A04-1977

In re the Marriage of:

Mary Melissa Martin, petitioner,

Respondent,

vs.

Kurt Wayne Martin,

Appellant.

Filed August 9, 2005

Affirmed

Willis, Judge

Crow Wing County District Court

File No. F1-01-0250

Virginia J. Knudson, Borden, Steinbauer & Krueger, P.A., 302 South Sixth Street, P.O. Box 411, Brainerd, MN 56401 (for respondent)

Kurt Wayne Martin, 109 Second Avenue NE, Brainerd, MN 56401 (pro se appellant)

Considered and decided by Willis, Presiding Judge; Shumaker, Judge; and Crippen, Judge.*

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Pro se appellant father argues that the district court abused its discretion by denying appellant’s motion: (1) for an order directing respondent mother to enroll the parties’ minor child in private school and to limit the school absenteeism of the child; (2) for an order holding respondent in contempt of court; and (3) to reopen judgments entered in this matter. Appellant also sought to remove for prejudice the district court judge assigned to this case, and he appeals from the denial of his notice to remove. Because we find that the district court did not abuse its discretion, we affirm.

FACTS

The marriage of appellant Kurt Martin and respondent Mary Martin was dissolved by a judgment entered in November 2002. The parties have two children, one of whom, M.M., is a minor and is now 13 years old. The parties share joint legal custody of M.M.; respondent has sole physical custody.

The district court entered an amended and supplemental judgment on May 22, 2003, and a further supplemental judgment on July 8, 2003. By a motion dated May 3, 2004, appellant sought an order granting, inter alia, the following relief: (1) directing respondent to enroll M.M. in private school and to limit M.M.’s school absenteeism to no more than five school days per school year; (2) finding respondent to be in contempt of court; and (3) reopening the judgments entered in May and July 2003. A hearing was held on appellant’s motion on August 3, 2004. In a series of orders dated August 17, 2004; September 22, 2004; and September 23, 2004; the district court denied appellant’s motion. After the hearing on his motion, appellant filed a notice to remove for prejudice the district court judge assigned to this case. The request for removal was denied by the chief judge of the judicial district in an order dated October 1, 2004. This appeal from all four of the orders follows.

D E C I S I O N

Appellant first challenges the denial of his motion to require respondent to enroll M.M. in private school and to limit M.M.’s absenteeism. M.M. attended St. Francis of the Lakes Catholic School in Brainerd from kindergarten through the end of the fifth grade. In the spring of 2004, respondent and M.M. discussed where M.M. should attend sixth grade that fall. They decided that M.M. should enroll in Washington Middle School in the Brainerd public school system, a decision with which appellant disagreed.

An award of legal custody includes an award to the legal custodian of “the right to determine the child’s upbringing, including education.” Minn. Stat. § 518.003, subd. 3(a) (2004). When, as here, parents have joint legal custody of a child, “both parents have equal rights and responsibilities, including the right to participate in major decisions determining the child’s upbringing, including education.” Id., subd. 3(b); Novak v. Novak, 446 N.W.2d 422, 424 (Minn. App. 1989), review denied (Minn. Dec. 1, 1989). Because an award of legal custody identifies who is entitled to decide where a child will attend school, when a district court makes that decision, it is deciding a question that the custody statutes expect the child’s legal custodian or custodians to answer. And while a district court’s decision regarding where a child will attend school is a decision that is in the nature of a legal-custody decision, it is not an award of legal custody.

In a typical custody dispute, custody decisions are based on the child’s best interests and are reviewed for an abuse of discretion, which occurs if a district court makes findings unsupported by the evidence or improperly applies the law. Minn. Stat. § 518.17, subd. 3(a)(3) (2004) (describing best-interests standard); Frauenshuh v. Giese, 599 N.W.2d 153, 156 (Minn. 1999) (describing standard of review). “The law makes no distinction between general determinations of custody and resolution of specific issues of custodial care.” Novak, 446 N.W.2d at 424. Therefore, a district court’s resolution of a specific issue of custodial care, such as where a child will attend school, must also be resolved based on the child’s best interests. Id. Here, appellant disputes the district court’s findings regarding the best-interest factors it considered, and he challenges the district court’s failure to make findings on the remaining statutory best-interest factors.

A child’s “best interests” are defined as “all relevant factors,” including those listed in Minn. Stat. § 518.17, subd. 1(a)(1)-(13) (2004). Minn. Stat. § 518.17, subd. 1(a) (2004). But that list of best-interest factors assumes that the determination being made by the district court is an award of custody. In re Paternity of B.J.H., 573 N.W.2d 99, 102 (Minn. App. 1998). Here, the custody of M.M. is not at issue: the parties previously were awarded joint legal custody of M.M., and respondent was awarded sole physical custody. Therefore, the statutory factors in Minn. Stat. § 518.17, subd. 1(a), which are not exclusive even if a district court is using them in awarding custody, can be neither exclusive nor applied mechanically when, as here, the district court is addressing a child’s best interests for reasons other than awarding custody. See id. (reaching this conclusion in considering a child’s best interests in the context of resolving conflicting paternity presumptions). For these reasons, we need not reverse the district court’s school-choice decision on the ground that, in making that decision, the district court considered relevant factors that are not listed in the statute or on the ground that it did not make findings addressing statutory best-interests factors that are not relevant to the school-choice question. See generally id. at 102-03 (affirming, in the context of resolving conflicting paternity presumptions, a district court’s consideration of relevant factors not limited to those listed in Minn. Stat. § 518.17, subd. 1(a), in determining a child’s best interests); Nazar v. Nazar, 505 N.W.2d 628, 633 (Minn. App. 1993) (stating, in reviewing a custody award, that although a district court must consider the best-interests factors listed in Minn. Stat. § 518.17, subd. 1, it need not make specific findings on each factor), review denied (Minn. Oct. 28, 1993).

Appellant challenges the district court’s findings on the preferences of the joint custodians; M.M.’s preferences; the wishes of M.M.’s primary caretaker; and M.M.’s adjustment to her home, school, and community. Findings of fact will not be set aside unless they are clearly erroneous. Minn. R. Civ. P. 52.01. Here, the district court found that appellant wanted M.M. to continue to attend St. Francis and that respondent wanted M.M. to transfer to Washington. The district court also found that (1) respondent claimed that she could not pay M.M.’s tuition at St. Francis; (2) respondent could not afford to donate the $150 volunteer deposit that St. Francis requires or, alternatively, to volunteer the hours that St. Francis requires; (3) St. Francis offers classes through eighth grade but many children at St. Francis transfer to Washington Middle School after sixth grade; (4) M.M. prefers to transfer to Washington; (5) St. Francis and Washington Middle School are both quality schools that can meet M.M.’s needs; and (6) Washington Middle School offers after-school activities and classes for gifted students that St. Francis does not offer.

Appellant has not shown that the district court clearly erred by making these findings, only that he disagrees with them. The district court considered all the evidence presented, and we defer to the district court’s decisions concerning its weight and credibility. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). Review of the record shows adequate support for the district court’s findings. When a district court’s findings are not clearly erroneous, this court need not address whether each challenged finding is supported by the record. Vangsness v. Vangsness, 607 N.W.2d 468, 474-75 & n.1 (Minn. App. 2000); see Wilson v. Moline, 234 Minn. 174, 182, 47 N.W.2d 865, 870 (1951) (stating that an appellate court need not “discuss and review in detail the evidence for the purpose of demonstrating that it supports the trial court’s findings” and that its “duty is performed when [it] consider[s] all the evidence . . . and determine[s] that it reasonably supports the findings”). Therefore, it is unnecessary for us to further address appellant’s discussion of the evidence, and we decline to do so.

Appellant also lists certain findings that, on this record, he alleges that the district court could have made. But merely showing that the record could support findings other than those made by the district court does not show that the district court’s findings are erroneous. Vangsness, 607 N.W.2d at 474.

We also reject appellant’s argument that the district court improperly disregarded the recommendation of the guardian ad litem that M.M. continue to attend St. Francis. When awarding custody, a district court may reject a recommendation in a custody study by explaining why it is rejecting the recommendation or by making detailed best-interests findings. Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991). Here, the district court’s order and accompanying memorandum contain detailed findings showing that it considered factors relevant to the school-choice decision that both are and that are not explicitly listed in Minn. Stat. § 518.17, subd. 1(a). In addition to the findings mentioned above, the district court found that (1) M.M. is well adjusted at St. Francis and has good grades there; (2) respondent, who is M.M.’s primary caretaker, favors sending M.M. to Washington Middle School; (3) appellant has introduced no evidence that a transfer to Washington Middle School will harm M.M.; (4) M.M. is of an age to express a school preference and wants to attend Washington Middle School; and (5) appellant’s desire to have M.M. attend St. Francis does not consider M.M.’s wishes. These findings are sufficient, under Rutanen, to allow the district court to make a decision other than that recommended by the guardian ad litem.

We also reject appellant’s argument that M.M., who was 12 years old at the time of the court’s order, was too young to express a school preference. The district court considered whether M.M. was old enough to express a preference and found that she was. The finding is not inconsistent with caselaw addressing the ages of children found old enough to express custodial preferences. See, e.g., Maxfield v. Maxfield, 452 N.W.2d 219, 223 (Minn. 1990) (stating that ten-year-old child was mature enough to express custodial preference); Petersen v. Petersen, 394 N.W.2d 586, 588 (Minn. App. 1986) (affirming determination that seven-year-old child was capable of expressing custodial preference), review denied (Minn. Dec. 17, 1986). Moreover, this record does not show that the district court clearly erred by finding that M.M. was old enough to express a school preference.

Finally, appellant notes that under Minn. Stat. § 518.003, subd. 3(b), joint legal custodians have “equal rights and responsibilities” regarding the choice of school for their children, and he argues that the district court violated the equality of decision-making created by this statute when it gave respondent’s school preference more weight than his school preference because she was M.M.’s primary parent. This argument is defective for two reasons. First, while joint legal custodians have equal rights and responsibilities when they are making an education decision themselves, that does not mean that when a district court must make a decision that had been entrusted to the parties, it must, or can, give each parent’s preference equal weight. Second, the district court’s findings do not show that it made its school-choice decision based solely or disproportionately on respondent’s school preference; the findings clearly show that the district court considered all of the relevant evidence in the record and made a reasoned decision. Therefore, the district court did not abuse its discretion by denying appellant’s motion to keep M.M. enrolled in St. Francis.

Appellant also sought an order directing respondent to limit M.M.’s school absenteeism “to no more than 5 days per school year, unless dictated otherwise by written directive of a medical doctor.” The district court found such an order to be impractical and unnecessary. Based on the record and on appellant’s failure to cite any authority for such a request, we conclude that the district court properly denied the requested relief.

II.

Appellant also challenges the denial of his motion to have respondent found in contempt of court.

In the marriage-dissolution action, the parties agreed that respondent would receive the proceeds from the sale of the parties’ cabin and that she would be responsible for the capital-gains tax liability resulting from the sale. In 2003, respondent obtained a judgment in the amount of $15,736.53 against appellant for maintenance and child-support arrearages. Appellant moved to stay the judgment. In an order dated January 9, 2004, the district court denied appellant’s motion but ordered respondent to resolve the tax liability on the cabin sale before initiating “an enforcement action” against appellant for the money judgment. When respondent’s attorney docketed the judgment against appellant, appellant moved for a finding that respondent was in contempt of court, alleging that she violated the court’s order barring an “enforcement action” before she resolved the tax-liability issue.

“Contempt is an extraordinary remedy that must be exercised with caution.” Burgardt v. Burgardt, 474 N.W.2d 235, 236 (Minn. App. 1991). The district court has broad discretionary decision-making power in civil contempt proceedings. Hopp v. Hopp, 279 Minn. 170, 174, 156 N.W.2d 212, 216 (1968). This court will not disturb a district court ruling on a contempt motion absent an abuse of that discretion. Erickson v. Erickson, 385 N.W.2d 301, 304 (Minn. 1986).

The district court’s power to hold an individual in contempt is permissive, not mandatory. Minn. Stat. § 588.02 (2004) (stating that “[e]very court and judicial officer may punish a contempt by fine or imprisonment, or both”); compareMinn. Stat. § 645.44, subd. 15 (2004) (“‘May’ is permissive.”) with Minn. Stat. § 645.44, subd. 16 (2004) (“‘Shall’ is mandatory.”). “This power gives the trial court inherently broad discretion to hold an individual in contempt but only where the contemnor has acted contumaciously, in bad faith, and out of disrespect for the judicial process.” Erickson, 385 N.W.2d at 304 (quotation omitted).

Respondent claims that she began a payment schedule with the Internal Revenue Service in January 2004. Respondent’s attorney then docketed the judgment, believing that respondent’s tax-liability issues were resolved. But apparently respondent did not make similar arrangements with the Minnesota Department of Revenue. Although it is not clear from the record, one or both of the agencies may have placed liens against appellant’s property. It appears from the record that respondent then contacted the Internal Revenue Service and the Minnesota Department of Revenue, and those agencies agreed to recapture respondent’s capital-gains-tax liabilities from any tax refunds she receives in the future.

The district court concluded that docketing the judgment did not constitute initiation of an “enforcement action” within the meaning of its January 9, 2004 order, and it denied appellant’s motion to find respondent in contempt. The district court interpreted its own order when it determined that respondent did not violate the January 9, 2004 order. We defer to a district court’s construction of its own order. LaChapelle v. Mitten, 607 N.W.2d 151, 162 (Minn. App. 2000), review denied (Minn. May 16, 2000). We conclude that, on these facts, the district court did not abuse that discretion by denying appellant’s motion for a finding of contempt.

III.

Appellant also challenges the denial of his motion to reopen the judgments entered in May and July 2003. The district court has discretion to reopen a dissolution judgment. Minn. Stat. § 518.145, subd. 2 (2004). And we will not disturb the district court’s decision whether to reopen a judgment and decree absent an abuse of discretion. Kornberg v. Kornberg, 542 N.W.2d 379, 386 (Minn. 1996).

A district court may relieve a party from a judgment and decree, order, or proceeding and may order a new trial or grant other relief on the grounds of: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) a void judgment and decree or order; or (5) satisfaction, release, or discharge of the judgment. Minn. Stat. § 518.145, subd. 2 (2004). A motion under subparts (1), (2), or (3) is time-barred if it is brought more than one year after the date of the judgment and decree, order, or proceeding. Id. In any event, a motion must be made within a reasonable time. Id.

The original judgment in this case was filed on November 13, 2002. On May 22, 2003, the district court filed amended and supplemental findings of fact, conclusions of law, and order for judgment; and it filed a supplemental judgment on July 8, 2003. In his motion dated May 3, 2004, appellant asked the district court to reopen the “filings” of May 22, 2003, and July 8, 2003. Appellant stated no ground for his requested relief.

The district court found that appellant did not clearly state what “mistake, inadvertence, surprise, or excusable neglect” should allow appellant to be relieved of the judgments. But the district court determined that appellant’s argument appeared to be that appellant made a mistake by sending a June 2, 2003 letter to the district court in which appellant disputed his income as set forth in the amended judgment. Appellant acknowledges in his brief on appeal that, rather than sending a letter to the district court, he should have moved to reopen the judgment, and he argues that because of his mistake in failing to follow the appropriate procedure, he should be relieved from the judgments. The district court denied the motion on the ground that appellant’s failure to follow procedural requirements was not a “mistake” within the meaning of section 518.145, subdivision 2. The district court also found that appellant’s motion was not made within a reasonable time.

Appellant’s motion asked “[t]o re-open the decree of dissolution to the extent the [appellant] may move for amendments to the Court’s filings of May 22, 2003 and July 8, 2003.” Appellant provided no facts or argument in his motion or at the hearing to show that the judgments of May 22, 2003, and July 8, 2003, were the result of mistake or to show any other basis for re-opening judgments under section 518.145, subdivision 2. Appellant argues that he was mistaken as to the procedure for reopening a judgment. But appellant’s procedural error is irrelevant to the issue of whether the judgments were based on mistake. Because appellant has not shown that either the amended and supplemental judgment of May 22, 2003, or the supplemental judgment of July 8, 2003, was the result of mistake, the district court did not abuse its discretion by denying the motion to reopen the judgments.

IV.

Appellant challenges the denial of his notice to remove for prejudice the district court judge assigned to this case. Appellant claims that the district court judge was formerly a Brainerd school board member and that appellant had an oral disagreement with him regarding the school board’s management of the district’s resources. Appellant filed his notice to remove on August 24, 2004, three weeks after the hearing on the motion that is the subject of this appeal and more than a year and one-half after the district court judge was first involved in the underlying dissolution action.

“A judge or judicial officer who has presided at a motion or other proceeding . . . may not be removed except upon an affirmative showing of prejudice on the part of the judge or judicial officer.” Minn. R. Civ. P. 63.03.

The district court concluded that appellant had not demonstrated prejudice or implied or actual bias as contemplated by the rule and denied the notice to remove. This was not an abuse of discretion.

Affirmed.

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