This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-98-1425

Sandra K. Meier f/k/a Sandra K. Peterson,

petitioner,

Respondent,

vs.

Christopher L. Peterson,

Appellant.

Filed January 26, 1999

Affirmed

Shumaker, Judge

Stearns County District Court

File No. F1941138

Todd A. Kelm, 1287 2nd Street North, Suite 101, P.O. Box 368, Sauk Rapids, MN 56379 (for appellant)

Sandra K. Meier, 813 Crystal Lake Drive, Pompano Beach, FL 33064 (respondent pro se)

Considered and decided by Anderson, Presiding Judge, Kalitowski, Judge, and Shumaker, Judge.

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

SHUMAKER, Judge

The parties had joint physical custody of their child. Appellant Christopher Peterson alleges the district court applied an incorrect legal standard and should not have granted the motion of respondent Sandra Meier, f/k/a Sandra Peterson, to remove the child's residence from Minnesota. Because the district court used the correct legal standard and the findings supporting the removal are not clearly erroneous, we affirm.

D E C I S I O N

Review of custody determinations is limited to whether the district court abused its discretion by making findings not supported by the evidence or by improperly applying the law; de novo review of the record is inappropriate. Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993); Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).

I.

Appellant alleges that the district court applied the wrong standard in letting respondent remove the child's residence to Florida. Identifying the applicable legal standard is a legal question. Ayers, 508 N.W.2d at 518. Generally, the standard used for determining whether custody should be modified is that set out in Minn. Stat. § 518.18 (d) (1998). That standard applies unless the moving party is seeking permission to change a child's residence to another state. Minn. Stat. § 518.18 (e) (1998). When a joint physical custodian seeks to remove a child from Minnesota, the "best-interests-of-the-child" standard applies. See Ayers, 508 N.W.2d at 520-21 (holding district court correctly applied best-interests standard to joint physical custodian's motion to remove child from Minnesota). Under that standard, the moving party has the burden of proof. See Sumner v. Sumner, 353 N.W.2d 251, 253 (Minn. App. 1984) (joint physical custodian who seeks to modify custody in a manner which will deprive other parent of joint physical custody "must meet the statutory burden").

Here, the district court stated that granting respondent's motion to remove the child's residence to Florida "would be in the best interests of [the child.]" Also, the district court directed that the existing judgment be amended to state that the child's best interests, as defined by Minn. Stat. § 518.17, subd. 1 (1998), favored granting respondent's motion for removal. On this record, to conclude that the district court did not apply the best-interests standard would require us to assume that the district court misrepresented the basis for its decision. We cannot assume district court error. Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949).[1]

II.

Appellant argues that "unrebutted expert testimony" shows removing the child's residence to Florida would not only not be in the child's best interests, but also that it would endanger the child. On appeal, findings of fact 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; Ayers, 508 N.W.2d at 521. When a party challenges a district court's findings, the evidence "tending directly or by reasonable inference to sustain the * * * [challenged] findings * * * shall be summarized." Minn. R. Civ. App. P. 128.02, subd. 1(c) (emphasis added). Thus, to the extent appellant's argument focuses on the fact that the record could have supported findings more favorable to him than the findings the district court actually did make, appellant misconstrues the nature of the inquiry on appeal. To successfully challenge findings on appeal, an appellant must show that the findings the district court made are clearly erroneous, regardless of whether the record could have supported other findings. See Elliott v. Mitchell, 311 Minn. 533, 535, 249 N.W.2d 172, 174 (1976) (affirming findings despite admitting "the evidence might support another conclusion").

Both appellant's expert and the guardian ad litem opposed removal. However, when the record is viewed in the light most favorable to the district court's finding that removal is in the child's best interests, that finding is not clearly erroneous. Appellant's expert admitted (a) the child has a good relationship with each parent; (b) respondent's future remarriage could be a positive influence on the child; (c) whether the child moves to Florida or stays in Minnesota, she will experience difficulty because the presence of the parents is more important for her than the geographical location of her home; and (d) stability is important for the child. Consistent with the testimony of appellant's expert, the guardian ad litem admitted that regardless of whether the child moves to Florida or stays in Minnesota, she will be "devastated" by the decreased access to the noncustodial parent.[2] The guardian ad litem also admitted appellant's unusual work schedule, and the resulting irregular contact he would have with the child, is his "biggest negative."

Much of the guardian ad litem's opposition to removal centered on what she perceived to be respondent's history of short-term relationships, the potential instability of her relationship with her fiancé, and the impact that instability could have on the child. The district court, however, discounted these concerns stating "the Court has no basis to speculate that [respondent] and her fiancé are going to break up." Indeed, consistent with the guardian ad litem's own concerns about appellant's schedule, the district court found respondent's work schedule "is better for the child during the school year" than is appellant's work schedule, which would "require someone to come into [his] home up to 10 nights per month and from 7:00 a.m. to 7:00 p.m. at least one Saturday and one Sunday per month."[3] Thus, the district court implicitly found any potential instability in respondent's relationship with her fiancé was outweighed by the regular access to her child that respondent's job will allow.

III.

The district court's July 1998 judgment denied appellant's motion for a "new trial." Because post-decree motions to modify custody do not involve a trial, new trial motions are not authorized in such proceedings. Huso v. Huso, 465 N.W.2d 719, 721 (Minn. App. 1991). Therefore, the district court did not err in denying father's motion.

Affirmed.

[1] While this court construed this appeal to be from the district court's June 1998 judgment, we note that in July 1998, the district court amended its findings to state that the best-interests factors "are the relevant factors to be considered by the court[,]" and that those factors balance in respondent's favor.

[2] The amended findings state that while the child may initially have "emotional difficulties" as a result of removal, "there is no evidence that these difficulties will be any different than any other situation where a child who is close with both parents is separated from one."

[3] The district court amended this finding to state that the court considered each party's proposed living arrangements and that if custody were placed with appellant someone would frequently have to come into his home to care for the child, but that if custody were placed with respondent the child "would have consistent interaction and interrelationship with [respondent] each night and weekend." The amended finding also states that "[respondent's] work schedule is better for the child during the school year as it allows [respondent] and her fiancé to be with [the child] on evenings and weekends on a more consistent basis."