In Re The Matter of: Pamela Annette Bowman v. James John Wieczorek

• Court: Court of Appeals of Minnesota
• Decided: January 30, 2017
• Docket: A16-458
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA IN COURT OF APPEALS A16-0458

In Re The Matter of: Pamela Annette Bowman, petitioner, Appellant,

vs.

James John Wieczorek, Respondent.

Filed January 30, 2017 Affirmed Johnson, Judge

Hennepin County District Court File No. 27-FA-10-9294

Pamela Annette Bowman, Cedar Rapids, Iowa (pro se appellant)

Brian J. Clausen, Clausen & Hassan, LLC, St. Paul, Minnesota (for respondent)

Jennifer Taylor, Hennepin County Guardian Ad Litem Program, Minneapolis, Minnesota (guardian ad litem)

Considered and decided by Reyes, Presiding Judge; Tracy M. Smith, Judge; and

Johnson, Judge.

UNPUBLISHED OPINION

JOHNSON, Judge

Pamela Annette Bowman and James John Wieczorek are the parents of two

children. The district court denied Bowman’s motion to relocate to another state with the children and denied her motion for sole legal custody and sole physical custody of both

children. The district court also granted Wieczorek’s motion for conduct-based attorney

fees. We affirm.

FACTS

Bowman and Wieczorek lived together in the Twin Cities area for approximately

13 years, from 1997 to 2010, but did not marry. They are the parents of two girls: K.W.,

who was 17 at the time of the district court’s decision in October 2015 and now is 19, and

L.W., who was 10 at the time of the district court’s decision and now is 11.

Between 2010 and 2014, the parties were before the district court on multiple

occasions. In December 2010, Bowman commenced an emergency custody proceeding in

which she requested permission to relocate to the Cayman Islands with the children so that

she could attend medical school there. The district court denied her motion.

In May 2011, after engaging in mediation, Bowman and Wieczorek entered into a

custody and parenting-time agreement. The agreement provided that the parties would

share joint legal custody of both children and that Bowman would have sole physical

custody of both children. The agreement provided that Wieczorek would have

approximately eight or nine overnight visits per month during the school year and that the

parties would have equal parenting time during the summertime. The agreement also

provided that “[b]oth parents shall be listed as ‘emergency contacts’ for the children,” that

the “[p]arents shall always let each other know their current addresses . . . and shall notify

each other in writing within twenty-four (24) hours of any changes,” and that “[n]o changes

2 in school enrollment or participation shall be made without the consent of both parents or

further Order of the Court.”

Two years later, in May 2013, Bowman brought a motion seeking permission to

relocate to Cedar Rapids, Iowa, with the children. After an evidentiary hearing, the district

court denied the motion on the ground that relocation would not be in the children’s best

interests. The district court reasoned that Bowman had failed to provide details about her

employment in Iowa, her proposed residence in Iowa, and her fiancé, who lived there.

Furthermore, the district court noted that Bowman had a “pattern of behavior regarding

decision making [that] suggests she will not involve [Wieczorek] in legal custodial

decisions and will likely take advantage of the distance to further separate [Wieczorek]

from the children’s lives.”

The events underlying this appeal began in late August 2014, when Wieczorek

received an e-mail message from Bowman stating that she was moving to Albert Lea and

would enroll the children in schools there. But Wieczorek discovered that Bowman had

enrolled the children in a school in Cedar Rapids two weeks earlier, without his knowledge

or consent. On the enrollment form of the Cedar Rapids school, Bowman had not provided

Wieczorek’s emergency contact information.

In early September 2014, Wieczorek brought an emergency motion for temporary

relief. He sought temporary sole legal custody and temporary sole physical custody of both

children, temporary supervised parenting time for Bowman, the appointment of a guardian

ad litem, and an award of conduct-based attorney fees. Wieczorek also requested sole legal

custody and sole physical custody of both children on a permanent basis (though he later

3 abandoned his request for sole physical custody of K.W.). The district court appointed a

guardian ad litem. In early October 2014, the district court awarded Wieczorek temporary

sole legal custody of both children, awarded Wieczorek temporary sole physical custody

of L.W., awarded Bowman temporary sole physical custody of K.W. on the condition that

Bowman reside in the Twin Cities area, and reserved ruling on Wieczorek’s motion for

attorney fees.

In early December 2014, Bowman filed a second motion to relocate to Iowa with

the children. After a hearing, the district court ordered that Wieczorek retain temporary

sole legal custody of both children and temporary sole physical custody of L.W. The

district court ordered that Bowman retain sole physical custody of K.W. so long as she was

immediately enrolled in one of two high schools in the Twin Cities area. The district court

scheduled an evidentiary hearing on Bowman’s motion to relocate, on Wieczorek’s motion

for attorney fees, and on the issues of custody and parenting time.

Meanwhile, in September 2014, when Wieczorek had temporary custody of both

children, K.W. induced L.W. to run away with her. The children were missing for three

days until police found them in a park. K.W. did not attend high school throughout the

2014-2015 school year and was adjudicated a truant.

The district court conducted an evidentiary hearing on May 13, May 22, and June 5,

2015. The district court received testimony from Bowman, Wieczorek, the guardian ad

litem, L.W.’s teacher, a private custody and parenting-time evaluator, a private mental-

health evaluator, Wieczorek’s mother, a therapist for Bowman and K.W., a friend of

Bowman, and Bowman’s fiancé.

4 On October 5, 2015, the district court issued a detailed 25-page, single-spaced order.

The district court awarded Wieczorek sole legal custody and sole physical custody of L.W.

and awarded Bowman sole legal custody and sole physical custody of K.W. The district

court found that K.W. has a negative influence on her younger sister and that Bowman is

unable to encourage a positive relationship between L.W. and Wieczorek. The district

court denied Bowman’s motion to relocate, reasoning that her relocation would result in a

“severe reduction” of Wieczorek’s parenting time with L.W. and that Bowman had failed

to satisfy her burden of showing that such a reduction in Wieczorek’s parenting time would

be appropriate. The district court granted Wieczorek’s motion for conduct-based attorney

fees in the amount of $30,000. Bowman appeals.

DECISION

Bowman’s pro se appellate brief identifies nine issues. She raises six issues that are

relevant to the district court’s custody rulings, one issue concerning parenting time, and

one issue concerning attorney fees. She also raises one issue concerning an order that is

not reviewable.1

1 Bowman argues that the district court erred in a September 2014 temporary order by requiring that her parenting time with L.W. be supervised until the district court ruled on Wieczorek’s request for custody on a permanent basis. A district court may issue temporary custody orders pursuant to section 518.131, subdivision 1, of the Minnesota Statutes. This court has held that “a temporary order made under Minn. Stat. § 518.131 is generally not a final, appealable order.” J.W. v. C.M., 627 N.W.2d 687, 696 (Minn. App. 2001), review denied (Minn. Aug. 15, 2001). In addition, the temporary order no longer is in force, which means that Bowman’s challenge to the order is moot. Sharp v. Bilbro, 614 N.W.2d 260, 262-63 (Minn. App. 2000) (concluding that father’s challenge to temporary custody order that was no longer in force was moot), review denied (Minn. Sept. 26, 2000). Thus, we need not consider the issue.

5 I. Custody

Bowman argues that the district court erred in various ways with respect to its

custody decision. A district court is authorized by statute to modify a prior custody order.

The relevant statute states, in part:

[T]he court shall not modify a prior custody order . . . unless it finds, upon the basis of facts . . . that have arisen since the prior order or that were unknown to the court at the time of the prior order, that a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child. In applying these standards the court shall retain the custody arrangement . . . that was established by the prior order unless:

....

(iv) the child’s present environment endangers the child’s physical or emotional health or impairs the child’s emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child; or

(v) 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.

Minn. Stat. § 518.18(d) (2016). When considering a modification of custody, a district

court must consider the best interests of each child, including a non-exclusive list of 12

factors. Minn. Stat. §§ 518.17, subd. 1(a), 518.18 (d) (2016). The district court must make

detailed findings on the best-interest factors, “may not use one factor to the exclusion of

all others,” and “shall consider that the factors may be interrelated.” Id. § 518.17,

subd. 1(b)(1).

6 This court applies a clear-error standard of review to a district court’s findings of

fact concerning custody issues and an abuse-of-discretion standard of review to a district

court’s analysis of the best-interest factors. Pikula v. Pikula, 347 N.W.2d 705, 710 (Minn.

1985). We defer to a district court’s credibility determinations. Sefkow v. Sefkow, 427

N.W.2d 203, 210 (Minn. 1988). Accordingly, there is “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. 2000).

A.

Bowman argues that the district court erred by modifying custody without making

a finding of endangerment. In many cases, a district court must make a finding of

endangerment pursuant to paragraph (iv) of section 518.18(d). See, e.g., Nice-Petersen v.

Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981); Geibe v. Geibe, 571 N.W.2d 774, 777,

779-80 (Minn. App. 1997). But in this case, the district court based its modification on

paragraph (v) of section 518.18(d), which applies if “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.” Minn. Stat.

§ 518.18(d)(v). Paragraph (v) does not require a finding of endangerment. See id.

Bowman does not challenge the applicability of paragraph (v). Thus, the district court did

not err by not making a finding of endangerment.

B.

Bowman argues that the district court erred by not allowing the children to express

their preferences concerning custody. In determining the best interests of a child, a district

7 court must consider “the reasonable preference of the child, if the court deems the child to

be of sufficient ability, age, and maturity to express an independent, reliable preference.”

Minn. Stat. § 518.17, subd. 1(a)(3).

The district court made detailed findings concerning the children’s preferences. At

the evidentiary hearing, the district court did not allow K.W. to testify on the grounds that

Wieczorek had conceded that Bowman should have custody of K.W., that it would not be

in K.W.’s best interests to testify against one of her parents, and that K.W.’s testimony

could have negative consequences for her then-pending truancy proceedings. In its order,

the district court nonetheless found that K.W. had expressed a preference to live with

Bowman but also found that her preference was influenced by Bowman’s efforts to alienate

her from Wieczorek. See Schwamb v. Schwamb, 395 N.W.2d 732, 735 (Minn. App. 1986)

(concluding that “coached” preference is not “reasonable preference” and need not be

considered). In any event, the district court awarded Bowman sole legal custody and sole

physical custody of K.W. In light of that favorable ruling, Bowman was not prejudiced by

the absence of K.W.’s testimony about her custodial preference.

The district court did not preclude L.W. from testifying about her custodial

preference because neither Bowman nor Wieczorek listed her as a witness or otherwise

requested that she be permitted to testify. The district court nonetheless found that L.W.

was too young to have a “reasonable preference” and likely would prefer to live with

Bowman. The district court did not put weight on L.W.’s likely preference because it may

have been unduly influenced by Bowman and by K.W.’s presence in Iowa.

8 Thus, the district court did not err by not admitting additional evidence of the

children’s custodial preferences.

C.

Bowman argues that the district court erred by ordering a custody arrangement that

separates siblings. In determining the best interests of a child, a district court must consider

“the effect of the proposed arrangements on the ongoing relationships between the child

and each parent, siblings, and other significant persons in the child’s life.” Minn. Stat.

§ 518.17, subd. 1(a)(9). A custody order that separates siblings is “always unfortunate”

but is not per se erroneous. Kennedy v. Kennedy, 403 N.W.2d 892, 898 (Minn. App. 1987)

(quotation omitted). In some situations, the benefits of separating siblings may outweigh

the benefits of keeping them together. See, e.g., Doren v. Doren, 431 N.W.2d 558, 561

(Minn. App. 1988) (concluding that separating siblings was not erroneous because mother

abused all but youngest child and father’s wife would not take youngest child).

The district court had “serious concerns” about Bowman’s ability to encourage a

healthy relationship between L.W. and Wieczorek if Bowman were granted sole physical

custody of L.W. Furthermore, the district court was concerned about K.W.’s negative

influence on her younger sister. The district court’s concerns are supported by the record,

especially the evidence concerning the occasion when K.W. induced L.W. to run away.

Thus, the district court did not abuse its discretion by issuing a custody order that results

in the separation of K.W. and L.W.

9 D.

Bowman argues that the district court erred by not basing its decision on evidence

that Wieczorek had abused the children. In determining the best interests of a child, a

district court must consider “whether domestic abuse . . . has occurred in the parents’ or

either parent’s household or relationship; the nature and context of the domestic abuse; and

the implications of the domestic abuse for parenting and for the child’s safety, well-being,

and developmental needs.” Minn. Stat. § 518.17, subd. 1(a)(4). The district court found

that most of Bowman’s allegations of abuse related to K.W., which was of lesser

significance because Wieczorek did not seek custody of K.W. The district court found that

Bowman’s allegations of abuse of L.W. were not credible because they were inconsistent

with her own proposal to maximize Wieczorek’s unsupervised parenting time, her

testimony that Wieczorek and L.W. have a good relationship, and the guardian ad litem’s

findings that L.W. did not appear to be afraid of her father. Thus, the district court did not

err in its consideration of Bowman’s allegations of abuse.

E.

Bowman argues that the district court erred by admitting the testimony of two expert

witnesses who were called by Wieczorek. At the evidentiary hearing, Bowman did not

make any objection to the testimony that she challenges on appeal. Thus, Bowman has not

preserved the issue for appellate review. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.

1988); Szarzynski v. Szarzynski, 732 N.W.2d 285, 293 (Minn. App. 2007).

10 F.

Bowman argues that the district court erred by not considering the best-interest

factors or by concluding that the best-interest factors favored an award of custody over

L.W. to Wieczorek. To the contrary, the district court devoted three single-spaced pages

of its order to a factor-by-factor best-interest analysis, and its findings on each statutory

factor are supported by the record. Thus, the district court did not err in its consideration

of L.W.’s best interests.

Therefore, the district court did not err in its rulings on custody issues.

II. Parenting Time

Bowman argues that the district court erred by awarding her parenting time of only

eight percent without making a finding of endangerment. “In the absence of other

evidence, there is a rebuttable presumption that a parent is entitled to receive a minimum

of 25 percent of the parenting time for the child.” Minn. Stat. § 518.175, subd. 1(g) (2016).

The district court must demonstrate an awareness of the presumption if the issue is

appropriately raised. Hagen v. Schirmers, 783 N.W.2d 212, 217 (Minn. App. 2010).

The district court ordered a parenting time arrangement in which Bowman has

between eight and ten percent of parenting time with L.W. See Minn. Stat. § 518.175,

subd. 1(a), (g). Bowman is correct in asserting that the district court did not acknowledge

the 25 percent presumption. But a district court does not commit reversible error by

ordering parenting time in an amount less than 25 percent if the parent who is

disadvantaged by such an award does not object. Hagen, 783 N.W.2d at 219 n.4 (citing

Thiele, 425 N.W.2d at 582). Bowman did not raise the issue before or at the evidentiary

11 hearing. Thus, the district court did not commit reversible error in its decision concerning

parenting time.

III. Attorney Fees

Bowman argues that the district court erred by granting Wieczorek’s motion for

conduct-based attorney fees and ordering her to pay $30,000.

In a dissolution case, a district court has discretion to award conduct-based attorney

fees “against a party who unreasonably contributes to the length or expense of the

proceeding.” Minn. Stat. § 518.14, subd. 1 (2016); see also Szarzynski, 732 N.W.2d at

295-96. In this case, Wieczorek moved for an award of conduct-based attorney fees

because Bowman relocated to Iowa without permission, which required him to file costly

motions and to defend against Bowman’s motions. Wieczorek submitted a detailed

affidavit documenting $43,435.97 in attorney fees, including estimated fees related to the

evidentiary hearing. The district court granted Wieczorek’s motion and ordered Bowman

to reimburse Wieczorek for $30,000 of his attorney fees.

The record supports the district court’s determination that Bowman “unreasonably

and unnecessarily contributed to the length and expenses of the proceedings.” She

relocated to Iowa with the children six months after the district court denied her motion

seeking leave to relocate. She then filed another motion to relocate to Iowa, which was her

third relocation motion. Bowman’s own testimony reveals that she acted deceitfully when

she moved to Iowa without court permission and without Wieczorek’s knowledge. And

there is abundant other evidence of Bowman’s uncooperative conduct with regard to

previous court orders.

12 Bowman contends that the district court erred by awarding more fees than

Wieczorek had requested. At the evidentiary hearing, Wieczorek testified on direct

examination that he wanted Bowman to pay half of his attorney fees. After the evidentiary

hearing, Wieczorek’s attorney submitted a written closing argument in which he requested

fees in the full amount of $43,435.97. The district court did not err in setting the amount

of the award at $30,000 because a district court has broad discretion in such matters and

because the record shows that Wieczorek incurred at least that amount of fees due to the

fact that Bowman “unreasonably contribute[d] to the length or expense of the proceeding.”

See Minn. Stat. § 518.14, subd. 1.

Thus, the district court did not err by awarding Wieczorek conduct-based attorney

fees in the amount of $30,000.

Affirmed.