This opinion will be unpublished and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:
Kelly Ann Martin, petitioner,


Gregory John Martin,

Filed October 19, 1999
Affirmed; motion denied.
Toussaint, Chief Judge

Dakota County District Court
File No. F59713425

Jori L. Whitehead, Whitehead Law Office, 2500 W. County Rd. 42, Suite 170, Burnsville, MN 55337 (for respondent)

Eric Carlisle Nelson, Flour Exchange Building, 310 Fourth Avenue South, Suite 507, Minneapolis, MN 55415 (for appellant)

Considered and decided by Toussaint, Presiding Judge, Lansing, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant Gregory John Martin challenges an order granting respondent permission to move the residence of the parties’ two children to Missouri. Respondent moves for an award of costs and attorney fees incurred on appeal. Because the district court did not (a) abuse its discretion in finding that respondent’s move to Missouri did not endanger the children’s health and well being; or (b) err in its application of the law, we affirm. We deny respondent’s motion for an award of costs and attorney fees.


We review custody decisions to determine "whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law." Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993). We must sustain the trial court’s findings unless they are clearly erroneous, but need not defer to the trial court in reviewing questions of law. Id. Whether the trial court applied the correct standard is a question of law. Id.

Minn. Stat. § 518.18, subd. (d) (1998) creates an implicit presumption that a custodial parent’s request for permission to move a child’s residence out of state is in the child’s best interests and will be granted without an evidentiary hearing. Auge v. Auge, 334 N.W.2d 393, 396-97 (Minn. 1983). To defeat that presumption, the party opposing a child’s relocation must establish by a preponderance of the evidence that relocation (a) would endanger the child’s health and well being and is not in the best interests of the child; or (b) is intended to interfere with visitation. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996). Evidence of the disruption typically associated with relocation is insufficient to overcome the presumption that relocation is in the child’s best interests. Id. at 642.

Appellant first argues that the presumption in favor of a custodial parent’s relocation request does not apply in this case because, although respondent had sole physical custody, he is de facto a joint physical custodian given his extensive visitation schedule. Under Minnesota law, the frequency of visitation will not change the legal status conferred on the parties by the judgment and decree. Frauenshuh v. Giese, 599 N.W.2d 153, 157 (Minn. 1999) (when parties have agreed to specific denomination of physical or legal custody, which district court has accepted, parties will be bound by it). Ayers, 508 N.W.2d at 520 (stating "[c]ustody provisions contained in 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"); Lutzi v. Lutzi, 485 N.W.2d 311, 314 (Minn. App. 1992) (holding trial court erred in modifying express language of judgment to reconcile perceived ambiguities in its provisions); Geiger v. Geiger, 470 N.W.2d 704, 706 (Minn. App. 1991) (stating "[t]he written order or decree of a court can have no other meaning than that which the actual words used therein convey"), review denied (Minn. Aug. 1, 1991). Here, the parties agreed by stipulated decree that respondent would have sole physical custody of the parties’ children. We must accept the denomination of custody stipulated by the parties, irrespective of how frequently appellant visited the children.

Next, appellant argues that in concluding he had failed to make a sufficient prima facie showing against removal, the district court erred in applying the endangerment standard in Minn. Stat. § 518.18, subd. (d). Specifically, he argues that Minn. Stat. § 518.18, subd. (d), does not apply to removal cases because a request for permission to move the children’s residence out of state is not a custody modification request or necessarily result in a modification of custody. Again, we disagree.

Although Minn. Stat. § 518.18, subd. (d), "most frequently comes into play upon a noncustodial parent’s motion that custody be transferred to him or her, rather than in the context of a motion for removal," Auge, 334 N.W.2d at 396-97, the Minnesota Supreme Court has concluded that "section 518.18 unambiguously provides that the endangerment standard applies to parties seeking modification of an award of sole physical custody." Frauenshuh, 599 N.W.2d at 158. The supreme court in Frauenshuh did not condition the application of Minn. Stat. § 518.18, subd. (d), on proof that the denial of permission to remove would in fact result in a custody change. Thus, the district court correctly applied the endangerment standard in Minn. Stat. § 518.18, subd. (d), in deciding the present case. Appellant also argues the district court abused its discretion in proceeding with the evidentiary hearing without the benefit of the guardian ad litem’s report. Appellant’s argument is unpersuasive. The district court held an evidentiary hearing in this case to determine if appellant’s proposed relocation was intended to interfere with visitation. Although the report may have been helpful, the courts action in cases that warrant expedition is not an abuse of discretion. There is no evidence in the record that the guardian ad litem’s investigation would have discovered information appellant could not have uncovered through discovery and cross-examination of respondent and other witnesses. The record supports the district court’s finding that respondent sought to relocate to take advantage of a job that would increase her earning potential, rather than to interfere with visitation. Therefore, the district court did not abuse its discretion in proceeding with the evidentiary hearing without the guardian ad litem’s report.

Last, appellant claims the district court abused its discretion in modifying visitation sua sponte and thereby depriving him of an opportunity to be heard. Auge requires the court to modify visitation as "reasonable and necessary to maintain a good relationship between the non-custodial parent and child" when granting permission to relocate the children. 334 N.W.2d at 400; see also Silbaugh, 543 N.W.2d at 642 (noting the district court "is in a good position to establish a visitation schedule appropriate for the changed circumstances of the * * * children"); Geiger, 470 N.W.2d at 708 (stating removal may not be denied simply because it interferes with visitation "[s]o long as the court establishes a reasonable alternative visitation schedule"). The district court was thus well within the bounds of its discretion in modifying visitation to accommodate changed circumstances and preserve the relationship between appellant and the children.

We do not doubt that the removal of the children from Minnesota will be difficult for appellant, who invested a great deal in maintaining a close relationship with the children after he and respondent separated. Nonetheless, we cannot say that the district court’s findings are clearly erroneous or that it erred in applying the law.


Respondent moves this court for an award of costs and attorney fees incurred on appeal, claiming she lacks the funds to pay them. This court may award reasonable attorney fees incurred on appeal. Minn. Stat. § 518.14, subd. 1 (1998); Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 691 (Minn. App. 1989), review denied (Minn. June 1, 1989). In determining whether to award attorney fees, the court must consider the financial resources of both parties and whether the fees are necessary for the good-faith assertion of a party’s rights. Minn. Stat. § 518.14, subd. 1.

An award of costs and attorney fees is not necessary for the good-faith assertion of respondent’s rights. The record shows respondent has financial resources to pay attorney fees. And appellant made a good-faith assertion of his rights. We therefore deny her motion for costs and attorney fees.

Affirmed; motion denied.