This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-0323
In re the Marriage of: Daria Vladimirovna Tinaza, petitioner, Appellant,
vs.
Justin Andrew Tinaza, Respondent.
Filed January 5, 2015 Affirmed in part, reversed in part, and remanded Hooten, Judge
Dakota County District Court File No. 19AV-FA-09-2457
Kathleen M. Newman, Kathleen M. Newman & Associates, P.A., Minneapolis, Minnesota (for appellant)
Christopher M. Banas, Banas Family Law, P.A., Lilydale, Minnesota (for respondent)
Considered and decided by Rodenberg, Presiding Judge; Johnson, Judge; and
Hooten, Judge.
UNPUBLISHED OPINION
HOOTEN, Judge
In this parenting dispute, appellant-mother argues that the district court erred by:
(1) denying her motion to relocate to California with her minor child; (2) awarding
respondent-father sole physical custody if mother decides to relocate to California; and (3) awarding father child support. We affirm the district court’s denial of mother’s
motion to relocate and its custody and child-support determinations in all respects except
as to the retroactive date of mother’s child-support obligation. We reverse the district
court’s decision as to the retroactive date of mother’s child-support obligation and
remand for the district court to modify the retroactive date.
FACTS
Appellant-mother Daria Vladimirovna Tinaza and respondent-father Justin
Andrew Tinaza were married in 2002 and divorced in 2010 by stipulated judgment and
decree. They are parents of one minor child, M.T., who was seven years old at the time
of the divorce and ten years old at the time of the relocation hearing. The stipulated
judgment and decree awarded the parties joint legal custody and awarded mother sole
physical custody of M.T. Father was granted parenting time of a minimum of one non-
overnight visit per week, every other weekend from Friday evening until Sunday evening,
two weeks of summer vacation, and alternating holidays. Mother was awarded child
support.
Mother is from Russia and father is from the United States. The parties met and
were married in Russia and M.T. was born there. The family moved to the United States
in 2003 and eventually moved to Minnesota. Mother worked as a paralegal in the State
of Washington before moving to Minnesota to attend law school. At the time of the
divorce, both parties lived in Eagan, Minnesota. Father has worked as a software
engineer since 2009 and has worked there full time since 2012. His hours are “flexible.”
Mother was a law student from 2008 to 2012.
2 On appeal, mother states that “[t]he parties had a troubled and difficult post-
divorce relationship.” Mother testified that her communications with father “were always
very brief” and “only related to [M.T.’s] parenting schedule.” Child support was
modified three times in 2012 and 2013. The child-support-modification order from
September 24, 2012, stated that “[mother] is voluntarily unemployed or underemployed.”
The district court added: “[Mother] has not provided verification of her income and has
provided contradictory information in the form of cover letters to prospective employers
and unsigned [f]ederal [t]ax returns with respect to her actual income. [Mother] has
provided evasive and factually incorrect information to the court.” Mother did not appeal
this order.
Mother graduated from law school in May 2012. Mother’s area of interest is
intellectual-property law. Upon graduating, she tried to secure legal employment in
Minnesota. She testified that she networked with prospective employers, applied to
online job postings, spoke with her law school’s career-services office, reached out to her
mentor, spoke to recruiters, and solicited law firms and legal services companies. Mother
was unable to find full-time work, but supported herself by working as an independent
courtroom interpreter.
Mother became licensed to practice law in Minnesota in October 2012. Once she
became licensed, she worked nearly full-time as a document-review attorney for a
litigation-support company. This was an independent-contractor position. A debt-
collection company in Mankato, Minnesota, expressed interest in hiring mother to
manage its office at a yearly salary of $45,000 or $50,000. Mother testified that she did
3 not pursue this opportunity because it was not an attorney position, it did not have
benefits, she did not know anyone in Mankato, and she did not want M.T. to change
schools.
Mother testified that, while doing document review, she continued applying for
attorney and non-attorney positions, and she considered other areas of law besides
intellectual property. She also began to apply for positions that required Russian-
language skills. However, on cross-examination, mother could not verify how many
attorney positions she applied for after becoming licensed. She stated that she applied to
“all [the] big [Twin Cities] law firms,” but admitted that none of these applications were
in her exhibits.
Around February 2013, mother applied for a document-review position that was
located in California, required a law license and Russian fluency, and involved
intellectual-property law. It was originally slated to last four to six weeks. She was
offered the position and accepted because it paid $60 per hour and “it was a perfect fit.”
In late February or early March, mother told father that she was traveling out of town for
a few weeks, but they could keep the usual parenting schedule. She did not tell him
about the job. Nor did she tell him she would be in California. While mother was in
California, M.T. initially stayed with mother’s then-boyfriend at her Eagan townhome.
Father did not ask mother with whom M.T. was staying, but assumed it was with
mother’s “Russian friends.” Father testified that he did not ask who was watching M.T.
because he knew mother would not give him accurate information, and he did not object
to her traveling because of the parties’ strained relationship. Mother did not want M.T. to
4 stay with father because she thought it would be best for father to simply have his usual
parenting time. Father exercised his usual parenting time during March.
Mother’s job in California was extended several times. She continued to live in
California but maintained her Eagan townhome. Father testified that he realized mother
was in California sometime in March, but it was not until early May that he learned from
M.T. that mother was working in California. On May 21, mother thought her California
position would end at the end of July, but she did not inform father of this. M.T. visited
mother after the school year ended and stayed with her off and on throughout the
summer. Mother initially stayed with friends in California, but eventually rented her own
two-bedroom apartment in Mountain View, California. She explored school options for
M.T. in Mountain View, including a Russian mathematics enrichment program. She felt
this Russian program would allow him to connect with his Russian heritage. During his
summer visits with mother, M.T. met some children his age in the area.
Mother testified that, while working in California, she continued to apply for jobs
in both Minnesota and California. Yet, on cross-examination, she acknowledged that
there were not many job applications in her exhibits, explaining that this was because she
applied for several positions online. She was eventually offered a position as an in-house
attorney with a California software company, which she accepted.
In late June, father went to California for his brother’s wedding, and M.T. spent
the week with him. Father then returned M.T. back to mother’s custody in California. At
the end of June, mother told father she would bring M.T. to Minnesota around July 4.
However, by July 9, M.T. was not in Minnesota. Father then insisted that his regular
5 visitation schedule resume, and mother told him her job had been extended to the end of
August. In late July, M.T. was staying with mother in California. Mother admitted at the
evidentiary hearing that, when father asked for her address, she lied to him. Father
suspected that mother was intending to relocate to California with M.T. and demanded
that mother return M.T. to Minnesota, which she did shortly thereafter.
On August 2, 2013, father moved for an order: (1) finding mother in violation of
the relocation statute, Minn. Stat. § 518.175, subd. 3 (2014); (2) finding mother in
contempt of court for violating several provisions of the stipulated judgment and decree;
(3) granting father temporary physical custody of M.T.; (4) granting mother parenting
time in Minnesota; (5) suspending father’s child-support obligation; and other relief. The
parties appeared in district court on August 2. They reached an agreement, which was
approved by the district court, in which M.T.’s temporary primary residence was to be
with father, mother had parenting time in both Minnesota and California, and father’s
child-support obligation was suspended effective August 1. Subsequently, mother
remained in California but visited M.T. every two to three weeks in Minnesota. Father
assumed primary caretaking responsibilities, which included taking M.T. to and from
school and facilitating his extracurricular activities. Mother wanted M.T. to see a
therapist, but father objected because M.T.’s school social worker did not recommend an
outside therapist.
On August 29, 2013, mother moved for an order: (1) granting mother permission
to relocate with M.T. to California; (2) modifying father’s parenting time; and other
relief. In her motion, mother proposed a modified parenting-time plan. In essence, the
6 plan called for reduced school-year parenting time for father but increased summer
parenting time. Mother later testified that, if her relocation request was granted, father
and M.T. could call each other and could communicate via Skype. Father testified that if
mother’s relocation request was granted, he would e-mail and call M.T., and
communicate via Skype, but noted that M.T. does not always answer his phone. On
August 30, father brought a motion for an order modifying child support as a result of a
change in M.T.’s primary residence.
Without notifying father, mother hired Dr. Jane McNaught, a licensed
psychologist, to evaluate M.T. in light of mother’s relocation request. Dr. McNaught did
not meet with father before preparing her report. Dr. McNaught met with mother and
M.T. and evaluated M.T. on August 31. She administered several “structured interview
devices” to M.T., observed mother and M.T. interacting, and extensively interviewed
M.T. In her report, Dr. McNaught addressed each of the statutory relocation factors. Her
conclusions included: mother has been M.T.’s primary caretaker throughout his life and
is more involved with his education than father; “[M.T.] is at an age where he could
relocate and still maintain the type of contact with his father that he has enjoyed his entire
life”; “[p]rojective testing clearly indicates that [M.T.] sees his overall life being better if
he continues to primarily reside with his mother”; “in projective testing, [M.T.] does not
see his life turning out as well if he were to live with his father”; M.T. is mature enough
to express an opinion about his preference as to the relocation; and “[M.T.] is a very
mature 10 1/2 year old child.” M.T. expressed to Dr. McNaught a “preference” about the
7 relocation, but he was adamant that she not reveal it to his parents. After Dr. McNaught
prepared her report, she invited father to speak with her, but father declined.
An evidentiary hearing took place in November 2013. In addition to the parties’
own testimony, the district court heard testimony from Dr. McNaught and other
witnesses.
Mother testified that the primary reason she wanted to relocate was to have better
employment opportunities in order to increase her and M.T.’s quality of life. She
claimed that the schools in California were “the best.” She testified that, if the district
court denied her relocation request, she would return to her home in Minnesota and cease
her California employment. She also testified that her document-review job was
extended until February 2014. She testified that she is M.T.’s “primary parent” and that,
until recently, she was his primary caregiver. She supports M.T. emotionally and
academically, and she enrolls him in extracurricular activities. She has always helped
M.T. with his homework and attended his parent-teacher conferences. She stated that,
historically, father’s involvement with M.T.’s education has been “[m]inimal.” She
alleged that father declined to contribute money into a college fund for M.T. and stated
that he is “not a supportive parent” because he used to pay only $500 in child support.
She described father as a “weekend dad” and stated that he was not a good father.
According to mother, father “views [parenting time] as a chore,” and he was reluctant to
accept additional parenting time when she offered it. Finally, she alleged that father
rarely called M.T. over the summer while M.T. was in California.
8 Father testified that he opposes relocation because of mother’s history of lying and
concealing information about M.T., and because he fears he could not maintain his
relationship with M.T. if relocation is granted. He also testified that M.T. does not like to
fly alone. He testified that mother has interfered with his relationship with M.T. by
refusing to release M.T. to him at times. Finally, he testified that M.T. is “very mature.”
On December 23, 2013, the district court issued a ruling on the parties’ motions.
The district court denied mother’s motion to relocate the residence of M.T. to California.
The district court made a custody determination based on two alternative scenarios: if
mother decided to relocate outside Minnesota, then father would be awarded sole
physical custody of M.T.; on the other hand, if mother returned to Minnesota, then the
custody arrangement outlined in the stipulated judgment and decree would be reinstated.
The district court imposed a monthly child-support obligation on mother, retroactive to
August 1, 2013, including basic support of $1,126 and child-care support of $297. In
addition, if mother returned to Minnesota, the district court ordered her to request a
hearing to address child support within 30 days. Mother appealed the district court’s
order.
DECISION
I.
Our review of a district court’s decision on a parent’s motion to relocate out of
state with a minor child “is limited to considering whether the [district] court abused its
discretion by making findings unsupported by the evidence or by improperly applying the
law.” Goldman v. Greenwood, 748 N.W.2d 279, 284 (Minn. 2008) (quotations omitted).
9 We will set aside a district court’s findings of fact only if they are clearly erroneous,
“giving deference to the district court’s opportunity to evaluate witness credibility.” Id.
“Findings of fact are clearly erroneous where an appellate court is left with the definite
and firm conviction that a mistake has been made.” Id. (quotations omitted).
A parent who has sole physical custody of a child subject to a parenting-time order
may not relocate the child to another state except upon a court order or with the consent
of the noncustodial parent. Minn. Stat. § 518.175, subd. 3(a). In determining whether to
permit a parent to move a child’s residence to another state when the other parent
opposes the move, the district court must base that decision on the best interests of the
child by assessing eight statutory factors. Id., subd. 3(b). These factors are: (1) the
child’s relationship with the parents and other significant persons; (2) the child’s age,
development, and needs, and the likely impact of the relocation of the child; (3) the
feasibility of preserving the child’s relationship with the non-relocating parent; (4) the
child’s preference; (5) whether there is a pattern by the relocating parent to promote or
thwart the child’s relationship with the other parent; (6) whether relocation will enhance
the child and the relocating parent’s quality of life; (7) each parent’s reasons for opposing
or supporting relocation; and (8) the safety and welfare of the child or relocating parent
relating to domestic abuse. Id. The parent seeking to relocate a child from Minnesota
bears the burden of proof unless that party has been a victim of domestic abuse by the
other parent. Id., subd. 3(c).
Here, the district court analyzed each statutory factor and recited evidentiary
support for its findings, as required by statute. Id. The relocation statute does not require
10 the district court to expressly find whether each factor supports or does not support the
relocation, and the district court did not do so in this case, although doing so would have
been helpful for our review.
(1) Child’s relationship with parents and other significant persons
The district court found that mother has been M.T.’s primary caretaker since birth,
the two have a “close and loving relationship,” mother has attended all of M.T.’s school
functions and conferences, and she has been primarily responsible for helping M.T. with
homework. The district court also found that father has had a significant relationship
with M.T. during his parenting time and has been active with M.T.’s extracurricular
activities, and since August 2013 father has become M.T.’s primary caretaker. The
district court noted conflicting testimony about father’s willingness to accept additional
parenting time.
(2) Age, developmental stage, and needs of the child, and the likely impact the relocation would have on the child
The district court found that M.T. was a “healthy, normal” ten-year-old boy. Dr.
McNaught testified that M.T. “could essentially emotionally cope with the relocation.”
The district court concluded, “Whether [M.T.] could tolerate the move is not the standard
and this [c]ourt finds that he would be emotionally distressed to be apart from either of
his parents should this relocation request be granted.” While M.T.’s ability to tolerate the
move is not determinative, it is relevant under this factor. Mother argues that the district
court abused its discretion by not giving more weight to Dr. McNaught’s report and
testimony. But, “[t]he weight to be given any testimony, including expert testimony, is
11 ultimately the province of the fact-finder.” In re Welfare of Children of J.B., 698 N.W.2d
160, 167 (Minn. App. 2005).
(3) Feasibility of preserving the child’s relationship with the non-relocating parent
The district court found that mother did not testify regarding a specific proposed
parenting-time schedule for father, although mother did propose a specific schedule in
her August 29 motion. Mother proposed parenting time for father of one long weekend
per month, eight weeks of summer vacation, and alternate spring breaks and holidays.
Mother suggested that M.T. and father could keep in touch during the school year
through texting, phone calls, and Skype, but the district court found that M.T. neglects to
answer his cell phone. Father stated that it would be financially difficult for him to visit
M.T. in California, and there is conflicting evidence about M.T.’s ability to fly alone.
The district court credited father’s concern that M.T. would learn to disrespect
father if the relocation request was granted because mother disrespects father, that mother
“manipulates” M.T., and that father’s “relationship with [M.T. would] be seriously
destroyed” if the relocation was granted. Mother admitted that she holds father in low
esteem, but argued that she is committed to facilitating father’s relationship with M.T.
Mother also stated that she does not impose her negative feelings toward father onto M.T.
The district court apparently found father’s testimony regarding his concerns about the
relocation to be credible, and “credibility determinations . . . are the province of the
district court.” In re Welfare of Children of D.F., 752 N.W.2d 88, 96 (Minn. App. 2008).
12 (4) Child’s preference
“[G]iven his young age,” the district court did not “give any weight to [M.T.’s]
preference” as to relocation. Mother argues that the district court erred by not taking
M.T.’s preference into account. In Maxfield v. Maxfield, the Minnesota Supreme Court
found that a ten-year-old child of the divorcing parties was “old enough and mature
enough to express a preference where and with whom he wishes to live during his
approaching teen-age years.” 452 N.W.2d 219, 219, 223 (Minn. 1990) (analyzing the
best interests of the child pursuant to Minn. Stat. § 518.17, subd. 1 (1988)). In that case,
father lived in Minnesota, while mother lived in Pennsylvania. Id. at 219. Here, father
testified that M.T. is “very mature,” and Dr. McNaught described him as “a very mature
10 1/2 year old child.” In light of Maxfield, the district court erred by not analyzing and
making findings as to M.T.’s preference.
While Dr. McNaught did not reveal M.T.’s preference as to relocation, she found
that “[p]rojective testing clearly indicates that [M.T.] sees his overall life being better if
he continues to primarily reside with his mother.” On the other hand, “in projective
testing, [M.T.] does not see his life turning out as well if he were to live with his father.”
Dr. McNaught also reported that M.T. was experiencing anxiety about choosing between
his parents.
(5) Pattern by relocating parent to promote or thwart the child’s relationship with the other parent
The district court noted father’s concern that mother does not promote or support
his relationship with M.T. and found that mother “had nothing positive to say about
13 [father] as a person or [as] a father to [M.T.]” The district court concluded that this
raised serious questions about whether mother would promote or encourage father’s
relationship with M.T. if she were allowed to relocate. The district court also found that
there were “serious questions about [mother’s] trustworthiness and the parties’ ability to
maintain contact regarding [M.T.]” The district court found that mother was
“intentionally vague” with father about her evolving work plans in California, she
disregarded father’s parenting time, and she “lied to [father] in July 2013 when [father]
inquired where she and [M.T.] were living.” And while her relocation motion was
pending, mother took M.T. to see Dr. McNaught without informing father. According to
the district court,
All of these actions and the attitude and testimony of [mother] toward [father] are very troubling. There were active steps taken by [mother] to not be forthcoming with [father] about her plans and how they affected [M.T.] and [father]. Should [mother] be allowed to relocate to California with [M.T.], this [c]ourt has serious concerns about how that would further encourage or allow [mother] to exclude [father]. [Mother] has certainly not established a demonstrated ability to promote [M.T.’s] relationship with [father].
Essentially, the district court found that mother’s stated intention to promote father’s
relationship with M.T. was not credible, and we will not disturb the district court’s
credibility determinations. D.F., 752 N.W.2d at 96.
(6) Effect on the relocating parent and child’s quality of life
Mother testified that relocation will benefit her and M.T. financially by allowing
her to pursue her legal career, and that M.T. will do well in school in California.
However, the district court expressed “serious reservations about the veracity and effort
14 [mother] put into her Minnesota job search.” The district court noted that mother turned
down the non-attorney position in Mankato and also noted “significant concerns
regarding [mother’s] job stability in California.”
(7) Parents’ reasons for opposing or supporting relocation
Mother testified that there are more job opportunities in California than in
Minnesota and that the move would improve her and M.T.’s quality of life. Father
testified that he would have a diminished role in M.T.’s life, and mother would alienate
father if she was allowed to relocate with M.T.
(8) Safety and welfare of the child or the relocating parent
The district court found that this factor is inapplicable because there is no
domestic abuse in this case.
In sum, the district court analyzed each applicable statutory factor and made
detailed findings as to each factor. While the district court erred in not considering
M.T.’s preference as to relocation, there is reasonable evidentiary support for the district
court’s findings with regard to the other statutory factors, most of which appear to
support the district court’s denial of mother’s motion to relocate. Most significantly,
throughout the order, the district court expressed its concern that mother’s proposed
relocation would undermine father’s relationship with M.T.
When considering a motion to relocate the residence of a minor child, a district
court’s discretion is broad. See Goldman, 748 N.W.2d at 284. The law “leaves scant if
any room for an appellate court to question the [district] court’s balancing of best-
interests considerations.” Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App.
15 2000). Based upon this record, we conclude that the district court did not abuse its
discretion in denying mother’s relocation request.
II.
Mother also argues that the district court erred as a matter of law by “proactively”
modifying custody, even though neither party moved for a custody modification. The
interpretation of a statute is a question of law, which we review de novo. Goldman, 748
N.W.2d at 282.
“[T]he court shall not modify a prior custody order” unless “a change has
occurred in the circumstances of the child or the parties and . . . modification is necessary
to serve the best interests of the child.” Minn. Stat. § 518.18(d) (2014). Relevant to this
case, “the court shall retain the custody arrangement . . . that was established by the prior
order” unless “the court has denied a request of the primary custodial parent to move the
residence of the child to another state, and the primary custodial parent has relocated to
another state despite the court’s order.” Id. (d)(v).
Here, the district court crafted a somewhat creative custody determination, perhaps
because it did not believe mother’s assurances that she would return to Minnesota if her
relocation request was denied: “If [mother] decides to move outside the State of
Minnesota, then [father] shall be awarded sole physical custody of [M.T.] . . . If [mother]
returns to Minnesota, the terms of the parties’ [s]tipulated [j]udgment and [d]ecree are
reinstated.” Mother objects to the first scenario and argues that the district court
“proactively” modified custody. However, this scenario fits squarely under section
16 518.18(d)(v). The district court did not err in awarding father sole physical custody in
the event mother decides to stay in California.
III.
Mother challenges three aspects of the district court’s child-support determination.
A.
Mother contends that the district court erred by making her child-support
obligation retroactive to a date prior to father’s motion to modify child support. “A
modification of support . . . may be made retroactive only with respect to any period
during which the petitioning party has pending a motion for modification but only from
the date of service of notice of the motion on the responding party . . . .” Minn. Stat.
§ 518A.39, subd. 2(e) (2014). The application of a statute is a question of law, which we
review de novo. Gellert v. Eginton, 770 N.W.2d 190, 196 (Minn. App. 2009), review
denied (Minn. Oct. 20, 2009).
The district court made mother’s monthly child-support obligation retroactive to
August 1, 2013. On August 2, 2013, father moved for an order suspending his own child-
support obligation. However, father did not move for an order modifying child support
as a result of a change in primary residence of M.T. until August 30, 2013. The district
court erred in ordering mother to pay child support as of August 1, 2013, a date prior to
father’s motion for modification.
B.
Mother next argues that the district court abused its discretion by requiring mother
to pay child-care costs as part of her child-support obligation because father did not
17 submit adequate proof of M.T.’s child-care expenses. “Child care support must be based
on the actual child care expenses.” Minn. Stat. § 518A.39, subd. 7 (2012). The moving
party bears the burden of proof in a child-support modification proceeding. Bormann v.
Bormann, 644 N.W.2d 478, 481 (Minn. App. 2002). “In deciding whether to modify
support, the district court enjoys broad discretion and will be reversed only if it abuses
that discretion by resolving the question in a manner that is against logic and the facts in
the record.” Id.
At the relocation hearing, father testified that M.T. was currently attending before-
and after-school child care at the cost $112.50 per week. Father submitted the child-care
program’s brochure as evidence of the program’s cost, which states that ten sessions costs
$112.50. This testimony and evidence is sufficient to establish M.T.’s child-care
expenses, and the district court did not abuse its discretion by basing mother’s child-care-
support obligation on this evidence.
C.
Finally, mother argues that the district court abused its discretion by basing
mother’s child-support obligation on the guidelines set forth in Minn. Stat. § 518A.34
(2014), rather than Minn. Stat. § 518.131 (2014), which governs temporary orders.
Mother asks this court to use its “equitable authority” and grant her relief because her
income is “in flux,” and she incurred “extraordinary expenses” by maintaining
households in both Minnesota and California. However, in its December 23, 2013 order,
the district court did not impose a temporary child-support obligation on mother. Rather,
the district court imposed a permanent child-support obligation and therefore correctly
18 calculated the obligation under section 518A.34. But, even if section 518.131 applied,
subdivision 7 of that section specifically provides that “[t]he court shall be guided by the
factors set forth in chapter 518A (concerning child support).” Accordingly, the district
court did not abuse its discretion in establishing mother’s child-support obligation under
the guidelines.
In summary, we affirm: (1) the district court’s denial of mother’s motion to
relocate; (2) the district court’s custody determination; and (3) the district court’s child-
support determination in all respects except as to the retroactive date of mother’s child-
support obligation. We reverse the retroactive date of mother’s child-support obligation
and remand for the district court to modify the retroactive date to August 30, 2013, rather
than August 1, 2013, and for further proceedings consistent with this decision and
regarding the enforcement of mother’s child-support obligation.
Affirmed in part, reversed in part, and remanded.