may not be cited except as provided by
Minn. Stat. sec. 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Pamela Jo Hendrickson, petitioner
Keith Duncan Hendrickson,
Filed August 26, 1997
Lake County District Court
File No. F3-95-059
Timothy N. Downs, McDonald & Downs, 200 Alworth Building, 306 West Superior Street, Duluth, Minnesota 55802-1973 (for respondent)
Considered and decided by Toussaint, Presiding Judge, Randall, Judge, and Kalitowski, Judge.
Appellant challenges the district court's order awarding custody, scheduling visitation, and setting child support. We affirm.
After a trial on the matter in October and November 1995, the district court granted the divorce and awarded the parties joint physical and legal custody of C.J.H. The court also ordered a distribution of marital property, much of which the parties had agreed to in advance, and allocated the parties' debts between them.
Cyr earns approximately $750 to 800 per month working full time at a credit union, and periodically earns another $120 per month from part-time work as a security guard. The district court found that Hendrickson earns approximately $2,700 monthly as a police officer. Neither party receives public assistance for themselves or C.J.H. The parties have waived their rights to spousal maintenance.
Following motions by both parties for amended findings of fact and conclusions of law, the court issued an amended order in April 1996. In July 1996, Hendrickson appealed the amended order. On December 31, 1996, this court affirmed in part, reversed in part, and remanded with instructions to the district court to award sole physical custody to one of the parties and set liberal visitation.
On remand, the district court awarded sole physical custody to Cyr, granted Hendrickson visitation, and set Hendrickson's child support obligations. Under the court's order, Hendrickson has visitation with C.J.H. for two out of every four days that he does not work (his schedule consists of four days on duty followed by four days off duty), and for two full weeks during the summer. Beginning in September 1997, Hendrickson will have visitation from Friday evening to Sunday evening every other weekend, from 6:00 p.m. to 9:00 p.m. one evening each week, for four weeks each summer, and on several holidays.
In its order on remand, the court found Hendrickson's monthly insurance costs had risen by $230 and that his monthly income for purposes of determining child support had consequently fallen to $2,450. The court set Hendrickson's child support at $610 per month, consistent with the child support guidelines at Minn. Stat. § 518.551, subd. 5 (1996).
On appeal, Hendrickson asserts numerous errors in the court's custody award, visitation schedule, and determination of Hendrickson's monthly income.
The district court found:
There is no significant involvement with extended family members on either parent's side that cannot be adequately preserved and addressed through visitation. Neither [Cyr] nor [Hendrickson] sought nor urged a custodian arrangement which would be in any way in derogation of the relationships that the child has with members of each parent's extended family.
* * * *
The minor child has had stability of relationships derived from her relationship with both [Cyr] and [Hendrickson]. Such relationships have remained a constant for her, and while her place of resident may have changed on occasion, she has been able to maintain stability of relationships with both [Cyr] and [Hendrickson] and with members of each's extended family.
Because these findings speak to the interaction and interrelationships of C.J.H. with her parents and other people who may significantly affect her best interests, we conclude the court did not fail to make the required finding under subdivision 1(a)(5).
Hendrickson also claims the district court erred by not making a finding under Minn. Stat. § 518.17, subd. 1(a)(13), concerning "the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child." In its order, however, the court found that both Cyr and Hendrickson
proposed allowing a significant amount of time to be spent by their child with the other. While denominating such time differently, both acknowledged the appropriateness of the other being significantly involved on an ongoing, regular basis in the raising of their child.
The court's order thus reflects a finding that Cyr and Hendrickson were both disposed to encourage, or at least permit, frequent and continuing contact by the other parent with C.J.H. Accordingly, the district court made a proper finding under subdivision 1(a)(13).
Further, although a court making an initial custody award must consider all of the statutory factors that pertain to the best interests of the child, "the court need not make a specific finding on each and every one." Nazar v. Nazar, 505 N.W.2d 628, 633 (Minn. App. 1993), review denied (Minn. Oct. 28, 1993). A reviewing court will deem the findings of the court making an initial custody award sufficient "if the findings as a whole reflect that the court properly considered the relevant factors in reaching its decision." Roehrdanz v. Roehrdanz, 410 N.W.2d 359, 362 (Minn. App. 1987) (citations omitted).
Here, a review of the district court's findings shows that the court considered all of the relevant factors under section 518.17, subdivision 1(a), in making its custody award. As a result, even if the court had not made findings on either or both of subdivision 1(a)(5) and 1(a)(13), such omission would not have constituted error.
Hendrickson further challenges the district court's finding that both of the parties are able and disposed to give C.J.H. love, affection, guidance, and education within the meaning of Minn. Stat. § 518.17, subd. 1(a)(10) (1996). Hendrickson asserts that the court's findings on this factor were insufficient as a matter of law because the court merely restated the statutory language.
Contrary to Hendrickson's assertions, the court's findings went beyond a mere recitation of the subdivision 1(a)(10) language. In addition to finding that "[b]oth of the parties have the capacity and disposition to give the child love, affection and guidance," the court stated that "[n]o evidence is before the court indicating that either [Cyr] or [Hendrickson] was deficient or limited in their ability to give their daughter love and affection and guidance." On this record, the court's findings under subdivision 1(a)(10) are not insufficient as a matter of law.
Hendrickson also contends that the court erred in finding respondent was C.J.H.'s primary caretaker because the court did not make findings on all of the relevant criteria. In determining which parent is the primary caretaker, a district court "shall determine" which parent has taken primary responsibility for the following duties, among others:
(1) preparing and planning of meals; (2) bathing, grooming and dressing; (3) purchasing, cleaning, and care of clothes; (4) medical care, including nursing and trips to physicians; (5) arranging for social interaction among peers after school, i.e. transporting to friends' houses or, for example, to girl or boy scout meetings; (6) arranging alternative care, i.e. babysitting, day-care, etc.; (7) putting child to bed at night, attending to child in the middle of the night, waking child in the morning; (8) disciplining, i.e. teaching general manners and toilet training; (9) educating, i.e., religious, cultural, social, etc.; and, (10) teaching elementary skills, i.e., reading, writing and arithmetic.
Pikula v. Pikula, 374 N.W.2d 705, 713 (Minn. 1985).
Here, the court found that Cyr
was the parent who prepared and planned the majority of the meals, bathed, groomed and dressed the child and purchased and cared for her clothes the majority of the time. She was the parent who generally arranged medical care, * * * alternative care including daycare, and she was the person who chose the daycare provider. Although [Hendrickson's] participation increased as the child grew, at no time was he providing more parenting than [Cyr]. [She] was the primary parent of the parties' minor child prior to the separation.
Although not specifically identified, the last four Pikula criteria also support the district court's findings. Cyr's uncontradicted testimony was that she put C.J.H. to bed the majority of the time, taught C.J.H. general manners (though the parties shared responsibility for other discipline), enrolled C.J.H. in daycare and Sunday school (although Sunday school began shortly before trial), and that both parties taught her reading and writing.
Hendrickson simply cites various portions of the transcript and argues they compel findings contrary to those of the district court. Cyr's testimony provides support for the district court's findings, and Hendrickson cites no testimony contradicting Cyr's testimony on the Pikula criteria. In light of the due regard we give to the district court's opportunity to judge the credibility of witnesses, the district court's findings on the Pikula criteria were not clearly erroneous. See Minn. R. Civ. P. 52.01 (due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.)
Hendrickson also argues that because only the primary caretaker factor supports an award of custody to Cyr, the court must have erroneously relied exclusively on that factor and used it as a presumption in making the custody award. We disagree. The district court considered and made findings on most, if not all, the statutory factors in determining that custody to Cyr would serve C.J.H.'s best interests. The court did not rely on the primary caretaker factor to the exclusion of other statutory factors.
A reviewing court will not disturb the visitation schedule set by a district court absent an abuse of discretion. See Rutten v. Rutten, 347 N.W.2d 47, 51 (Minn. 1984) (finding that visitation order did not amount to abuse of discretion). Review is therefore limited to a determination of whether the district court made findings unsupported by the evidence or improperly applied the law. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996).
In Rutten, the district court granted a non-custodial father "reasonable" visitation with his five and six year-old children, including every other weekend from noon to eight p.m. on either Saturday or Sunday and one additional afternoon each week. 347 N.W.2d at 51. On appeal, the father argued that the visitation schedule unreasonably limited his ability to maintain a parent-child relationship. Id. The supreme court upheld the visitation schedule on the ground that it did not amount to an abuse of discretion. Id.
Here, beginning in September 1997, Hendrickson will have visitation on every other weekend, one evening each week, four weeks each summer, and several holidays. The district court thus granted Hendrickson substantially more time with C.J.H. than the district court had ordered in Rutten, where the visitation schedule at issue was affirmed. The district court did reduce the amount of time Hendrickson will spend with C.J.H. as compared with the time Hendrickson spent with C.J.H. under the joint physical custody arrangement. The court did not, however, make findings unsupported by the evidence or improperly apply the law. The record is clear that in awarding custody and setting visitation, the district court worked conscientiously to accommodate the parties' work schedules. The court's visitation schedule did not constitute an abuse of discretion.
Hendrickson's reliance on Clark v. Clark, 346 N.W.2d 383 (Minn. App. 1984), review denied (Minn. June 12, 1984), is misplaced because Clark is readily distinguishable from this case. In Clark, the court issued four orders over four years reducing the non-custodial parent's visitation from "reasonable and liberal," to 14 weeks each year, to five and one-half weeks per year. Id. at 385. This court reversed the fourth order as an abuse of discretion. Id. at 386. Here, in contrast, the district court has issued just one order establishing visitation. The visitation is reasonable in light of the parties' work schedules, and we find no error.
We note that the district court found both parties fit for joint legal and physical custody. Courts, trial and appellate, can do only so much. We rely on Cyr and Hendrickson to show their ability to serve as good parents by working with each other to ensure that visitation proceeds smoothly. In the final analysis, the parties' care and love for C.J.H. will be shown in the way they treat and respect each other's visitation rights. Contentiousness over visitation rights always spills over to the child's knowledge, and to the child's detriment.
Hendrickson asserts that the visitation schedule violates his "constitutional right to spend time with C.J.H." But an "assignment of error based on mere assertion and not supported by any argument or authorities in appellant's brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection." Schoepke v. Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (Minn. 1971) (citations omitted). Hendrickson fails to support his constitutional claim with any discussion or case law dealing with this issue, and prejudicial error is not obvious upon mere inspection. Hendrickson thus waived this argument, and we do not address it.
Hendrickson further contends that the district court abused its discretion by failing to appoint a visitation expediter because Hendrickson requested one and Cyr did not oppose Hendrickson's request. The applicable statute, however, provides that upon the request of either party a court "may appoint a visitation expediter." Minn. Stat. § 518.1751, subd. 1(a) (1996) (emphasis added). The term "may" is permissive. Minn. Stat. § 645.44, subd. 15 (1996). The district court was not required to appoint a visitation expediter following Hendrickson's request for one. We do not say that an expediter could not have been appointed, and most certainly it would not be "erroneous" to have one. But these are exactly the discretionary decisions that the trial court is best equipped to field, i.e., expediter or no expeditor. We cannot find reversible error in the trial court's not appointing one.
Hendrickson asserts that the applicable "statute mandates that the trial court make findings on the [Minn. Stat. § 518.551, subd. 5(c) (1996)] factors." Contrary to Hendrickson's assertions, the statute does not require the court to make findings on the subdivision 5(c) factors. Instead, the statute provides simply that
the court shall take into consideration the following factors in setting or modifying child support * * * :
(1) all earnings, income, and resources of the parents, including real and personal property * * * ; (2) the financial needs and resources, physical and emotional condition, and educational needs of the child or children to be supported; (3) the standard of living the child would have enjoyed had the marriage not been dissolved, but recognizing that the parents now have separate households; (4) which parent receives the income taxation dependency exemption and what financial benefit the parent receives from it; (5) the parents' debts as provided in paragraph (d); and (6) the obligor's receipt of assistance under sections 256.72 to 256.87 or 256B.01 to 256B.40.
Minn. Stat. § 518.551, subd. 5(c) (1996) (emphasis added). The court did not err by not making written findings on subdivision 5(c) factors.
Even without specific findings on the subdivision 5(c) factors, those factors support the district court's award of child support. Cyr's monthly income totals approximately one-third of Hendrickson's monthly income. C.J.H. has no financial resources of her own and cannot support herself. The parties alternate taking the income tax dependency exemption, and Hendrickson benefits more from the exemption because of his higher income. Although Hendrickson assumed more debt than Cyr assumed under the court's order, he also received property with significantly greater value than that received by Cyr.
Hendrickson also challenges the district court's determination of his income for the purpose of setting his child support obligations. The district court found Hendrickson's monthly income approximated $2,450. The court made this finding by deducting Hendrickson's approximately $230 increase in monthly insurance costs from the $2,700 monthly income that the court had found in its first findings of fact. Hendrickson did not challenge either of these findings in the district court or on appeal. $2,700 less $230 equals $2,470. The court did not err by finding Hendrickson's monthly income totaled approximately $2,450.