S. M. K. v. D. M. W.

• Court: Court of Appeals of Minnesota
• Decided: March 2, 2015
• Docket: A14-1070
• Status: Unpublished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This opinion will be unpublished and may not be cited except as provided by Minn.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 A14-1070

S. M. K., petitioner, Respondent,

vs.

D. M. W., Appellant.

Filed March 2, 2015 Affirmed Larkin, Judge

Hennepin County District Court File No. 27-PA-FA-08-797

Lisa M. Elliott, Elliott Law Offices, P.A., Minneapolis, Minnesota (for respondent)

Mark M. Gray, Gray Law, Minneapolis, Minnesota (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Johnson, Judge; and

Larkin, Judge.

UNPUBLISHED OPINION

LARKIN, Judge

Appellant-father challenges the district court’s order allowing respondent-mother

to move the residence of the parties’ minor son to Florida and its attendant parenting-time order. Because the district court did not abuse its discretion by allowing the move or in

establishing a parenting-time schedule, we affirm.

FACTS

Appellant-father and respondent-mother are the unmarried parents of one child,

L.D.K., who was born on September 25, 2007. In 2008, the district court adjudicated

appellant the father of L.D.K., awarded the parties joint legal custody, and awarded

respondent sole physical custody. The district court also granted appellant “reasonable

parenting time,” without ordering a specific schedule.

In 2013, respondent moved the district court for an order allowing her to move

L.D.K.’s residence to the State of Florida. Appellant opposed the request. Following a

hearing on the motion, the district court concluded that it was in L.D.K.’s best interest to

move to Florida with respondent and granted respondent’s motion.

Appellant moved for amended findings, requesting numerous amendments and

that he receive 25% parenting time, consistent with a statutory presumption. Respondent

opposed appellant’s request. The district court heard oral arguments from the parties and

issued a written order addressing the statutory parenting-time presumption. The district

court denied appellant’s motion “in its entirety, except that [appellant] and his family

may have additional parenting time with the minor child as agreed upon by the parties.”

The district court issued an amended order awarding “[a]ny additional parenting time for

[appellant] and/or [appellant’s] family, as agreed upon by the parties.” This appeal

follows.

2 DECISION

I.

We first consider appellant’s argument that “the district court erred when it made

findings allowing respondent-mother to move the residence of the parties’ child to

another state.” Our review of the district court’s decision “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). We “set aside a district court’s findings of fact

only if clearly erroneous.” 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.

(quotation omitted).

A parent with whom a child resides may not move the child’s residence to another

state except upon court order or with the consent of the other parent, if the other parent

has been awarded court-ordered parenting time. Minn. Stat. § 518.175, subd. 3(a) (2014).

In determining whether to permit a parent to move a child’s residence to another state, the

district court must base its decision on the best interests of the child and must consider

eight statutory factors. Id., subd. 3(b) (2014). Those factors are:

(1) the nature, quality, extent of involvement, and duration of the child’s relationship with the person proposing to relocate and with the nonrelocating person, siblings, and other significant persons in the child’s life; (2) the age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration special needs of the child;

3 (3) the feasibility of preserving the relationship between the nonrelocating person and the child through suitable parenting time arrangements, considering the logistics and financial circumstances of the parties; (4) the child’s preference, taking into consideration the age and maturity of the child; (5) whether there is an established pattern of conduct of the person seeking the relocation either to promote or thwart the relationship of the child and the nonrelocating person; (6) whether the relocation of the child will enhance the general quality of the life for both the custodial parent seeking the relocation and the child including, but not limited to, financial or emotional benefit or educational opportunity; (7) the reasons of each person for seeking or opposing the relocation; and (8) the effect on the safety and welfare of the child, or of the parent requesting to move the child’s residence, of domestic abuse, as defined in section 518B.01.

Id.

Appellant assigns error to the district court’s findings regarding the first, fourth,

and eighth best-interests factors. As to the first factor, appellant cites a portion of the

findings-of-fact section of the district court’s order, which recites the parties’ arguments

regarding appellant’s grandparents’ involvement in L.D.K.’s life. Appellant argues that

those findings “are just a recitation of the parties’ claims,” the district court “never

resolved the matter of how much time the minor child spent with father and his

grandparents versus mother and her family,” and “[t]he court made no finding on the

nature or quality of the child’s relationship with the paternal grandparents.” See Dean v.

Pelton, 437 N.W.2d 762, 764 (Minn. App. 1989) (stating that merely reciting the parties’

assertions does not constitute making findings of fact).

4 Appellant’s argument ignores the fact that the district court’s order includes four

paragraphs of actual findings regarding the nature and extent of L.D.K.’s relationship

with respondent, appellant, and appellant’s grandparents. Those findings are contained in

the conclusions-of-law section of the district court’s order, where the district court

described its analysis of each of the eight statutory best-interests factors. The district

court stated:

The minor child has primarily resided with [respondent] since his birth. [Respondent’s] mom has provided her and the minor child a home rent-free since the minor child was born. [Respondent] desires to join her mom and two brothers in Florida, as they relocated to Wesley Chapel, Florida . . . . [Respondent] and the minor child would continue to reside with [respondent’s] mother in Florida. [Respondent’s] family is her support system and has provided stability and a life better than she could have provided if she were on her own with the minor child.

[Appellant] has been involved on a minimal level with the minor child. [Appellant’s] extended family has played a greater role in the minor child’s life than the [appellant] himself. [Appellant] is granted reasonable parenting time per the parties 2008 Order Establishing Paternity, however, the court finds that he regularly only exercises parenting time with the minor child before he goes to work when the minor child is at his grandparent’s house. The court finds that [appellant] will also, occasionally, see the minor child if his aunt bring[s] the minor child over to his house, again, before he goes to work at noon.

Furthermore, [appellant’s] current job requires him to work from noon until 10:00 p.m., Monday through Friday, thereby eliminating evening parenting time with the minor child. In addition, [appellant’s] job also requires occasional travel days.

In addition, the minor child is now enrolled in kindergarten, and therefore, spends the morning at school.

5 Prior to attending kindergarten, the minor child went to daycare at [appellant’s] grandparents’ house every day. Said arrangement has allowed the minor child to consistently see his great grandparents and see [appellant] as above supra. However, now that the minor child is in kindergarten, daycare services are no longer needed.

If a finding of fact is labeled a conclusion of law or a conclusion of law is labeled

a finding of fact, the determination will be treated in accordance with its nature and not

its incorrect label; the relevant question is whether the determination is adequately

supported. Graphic Arts Educ. Found., Inc. v. State, 240 Minn. 143, 145-46, 59 N.W.2d

841, 844 (1953). Thus, the district court’s placement of factual findings in the

conclusions-of-law section of its order is not a basis for reversal. Moreover, our review

of the record reveals adequate support for the district court’s findings regarding the first

best-interests factor.

As to the fourth factor, the district court found that the “minor child is six (6) years

old” and that “[a]lthough the child is a young age, he has expressed a desire to move to

Florida.” The district court also found that the “minor child understands that he will see

[appellant’s] family less, but states his desire to [respondent] to continue to live with

[respondent], his maternal grandmother and [respondent’s] brothers. The minor child is

close to [respondent’s] family and has lived with [them] all his life.” Appellant questions

whether it was appropriate for the district court to accept the preference of a six-year-old

child and argues that “[w]hether mother manipulated the child should . . . have been of

concern to the [district] court” and “[i]t was a mistake for the court to accept mother’s

claim without any inquiry whatsoever, and to make a conclusion of law based on it.”

6 In its order denying appellant’s request for amended findings, the district court

found “no evidence in the record to support the allegation that the minor child cannot

comprehend the meaning of the move to Florida,” and it specifically found respondent

“credible as to the minor child’s desire to move with her and her family.” See Petersen v.

Petersen, 394 N.W.2d 586, 588 (Minn. App. 1986) (affirming a district court’s

determination that a seven-year-old child could express a custodial preference), review

denied (Minn. Dec. 17, 1986). In determining whether a district court’s finding of fact is

clearly erroneous, this court gives deference to the district court’s credibility

determinations. Goldman, 748 N.W.2d at 284. Thus, the district court’s findings on the

fourth best-interests factor do not leave us with a definite and firm conviction that a

mistake has been made.

As to the eighth factor, appellant contends that “[i]t was error for the court to fail

to make findings on the effect of domestic abuse on its decision to allow relocation.”

Appellant argues, “[i]f Mother’s [domestic abuse] allegations were not credible then

perhaps Father’s denial was more credible; perhaps Mother, who previously asked the

parties’ child for his opinion on the move used a false allegation against Father to satisfy

one prong of the statute?” He asks, “[d]id abuse occur or did Mother fabricate the

allegation to satisfy the eighth prong of the statute?”

Appellant’s argument regarding the eighth factor misses the mark. Under that

factor, the district court must consider the effect of domestic abuse on the safety and

welfare of the child. Minn. Stat. § 518.175, subd. 3(b)(8). Here, the district court noted

that “[respondent] asserts that [appellant] has been physically violent with the

7 [respondent] in the past and that he has a temper.” But the district court stated that it

“does not find there to be any sufficient evidence in the record to support [respondent’s]

assertions and the court will make no findings as to whether the minor child’s safety or

welfare will be affected by the relocation.” Because the district court did not find that

there had been domestic abuse, it was not necessary to make findings regarding the effect

of domestic abuse on the safety and welfare of the child. See Tuthill v. Tuthill, 399

N.W.2d 230, 232 (Minn. App. 1987) (stating that, when the moving party failed to show

the substantial change in circumstances required for a modification of maintenance, the

district court did not need to make findings on other factors listed in the modification

statute).

In sum, appellant has not demonstrated clear error in the district court’s best-

interests findings. Because the findings are supported by the evidence and the district

court properly applied the law, its decision allowing respondent to move L.D.K.’s

residence to Florida is not an abuse of discretion.

II.

We next consider appellant’s argument that “the district court erred as a matter of

law when it failed to award [him] parenting time of . . . 25%.” “In the absence of other

evidence, there is a rebuttable presumption that a parent is entitled to receive at least 25

percent of the parenting time for the child.” Minn. Stat. § 518.175, subd. 1(g) (2014).

Although subdivision 1(g) establishes a presumption, “parenting-time allocations that

merely fall below the 25% presumption can be justified by reasons related to the child’s

best interests and considerations of what is feasible given the circumstances of the

8 parties.” Hagen v. Schirmers, 783 N.W.2d 212, 218 (Minn. App. 2010). A district court

must “demonstrate an awareness and application of the 25% presumption when the issue

is appropriately raised and the court awards less than 25% parenting time.” Id. at 217.

The district court has “extensive” discretion when deciding parenting-time issues.

Manthei v. Manthei, 268 N.W.2d 45, 45 (Minn. 1978).

Appellant points out that at most, the district court awarded him 51 days of

parenting time per year and that the statutory presumption is for 91.25 days of parenting

time per year. Appellant asserts that the “[district] court made no finding as to how and

why 51 days/year were in the child’s best interest instead of 91 days/year; and the

[district] court made no finding whatsoever as to why 51 days/year were more feasible

than 91 days/year.”

Appellant first raised the 25% presumption in his motion for amended findings.

Therefore, appellant raised the question “too late” for it to be properly before the district

court. See Allen v. Cent. Motors, 204 Minn. 295, 298-99, 283 N.W. 490, 492 (1939)

(stating that, after the district court issues a decision resolving the parties’ contentions, “it

is too late for counsel to present a new fact issue”). Furthermore, in its order denying

appellant’s motion, the district court stated:

Due to [respondent] and minor child’s relocation to Florida, the court finds that the feasibility of granting [appellant] 25% parenting time is not possible. The court granted [appellant] reasonable parenting time given the distance between the parties as it is not the court’s intention to deprive [appellant] of meaningful time with the minor child. Furthermore, the court does not find it is in the best interests of the minor child to be away from [respondent] for longer than two (2) weeks given his age.

9 In sum, ignoring the fact that the question is not properly before us, the district

court demonstrated an awareness of the 25% parenting-time presumption once the issue

was raised in appellant’s motion for amended findings. Moreover, the district court

explained that its award of less than 25% parenting time was based on the child’s best

interests and what is feasible given the parties’ circumstances. The district court properly

applied the law and acted well within its extensive discretion in awarding appellant

parenting time of less than 25%.

III.

Lastly, we consider appellant’s argument that the district court erred by awarding

him parenting time “as agreed to by the parties.” Appellant argues that “[i]t was error for

the court to delegate to mother its own responsibility to set a specific schedule of

parenting time” and that parenting time “that will not occur ‘. . . unless agreed upon by

the parties’ is a cruel joke.”

“[T]o the extent practicable an order for parenting time must include a specific

schedule for parenting time, including the frequency and duration of visitation and

visitation during holidays and vacations . . . .” Minn. Stat. § 518.175, subd. 1(e) (2014)

(emphasis added). The district court ordered the following parenting-time schedule: “two

periods of two week[s] during the summer months as agreed upon by the parties,” one

week during L.D.K.’s winter break, every spring break, every other Thanksgiving and

Christmas holiday, and two of L.D.K.’s long weekend breaks from school as set forth in

the school calendar. The district court also ordered “[a]ny additional parenting time for

10 [appellant] and/or [appellant’s] family, as agreed upon by the parties.” Appellant did not

propose or request a more specific parenting-time schedule in district court.

Given L.D.K.’s young age and the need to accommodate travel arrangements

between Minnesota and Florida, the court-ordered schedule is specific, to the extent

practicable. Although the district court left it to the parties to agree on the precise dates

necessary to implement the schedule, the district court did not order that parenting time

will not occur if the parties cannot reach an agreement. If the parties cannot agree on the

specific dates necessary to implement the court-ordered schedule, they may seek relief in

the district court, as they could for any other parenting-time dispute. Contrary to

appellant’s assertion, his parenting time is not “subject to [respondent’s] whims,” and he

has not demonstrated that the parenting-time order is an abuse of discretion.

Affirmed.