This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




James Clarence Hilgart, petitioner,



Cathy Ann Hilgart,


Filed April 20, 1999

Affirmed in part and reversed in part

Halbrooks, Judge

Hennepin County District Court

File No. DC 192 932

Daniel M. Fiskum, Jensen, Stockman & Fiskum, 1301 East 79th Street, Suite 108, Bloomington, MN 55425 (for appellant)

Karl J. Peterson, P.O. Box 44033, Eden Prairie, MN 55344 (for respondent)

Considered and decided by Davies, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.



When the parties stipulated to joint legal and physical custody of their child, his school was accessible from both their homes. After appellant moved, he sought sole physical custody and a change in the child's school district; respondent moved to have the child remain in her school district. The referee resolved the parties' conflict by ordering that the child remain in respondent's school district and awarding respondent sole physical custody and sole authority over the child's school attendance. Because the referee's decision that the child attend school in Minneapolis was an appropriate resolution of the parties' conflict, we affirm that decision. However, we reverse the award of sole physical custody because the referee did not apply the endangerment standard mandated for modification of custody. We also reverse the order that respondent have sole authority over the child's school because giving one parent sole discretion to choose schools when parents have joint legal custody is a violation of Minn. Stat. § 518.003, subd 3(b) (1998).


Appellant James Hilgart and respondent Cathy Hilgart were divorced in 1993. They stipulated to shared physical and legal custody of their son, S.V.H., now 12. His Minneapolis school was accessible from both parents' residences; he split his time roughly between them.

In June 1997, appellant moved to Buffalo, Minnesota, where he enrolled S.V.H. in the Buffalo school system for the 1997-1998 school year. Respondent moved to retain S.V.H. in the Minneapolis schools and obtained an order requiring that he be enrolled in Minneapolis. Appellant later moved for an order permitting him to enroll S.V.H. in the Buffalo schools for the 1998-1999 school year, for sole physical custody, and for an evidentiary hearing. Respondent moved for a denial of appellant's motion for a hearing, but she did not seek custody herself. Following a hearing that included testimony from both parties and the custody evaluator, as well as an in-camera interview with S.V.H., the referee awarded physical custody to respondent and ordered that S.V.H. attend school in Minneapolis and respondent have sole discretion to decide on his school.

Neither party challenged the referee's order in district court. Appellant challenges it here, arguing the referee improperly applied the law by ordering that respondent have sole discretion to select schools and by failing to use the "endangerment" standard.


1. Scope of Review

Neither party sought district court review of the referee's order.

District court review of a referee's order is not a prerequisite to our review of that order, but district court review is in the nature of a motion for amended findings or a new trial and would affect the scope of review on appeal to this court accordingly. * * * [A]bsent a motion for a new trial appellate review is limited to determining whether the evidence sustains the findings of fact and whether the findings support the conclusions of law and the judgment.

Kahn v. Tronnier, 547 N.W.2d 425, 428 (Minn. App. 1996) (citations and quotation omitted), review denied (Minn. July 10, 1996). We therefore review only whether the evidence sustains the referee's findings and whether those findings support the order.

2. The choice of schools

The referee issued two orders: "[respondent] shall have the sole discretion to determine [S.V.H.'s] school of enrollment" and "[S.V.H.] shall be enrolled in the Minneapolis school system." We reverse the first order because Minn. Stat. § 518.003, subd. 3(b)(1998), provides that both parties, as joint legal custodians, "have equal rights and responsibilities, including the right to participate in major decisions determining the child's upbringing, including education * * * ."

But when "joint legal custodians disagree on the choice of schooling for their child, the trial court must resolve the dispute consistent with the child's best interests." Novak v. Novak, 446 N.W.2d 422, 423 (Minn. App. 1989) (resolving a dispute between custodial parent who wanted to home-school child and non-custodial parent who wanted child enrolled in public school by remanding for a determination of child's best interests), review denied (Minn. Dec. 1, 1989). In this case, the parents were unable to reach agreement. The referee, therefore, concluded that it would be in S.V.H.'s best interests to remain in the Minneapolis school system. That conclusion is supported by the findings, which were based in part on the referee's private interview with S.V.H. and on testimony from both parties. We therefore affirm the referee's decision that S.V.H. attend school in Minneapolis.

3. Custody award

The decision as to the school S.V.H. would attend necessitated a denial of appellant's motion for sole physical custody. It did not, however, require an award of sole physical custody to respondent, and, absent a finding that S.V.H. was endangered by his present environment, that award is not permitted by statute. See Minn. Stat. § 518.18(d)(1998) (providing "the court shall retain the custody arrangement established by the prior order unless * * * the child's present environment endangers the child's physical or emotional health"); Minn. Stat. § 518.18(e) (1998) (providing "[i]n deciding whether to modify a prior joint custody order, the court shall apply the standards set forth in paragraph (d) [of Minn. Stat. § 518.18]"); see also Ayers v. Ayers, 508 N.W.2d 515, 520 (Minn. 1993) ("the trial court correctly applied Minn. Stat. § 518.18(e) in deciding whether to modify this joint custody order"); Dabrowski v. Dabrowski, 477 N.W.2d 761, 765 (Minn. App. 1991) ("the appropriate standard to be used in proceedings to modify joint custody is the endangerment or impairment standard of Minn. Stat. § 518.18").

No evidence on endangerment was presented and no finding of endangerment was made because of the referee's view that this was not a custody modification but a custody determination. But joint physical custody of S.V.H. was part of the parties' dissolution judgment, which was based on their marital termination agreement.

Custody 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.

Ayers, 508 N.W.2d at 520. The joint physical custody to which the parties stipulated can be modified only after a finding that S.V.H. is endangered by his present environment; without such a finding, he remains in their joint physical custody. See Minn. Stat. § 518.18(d); Minn. Stat. § 518.18(e).

We affirm the order that S.V.H. attend school in Minneapolis and reverse the awards of sole physical custody and sole authority over school attendance.

Affirmed in part, reversed in part.