This opinion will be unpublished and

may not be cited except as provided by

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




In Re the Marriage of:

Joseph A. Harte, petitioner,



Barbara J. Harte,


Filed August 17, 1999

Reversed and remanded

Crippen, Judge

Washington County District Court

File No. F0923658

Ellen Dresselhuis, Dresselhuis Law Office, P.A., Enterprise Building, 2738 Winnetka Avenue North, New Hope, MN 55427-2850 (for appellant)

Richard W. Davis, Richard W. Davis Law Offices, 508 East Parkdale Plaza Building, 1660 South Highway 100, St. Louis Park, MN 55416-1534 (for respondent)

Considered and decided by Crippen, Presiding Judge, Anderson, Judge, and Schultz, Judge.[*]



Appellant Joseph Harte challenges the placement of sole physical custody of children with respondent Barbara Harte. The trial court determination occurred without an evidentiary hearing and while the only relevant pending motion was appellant's request for more contact as a joint physical custodian. We reverse and remand.


The 1992 stipulated divorce judgment determined that the parties would have joint legal and physical custody of their two children. The judgment lacked a custody schedule but the parties cared for the children on a two-day, two-day, three-day schedule. In 1997, appellant moved to modify custody and visitation but, after mediation, agreed to an arrangement for respondent's primary care for the children. No judgment was entered on the mediated custody and visitation agreement. In February 1998, appellant withdrew his pending motion.

Later in 1998, respondent sent the trial court a letter seeking attorney fees. In June, the court awarded her $5,563.41 fees and costs. In July, appellant moved to vacate the award. Respondent then sought support from appellant, and appellant amended his motion to seek an access schedule in which the parties alternated weeks with the children. After a hearing at which testimony was not taken, the trial court issued an order that denied appellant's motion to vacate the fee award and awarded respondent custody of the children.


1. Appellant challenges the order placing physical custody of the children with respondent. Review of a custody determination 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). Modifications of joint physical custody are to occur under Minn. Stat. § 518.18 (d) (1998) "unless" the parties agreed to a different standard or the party seeking modification wants permission to move the child to another state. Minn. Stat. § 518.18 (e) (1998). These parties did not agree to a different standard, and there is no request to move the children out of Minnesota.

Appellant argues that the trial court improperly modified custody without an evidentiary hearing. Absent a waiver of the right to an evidentiary hearing, an order modifying custody "should be based on a hearing in which witnesses may be cross-examined" and a failure to conduct an evidentiary hearing prompts a remand. Hummel v. Hummel, 304 N.W.2d 19, 20-21 (Minn. 1981); see Auge v. Auge, 334 N.W.2d 393, 396 (Minn. 1983) (stating "while the trial court has continuing jurisdiction to modify a custody order if warranted, it may not do so absent an evidentiary hearing in which witnesses may be cross-examined") (citing Hummel). Here, no evidentiary hearing occurred, and there is no indication appellant waived his right to an evidentiary hearing. See Smith v. Smith, 235 Minn. 412, 421, 51 N.W.2d 276, 281 (1952) (defining waiver as a "voluntary relinquishment of a known right"). Given the absence of a pending motion for change of the custody provision in the judgment, it is not material that appellant made no request for an evidentiary hearing. Cf. Courey v. Courey, 524 N.W.2d 469, 472 (Minn. App. 1994) (in visitation modification, father did not waive right to evidentiary hearing by not requesting hearing until seeking review of referee's order). We reverse the unrequested custody modification and remand for the trial court to address the access schedule and such other matters as duly come before the court. To the extent that respondent claims appellant's motion to alternate weeks with the children is really a disingenuous attempt to avoid paying support, we note that we lack an adequate record to address the assertion.

2. After denial of his motion to vacate respondent's ex parte award of attorney fees, appellant challenges that award. See State v. J.P. Sinna & Sons, Inc., 271 Minn. 430, 434, 136 N.W.2d 666, 668-69 (1965) (stating ex parte rulings are not appealable, but substance of ex parte ruling can be challenged on appeal from order denying motion to vacate ruling). Generally, litigants may not recover attorney fees absent a contractual or statutory authorization. Bowman v. Bowman, 493 N.W.2d 141, 145 (Minn. App. 1992). Because respondent sought fees exceeding $1,000 after appellant withdrew his motion and because she did so without making a formal motion, the fee award was improper. See Minn. Stat. § 518.14, subd. 1 (1998) (stating that if a family proceeding is "dismissed or abandoned prior to determination and award of attorney's fees, the court may nevertheless award attorney's fees upon the attorney's motion"); Minn. R. Gen. Pract. 119.01 (stating "in any action or proceeding" in which fees of $1,000 or more are sought, application for fees "shall be made by motion"). The trial court's attempt to justify the fee award under Minn. Stat. § 549.21, subd. 2, is flawed because that statute had been repealed before the court invoked it and the requirements for application of its successor are not satisfied here. See 1997 Minn. Laws ch. 213, art. 2, § 6 (repealing Minn. Stat. § 549.21); 1997 Minn. Laws ch. 213, art. 1, § 1 (enacting Minn. Stat. § 549.211); Minn. Stat. § 549.211, subd. 4(a) (1998) (requiring motion for sanctions to be served under the Rules of Civil Procedure; demanding subsequent trial court order to show cause against assertions of fact that justify fees under the statute).

3. On remand, the trial court shall reopen the record to address the access schedule. This court states no opinion on the merits of the remanded issues.

Reversed and remanded.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.