This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In Re the Matter of:

Terry Jo Jokippi,



Larry E. Miller,


Filed February 24, 1998


Schumacher, Judge

Dissenting, Shumaker, Judge

Hennepin County District Court

File No. PA23266

Terry Jo Jokippi, 2885 Oakwood Lane, Oshkosh, WI 54904 (respondent pro se)

Brian L. Sobol, Katz & Manka, Ltd., 4150 First Bank Place, 601 Second Avenue South, Minneapolis, MN 55402 (for appellant)

Candace J. Barr, Niemi & Barr, P.A., 510 Marquette Avenue, Suite 700, Minneapolis, MN 55402-1110 (guardian ad litem)

Considered and decided by Huspeni, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.



The district court granted respondent Terry Jo Jokippi's motion to remove the parties' minor child from the state despite findings that the move was to alienate the child from appellant Larry E. Miller. Miller and the guardian ad litem seek review of the removal decision and the court's decision not to award attorney fees. 1

We affirm.


Miller and the guardian do not question the accuracy of the district court's factual findings, but rather challenge the conclusions of law.

In early 1996, Jokippi was granted temporary permission to remove the child to Wisconsin. Due to several continuances, the evidentiary hearing regarding removal did not commence until nearly one year later. At that hearing, the district court specifically found that Jokippi's move to Wisconsin did not provide increased economic, educational, family, or quality of life benefits to the child and was for the purpose of interfering with Miller's access to and relationship with the minor child. The court also found that Jokippi alienated the child from Miller in numerous ways, such as demonstrating hostility towards Miller and not allowing items from Miller to come into the home. The court concluded, however, that it would cause greater conflict and tension to the child if Jokippi's motion to remove were denied.

The district court made several findings that support removal, namely, the child's significant familial relationships were those that he enjoys with Jokippi's younger son and husband, under Jokippi's care the child enjoyed a reasonably stable home environment, and the parties' conflict endangered the child's emotional health and well-being.


Broad discretion is granted to the trial court to determine what is in a child's best interest in the area of visitation. Rutten v. Rutten, 347 N.W.2d 47, 51 (Minn. 1984); Anderson v. Archer, 510 N.W.2d 1, 5 (Minn. App. 1993). "[I]n all matters involving court-established family relationships of children, * * * our paramount commitment [is] to the best interests of the children." Olson v. Olson, 534 N.W.2d 547, 549 (Minn. 1995). "The `best interests' of the child is a factual issue." Kennedy v. Kennedy, 376 N.W.2d 702, 708 (Minn. App. 1985) (Wozniak, J. dissenting) (citing Willmore v. Willmore, 273 Minn. 537, 539, 544, 143 N.W.2d 630, 632-34 (1966)). Unless clearly erroneous, a trial court finding concerning the best interests of the child must be upheld, but we need not defer to the lower court on questions of law. Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993).

Miller's argument centers on the removal statute, which reads:

The custodial parent shall not move the residence of the child to another state except upon order of the court or with the consent of the noncustodial parent, when the noncustodial parent has been given visitation rights by the decree. If the purpose of the move is to interfere with visitation rights given to the noncustodial parent by the decree, the court shall not permit the child's residence to be moved to another state.

Minn. Stat. § 518.175, subd. 3 (1996).

Miller and the guardian ad litem argue that the district court erred as a matter of law because it did not follow the mandatory language of section 518.175, subdivision 3. They point to the specific findings regarding Jokippi's interference and alienation and argue that the district court had only one option under the statute: not to grant Jokippi permission to remove the child to Wisconsin.

The district court, however, is not constrained by such a literal interpretation. The paramount principle of all "court-established family relationships" is the best interests standard. Olson, 534 N.W.2d at 549. The case most frequently cited by Miller, Auge v. Auge, 334 N.W.2d 393 (Minn. 1983), supports using a best interest standard. In Auge, the supreme court concluded that the focus of a court's review of a custodial parent's decision to move out of state "should remain, where the legislature has placed it, on the best interests of the child." Id. at 400.

While the district court in this case did make findings that Jokippi acted in a manner which interfered with Miller's visitation rights, the ultimate decision to allow Jokippi's move to Wisconsin was based on the best interests of the child. The district court concluded that to force Jokippi to return from Wisconsin would only increase an already hostile environment that would, in turn, further negatively influence the child. The district court also found that: Jokippi provided a stable living environment; the child had significant relationships with his stepfather and stepbrother; and the child's time in Wisconsin was going well. Caselaw supports the district court's reliance on factors such as permanence, stability, and continuity. See Silbaugh v. Silbaugh, 543 N.W.2d 639, 642 (Minn. 1996) (affirming district court's consideration of stability, permanence, and closure in custody matters).

We hold that the district court did not err as a matter of law when it applied the best interests standard to this case, nor was it in error when it concluded that removal served the child's best interests. We must add, however, that we consider today's decision to be a victory for no one. The parties' nearly seven years of litigation with hundreds of motions reveals only that considerations of what would be best for their child have long since been forgotten in the parties' desire to hurt each other, regardless the cost.

The district court's decision not to award either party attorney fees was not an abuse of discretion and is affirmed. The motion to recaption the case is denied. The motion to strike Jokippi's brief because it contains material outside the record is denied. Millers' motion to strike Jokippi's December 18, 1997, response to Miller's and guardian ad litem's reply briefs is granted because the rules of appellate procedure do not allow Jokippi to submit a responsive brief to a reply brief. Minn. R. Civ. App. P. 128.02, subds. 3, 4.


SHUMAKER, G., Judge (Dissenting)

I respectfully dissent and would reverse. The district court's factual findings and conclusions, in light of controlling statutory and case law, do not support the ruling that respondent is entitled to change the minor child's residence from Minnesota to Wisconsin.

The district court's painstakingly detailed, precise and thoughtful findings and conclusions in its Order Amending Judgment and Decree dated June 13, 1997, delineate a history of respondent's persistent interference with appellant's visitation with the parties' minor child to the clear detriment of the child's well-being.

Visitation problems have been ongoing since the court awarded sole physical and legal custody to respondent in 1991. Then on May 25, 1995, the court issued an order expanding appellant's visitation, warning respondent that future interference with visitation would result in a hearing on the issue of changing custody, and stating:

It is essential that Plaintiff come to acknowledge that it is in the child's best interest to have a genuine relationship with his father and the record is replete with evidence that Plaintiff is willfully resistant to that idea.

The following November, respondent notified appellant that her husband had moved to Wisconsin to work there and that she wanted permission to change the child's residence. Before receiving a response to her request, she signed an agreement to purchase a home in Wisconsin. A few days later appellant notified her that he objected to the residence change. By that time, respondent had already listed her house in Minneapolis for sale. One month after receiving appellant's refusal to consent to the residence change, respondent moved the district court for approval of the change.

For various reasons the hearing on the motion was continued. Appellant and the guardian ad litem requested that there be no move before the hearing. Respondent, however, informed the court that she had nowhere to live after January 29, 1996 and the court granted her temporary permission to move.

After a hearing on February 14, 1996, the court entered its order on March 1, 1996 ruling that appellant had made a prima facie showing that, by changing the child's residence, respondent intended to interfere with visitation.

The district court heard evidence on various dates between February 19, 1997 and April 11, 1997 and then, on June 13, 1997, issued its Order Amending Judgment and Decree. In that order, the district court cited numerous examples of respondent's obstruction of appellant's visitation rights, including respondent's antagonism toward his visitation suggestions; inflexibility about compromising visitation issues; proclivity for expressing her anger toward appellant and making derogatory statements about appellant in the presence of the child, and for actively involving the child in the parties' conflicts; interference with telephone visitation; pattern of parental alienation in which she actively undermined the child's relationship appellant; and her lack of cooperation with the guardian ad litem and the child's psychologist.

From the extensive factual findings the district court reached several significant conclusions: (1) the move to Wisconsin is for the purpose of interfering with the relationship between appellant and the child; (2) the parties' ongoing conflict, particularly respondent's actions prior to and after the move, has endangered the child's emotional health and well-being; (3) respondent lacks the disposition to encourage and permit frequent and continual contact between the child and appellant; (4) the move has impeded the guardian ad litem in performing her duties; and (5)

The Court's warning in the May 25, 1995 Order, as well as Plaintiff's course of conduct over the years leads this court to conclude that Plaintiff's move to Wisconsin was not mere coincidence, but a deliberate attempt to circumvent the access provisions this Court has carefully put into place over time, to subvert the process of Defendant further establishing and maintaining a relationship with the minor child, and to obstruct the ability of this Court, the guardian ad litem, and other professionals who have been intimately involved with this case to monitor the parties and assist the minor child in dealing with the destructive effects of his parent's ongoing conflict.

Despite the findings of a past pattern of intentional interference with visitation and the conclusion that the change of the child's residence was specifically and intentionally designed to interfere further with visitation, to impair the relationship between appellant and his child, and to circumvent court directives, the district court granted respondent's motion, saying that a denial would exacerbate the parties' animosity and cause the child greater problems.

Under Minnesota law:

The custodial parent shall not move the residence of the child to another state except upon order of the court or with the consent of the noncustodial parent, when the noncustodial parent has been given visitation rights by the decree. If the purpose of the move is to interfere with visitation rights given to the noncustodial parent by the decree, the court shall not permit the child's residence to be moved to another state.

Minn. Stat. § 518.175, subd. 3 (1996).

In the leading case of Auge v. Auge, 334 N.W.2d 393, 400 (Minn. 1983), the supreme court said:

When removal is permitted, the court shall make such modifications of visitation as are reasonable and necessary to maintain a good relationship between the noncustodial parent and child * * * provided that such adjustments are not against the best interests of the child. If the purpose of the move is to interfere with visitation rights, removal shall not be allowed.

The majority suggests that the clear directive of Minn. Stat. § 518.175, subd. 3 and of Auge need not be taken literally in view of the paramount "best interests of the child" standard.

The majority holds that the district court's ultimate decision was based on the child's best interests, and that the district court made some findings favorable to respondent and relied on factors such as permanence, stability and continuity, all of which are properly relied upon under case law.

I read the district court's findings and conclusions differently. Although some findings were favorable to respondent, the dispositive findings were not. Among them are findings that it is in the child's best interests to have a genuine relationship with appellant; that the child's best interests are served through contact with appellant facilitated by expanded visitation; that respondent has persistently and intentionally interfered with visitation; that the current custody situation and particularly respondent's conduct endanger the child's emotional health and impair his emotional development; and that the change of residence was specifically for the purpose of interfering with appellant's visitation rights. And even though the factors of permanence, stability and continuity are supported in case law, the district court did not rely on them. In paragraph 34 of the June 13, 1997 order, the court said:

No evidence was adduced at trial with respect to the desire for maintaining continuity. Certainly it is beneficial for children to experience continuity, stability and security in their lives; however, given the level of Plaintiff's interference with Michael's relationship with his father, the Court finds that maintaining continuity is secondary to ensuring that this child is allowed to experience the joy and security of maintaining a relationship with his father.

The district court's findings amply support its conclusions, but neither the findings nor the conclusions reasonably support the ultimate ruling. It is my opinion that the ultimate ruling is clearly erroneous.

As a final note, I respect the district court's sincere effort to protect a child caught in the crossfire of his parents' animosity by making an equitable ruling, but the ruling comports with neither the district court's own findings and conclusions nor with the law. As such it should not be permitted to stand.