Jessica Leah Weiss v. Alfred Aaron Griffin

• Court: Court of Appeals of Minnesota
• Decided: October 24, 2016
• Docket: A16-340
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn.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 A16-0340

Jessica Leah Weiss, petitioner, Respondent,

vs.

Alfred Aaron Griffin, Appellant.

Filed October 24, 2016 Affirmed in part, reversed in part, and remanded Peterson, Judge

Hennepin County District Court File No. 27-PA-FA-08-558

Katie M. Jarvi, Johnson & Turner Legal, Forest Lake, Minnesota (for respondent)

Damon L. Ward, Ward Law Group, Minneapolis, Minnesota (for appellant)

Considered and decided by Peterson, Presiding Judge; Hooten, Judge; and Bratvold,

Judge.

UNPUBLISHED OPINION

PETERSON, Judge

In this appeal from an order modifying parenting time, appellant-father argues that

the district court erred by (1) failing to properly consider the child’s best interests and to

apply the endangerment standard when modifying parenting time, (2) failing to dismiss

respondent-mother’s motion for lack of compliance with Minn. R. Gen. Pract. 303.02, and (3) allocating the child’s unreimbursed medical expenses between the parties. We affirm

in part, reverse in part, and remand.

FACTS

The parties are the parents of a child born in 2007. Appellant-father Alfred Aaron

Griffin was adjudicated the child’s father in a paternity proceeding, and both parties sought

custody of the child. In March 2010, the district court entered an amended judgment and

decree that awarded the parties temporary joint legal and temporary joint physical custody

of the child.1 The amended judgment and decree granted father parenting time, during

week one, from Thursday evening until Friday evening and, during week two, from

Thursday evening until Sunday evening, with the option to extend week-two parenting time

until Monday morning once every three months. Both parties were granted vacation and

holiday time. Other than some slight modifications made by the parties, this schedule

remains in effect.

The amended judgment and decree also granted each party “two weeks of non-

consecutive, uninterrupted parenting time” and stated that “[s]uch weeks shall be from 9:00

a.m. on Saturday to 9:00 a.m. on the following Saturday” and “shall not interfere with

holiday or birthday parenting time awarded to [the other party] herein.” Father was

prohibited from adding his uninterrupted parenting time “to regular ‘week two’ parenting

time in order to extend the period beyond 9:00 a.m. on Saturday.”

1 The judgment and decree was amended due to a clerical mistake.

2 The parties have a contentious relationship and are unable to effectively coparent or

communicate with each other. In November 2013, with the parties’ agreement, a

parenting-time expeditor (PTE) was appointed to resolve parenting-time disputes and

address ambiguities in and violations of the parenting-time order. The order appointing

the PTE permits either party to move the district court to modify, vacate, or enforce a

decision of the PTE. The order requires each party to pay one-half of the PTE’s fees. In

September 2014, the PTE suspended her services because father was behind in paying his

share of her fees.

In October 2015, respondent-mother Jessica Leah Weiss brought a motion in the

district court seeking an order (1) prohibiting either party from attaching vacation time to

holiday time in order to extend uninterrupted parenting time beyond seven days,

(2) granting mother compensatory parenting time, (3) requiring father to pay all

outstanding uninsured and unreimbursed medical and dental expenses incurred by mother

on the child’s behalf, (4) requiring father to become current on the fees he owed to the PTE,

and (5) awarding mother attorney fees incurred in pursuing this motion.

The district court entered an order prohibiting both parties from exercising their

nonconsecutive, uninterrupted parenting time either immediately before or immediately

after holiday parenting time and stating that a violation of the prohibition would result in

that party losing one week of uninterrupted parenting time. The court denied mother

compensatory parenting time. The court ordered father to provide mother with an

insurance card for the child and to reimburse mother for all uninsured and unreimbursed

medical expenses incurred on behalf of the child as of the order date. The court made each

3 party responsible for 50% of future unreimbursed and uninsured medical expenses. The

court directed father to pay the fees that he owed to the PTE and awarded mother $1,150

in attorney fees.

Father appealed. This court dismissed the part of this appeal challenging the award

of attorney fees to mother due to father’s failure to file a copy of the judgment for attorney

fees in this court and denied father’s motion to reconsider that decision.

DECISION

I.

Father argues that the district court erred by failing to properly consider the child’s

best interests and failing to apply the endangerment standard in modifying parenting time

to prohibit the parties from exercising their nonconsecutive, uninterrupted parenting time

either immediately before or immediately after holiday parenting time. See Minn. Stat.

§ 257.541 (2014) (governing custody of and parenting time with children born out of

wedlock). “The district court has broad discretion in determining parenting-time issues

and will not be reversed absent an abuse of that discretion.” Dahl v. Dahl, 765 N.W.2d

118, 123 (Minn. App. 2009). If modification would serve the child’s best interests, “the

court shall modify . . . an order granting or denying parenting time, if the modification

would not change the child’s primary residence.” Minn. Stat. 518.175, subd. 5(a) (2014);

see also Hagen v. Schirmers, 783 N.W.2d 212, 216 (Minn. App. 2010) (stating that ultimate

concern in parenting-time dispute is child’s best interests).

4 Best Interests

Father argues that the district court failed to make specific findings demonstrating

its evaluation of the “best interests” factors listed in Minn. Stat. § 518.17, subd. 1(a) (Supp.

2015). See Minn. Stat. § 257.025(a) (Supp. 2015) (stating that “[i]n any custody or

parenting time proceeding involving unmarried parents, the court shall consider and

evaluate all relevant factors in section 518.17, subdivision 1, to determine the best interests

of the child”). For two reasons, we disagree.

First, because Minn. Stat. § 257.025(a) requires that the district court address a

child’s best interests by “consider[ing] and evaluat[ing] all relevant factors in section

518.17, subdivision 1,” (emphasis added), it requires neither that the district court

“consider and evaluate[,]” nor make findings on, all of the factors in Minn. Stat. § 518.17,

subd. 1. This is consistent with the fact that, generally, modification of parenting time is

governed by Minn. Stat. § 518.175, subd. 5(a), which does not require the district court to

make findings on all of the best-interests factors in Minn. Stat. § 518.17, subd. 1(a).

Newstrand v. Arend, 869 N.W.2d 681, 691 (Minn. App. 2015) (making this observation

regarding the 2014 versions of Minn. Stat. § 518.17, subd. 1, and Minn. Stat. § 518.175,

subd. 5), review denied (Minn. Dec. 15, 2015). Thus, a lack of findings on all of the

statutory best-interests factors is not necessarily fatal to the district court’s decision.

Second, to permit effective appellate review, the district court must make

sufficiently detailed findings to show its consideration of all relevant factors. See Stich v.

Stich, 435 N.W.2d 52, 53 (Minn. 1989) (stating, in a dispute over an award of spousal

maintenance, that “[e]ffective appellate review of the [district court’s] discretion is possible

5 only when the [district] court has issued sufficiently detailed findings of fact to demonstrate

its consideration of [all relevant factors]”). Here, the district court did so by addressing the

parties’ inability to cooperate. See Minn. Stat. § 518.17, subd. 1(a)(12) (addressing

parents’ willingness and ability to cooperate in rearing child). The district court found:

[Mother] alleges that [father] has repeatedly, and without prior notice, exercised his “floating” uninterrupted parenting time in conjunction with his holiday parenting time, effectively extending his parenting time with the child beyond the allotted 7-day period. She asks the Court to order that neither parent be allowed to “wraparound” their floating parenting time in this manner. [Father’s] attorney argued that [mother] has also unilaterally extended her holiday parenting time by utilizing a wraparound. This conflict has to end. Neither parent should be allowed to exercise their additional floating parenting time in this manner in light of the profound distrust and animosity that exists.

Each party submitted an affidavit showing that attempts by the other party to extend

parenting time beyond the time periods specified in the amended judgment and decree have

added to the conflict between the parties. The affidavits support the district court’s finding

that attempts by the parties to combine a week of uninterrupted parenting time with holiday

parenting time added to the acrimony between the parties. Further, father has not identified

any other best-interests factor(s) as relevant to the district court’s assessment of the child’s

best interests, and has not specifically identified any prejudice arising from a failure by the

district court to “consider and evaluate” a best-interests factor omitted from its analysis.

See Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949) (stating that “on appeal

error is never presumed. It must be made to appear affirmatively before there can be

reversal . . . [and] the burden of showing error rests upon the one who relies upon it”

6 (quoting Waters v. Fiebelkorn, 216 Minn. 489, 495, 13 N.W.2d 461, 464-65 (1944));

Luthen v. Luthen, 596 N.W.2d 278, 283 (Minn.App.1999) (applying this aspect of Loth).

Thus, father has shown neither that the district court’s findings are inadequate nor that any

inadequacy in those findings prejudiced him. As a result, relief from this court for the

district court’s alleged failure to adequately “consider and evaluate” the “relevant” best-

interests factors is not required here.

Endangerment Standard

“[T]he court may not restrict parenting time unless it finds that: (1) parenting time

is likely to endanger the child’s physical or emotional health or impair the child’s emotional

development; or (2) the parent has chronically and unreasonably failed to comply with

court-ordered parenting time.” Minn. Stat. § 518.175, subd. 5(b) (2014).

Father argues that the district court’s findings, as well as the affidavit submitted by

mother, were insufficient to support a restriction of his parenting time.

If a change in parenting time constitutes a restriction of parenting time, as opposed to a modification, then particular findings are required. Minn. Stat. § 518.175, subd. 5 (allowing modification when it is in a child’s best interests but requiring particular findings for a restriction). To answer that question, we must first identify the order that establishes the baseline parenting-time schedule and then determine whether the district court’s parenting-time change from the baseline parenting-time schedule is significant enough to constitute a restriction.

. . . Determining the legal standard applicable to a change in parenting time is a question of law and is subject to de novo review. . . . A restriction occurs when a change to parenting time is substantial. Modifications are less substantial changes in parenting time.

7 Dahl, 765 N.W.2d at 123-24 (quotations and citation omitted).

To determine whether a parenting-time change constitutes a restriction or a

modification, this court considers the reasons for the change as well as the amount of any

reduction. Id. at 124; see also Anderson v. Archer, 510 N.W.2d 1, 5 (Minn. App. 1993)

(concluding that a change in parenting time was insubstantial when it was caused by a

move to a different state and the parties were left with nearly equal parenting time after the

change); Clark v. Clark, 346 N.W.2d 383, 385-86 (Minn. App. 1984) (concluding that a

gradual erosion of parenting time from 14 weeks per year to five and one-half weeks per

year was a substantial change), review denied (Minn. June 12, 1984).

The district court prohibited the parties from combining a week of uninterrupted

parenting time with holiday parenting time in order to reduce the conflict between the

parties. Both parties’ conduct led to the prohibition, and there was no reduction in the

amount of father’s parenting time. The only change was to prohibit the parties from adding

an uninterrupted week of parenting time to holiday parenting time, and the amended

judgment and decree already prohibited father from adding an uninterrupted week of

parenting time to week-two parenting time. This prohibition does not alter the amount of

time that each party can spend with the child. Under these circumstances, we conclude

that the change did not constitute a restriction. Because there was no restriction, the district

court was not required to make findings supporting a restriction, and because the findings

show that the district court otherwise properly considered the child’s best interests, we

affirm the prohibition against the parties exercising their nonconsecutive, uninterrupted

parenting time either immediately before or immediately after holiday parenting time.

8 Father also addresses the requirements for a custody modification. Because the

prohibition did not reduce the amount of father’s parenting time, there is no basis for

treating it as a custody modification.

II.

Father argues that the district court should have dismissed mother’s motion because

she did not provide a Parenting/Financial Disclosure Statement form.

When temporary financial relief such as child support, maintenance, payment of debt and attorney’s fees is requested, the Parenting/Financial Disclosure Statement form developed by the state court administrator shall be served and filed by the moving and responding parties, along with their motions and affidavits. Sanctions for failure to comply include, but are not limited to, striking of pleadings or hearing.

Minn. Gen. R. Pract. 303.02(b). Because father has not shown any prejudice resulting from

mother’s failure to provide the form, any error by the district court in denying father’s

request to sanction mother for failing to provide the form is not a basis for reversal. See

Minn. R. Civ. P. 61 (requiring court to disregard harmless error); Midway Ctr. Assocs. v.

Midway Ctr., Inc., 309 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (stating that appellant

must show both error and prejudice to obtain reversal).

III.

Father argues that the district court erred in allocating the child’s uninsured and

unreimbursed medical costs between the parties. The amended judgment and decree does

not address the allocation of the child’s uninsured and unreimbursed medical costs.

9 The district court found:

It is customary for parties to equally share uninsured and unreimbursed expenses on behalf of their minor children. Both parties have presented arguments as to what to do with the child’s current uninsured and unreimbursed medical expenses, in essence asking the Court to rule on this issue. Given that their Decree is silent on this issue, to avoid future disputes going forward, the Court will also decide what the parties should do with these expenses going forward.

Mother paid $1,500 in unreimbursed medical costs. The district court treated the allocation

of uninsured and unreimbursed medical expenses as a modification of support and ordered

father to pay her “the total amount she is owed” and ordered that the parties would each be

responsible for 50% of future unreimbursed medical expenses.

The medical-support section of the child-support statute provides:

Unless otherwise agreed to by the parties and approved by the court, the court must order that the cost of health care coverage and all unreimbursed and uninsured medical expenses under the health plan be divided between the obligor and obligee based on their proportionate share of the parties’ combined monthly PICS.

Minn. Stat. § 518A.41, subd. 5 (2014);2 see Minn. Stat. § 257.66, subd. 3 (2014) (providing

for child-support matters to be determined according to chapter 518A). Child-support

matters are committed to the district court’s discretion, which “must be exercised within

the limits set by the legislature.” Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002). “‘Must’

is mandatory.” Minn. Stat. § 645.44, subd. 15a (2014). Because the parties did not agree

to equally divide unreimbursed and uninsured medical expenses, we reverse the district

2 This statutory provision was in effect when the amended judgment and decree was entered on March 4, 2010.

10 court’s allocation of unreimbursed and uninsured medical expenses and remand for the

court to allocate those expenses according to the mandatory requirements of Minn. Stat.

§ 518A.41, subd. 5. See Minn. R. Civ. App. P. 103.04 (appellate court may review any

matter “as the interest of justice may require”); Haefele v. Haefele, 837 N.W.2d 703, 712

n.6 (Minn. 2013) (stating that mandatory language in child-support statute imposed an

“independent obligation on the [district] court” to correctly apply the relevant statute,

despite a party’s failure to seek that specific relief); State v. Hannuksela, 452 N.W.2d 668,

673 n.7 (Minn. 1990) (“[It] is the responsibility of appellate courts to decide cases in

accordance with law, and that responsibility is not to be diluted by counsel’s oversights,

lack of research, failure to specify issues or to cite relevant authorities”) (quotation

omitted)); Greenbush State Bank v. Stephens, 463 N.W.2d 303, 306 n.1 (Minn. App. 1990)

(applying Hannuksela in a civil case), review denied (Minn. Feb. 4, 1991).

In a footnote, father asserts that mother lacked standing to request the fees owed to

the PTE by father. Because this claim of error is not supported by argument or authority,

it is not properly before this court. State by Humphrey v. Modern Recycling, Inc., 558

N.W.2d 770, 772 (Minn. App. 1997).

Affirmed in part, reversed in part, and remanded.