself demonstrate bias or abuse of the district court's discretion.
Minnesota statute sets forth thirteen factors for the court to consider when determining a custody arrangement that is in the "best interests" of the children. See Minn. Stat. § 518.17, subd. 1. Here, the district court found that eight of the thirteen factors favored neither parent as the preferred physical custodian, the remaining five factors favored husband. Both parents had strengths and weaknesses that tended to complement each other's parenting abilities the court found. It is clear, however, that husband had a less volatile personality and offered a more stable home situation.
In joint custody arrangements, the court must also consider four additional factors. Minn. Stat. § 518.17, subd. 2 (1997). Here, the record shows that these parents typically cooperate in child rearing. Wife alleges communication problems with husband. But the district court found that these problems were, in almost all instances, minor and often related to the temporary uncertainties born in the custody dispute. The district court specifically found that for three years these parents cooperated fully to see that their children were fed, clothed, protected, nurtured, and loved. They demonstrated that they can effectively communicate about the most important issues in their children's lives. The district court's findings are amply supported by evidence of three years of success, the parties' testimony, and the custody evaluation.
The evidence further shows that it would be detrimental to the children if wife were to have sole physical custody. The district court was concerned about three things in particular. Wife's expression of an intention to relocate to a new house; her long history of unemployment followed by part-time employment; and her opportunity to leave the Duluth area if granted sole physical custody. The district court found these factors may severely impair husband's contact with the children, and thus be contrary to the best interest of the children.
It is evident that both parents deeply love their children. Acknowledging this, the district court summarized the joint custody, saying:
If any parents have the ability to handle those changes [the changes in the children's lives], the history has shown that these do. These people are exceptional in their parenting abilities and their track record as parents. Their children have not been messed up; they have fared well. Both have stated they will accept the Court's decision. They need to want to make the joint arrangement work to accomplish the result. If both parents' statements that they just want what is best for the children is more than just lip service, they will do so.
Properly applying the relevant statutory factors, the district court did what is in the best interest of the children and did not abuse its discretion.
Minnesota statute provides that even when joint custody is utilized, the court must follow the statutory guidelines in awarding child support. See Minn. Stat. § 518.17, subd. 6 (1997). Under the guidelines, the district court was required to order the parties to pay 30% of their net income as child support during the time the other party had custody. See Minn. Stat. § 518.551, subd. 5(b) (1997).
Wife, employed by Bridge Rehabilitation, had a guaranteed minimum of 16 hours per week at $25 per hour. The district court found that her gross earnings were approximately $2,000 per month, and net earnings of $1,650 per month. Wife was also searching for full-time employment with an income level equivalent to her prior earnings of approximately $40,000 per year (or approximately $3,333 per month). The uncertainty of wife's future income is an important factor. The district court found that husband had gross earnings of approximately $2,452.55 per month, with average net monthly earnings of $1,528.88. These findings, supported by the record, were the basis for denying child support to wife. Strict application of the statute requires husband to pay wife one-half of 30% of his net monthly income and wife pay husband one-half of her net monthly income. As a result wife pays husband $18.17 per month in child support. Acknowledging the uncertainty of wife's future income, husband maintains the district court's departure from the guidelines is insignificant.
The district court ordered that neither party pay child support to the other, but that the expenses of the children continued to be shared as they had been for the past three years. The record amply sustains the district court's findings of fact and conclusions of law and judgment denying child support to wife.
Considering wife's educational background, employment history, and prospects of earning over $40,000 per year, the district court found that wife had the ability to be self-supporting. Wife had submitted a budget of $2,786 per month, including $500 per month for food, $350 per month for utilities, $250 per month for recreation, and $135 per month for insurance for the children, which the district court found inflated. It found husband's income to be $1,528.88 and a reasonable monthly budget of $1,931.15 for him and the minor children. It noted that husband testified that he is meeting his budget by postponing his estimated income tax payments.
The district court properly applied the relevant factors of Minn. Stat. § 518.552, subd. 2 (1997). Husband already having a larger shortfall than wife, the district court properly exercised discretion denying wife spousal maintenance.
that the fees are necessary for the good-faith assertion of the party's rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;
that the party from whom fees, costs, and disbursements are sought has the means to pay them; and
that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.
Minn. Stat. § 518.14, subd. 1 (1997).
Here, the district court found that each party was awarded sufficient property to pay their own attorney fees and costs and their income was roughly equivalent. In so doing, the district court did not abuse its discretion by denying wife attorney fees and costs.
 Frank, born March 15, 1985, and Anna, born March 24, 1989.