may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
In re the Marriage of:
Gordon Ellis Cariveau, petitioner,
Sarah Josephine Cariveau,
Filed May 4, 1999
Goodhue County District Court
File No. FX98113
Sarah J. Cariveau, 901 Red Wing Avenue, Lot 1, Kenyon, MN 55946 (pro se respondent)
Considered and decided by Toussaint, Chief Judge, Huspeni, Judge,[**] and Holtan, Judge.
Appellant father appeals from a district court order denying father's motion to remove two children to Oklahoma and awarding attorney fees to respondent mother.
The judgment and decree of dissolution for the Cariveaus sets forth the following findings of fact: Gordon (father) and Sarah (mother) Cariveau were married in 1981. They had three children during their marriage: C.C., born February 24, 1982; G.C., born June 12, 1984; and L.C., born January 12, 1989. Mother was arrested for assaulting G.C. on December 18, 1997. Father filed for dissolution and requested sole legal and physical custody of the children. Father has been a member of the United States Air Force for 15 years. The Air Force ordered father to move to Oklahoma City shortly after the hearing.
The court applied the best-interest-of-the-child standard to each child and found that father's military duties took him away from home often, and if the children moved to Oklahoma, they would often have to be cared for by strangers. The court also found that the children are adjusted to living in Minnesota and their family and friends live in Minnesota.
The court decided C.C. should live with her mother and G.C. should live with his father, and granted legal custody accordingly. The court decided that L.C. should be jointly cared for legally and father should have physical custody of L.C. as long as he stays in Minnesota, but it would be detrimental to L.C. to move to Oklahoma. Therefore, if father moves to Oklahoma, mother acquires physical custody of L.C.
Father had not yet received the judgment and decree regarding custody when he received his orders to move to Oklahoma, so his attorney wrote a letter to the court explaining the urgency of the situation. The court wrote back, telling them his probable findings, including that L.C. would not be allowed to move to Oklahoma. Father made a motion to move G.C. and L.C. to Oklahoma. The trial court's order denied the motion and awarded attorney fees to mother. Father appeals.
Father appeals on two issues. First, he claims the district court abused its discretion in denying his motion to move G.C. and L.C. to Oklahoma. Second, he claims the district court abused its discretion in awarding mother attorney fees. An appellate court will not reverse a custody determination unless the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). A trial court's findings will be sustained unless they are clearly erroneous. Id.
Father's brief claims he challenges the custody award in the judgment and decree. Other than a cursory mention of the judgment and decree at the beginning of his brief, father does not make substantial arguments regarding the judgment and decree. An assignment of error in a brief based on "mere assertion" and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection. Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971). This court will decline to address allegations unsupported by legal analysis or citation. Ganguli v. University of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994). Even if we did address the argument, we would find the district court did not abuse its discretion.
Father's argument that the district court abused its discretion hinges on the legal doctrine that a custodial parent enjoys a presumptive right to move a child out of state. Auge v. Auge, 334 N.W.2d 393 (Minn. 1983). This court has held that the party opposing a motion to move a child bears the burden of establishing that removal would endanger the child's physical or emotional health and is not in the best interest of the child. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996).
Father's articulation of this doctrine is accurate. The problem is his assumption that he is a custodial parent entitled to the Auge presumption. He clearly is not. The section of the judgment and decree delineating the custody arrangement effectively makes the Auge presumption inapplicable to this case. Though the judgment and decree did not explicitly discuss the Auge presumption, it did state that the custodial parent would not be allowed to move L.C. out of Minnesota.
Father complains that the court abused its discretion in the order because it found that father had not shown it would be in L.C.'s best interest to move to Oklahoma. He claims that under the Auge presumption the court should have presumed it was in L.C.'s best interest to move and it was mother's burden to show otherwise. In fact, the court applied exactly the correct legal standard to the motion. Father's motion, in effect, asked the court to change the custody determination of the judgment and decree. In modification proceedings, the burden is on the party opposing the current custody arrangements. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981). Therefore, the court correctly concluded that father failed to meet his burden of proof. The court correctly applied the judgment and decree to father's motion and did not abuse its discretion by denying the motion to move L.C. to Oklahoma.
An award for attorney fees under Minn. Stat. § 518.14 (1998) lies within the discretion of the court and will not be reversed absent an abuse of discretion. Solon v. Solon, 255 N.W.2d 395, 397 (Minn. 1977). The court may award attorney fees and costs "against a party who unreasonably contributes to the length or expense of the proceeding." Minn. Stat. § 518.14, subd. 1 (1998). The court may also award fees if the party for whom the fees are sought does not have the means to pay them and the party against whom the fees are sought does have the means to pay them. Minn. Stat. § 518.14, subd. 1(2) & (3) (1998).
Generally, the district court is required to make findings regarding the award of attorney fees. Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1992); Richards v. Richards, 472 N.W.2d 162, 166 (Minn. App. 1991). With an amount as small as $150, however, any error in not making findings is de minimis. See Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (de minimis error not remanded). We conclude that the award was not an abuse of discretion.
[*] Retired judge of the district court serving as judge of the Minnesota Court of Appeals, by appointment pursuant to Minn. Const. art. VI, § 10.
[**] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.