This opinion will be unpublished and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

A05-310

 

In re the Marriage of

 

Thomas Carroll Rubey,

Appellant

 

vs.

 

Valerie Ann Vannett,

Respondent

 

Filed May 15, 2007

Randall, Judge

Affirmed in part, reversed in part, and remanded

 

Washington County District Court

File No. F9-02-4611

 

Mark A. Olson,  Olson Law Office, 2605 E. Cliff Road, Suite 100, Burnsville, MN 55337 (for appellant);

 

Valerie Ann Vannett, 12720 Edinbrook Path, Apple Valley, MN 55124 (pro se respondent);

 

Thomas B. James, 440 North Broadway Ave., Cokato, MN 55321 (for amicus curiae Center for Parental Responsibility);

 

John Remington Graham, 180 Haut de la Paroisse, St-Agapit, (LOT B) Quebec GOS IZO Canada (for amicus curiae R-Kids of Minnesota); and

 

John L. Bauserman, Jr. (pro hoc vice) , Pikrallidas & Associates, 10605 Judicial Drive, Building A-4, Fairfax, VA 22030 (for amicus curiae The Children’s Rights Council).

            Considered and decided by Hudson, Presiding Judge; Randall, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            Appellant challenges the district court’s final judgment of June 21, 2004, awarding sole legal and physical custody of the parties’ daughter to respondent.  Appellant also challenges the district court’s order of December 9, 2004, denying appellant’s motion for amended findings and/or a new trial.  On appeal, appellant argues that the district court abused its discretion by: (1) adopting respondent’s proposed findings verbatim; (2) granting respondent sole legal and sole physical custody in violation of appellant’s due process rights; (3) awarding respondent attorney fees; (4) excluding appellant’s expert testimony; (5) accepting the report of the custody evaluator; and (6) allocating the dependent medical costs to appellant. Appellant also challenges the constitutionality of Minn. Stat. § 518.17.  We affirm in part, reverse in part, and remand.

FACTS

            Appellant Thomas Carroll Rubey and respondent Valerie Ann Vannett married on September 9, 1999, and on July 19, 2002 they had a daughter. The parties separated in October of 2002.  Appellant petitioned for dissolution of the marriage in July 2002, in Washington County District Court.  On October 7, 2002, the court issued a temporary order granting the parties temporary joint legal and joint physical custody of their daughter. 

            After a hearing, the district court issued an order on March 18, 2003, denying appellant’s motion for the paternal grandparents to provide for the daycare of the child; denying appellant’s motion for a child psychologist to be appointed; granting in part respondent’s motion regarding the selection of an unrelated third party daycare provider for the child; and denying respondent’s motion for attorney fees.  

            On the first day of trial, the parties submitted a permanent partial stipulation to the court, including a stipulation on joint legal custody.  The transcript reflects that respondent informed the court of the stipulation contents:  “Basically, we have resolved all issues except for physical custody, parenting time, child support, attorney fees and each party’s income - - net income.”  Appellant agreed.

            On October 22, 2003, the district court issued an emergency ex parte order precluding appellant from entering the child’s daycare center facilities and grounds and eliminating appellant’s lunch visits with the child.  After the trial, the district court issued its findings of fact, conclusions of law, order for judgment and judgment and decree, awarding respondent sole legal and sole physical custody.  Three days later, respondent served a notice of filing and entry of decree.  On July 23, 2004, appellant served respondent with his notice of motion and motion for amended findings and/or new trial. 

            The district court order of December 9, 2004, concluded that under Minn. R. Civ. P. 59.03, it lacked jurisdiction to hear the matter.  In the alternative, the district court denied the motion on the merits.  Appellant appealed from the judgment and decree of June 21, 2004, and the order of December 9, 2004. This court dismissed the appeal, holding that appellant’s new trial/amended findings motion was untimely and that the motion did not stay the time to appeal the judgment and decree. 

            Appellant challenged this court’s dismissal, and the Minnesota Supreme Court reversed this court’s decision and remanded the case back to this court.  Rubey v. Vannett, 714 N.W.2d. 417 (Minn. 2006).

Appellant filed a petition for a rehearing by the Minnesota Supreme Court, which it denied.

D E C I S I O N

I.  Verbatim Findings

            Appellant argues that the district court erred by adopting respondent’s proposed findings verbatim or by merely rephrasing short parts.  Appellant argues that the district court’s findings are not the product of an independent determination of the facts, but rather a verbatim adoption of respondent’s proposed findings, which is a disfavored practice.  See Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002) (noting that the practice of verbatim adoption of party’s proposed findings is not commendable and that the preference is for the district court to develop its findings independently).

            On allegations that the district court has adopted proposed findings verbatim, appellate courts conduct a “careful and searching review of the record.”  Dukes v. State, 621 N.W.2d 246, 258 (Minn. 2001).  If, after a careful review of the record, this court concludes that the district court’s findings are not clearly erroneous, then the verbatim adoption of proposed findings alone is insufficient grounds for reversal.  Id. at 259. The verbatim adoption of a party’s proposed findings of fact and conclusions of law is not reversible error per se.  Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).  “Adoption of a party’s proposed findings by a district court is generally an accepted practice.”  Schallinger v. Schallinger, 699 N.W.2d 15, 23 (Minn. App. 2005) (citation omitted), review denied (Minn. Sept. 28, 2005).  Nevertheless,
verbatim adoption of proposed findings raises the question of whether the district court “independently evaluated each party’s testimony and evidence.”  Bliss, 493 N.W.2d at 590.

            Here, the district court did adopt many of respondent’s proposed findings but did not adopt all of respondent’s findings verbatim.  In its order of December 9, 2004, the district court stated the following: “The Court made several of its own findings and conclusions, which are materially different than those proposed by Respondent.  Just one example is the Court made its own findings with regard to why joint legal custody was inappropriate and ordered Respondent have sole legal custody of the parties’ child.”  The district court concluded: “In addition, the Court has engaged in a review of the evidence and finds the Findings of Fact and Conclusions of Law are not erroneous and are supported by the trial record.  Therefore, Petitioner’s motion for Amended Findings and/or New Trial is denied in its entirety.”  The record shows that the district court heard extensive testimony over seven days of trial from both parties, the parents of the parties, the custody evaluator, the guardian ad litem, and others.  The district court’s findings reflect its determination of witness credibility.  See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating that appellate courts defer to district court credibility determinations).  The district court did not err by adopting respondent’s proposed findings. 

II.  Sole Legal Custody Sua Sponte

            Appellant argues that the district court violated appellant’s due process rights, because the court granted respondent sole legal custody sua sponte.  Appellant contends that he did not have notice that legal custody was at issue, because the parties stipulated before trial that they would share joint legal custody.  The district court gave no indication that it was not accepting the joint legal custody stipulation until it issued its order.  In its order, the district court denied joint legal custody, explaining:

Prior to trial, the parties stipulated to joint legal custody.  However, from the Respondent’s demeanor as she testified regarding the parties’ stipulation to request joint legal custody, it appeared that Respondent’s request was made merely to follow through with the stipulation, not to express a sincere desire for joint legal custody.

 

            Use of stipulations in dissolution proceedings has been approved in Minnesota and is encouraged.  Shirk v. Shirk, 561 N.W.2d 519, 521 (Minn. 1997) (“Courts favor stipulations in dissolution cases as a means of simplifying and expediting litigation, and to bring resolution to what frequently has become an acrimonious relationship between the parties.”); Anderson v. Anderson, 225 N.W.2d 837, 840 (Minn. 1975).  The Minnesota Supreme Court has held that stipulated custody provisions “must be accorded a good deal of deference” and that where two parties stipulate to joint legal custody, “they will be bound by it,” especially if both parties were represented by counsel at the time they entered into the stipulation.  Ayers v. Ayers, 508 N.W.2d 515, 520 (Minn. 1993); Anderson, 225 N.W.2d at 840.

            Here, the parties entered a permanent partial stipulation agreement, in which they agreed, among other things, that they would share joint legal custody of their child.  As the Center for Parental Responsibility’s amicus curiae brief notes, stipulations are “accorded the sanctity of binding contracts.” Shirk, 561 N.W.2d, 521.  Therefore, even before stipulations are approved by the court, they cannot be repudiated or withdrawn except for such cause shown as would be sufficient to vitiate any other legally binding contract such as fraud, duress, or mistake.  Id. at 522; Tomscak v.Tomscak, 352 N.W.2d 464, 466 (1984).  Here, neither party was seeking to vitiate the stipulation, and there was no indication of fraud, duress, or mistake.

            The Minnesota Supreme Court has held that “considerable weight will be given to stipulations entered with the benefit of counsel, but the paramount consideration is the welfare and best interests of the children.”  Frauenshuh v. Giese, 599 N.W.2d 153, 158-59 (Minn. 1999).  See Petersen v. Petersen, 296 Minn. 147, 148, 206 N.W.2d 658, 659 (1973) (stating that courts are not bound by stipulations).  “[A] district court has the discretion to accept all or part of a proposed stipulation.”  Clark v. Clark, 642 N.W.2d 459, 465 (Minn. App. 2002).  But “generally, [a district court] cannot, by judicial fiat, impose conditions on the parties to which they did not stipulate and thereby deprive the parties of their ‘day in court.’”  Toughill v. Toughill, 609 N.W.2d 634, 638-39 n. 1 (Minn. App. 2000).  That is, “to the extent that the district court does not accept the stipulation, the parties should not, absent unusual circumstances, be precluded from litigating their claims.”  Id.  Here, at the conclusion of the trial, the district court decided to reject the joint legal custody stipulation.  The district court failed to inform the parties of its contemplated rejection, and consequently the parties were denied any opportunity to litigate the issue of legal custody. 

            Appellant argues that the district court violated his due process rights, because he did not have notice that the district court would reject the joint legal custody stipulation, which resulted in the lack of an opportunity to litigate or to present evidence on the issue.  We agree. Due process requires “notice, a timely opportunity for a hearing, the right to be represented by counsel, an opportunity to present evidence and argument, the right to an impartial decision maker, and the right to a reasonable decision based solely on the record.”  In re Marriage of Sammons, 642 N.W.2d 450, 457 (Minn. App. 2002) (citing Humenansky v. Minnesota Bd. Of Med. Exam’rs, 525 N.W.2d 559, 565 (Minn. App. 1994), review denied (Minn. Feb. 14, 1995)). 

            Here, neither appellant nor respondent received notice or presented evidence or arguments pertaining to legal custody.  In fact, the evidence presented at trial supported joint legal custody: Both the custody evaluator and the guardian ad litem recommended joint legal custody, stating that granting sole legal custody would be detrimental to the child. 

            Because the district court did not indicate that it was rejecting the parties’ permanent stipulation providing for joint legal custody, appellant did not have proper notice that legal custody was at issue.  The district court erred and abused its discretion by deciding, sua sponte, to award sole legal custody to respondent. We reverse that decision. 

III.  Award of Attorney Fees

            Appellant next argues that the district court committed reversible error by awarding attorney fees to respondent.  In general, a party may not recover attorney fees absent specific authority allowing recovery.  Barr/Nelson, Inc. v. Tonto’s, Inc., 336 N.W.2d 46, 53 (Minn. 1983).  In a dissolution, a district court “shall” order attorney fees if necessary for the good faith assertion of a party’s rights if the party seeking fees lacks the ability to pay the fees, and the party from which the fees are sought is capable of payment.  Minn. Stat. 518.14, subd. 1 (2004).  If a party has unreasonably contributed to the length or expense of the proceeding, the district court may also order attorney fees.  Id.  This court reviews an award of attorney fees for an abuse of discretion.  Gully v. Gully, 599 N.W.2d 814, 825 (Minn. 1999).  Here, the district court abused its discretion by awarding conduct-based and need-based attorney fees to respondent. 

a.         Conduct-based Attorney Fees

            When awarding conduct-based attorney fees, the district court must make findings regarding their basis “to permit meaningful appellate review” of the award.  Knonick v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1991).  Under Minnesota law, to support a conduct-based award a district court must identify the offending conduct, the conduct must have occurred during the proceedings, and the conduct must be found to have unreasonably contributed to the length or expense of the proceeding.  Minn. Stat. § 518.14, subd. 1; Geske v. Marcolina, 624 N.W.2d 813, 818-19 (Minn. App. 2001).  A showing of bad faith is not necessary to support an award of conduct-based fees.  Id.  Awarding conduct-based attorney fees may be appropriate when a party unnecessarily delays the proceedings by taking “duplicitous and disingenuous” positions or by engaging in conduct that increases the costs of litigation.  Redmond v. Redmond, 594 N.W.2d 272, 276 (Minn. App. 1999); Korf v. Korf, 553 N.W.2d 706, 706 (Minn. App. 1996).  An award of conduct-based fees is not appropriate when a party fails to document or state the amount of fees that were incurred as a result of the alleged conduct.  Kitchar v. Kitchar, 553 N.W.2d 97, 104 (Minn. App. 1996). 

            In its order of June 21, 2004, in granting $15,000 in conduct-based attorney fees to respondent, the district court found that “[p]art of Respondent’s attorney fees were due to the action of the [appellant] contributing to the length and expense of this proceeding.”  The court found that appellant’s testimony “had evasive answers and repetitive questions from his counsel regarding the daycare issues when there was overwhelming evidence that [appellant’s] lunch visits were not in Anna’s best interests and the grandparents were not neutral in this proceeding.”  The district court also found that respondent incurred fees when appellant refused to consider third-party daycare according to the Guardian’s recommendation; when appellant attempted submission of treatises without a corroborating expert laying foundation because he failed to properly and timely disclose his expert witness and the facts to which he would testify; when appellant continued his lunch visits after being notified of the problems, causing the guardian ad litem to get involved, adding to the fees; and when appellant hired four different attorneys, thereby causing negotiations and renegotiations of settlements. 

            On this record, appellant’s attempts to protect his interest were, at times, lengthy and involved, but did not rise to the level of an unreasonable delay.  The district court abused its discretion by awarding conduct-based attorney fees.

b.         Need-based Attorney Fees

            The district court awarded $30,000 in need-based attorney fees.  Under Minn. Stat. §518.14, subd. 1, a court “shall award attorney fees, costs, and disbursements in an amount necessary to enable a party to carry on or contest the proceeding” if it finds (a) the fees are necessary for a good-faith assertion of rights; (b) the payor has the ability to pay the award; and (c) the recipient does not have the means to pay his or her own fees.  “Conclusory findings on the statutory factors do not adequately support a fee award.” Geske, 624 N.W.2d. at 817. Here, appellant argues that the evidence does not show that respondent lacks the ability to pay her own fees or that appellant has the ability to contribute to respondent’s fees.  Respondent had the burden of demonstrating that appellant had the ability to pay the need-based fees.  In re Marriage of Sammons, 642 N.W.2d 450, 458 (Minn. App. 2002).  Respondent has not shown that she lacks the ability to pay her own fees or that appellant has the ability to contribute to respondent’s fees.  The parties’ net incomes are similar.  In fact, the record indicates that respondent’s net income is slightly higher than appellant’s.  The district court abused its discretion by awarding need-based fees. 

IV.  Exclusion of Expert Witness

            Appellant argues that the district court abused its discretion by excluding the testimony of his expert witness.  Appellant contends that his failure to designate Dr. Terhune as an expert on the witness list was inadvertent and that respondent would not have been prejudiced by permitting the expert’s testimony.  Appellant notes that he informed respondent’s counsel by letter that he would call Dr. Terhune as an expert witness and that Dr. Terhune would testify that joint custody can be a positive situation for children.  At trial respondent’s counsel argued that appellant’s counsel “is still not telling us the specific opinions and facts upon which this expert is going to testify, so that I was given some information ahead of time for proper cross-examination.” 

            Whether to admit or exclude evidence rests within the district court’s broad discretion.  Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).  This court will not disturb a district court’s evidentiary ruling unless it is based on an erroneous view of the law or constitutes an abuse of discretion.  Id.  Whether a court should suppress expert testimony for an attorney’s failure to make a timely disclosure depends on whether that failure is inexcusable and the degree to which the opposing party is prejudiced by the late disclosure.  Id.  If an attorney’s failure to disclose is “inadvertent but harmful,” the court should impose less drastic remedies, such as granting a continuance and assessing costs against the party who is at fault.  Dennie v. Metropolitan Med. Ctr., 387 N.W.2d 401, 405 (Minn. 1986). 

            Here, after respondent submitted a motion in limine on the issue, the district court excluded appellant’s expert witness, Dr. Terhune, finding that appellant “failed to properly and timely disclose his expert witness.”  Appellant’s attorneys did not disclose that Terhune was an “expert” in its witness list of June 13, 2003.  In granting respondent’s motion in limine, the following exchange occurred with appellant’s counsel:

THE COURT:            I understand your position.  I understand too that joint custody can be beneficial and I often do award joint custody.  So if it’s a conclusion you are after, that is something the court is aware of.  In terms of offering the testimony, the motion in limine is granted.  I will not permit him to testify.  The fact that he was a Ph.D was not disclosed.  The fact he’s was to give an expert opinion was not fully disclosed.  The basis on which it is given is not disclosed.  And timeliness was after the trial had already started.  So for those reasons the court is excluding the testimony of Scott Terhune, Ph.D. and granting respondent’s motion in limine.  As I said to my law clerk this morning when this motion came in and I saw it, we don’t do litigation by ambush around here.  That is the court’s ruling. 

 

[APPELLANT’S COUNSEL]:          I would say there was no intention of ambush.

 

THE COURT:            Intention or not, that is the court’s ruling.

 

The district court failed to conclude that respondent would be prejudiced by appellant’s late disclosure.  Respondent was not harmed by the late disclosure because trial was not to resume until January 22, 2004, which allowed her about 25 days’ notice of Dr. Terhune’s expert testimony.  This would have been plenty of time for respondent to depose the expert or to prepare for the expert’s testimony, without resulting in any prejudice to respondent.  See Uselman, 464 N.W.2d at 136 (prejudice to opposing party should be considered in determining whether to suppress expert’s testimony on ground of untimely disclosure).  We conclude the district court abused its discretion by excluding appellant’s expert.

V.  Human Services Evaluation

            Appellant argues that the district court “erred by placing any weight in Washington County Human Services’ (Ms. Donna Berner) evaluation on the basis that the facts did not support her findings, and her conclusions were not supported by the record or her own facts.”  The district court stated in its order of December 9, 2004, that “[t]he Custody evaluator’s report is a part of the record, but her notes, if any, are not.”  But appellant contends that Ms. Berner violated the statutory requirement by not maintaining all of her records, which would include her file notes.  Appellant cites Minn. Stat. § 518.167, subd. 3 (2004), which provides:

The investigator shall maintain and, upon request, make available to counsel…the investigator’s file of underlying data and reports, complete texts of diagnostic reports made to the investigator.…The investigator and any person the investigator has consulted is subject to other pretrial discovery in accordance with the requirements of the Minnesota Rules of Civil Procedure.

 

Appellant argues that the custody evaluator failed to maintain her notes, observing that in her report, Ms. Berner stated: “The reports of collateral as well as my own notes, suggest Mr. Rubey has been more critical and less encouraging of Ms. Vannett.”  At another point, appellant’s attorney questioned Ms. Berner on her note-keeping habits:

Q:        Do you keep a file with notes?

 

A:        Yes, I keep notes.  When I complete an evaluation, then I memorialize the notes into the evaluation, and then destroy the notes and whatever I don’t need.

 

Q:        So would you say this would be a complete record of your evaluation?

 

A:        Yes.

 

Appellant bears the burden of demonstrating that error is prejudicial.  Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn. App. 1993), review denied (Minn. June 28, 1993).  And here, the custody evaluator stated that her custody report was a complete record of her evaluation.  Appellant did not demonstrate prejudice and did not indicate what additional data that he would have liked to see in Ms. Berner’s notes. 

            On this record, Ms. Berner’s notes would not have contributed anything further to the discussion and would have constituted cumulative evidence.  The admission of evidence that is cumulative or that is corroborated by other competent evidence constitutes harmless error and will not warrant a new trial.  Estate of Lea v. Sheehan, 301 Minn. 253, 259, 222 N.W.2d 92, 97 (1974); Minn. R. Civ. P. 61.  Further, the district court stated in his order of December 9, 2004, that he did not base his determination solely on the custody evaluator’s report, but rather he looked at the best interests of the child, determining that appellant’s “unreasonable decisions” were not in the best interests of the child.  The district court looked at the entire record: “It is the record as a whole, which includes evidence of [appellant’s] ‘unreasonable decisions,’ that was used to determine Respondent is more likely to keep [appellant] informed of her decisions.”  See Haefele v. Haefele, 621 N.W.2d 758, 763 (Minn. App. 2001) (stating that the district court is in the best position to weigh the evidence, and appellate courts defer to its credibility determinations), review denied (Minn. Feb. 21, 2001).  The district court did not abuse its discretion by accepting the custody evaluator’s report.

VI.  Allocation of Minor Medical Insurance Costs

            Appellant argues that the district court impermissibly ordered appellant to pay the child’s medical insurance costs.  This court’s review of that decision is limited to determining whether the district court abused its discretion by making findings unsupported by the record or by improperly applying the law.  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996).

            Appellant cites Minn. Stat. § 518.171, subd. 1 (d) (2006), which provides:

Unless otherwise agreed by the parties and approved by the court, if the court finds that the obligee is not receiving public assistance for the child and has the financial ability to contribute to the costs of medical and dental expenses for the child, including the costs of insurance, the court shall order the obligee and obligor to each assume a portion of these expenses based upon their proportionate share of their total net income as defined in [Minn. Stat. § 518.551, subd. 5].

 

Appellant argues that the district court abused its discretion by not requiring both parties to pay for portions of the child’s insurance costs, as required under the statute.  The district court reasoned that because of the evidence respondent presented regarding the net cost to appellant (less than $35 per month based on the tax savings he receives; $116 per month before the tax benefit) and because of respondent’s expenses, it ordered appellant to be responsible for the premium costs: “Based upon Respondent’s expenses and the net cost to the [appellant], it is not unfair that appellant be responsible for the premium costs.”  In its December 9, 2004 order, the district court denied appellant’s motion to modify, stating:  “The record supports the Court’s finding dependent health care costs are minimal to [appellant].  [Appellant] did not object when exhibits were introduced showing his cash flow with and without the dependant health care premiums.” 

            We conclude the district court erred by improperly applying the law.  “An incorrect application of the law constitutes an abuse of the district court’s discretion.”  Clark, 642 N.W.2d at 465; See, e.g., Ayers v. Ayers, 508 N.W.2d at 518 (stating that incorrect application of the law is an abuse of discretion in custody cases).  Even though the insurance costs may be minimal, the district court did not follow the statute, which requires that both parties be responsible for paying the child’s health care costs in proportion to their net incomes.  Instead of allocating the costs as prescribed by the statute, the district court required respondent to pay all of the child’s medical insurance.

VII.  Minn. Stat. § 518.17 - Constitutional

            Appellant argues that Minn. Stat. § 518.17 (2004) is unconstitutional, because it does not include a presumption of joint physical custody.  We can only note that case law in Minnesota reaches the opposite conclusion:  Joint physical custody is not a presumption.  Brauer v. Brauer, 384 N.W.2d 595, 598 (Minn. App. 1986).  Joint physical custody, as a practice, has its supporters and detractors. It is always an option for the court and can be exercised if a thorough evaluation indicates joint physical custody is in the best interests of the children. See Nolte v. Mehrens, 648 N.W.2d 727, 731 (Minn. App. 2002), (stating that “joint physical custody is not preferred” and citing in support Wopata v. Wopata, 498 N.W.2d 478, 482-83 (Minn. App. 1993) and Peterson v. Peterson, 393 N.W.2d 503, 506 (Minn. App. 1986)); Rosenfeld v. Rosenfeld, 529 N.W.2d 724, 726 (Minn. App. 1995) (“Joint physical custody is not a preferred custody arrangement due to the instability, turmoil, and lack of continuity inherent in such an arrangement and is not generally in a child’s best interest.”). The Minnesota Supreme Court does not read a presumption of joint physical custody into the statute. The law which does not create a presumption of joint physical custody is not unconstitutional on its face.

            Two amicus briefs assert that this court should read a presumption of joint physical custody into the statute.  They argue that this court should read a presumption in favor of joint legal and joint physical custody into Minn. Stat. § 518.17 (3)(3), which prohibits preference for either the mother or the father on account of gender, regarding custody determinations.  We have refused to do so in the past.  In re Custody of J.J.S., 707 N.W.2d 706, 711 (Minn. App. 2006).  The law is not unconstitutional on its face. Lobbying for a statutory change should be before the Minnesota Legislature.

            In conclusion, we reverse and remand on issues II, III, IV, and VI.  We affirm on issues I, V, and VII.

            Affirmed in part, reversed in part, and remanded.