This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1957

 

In re the Marriage of:

Steven Thomas Hennek,

Petitioner/Appellant,

 

v.

 

Margaret Giles Hennek

n/k/a Margaret Frances Giles,

Respondent.

 

 

Filed August 1, 2006

Reversed and Remanded

Ross, Judge

 

Ramsey County District Court

File No. DM-F3-02-384

 

 

Timothy D. Lees, Hennek, Klaenhammer & Lees, P.A., 2585 Hamline Avenue North, Suite A, Roseville, MN 55113 (for petitioner/appellant)

 

Suzanne Born, 2440 Brookridge Avenue, Golden Valley, MN 55422 (for respondent)

 

 

Considered and decided by Wright, Presiding Judge; Toussaint, Chief Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

ROSS, Judge

Appellant-father Steven Thomas Hennek challenges the district court’s order directing that E.H., the child of Hennek and respondent-mother Margaret Frances Giles, attend school in Giles’s district of residence rather than Hennek’s.  Because the district court’s findings are inadequate to permit appellate review of its decision, we reverse and remand for particularized findings.

FACTS

Hennek and Giles married in 1990.  Their daughter, E.H., was born in December 1999, and they divorced in January 2003.  The district court awarded them joint legal and physical custody of E.H.

In February 2004, Giles was living in Burnsville, in the Rosemount/Apple Valley/Eagan school district.  Hennek lived in Lake Elmo, in the Mahtomedi school district.  During the 2004-2005 academic year, E.H. attended preschool near Lake Elmo on the days she lived with Hennek and attended preschool in Burnsville on the days she lived with Giles.  E.H. was scheduled to begin kindergarten in fall of 2005.  Before the summer of 2005, Hennek enrolled E.H. in all-day kindergarten in Mahtomedi, and Giles enrolled her in all-day kindergarten in Burnsville.  In early July, Hennek had E.H. evaluated by a school-placement advisor, who, based on E.H.’s “intellectual and social-personal profile” recommended that “it would be far better for E.H. to be enrolled in the Mahtomedi school system.”

Hennek moved the district court for an order directing that E.H. attend school in Mahtomedi.  Hennek supported the motion with the school-placement advisor’s assessment of E.H. and other evidence purporting to show that Mahtomedi schools are superior to Burnsville schools.  Giles moved the court for an order directing that E.H. attend school in Burnsville.  The district court conducted a hearing and ruled from the bench that “the best interests of [E.H.] require that she go to the school in the district where her mother resides,” adding, “I’m not making this decision by making a judgment as to whether Mahtomedi is not as good as [Burnsville] or that they’re equal or that one is better than the other.”  Asked by Hennek’s counsel to specify the findings supporting its decision, the court stated, “I’m doing it in the best interests of the child because I think the child should go to school in the district where the mother resides, and you can put that in as a finding.  And I don’t think it requires any other findings.”  In its written order, the district court indicated that it was not persuaded by Clark’s report “that Mahtomedi is a better school than [Burnsville] for [E.H.],” it explained that “[t]he decision where the child shall attend school is not based on differences between the school districts,” and it concluded that “[i]t is in [E.H.’s] best interest that she attend kindergarten in the school district determined by her mother’s residence.”  This appeal follows.

 

D E C I S I O N

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 share 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).  An award of legal custody identifies who is entitled to decide where a child will attend school.  Therefore, when a district court makes that decision, it is deciding a question that, under ordinary circumstances, the custody statutes intend the child’s legal custodian (or custodians) to answer.  We also note that 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 itself 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,” such as where a child will attend school.  Novak, 446 N.W.2d at 424. Findings of fact that form the basis for the custody decision are not set aside unless clearly erroneous, and the record is reviewed in the light most favorable to the district court’s findings.  Minn. R. Civ. P. 52.01; Frauenshuh, 599 N.W.2d at 156.  “It is not this court’s duty to weigh all of the evidence and come to an independent conclusion concerning the [child’s] best interests.”  Gustafson v. Gustafson, 376 N.W.2d 290, 293 (Minn. App. 1985).

When joint legal custodians, like the parents here, cannot agree on which school their child should attend, the district court must resolve the dispute consistent with the child’s best interests.  Novak, 446 N.W.2d at 424.  A child’s “best interests” are defined as “all relevant factors,” including those listed in Minn. Stat. § 518.17, subd. 1(a)(1)-(13).  Minn. Stat. § 518.17, subd. 1(a) (2004).  “The court must make detailed findings on each of the factors and explain how the factors led to its conclusions and to the determination of the best interests of the child.”  Id.  To be adequate, best-interests findings must “facilitate effective appellate review, . . . provide insight into which facts or opinions were most persuasive of the ultimate decision, [and] demonstrate the trial court’s comprehensive consideration of the statutory criteria.”  In re Welfare of M.M., 452 N.W.2d 236, 239 (Minn. 1990); see also Abbott v. Abbott, 481 N.W.2d 864, 867 (Minn. App. 1992) (observing that unless a district court makes findings regarding the statutory factors, “it is nearly impossible for [an] appellate court to conduct a meaningful review”).

Hennek contends that the district court failed to make adequately detailed findings in support of its decision that E.H.’s best interests are served by attending school in Giles’s district of residence.  We believe Hennek is correct.  The district court’s order contains six findings of fact.  The first four provide the factual background of the school-selection disagreement; the fifth states that the differences between the school districts did not influence the decision; and the sixth concludes summarily that E.H.’s best interests are served by attending school in her mother’s home district.  These findings tell us nothing of the basis for the district court’s decision, and so they do not permit effective review.  Their inadequacy requires that we reverse the decision and remand for further consideration of the relevant statutory factors and preparation of particularized findings relating to these factors.  See Rogge v. Rogge, 509 N.W.2d 163, 166 (Minn. App. 1993) (holding that remand is warranted when inadequate findings prevent meaningful review), review denied (Minn. Jan. 28, 1994).

It is true that the list of statutory best-interest factors is neither exclusive nor suited to mechanical application when the district court is addressing a child’s best interests for reasons other than awarding custody, as here.  In re Paternity of B.J.H., 573 N.W.2d 99, 102 (Minn. App. 1998) (considering a child’s best interests in the context of resolving conflicting paternity presumptions).  But this is not a case in which the district court declined to consider statutory best-interests factors relevant to custody but not relevant to the school-choice question, or in which the court considered relevant extra-statutory factors.  Instead, the court’s only indication of the basis for its decision was its conclusory sixth finding and its statement that having “reviewed everything,” it would decide the matter “based on the child’s best interests.”  Although the court was not required to give specific findings on each best-interests factor, Nazar v. Nazar, 505 N.W.2d 628, 633 (Minn. App. 1993), review denied (Minn. Oct. 28, 1993), superceded by statue on other grounds, Minn. Stat. § 518.551, subd. 5b(d) (2004), the court’s mere invocation of the best-interests standard provides us no meaningful insight into how the court reached its decision.

Hennek also contends that the district court’s determination was impermissibly based on Giles’s gender.  He speculates that because “[t]he only difference between these parties [for the purpose of school selection] is gender and a small difference in percentage of time they spend with their child,” the court’s statement that E.H. “should be in the district where [Giles] resides” may be based on gender.  Hennek offers no evidence in support of this serious charge, and we see none in the record.  We decline to presume that the district court’s decision was based on improper gender bias in the absence of clear record evidence, and we urge counsel to adopt the same presumption.  See Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949) (stating appellate courts cannot assume district court error); Luthen v. Luthen, 596 N.W.2d 278, 283 (Minn. App. 1999) (applying Loth).

Reversed and remanded.