This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-197

 

In re the Marriage of:

 

Connie Aileen Cepek n/k/a

Connie Aileen VanValkenburg, petitioner,

Appellant,

 

vs.

 

Scott Anthony Cepek,

Respondent.

 

Filed December 14, 2004

Affirmed

Hudson, Judge

 

Dakota County District Court

File No. F4-94-15085

 

John T. Burns, Jr., Burns Law Office, 115 American Bank Building, 14300 Nicollet Court, Burnsville, Minnesota 55306 (for appellant)

 

Terry H. Rueb, Rueb & Karl Law Office, 2500 West County Road 42, Suite 110, Burnsville, Minnesota 55337 (for respondent)

 

            Considered and decided by Hudson, Presiding Judge; Kalitowski, Judge; and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

On appeal in this custody-modification dispute, appellant-mother argues that the record does not support modification of legal custody, and the district court erred by awarding joint legal custody.  Appellant also argues that the district court improperly awarded conduct-based attorney’s fees for conduct occurring outside the current litigation process.  Finally, appellant argues that the record does not support the reimbursement of visitation expenses awarded by the district court, or the modification of visitation ordered by the district court.  We affirm. 

FACTS

Connie Aileen Cepek, n/k/a/ Connie VanValkenburg (appellant), and Scott Anthony Cepek (respondent) are the parents of two minor children.  The parties’ marriage was dissolved by judgment and decree entered on November 4, 1994, under which the parties shared joint legal custody, but appellant was granted sole physical custody subject to respondent’s right to supervised parenting time.  Respondent voluntarily agreed to undergo anger-management counseling.  Appellant married Tim VanValkenburg in August 1996, and moved with the children from Apple Valley to Elk River.  The parties engaged in almost continuous litigation that culminated in a fourth amended judgment and decree entered in June 2000.  Under this judgment, appellant had sole legal and physical custody, but each party had the right of access to records and information regarding school, medical, dental, and religious training.  Additionally, respondent could solicit court intervention if he disagreed with appellant’s parenting decisions.

            In late 2001, the children (ages 10 and 9) became resistant to attending parenting time with respondent, and no parenting time occurred between January 11, 2002, and June 3, 2002.  During that period, respondent gave the children permission to skip parenting-time sessions with him and appellant did not require the children to attend parenting time.  On June 6, 2002, respondent moved the court to find appellant in contempt for failure to comply with the fourth amended judgment and decree alleging that appellant either failed to facilitate or interfered with respondent’s parenting time.  Respondent also sought compensatory visitation and a change of custody.

In its July 2, 2002 order, the district court stated that it expected appellant to use her parental authority to require the children to attend parenting time with respondent.  The court appointed Dr. James H. Gilbertson as custody evaluator.  The order directed Dr. Gilbertson to conduct an independent investigation and to submit a report addressing 11 issues, including permanent legal and physical custody and counseling for both parties and the children.  After the district court issued this order, parenting time with respondent resumed as scheduled.

Dr. Gilbertson released his report on November 29, 2002.  Appellant retained new counsel, who contacted the court requesting additional time to familiarize himself with the matter and attempt a settlement.  The court waived the 30-day deadline for raising objections to Dr. Gilbertson’s report and the parties began settlement negotiations.  According to a letter from respondent’s counsel to the district court, the first settlement conference was postponed on three occasions by appellant’s counsel and eventually held on May 7, 2003, five months after the issuance of Dr. Gilbertson’s report.  Subsequent attempts to schedule a conference date were likewise unsuccessful.

During this period of delay, a dispute between the parties arose over conflicting vacation plans.  Respondent purchased non-refundable airline tickets on June 11, 2003, to take the children to Florida from August 5–12.  Three days later, appellant informed respondent of her intent to take the children to New York from July 24 through August 7.  At that time, appellant learned of respondent’s vacation plans.  Under the fourth amended judgment and decree, respondent was required to give appellant 60 days’ notice of vacation plans.  Respondent’s notice in this case was within 50 days.  Because respondent’s notice was not timely, appellant refused to adjust her vacation schedule to accommodate respondent’s plans. 

Respondent sought court intervention.  Respondent’s counsel sent letters to the district court in late June and early July 2003 detailing the parties’ difficulties in reaching a settlement, notifying the court of appellant’s vacation plans, and requesting immediate implementation of Dr. Gilbertson’s recommendations.  Respondent alleged that appellant unnecessarily and intentionally lengthened the proceedings to retain the current parenting-time schedule over the summer. 

In a letter to counsel on July 14, 2003, the court interpreted respondent’s recent correspondence as a request for a hearing and urged the parties to schedule a hearing date “as soon as possible.”  Appellant suggested a September hearing date to avoid summer parenting conflicts.  Respondent sent a letter to the district court on July 29, 2003, proposing August hearing dates and requesting court-ordered parenting time from August 4–28 to coincide with his proposed vacation.  In an order dated July 31, 2003, the court scheduled an evidentiary hearing for August 21, 2003, and ordered respondent’s requested parenting time. 

Appellant did not comply with the district court order because she had driven to New York with the children for her scheduled vacation on July 27.  Appellant’s counsel wrote the court on August 4, 2003, stating that appellant received notice of the district court’s order on August 3, but was unable and unwilling to return to Minnesota in time for respondent’s August 4 parenting time.  But counsel indicated that appellant was willing to transfer the children to respondent immediately upon their return.  Appellant returned to Minnesota on August 7.  Respondent began his court-ordered parenting time on August 8.

Following a court-ordered continuance, the district court held an evidentiary hearing on respondent’s June 6, 2002, motion on September 4, 2003, roughly nine months after Dr. Gilbertson issued his report.  Dr. Gilbertson testified that the children have an affectionate and adoring relationship with appellant, but have marked enmity and profound dislike towards respondent as a result of their prolonged exposure to appellant’s fear and apprehension toward respondent.  Dr. Gilbertson concluded that this antipathy endangers the children’s emotional health, as intensely negative attitudes towards a biological parent become an emotional drain on children, even though the children are presently well adjusted.  Dr. Gilbertson testified that he found no formal findings of domestic abuse and found that respondent poses no current threat or anger risk.  Dr. Gilbertson testified that, to rectify the emotional harm, the children must have more frequent and prolonged exposure to respondent; the children must develop an understanding of—and dependency on—respondent.  Ultimately, Dr. Gilbertson testified that, although the parties have difficulty communicating, the current custody arrangement is not working and a formal joint legal arrangement would more clearly legitimize respondent in this matter and would not allow appellant or the children to be so dismissive of respondent’s presence. 

            In its October 9, 2003, order amending the fourth amended judgment and decree, the district court granted respondent joint legal custody. The court adopted Dr. Gilbertson’s report and testimony as the findings and conclusions of the court and found that the report and testimony were sufficient to decide the issues.  Additionally, the court incorporated the statements of respondent and appellant from their prior affidavits into the record.  The district court also awarded respondent $15,000 in attorney’s fees and granted respondent reimbursement for the $1,275.18 loss respondent incurred because he was unable to take the children to Florida on vacation.  Appellant moved to amend the October 9 order, and the court issued an amended order on January 13, 2004.  The amended order retained all previous provisions but clarified the vacation schedule.  This appeal follows.

DECISION

I

            Appellant contends that the district court’s findings were insufficient to support modification of legal custody.  Appellate review of custody-modification cases is limited to whether the trial court abused its discretion by either making findings unsupported by the evidence or improperly applying the law.  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996).  Where the issue on appeal is the sufficiency of the evidence supporting the trial court’s conclusions, those conclusions will not be disturbed absent an abuse of discretion.  Sharp v. Bilbro, 614 N.W.2d 260, 263 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000).

Modification proceedings are governed by Minn. Stat. § 518.18(d) (2002), which provides that a court may order modification if the district court finds (1) a change in the circumstances of the child or custodian; (2) that modification is necessary to serve the best interests of the child; (3) that the child’s present environment endangers the child’s physical or emotional development, and (4) that the harm likely to be caused by a change of environment is outweighed by the advantages to the child.  See Minn. Stat. § 518.17, subd. 1(a) (Supp. 2003) (listing the 13 best-interests factors). 

The evidence demonstrates the requisite change in circumstances.  In order to support a custody modification, a change in circumstances must be significant and must have occurred since the original custody order.  Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989), review denied (Minn. June 21, 1989).  The district court found that the five-month lapse in visitation and corresponding emotional harm constituted a material change in circumstances from the prior order.   Appellant argues that the five-month lapse in visitation is not sufficiently significant because visitation resumed thereafter according to schedule, appellant poses no future obstacle to respondent’s exercise of parenting time, and the family is progressing in their counseling sessions.  But the district court focused its analysis on the effect that appellant’s conduct had on the children, not the conduct itself.  The district court found that the children now possess a polarized view of their parents and that both children have become alienated from respondent since the prior order.  The district court’s conclusion that this alienation is a significant change in circumstances is therefore not an abuse of discretion.

The district court’s findings likewise support the conclusion that the children are presently endangered.  For an existing or potential threat to a child’s emotional health or physical safety to constitute endangerment, there must be “a showing of a significant degree of danger.”  Sharp, 614 N.W.2d at 263 (quotation omitted).  The district court found that the children are presently endangered because, due to appellant’s inadvertent conduct, the children now possess an unhealthy antipathy toward respondent.  Moreover, intensely negative attitudes toward a parent become a drain on a child’s future emotional development, even though the child is presently clinically unaffected.   See Sharp, 614 N.W.2d at 263 (noting testimony that the parent’s failure to understand the scope of the child’s problem will cause that child emotional damage); Eckman v. Eckman, 410 N.W.2d 385, 389 (Minn. App. 1987) (holding that evidence of a child’s isolation supported modification because of the potential to affect the child’s emotional growth).  Accordingly, the district court did not abuse its discretion.

Finally, the district court did not abuse its discretion in concluding that modification was in the children’s best interest.  Whether modification of custody is in the best interests of the child is determined by an examination of the 13 factors outlined in Minn. Stat. § 518.17, subd. 1(a).  The district court reviewed Dr. Gilbertson’s thorough analysis of each of the best-interest factors and adopted Dr. Gilbertson’s recommendation for a change in custody.  In addition, the district court noted that the change in circumstances—the lapse in visitation and the accompanying animosity toward respondent—and the finding of endangerment to the children’s emotional health made modification necessarily in the children’s best interest.[1]

II

A determination that joint custody is appropriate will not be disturbed on appellate review unless the district court abused its discretion.  Wopata v. Wopata, 498 N.W.2d 478, 481 (Minn. App. 1993).  Where a grant of joint custody is contemplated, in addition to the 13 best-interests factors, the district court must consider the following:

(a) The ability of parents to cooperate in the rearing of their children;

 

(b) Methods for resolving disputes regarding any major decision concerning the life of the child, and the parents’ willingness to use those methods;

 

(c) Whether it would be detrimental to the child if one parent were to have sole authority over the child’s upbringing; and

 

(d) Whether domestic abuse . . . has occurred between the parents.

 

Minn. Stat. § 518.17, subd. 2 (2002).  Under the statute, it is rebuttably presumed that joint legal custody is in the best interests of the child.  Id.  If the district court determines that domestic abuse has occurred, however, the presumption is against joint legal custody.  Id. 

Appellant argues that the award of joint custody was improper because the district court did not consider the requisite statutory factors.  Appellant correctly notes that the district court failed to specifically address the joint-custody factors in its October 9, 2003, order modifying custody.  But this lack of specificity does not constitute clear error.  “It is sufficient if the findings as a whole reflect that the trial court has taken the relevant statutory factors into consideration in reaching its decision.”  Berthiaume v. Berthiaume, 368 N.W.2d 328, 332 (Minn. App. 1985).

Here, the findings as a whole demonstrate that the district court considered the relevant statutory factors.  The district court found that the current custody arrangement is adversely affecting the children and opined that some change must be implemented to legitimize respondent’s role as a parent and counteract appellant’s inadvertent communication that respondent is unfit.  Moreover, the district court found that both parents had the capacity and disposition to physically care for the children, and both parties would provide the requisite care, nurturing, and protection.  Finally, the district court found no evidence of any formal findings that respondent was abusive toward appellant, or that respondent posed a current threat to appellant.  Therefore, the district court did not err in presuming that joint custody was in the best interests of the children and did not abuse its discretion in awarding joint legal custody.

Appellant further argues that joint custody is inappropriate because the evidence in this matter does not support the finding that the parties are capable of cooperating.  Here, the court found no evidence of conflicts between respondent and appellant related to issues such as education, health care, or religion.  Rather, the court found conflict relating to the implementation of respondent’s parenting time schedule.  See Berthiaume, 368 N.W.2d at 332–33 (upholding joint custody award despite evidence that the parties could not cooperate during dissolution proceeding because the record did not indicate that the parties had basic differences concerning the general upbringing of their children).  As such, the district court did not clearly err in finding the parties sufficiently capable of cooperation to navigate a joint legal custody arrangement.

Appellant contends that the district court’s award of joint custody was an improper tactic designed to send a message to appellant and coerce appellant and the children into giving respondent additional recognition.  It is an abuse of discretion for a court to award joint custody as a means of coercing cooperation between the parties.  Chapman v. Chapman, 352 N.W.2d 437, 441 (Minn. App. 1984).  The district court awarded joint custody as a tool to repair the damaged relationship between respondent and the children.  The district court did not improperly apply joint custody as leverage for cooperation.

III

Appellant argues that the district court improperly awarded respondent attorney’s fees based on conduct that occurred outside of the litigation process.[2]  An award of attorney’s fees under Minn. Stat. § 518.14, subd. 1 (2002), rests almost entirely within the district court’s discretion and will not be disturbed absent an abuse of that discretion.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).  Minn. Stat. § 518.14, subd. 1, authorizes a district court to award “additional fees, costs, and disbursements against a party who unreasonably contributes to the length or expense of the proceeding.”  Conduct occurring outside the litigation process of the current proceeding cannot provide the basis for a conduct-based award.  Sammons v. Sammons, 642 N.W.2d 450, 459 (Minn. App. 2002).  The party who moves for conduct-based attorney’s fees has the burden to show that the other party’s conduct unreasonably contributed to the length or expense of the proceeding.  Geske v. Marcolina, 624 N.W.2d 813, 818 (Minn. App. 2001). 

The district court awarded respondent $15,000 in attorney’s fees because “[t]he numerous motions and the added expense of the current litigation between the parties is the result of the actions of petitioner as is shown by the affidavits and now the testimony of Dr. Gilbertson,” and because appellant’s desire to distance herself from respondent, including her move to Elk River, had been the cause of most of the motions between the parties.  The court further found that appellant has acted in bad faith to unnecessarily delay the proceedings, and the conduct-based award would deter future delays.  While the district court did not limit its analysis to events that unreasonably contributed to the length of the current proceedings, or the proceedings initiated by respondent’s June 2002 motion, the district court based its finding on appellant’s bad-faith measures designed to delay implementation of Dr. Gilbertson’s recommendations.  Thus, there is sufficient evidence in the record underlying the court’s finding of bad faith conduct in the current proceedings, and therefore the district court did not abuse its discretion by awarding attorney’s fees. 

IV

Appellant argues that the district court improperly awarded respondent reimbursement for vacation expenses he incurred in anticipation of parenting time because the court failed to make specific findings explaining its rationale.  A district court’s award of parenting time expenses under Minn. Stat. § 518.175, subd. 6(c)(4) (2002), will not be overturned absent an abuse of discretion.  Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).  Here, the district court found that appellant could have, and should have, adjusted her vacation schedule to accommodate respondent’s plans.  While respondent’s notice was not timely by ten days under the decree, he could not purchase tickets until he was positive about his available dates for travel.  The district court adequately explained its rationale for the award and did not abuse its discretion. 

V

            Finally, appellant argues that the district court’s modification of respondent’s parenting schedule providing respondent with additional weekend parenting time is not in the children’s best interests because it requires the children to spend too much time away from their extra-curricular activities, friends, and religious instruction.  Modification of a visitation order is required whenever it would serve the best interests of the child.  Minn. Stat. § 518.175, subd. 5 (2002).  The district court has broad discretion to determine the child’s best interests in the area of visitation.  Rutten v. Rutten, 347 N.W.2d 47, 51 (Minn. 1984).  The court awarded respondent additional parenting time based on Dr. Gilbertson’s conclusion that it was necessary to repair the children’s relationship with respondent.  As such, the modification was not an abuse of discretion.

            Affirmed.