This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA IN COURT OF APPEALS A23-1263
In re the Matter of:
Zoraba Ross, petitioner, Respondent,
vs.
Angel Raeleen Smith, Appellant.
Filed May 28, 2024 Affirmed in part and remanded Wheelock, Judge
Hennepin County District Court File No. 27-FA-21-1872
Richard D. Crabb, Hill Crabb, LLC, Edina, Minnesota (for respondent)
Michael D. Dittberner, Dittberner & McSweeney, Ltd., Edina, Minnesota; and
Kimberly Tourdot Walker, Kimberly T. Walker Law Office, P.A., St. Louis Park, Minnesota (for appellant)
Considered and decided by Wheelock, Presiding Judge; Slieter, Judge; and Schmidt,
Judge.
NONPRECEDENTIAL OPINION
WHEELOCK, Judge
In this appeal from a custody award, appellant mother argues that the district court
abused its discretion by (1) awarding respondent father joint legal custody, joint physical custody, and equal parenting time; (2) omitting certain holidays from the holiday
parenting-time schedule; and (3) limiting vacation parenting time to the month of July.
Because the district court’s findings are insufficient to permit appellate review of the
holiday parenting-time schedule, we remand for further findings on that issue. We affirm
in all other respects.
FACTS
Appellant mother Angel Raeleen Smith and respondent father Zoraba Ross share
one minor child, A.Z.R., born in Minnesota in March 2021. Mother and father were never
married, but they were in a romantic relationship throughout mother’s pregnancy. Father
helped mother through her high-risk pregnancy, and the parties planned to raise the child
together. Both parties signed the child’s birth certificate, and father signed a recognition
of parentage acknowledging his paternity of the child. However, six days after the child’s
birth, the parties had an argument, and mother took the child to Florida, where her family
lives, without father’s knowledge.
On April 12, 2021, father filed a petition in district court requesting joint legal
custody, joint physical custody, and a shared parenting-time schedule. He also filed an
emergency motion requesting an order for mother to return the child to Minnesota. On
May 19, 2021, the district court ordered mother to return to Minnesota with the child within
two weeks and awarded father three hours of parenting time every Wednesday, Saturday,
and Sunday, for a total of nine hours per week.
Shortly after the hearing, the parties agreed to participate in a custody and
parenting-time evaluation and agreed on an evaluator, but the evaluation was never
2 conducted. In October 2021, the district court appointed a custody evaluator and ordered
an evaluation. In letters to each other and the district court, the parties accused each other
of causing delays with the custody evaluation. Because of the delays and because custody
evaluations can take more than six months, father moved the district court in February 2022
for a temporary order granting him equal parenting time. After the parties’ initial meeting
with the evaluator in March 2022, the evaluator appointed by the district court declined to
take the case because father had accused her of being biased against fathers. The district
court later granted father additional, but not equal, parenting time.
Throughout the litigation, the parties had difficulty cooperating with each other on
parenting time and disagreed on the child’s feeding and medical care. Father criticized
mother for being overly controlling while the child was in his care, taking the child to
excessive medical appointments, and excluding father from medical decisions, which he
believed demonstrated that mother suffered from mental-health conditions. Mother
criticized father for being hostile to her around the time of the child’s birth, bullying her by
accusing her of having mental-health conditions, interfering with the child’s medical care
when they attended appointments together, harassing her during parenting-time exchanges
at a police station, and calling the police to check on the child when he could not reach her.
Both parties submitted affidavits and numerous exhibits in support of their positions. Both
parties filed police reports following parenting-time exchanges in which they perceived the
other as hostile.
Nevertheless, mother offered father the opportunity to spend time with the child on
holidays that were not part of his parenting-time schedule and accommodated his schedule
3 when he was unable to conduct exchanges at specified times. She also told him that she
hoped they could trust each other more in the future as the child grew older.
Mother continued to request that the district court appoint a new evaluator, stating
that the case should not proceed to trial without an evaluation, but the district court
scheduled trial without ordering an evaluation. The district court conducted the trial in
January 2023.
In March 2023, the district court entered a judgment and decree granting joint legal
custody, joint physical custody, and equal parenting time. Relevant to this appeal, the
district court found that, although the parties had difficulties cooperating during the
litigation, those difficulties were not reflective of the parties’ ability to cooperate in the
future. In support of its finding, the district court cited the parties’ love for the child, shared
values, father’s care for mother during her pregnancy, and mother’s cooperation and
flexibility regarding parenting time. The district court also observed that the parties’
conflicts arose in the context of litigation, unequal parenting time, and uncertainty
regarding father’s parental rights related to medical decisions and picking the child up from
daycare. To facilitate cooperation and reduce conflict, the district court ordered the parties
to use Our Family Wizard 1 to communicate about parenting-time exchanges, conduct
exchanges at neutral locations that were not police stations, alternate taking the child to
medical appointments, and mediate disputes before initiating further litigation.
1 Our Family Wizard is a court-approved communication tool for families that have difficulty with communication.
4 Mother filed a motion for amended findings and a new trial. The district court
denied the motion except to amend one finding not relevant to this appeal.
Mother appeals.
DECISION
Mother argues that the district court abused its discretion by (1) awarding father
joint legal custody, joint physical custody, and equal parenting time; (2) omitting certain
holidays from the holiday parenting-time schedule that the parties asked the district court
to include; and (3) limiting vacation parenting time to the month of July. We address these
arguments in turn.
I. The district court acted within its discretion when it granted father joint legal custody, joint physical custody, and equal parenting time.
Mother challenges the district court’s awards of joint legal custody, joint physical
custody, and equal parenting time, arguing that (1) the district court’s findings regarding
the parties’ willingness and ability to cooperate are clearly erroneous, (2) the district court
abused its discretion by ordering the parties to alternate taking the child to medical
appointments, and (3) the district court abused its discretion by proceeding to trial and
issuing its order without a custody and parenting-time evaluation.
“District courts have broad discretion on matters of custody and parenting time.”
Hansen v. Todnem, 908 N.W.2d 592, 596 (Minn. 2018). “Caselaw ‘leaves scant if any
room for an appellate court to question the [district] court’s balancing of best-interests
considerations.’” Ewald v. Nedrebo, 999 N.W.2d 546, 551 (Minn. App. 2023) (quoting
Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000)), rev. denied (Minn.
5 Feb. 28, 2024). “A district court abuses its discretion by making findings of fact that are
unsupported by the evidence, misapplying the law, or delivering a decision that is against
logic and the facts on record.” Woolsey v. Woolsey, 975 N.W.2d 502, 506 (Minn. 2022)
(quoting Bender v. Bernhard, 971 N.W.2d 257, 262 (Minn. 2022)). When applying the
clear-error standard of review, this court (1) views the evidence in the light most favorable
to the district court’s findings, (2) does not reweigh the evidence, (3) does not engage in
fact-finding, (4) does not reconcile conflicting evidence, and (5) “need not go into an
extended discussion of the evidence to prove or demonstrate the correctness of the findings
of the [district] court.” In re Civ. Commitment of Kenney, 963 N.W.2d 214, 221-22 (Minn.
2021); see Ewald, 999 N.W.2d at 552 (citing Kenney in a family-law appeal).
A. The evidence supports the district court’s finding that mother and father are willing and able to cooperate in the rearing of the child.
Mother first argues that the district court’s findings that the parties are willing and
able to cooperate are clearly erroneous because the findings are speculative and not
supported by the evidence. “[T]he willingness and ability of parents to cooperate in the
rearing of their child; to maximize sharing information and minimize exposure of the child
to parental conflict; and to utilize methods for resolving disputes regarding any major
decision concerning the life of the child” is one of 12 best-interests factors that the district
court considers in making custody and parenting-time determinations. Minn. Stat.
6 § 518.17, subd. 1(a) (2022). Evidence related to this factor is also relevant to the following
four additional best-interests factors:
(1) [the] child’s physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child’s needs and development; . . . (6) the history and nature of each parent’s participation in providing care for the child; (7) the willingness and ability of each parent to provide ongoing care for the child; to meet the child’s ongoing developmental, emotional, spiritual, and cultural needs; and to maintain consistency and follow through with parenting time; [and] . . . (11) . . . the disposition of each parent to support the child’s relationship with the other parent and to encourage and permit frequent and continuing contact between the child and the other parent[.]
Id., subd. 1(a)(1), (6), (7), (11). Here, when the district court analyzed these best-interests
factors, it considered evidence of mother’s and father’s willingness to cooperate in rearing
the child, maximize sharing information, minimize exposure to parental conflict, and
utilize methods for resolving disputes.
We have held that, “[w]here the evidence indicates that the parties lack the ability
to cooperate and communicate, joint legal custody is not appropriate.” Wopata v. Wopata,
498 N.W.2d 478, 482 (Minn. App. 1993); see also Digatono v. Digatono, 414 N.W.2d 498,
502 (Minn. App. 1987) (affirming denial of joint legal custody when “the turmoil in [the
parties’] relationship ha[d] been so intense . . . that any significant contact between the
parties is likely to result in further tension, and may in fact result in physical
confrontations”), rev. denied (Minn. Jan. 15, 1988); Andersen v. Andersen, 360 N.W.2d
644, 646 (Minn. App. 1985) (affirming denial of joint legal custody when “[t]he parties
7 demonstrate[d] intense anger toward one another” and the child felt “caught in a
tug-of-war”).
Mother argues that the district court misconstrued certain communications about
parenting time as demonstrating cooperation rather than conflict and that father’s own
testimony undermines the district court’s findings in various ways, including that he
admitted to his role in the parties’ conflicts, the need for court intervention during the
litigation, and his legal disputes with the mother of his now-adult child. Mother also asserts
that the district court overemphasized evidence of cooperation from around the time of the
child’s birth, which she argues is weak in comparison to the more recent evidence of
conflict.
The record here contains evidence of both conflict and cooperation, and it is not this
court’s role to reconcile conflicting evidence. See Vangsness, 607 N.W.2d at 474, 475
(stating, “[t]hat the record might support findings other than those made by the [district]
court does not show that the court’s findings are defective,” and observing that “[w]e
cannot reweigh the evidence presented to the [district] court”). The parties’ parenting-time
communications demonstrate that mother willingly accommodated father’s scheduling
conflicts and offered extra parenting time. Father testified that he wanted to work together
with mother and be involved in the child’s life, and the district court specifically stated that
it found this testimony credible. The district court acknowledged that the record also
contains evidence of conflict, which demonstrates that the district court took that evidence
into account in reaching its decision.
8 Mother argues that the district court’s findings related to the parties’ willingness and
ability to cooperate were speculative. But a district court’s balancing of the best-interests
factors is necessarily forward-looking, and we have affirmed joint awards when the record
contains some evidence of cooperation, demonstrates that both parties care for the child,
and supports the conclusion that the parties’ conflicts will likely subside after the litigation
ends. See Veit v. Veit, 413 N.W.2d 601, 605 (Minn. App. 1987) (rejecting the argument that
the parties were unable to cooperate “on any level” because evidence supported the district
court’s “finding [that] the parties’ inability to cooperate was of relatively recent origin”);
Berthiaume v. Berthiaume, 368 N.W.2d 328, 332-33 (Minn. App. 1985) (determining that
evidence supported the district court’s finding, “in spite of current conflict,” that “the
parties would be able to cooperate as necessary after the custody issue was put to rest”);
Schultz v. Schultz, 358 N.W.2d 136, 139 (Minn. App. 1984) (affirming a district court’s
joint-custody award in a case in which “current conflict” existed but evidence showed that
the parties “would be able to cooperate as necessary once the anguish of the dissolution
proceeding was past”). Here, the district court properly considered evidence of cooperation
around the time of the child’s birth because that evidence speaks to the parties’ ability to
cooperate outside the context of litigation.
Moreover, we have affirmed an award of joint physical custody despite evidence of
conflict when the district court found that the parties were capable of complying with a
custody arrangement that was structured. Crosby v. Crosby, 587 N.W.2d 292, 295-96
(Minn. App. 1998), rev. denied (Minn. Feb. 18, 1999). Here, the district court concluded
that placing the parties on equal footing by awarding joint legal custody, joint physical
9 custody, and equal parenting time would reduce conflicts that arose out of the previous lack
of structure. It then implemented specific tools to create structure, reduce conflict, and
facilitate cooperation in the custody arrangement, including communicating via Our
Family Wizard over father’s objection, conducting parenting-time exchanges at neutral
locations, alternating who takes the child to medical appointments, and mediating disputes.
We conclude that the district court’s findings about the parties’ willingness and
ability to cooperate are not clearly erroneous. Therefore, we affirm the district court’s order
granting joint legal custody, joint physical custody, and equal parenting time.
B. The district court acted within its discretion when it ordered mother and father to alternate bringing the child to medical appointments.
Mother next argues that the district court abused its discretion by ordering the parties
to alternate bringing the child to medical appointments, arguing that (1) the district court’s
finding that the doctor’s visits were excessive is clearly erroneous because many of the
“visits” were telephone calls, telemedicine contacts, prescription refills, and COVID-19
tests and, (2) because father criticized mother for taking the child to the doctor excessively,
the arrangement could jeopardize the child’s health.
The district court’s finding that mother’s approach to the child’s medical care was
excessive is supported by the record, which includes voluminous medical records and no
evidence of a chronic health condition. The record also contains evidence supporting the
district court’s findings that both parties cared about the child’s health and well-being.
Although father’s approach to the child’s medical care was more moderate than mother’s,
there is no evidence in the record that father will harm the child by interfering with her
10 necessary care. The district court found that the arrangement was in the child’s best
interests because it would facilitate father’s exercise of legal custody, information-sharing,
and joint decision-making, all of which may reduce conflict regarding the child’s medical
care. The district court also found that the child would benefit from father’s participation
because father has prior parenting experience.
These findings are supported by the record, and therefore, they are not clearly
erroneous. We thus conclude that the district court did not abuse its discretion when it
determined that alternating which parent brings the child in for medical appointments is in
the child’s best interests.
C. The district court acted within its discretion when it proceeded to trial without a custody and parenting-time evaluation.
Mother challenges the district court’s decision to proceed to trial without a custody
and parenting-time evaluation, arguing that the district court’s findings supporting that
decision are inadequate and that the district court should have ordered an evaluation
because of the parties’ conflicts.
Custody evaluations are not required. See Minn. Stat. § 518.167, subd. 1 (2022)
(stating that “the court may order an investigation and report” (emphasis added)). And the
supreme court has acknowledged that they “may not adequately provide . . . needed insight
in particular cases.” Pikula v. Pikula, 374 N.W.2d 705, 712 (Minn. 1985). We review a
district court’s decision not to order a custody evaluation for an abuse of discretion. Meyer
v. Meyer, 375 N.W.2d 820, 826 (Minn. App. 1985), rev. denied (Minn. Dec. 30, 1985). This
discretion is “extremely broad.” Sheeran v. Sheeran, 401 N.W.2d 111, 117 (Minn. App.
11 1987); see also Meyer, 375 N.W.2d at 827 (affirming the district court’s decision not to
order an evaluation despite evidence demonstrating “exactly the type of situation where
the interests of the child would be best served by . . . an order for a home study”).
The district court determined that a custody and parenting-time evaluation would be
of little value in this case and thoroughly explained its reasoning in its order. The district
court noted that the record was well developed; the child was too young to express her
preferences; the parties had not raised any credible issues of domestic abuse, mental-health
concerns, or chemical dependency; and both parties are educated and fully employed. The
district court also explained that the need for a permanent custody arrangement outweighed
the value, if any, of an evaluation because it would not be in the child’s best interests to
further delay resolution.
These findings are supported by the record and sufficiently explain the district
court’s decision not to order an evaluation. We therefore conclude that the district court
did not abuse its discretion by proceeding to trial without a custody and parenting-time
evaluation.
II. The district court’s findings regarding the holiday parenting-time schedule are insufficient to permit appellate review.
Mother argues that the district court abused its discretion by omitting certain
holidays and special days from the holiday parenting-time schedule without making
findings explaining why it omitted those holidays. The district court included seven
holidays in its holiday parenting-time order but omitted 12 holidays and special days that
one or both parties requested that the court address. Among the holidays the district court
12 omitted are Martin Luther King Jr. Day and Juneteenth, which mother argues are
particularly important because the parties and the child are African American.
In general, “to the extent practicable an order for parenting time must include a
specific schedule for parenting time, including . . . holidays.” Minn. Stat. § 518.175,
subd. 1(e) (2022). As with all aspects of a parenting-time schedule, district courts must set
a holiday schedule that “will enable the child and the parent to maintain a child to parent
relationship that will be in the best interests of the child.” Id., subd. 1(a) (2022); see also
Anderson v. Archer, 510 N.W.2d 1, 6 (Minn. App. 1993) (Davies, J., concurring) (stating
that district courts should give particular thought to “where the children would get the most
benefit, holiday by holiday,” and suggesting factors for consideration).
Because “holidays and other special days are distinct from the rest of the parenting
schedule,” district courts should make findings of fact explaining why the holiday schedule
is in the best interests of the child. Suleski v. Rupe, 855 N.W.2d 330, 338 (Minn. App.
2014). “Findings should assure that the relevant statutory factors have been addressed,
satisfy the litigants that their case was fairly resolved, and permit reasoned appellate
review.” Hesse v. Hesse, 778 N.W.2d 98, 104 (Minn. App. 2009); see also Kucera v.
Kucera, 146 N.W.2d 181, 183 (Minn. 1966) (“It is not within the province of [appellate
courts] to determine issues of fact on appeal.”).
Because the district court’s order does not include findings of fact explaining its
decision to omit some holidays and special days from the holiday parenting-time schedule
while including others, we are unable to review that issue on appeal. Therefore, we remand
to the district court to make findings and provide its rationale. On remand, the district court
13 shall have discretion to reopen the record as to this issue, amend the holiday parenting-time
schedule, and make any corresponding adjustments to the child-support award it deems
necessary.
III. The district court acted within its discretion with respect to the vacation parenting-time schedule.
Mother argues that the district court abused its discretion by limiting vacation
parenting time to two weeks with each parent, taken consecutively in the month of July,
without making findings explaining the limitation. She asserts that (1) vacations should
not be limited to a summer month when the child is not yet school-aged; (2) there is no
reason to require that the vacations be taken consecutively; and, (3) although July is an
appropriate time for father to exercise vacation parenting time because he works in
education, the limitation is impractical for her because her work schedule may not be as
flexible.
Mother is incorrect that the district court limited vacations to the month of July;
rather, the district court reserved July for guaranteed vacation time and provided that the
parties could agree to additional or different vacation time. Mother does not explain why
consecutive vacations are not in the best interests of the child. She also does not explain
why July is not feasible for her—the district court found that both parties would be able to
exercise vacation parenting time in the summer, and there is no evidence in the record to
the contrary. We therefore conclude that the district court did not abuse its discretion with
respect to the vacation parenting-time schedule.
14 In sum, we affirm the district court’s order granting joint legal custody, joint
physical custody, and equal parenting time. We also affirm the vacation parenting-time
schedule. But because the district court did not make findings relevant to the holiday
parenting-time schedule, we remand for further findings on that issue consistent with this
opinion.
Affirmed in part and remanded.