Opinion
A22-1616
07-11-2023
In re the Marriage of: Emily Claire Hahn, petitioner, Appellant, v. David Andrew Jungwirth, Respondent.
Polk County District Court File No. 60-FA-2-752
Considered and decided by Frisch, Presiding Judge; Cochran, Judge; and Wheelock, Judge.
ORDER OPINION
Jennifer L. Frisch Judge
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. In 2016, appellant-mother Emily Hahn petitioned for dissolution of her marriage to respondent-father David Jungwirth. Mother and father have one joint child.
2. In 2018, the district court entered a judgment and decree granting the parties joint legal and joint physical custody. The district court found that it was in child's best interest for mother to have the majority of the parenting time during the school year and for father to have the majority of parenting time during the summer months. The district court also directed that child's primary residence during the school year would be with mother, and child's primary residence during the summer would be with father. The district court later amended the judgment.
3. In February 2020, father moved to modify parenting time, requesting that the district court award him equal parenting time.
4. In September, the district court concluded that the best-interests standard in Minn. Stat. § 518.175, subd. 5(b) (2022), applied to father's motion, not the endangerment standard in Minn. Stat. § 518.18(d)(iv) (2022), because father's motion to modify parenting time was not a motion that would result in a de facto change in physical custody. The district court also granted father's request for an evidentiary hearing on the motion.
5. In October, father moved for appointment of a custody investigator. In December, the district court appointed a custody investigator to complete a limited custody evaluation. In March 2021, the custody investigator filed a temporary report recommending that father have parenting time with the child every other weekend beginning Thursday after school and ending Tuesday at the start of school. In April, the district court issued a temporary order and granted father parenting time consistent with the custody investigator's recommendation.
6. In May 2022, the district court conducted a three-day evidentiary hearing on father's motion to modify parenting time. In September, the district court issued a second amended order granting father parenting time every other week and certain holidays on odd or even numbered years. The district court applied the best-interests standard in Minn. Stat. § 518.175, subd. 5(b), and considered the 12 best-interests factors as defined in Minn. Stat. § 518.17, subd. 1(a) (2022). It found that 9 out of the 12 factors support granting father equal parenting time. Mother appeals.
7. Mother argues that the district court erred in concluding that the best-interests standard in Minn. Stat. § 518.175, subd. 5(b), applies to father's motion to modify parenting time because father's proposed parenting time increase is a de facto change in physical custody that must be reviewed under the endangerment standard set forth in Minn. Stat. § 518.18(d)(iv). Mother argues that father's motion was a de facto motion to modify physical custody because it would result in a "drastic change" in parenting time and would change child's primary residence. Father argues that the district court properly considered the totality of the circumstances in finding that his motion did not seek a de facto change in physical custody. Because we conclude that the district court did not apply the correct legal test to determine what standard applies, we agree with mother.
8. When a parent moves to modify parenting time, the district court "shall" grant the motion if the "modification would serve the best interests of the child" and "would not change the child's primary residence." Minn. Stat. § 518.175, subd. 5(b). Before a district court can grant a motion to modify physical custody, the district court must find (1) "that a change has occurred in the circumstances of the child or the parties," (2) "that the modification is necessary to serve the best interests of the child," and (3) that one of five bases listed in the statute has been established. Minn. Stat. § 518.18(d) (2022). One of those bases is that 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." Id. (d)(iv).
9. When determining whether a motion to modify parenting time is a de facto modification to physical custody, and therefore requires an application of the standard to modify custody rather than parenting time, "a court should consider the totality of the circumstances to determine whether the proposed modification is a substantial change that would modify the parties' custody arrangement." Christensen v. Healey, 913 N.W.2d 437, 443 (Minn. 2018) (emphasis added). "The factors considered may include the apportionment of parenting time, the child's age, the child's school schedule, and the distance between the parties' homes, but these factors are not exhaustive." Id.
10. We review de novo whether the district court applied the correct legal standard-that is, the standard for modification of parenting time in Minn. Stat. § 518.175, subd. 5(b), or for modification of physical custody in Minn. Stat. § 518.18(d)(iv). Bayer v. Bayer, 979 N.W.2d 507, 512 (Minn.App. 2022) (citing Christensen, 913 N.W.2d at 440). We review the district court's application of the Christensen factors and its "ultimate determination of whether a proposed change constitutes a de facto modification of physical custody" for an abuse of discretion. Id. The district court abuses its discretion if it misapplies the law, makes findings unsupported by the evidence, or delivers a decision that is against logic and the facts on record. Id. (citing Bender v. Bernhard, 971 N.W.2d 257, 262 (Minn. 2022); Woolsey v. Woolsey, 975 N.W.2d 502, 506 (Minn. 2022)).
11. The district court did not consider the totality of the circumstances or the Christensen factors when it determined whether father's motion to modify parenting time proposed a de facto change in physical custody. In reaching its conclusion in the September 2020 order as to which standard applies, the district court appears to have primarily relied upon the fact that parents already shared joint physical custody and that child did appear to have a different primary residence at different times of the year. While the district court acknowledged that Christensen evaluated the totality of the circumstances, the district court did not consider the totality of the circumstances or find any facts pertaining to the Christensen factors. The district court therefore misapplied the law because it relied only on the presence of joint physical custody and lack of a single primary residence, and it did not examine the totality of the circumstances and the Christensen factors. Accordingly, we reverse for the district court to apply the proper legal standard to determine what statutory standard applies to the proposed modification in father's motion to modify parenting time. Cf. Gradjelick v. Hance, 646 N.W.2d 225, 235 (Minn. 2002) (remanding for application of the correct legal standard); In re Guardianship of O'Brien, 847 N.W.2d 710, 711 (Minn.App. 2014) (remanding for application of the correct legal standard and sufficient relevant fact finding).
Because we reverse on this issue, we do not reach certain other issues mother raises. Mother raises several arguments related to the statutory standard applied to father's motion to modify parenting time. She argues that (1) under the endangerment standard, the district court erred in finding that a change in circumstance was present entitling father to an evidentiary hearing; (2) under the best-interests standard, the district court abused its discretion in concluding that awarding equal parenting time is in child's best interest; and (3) at the evidentiary hearing, the district court failed to consider mother's expert testimony on domestic abuse and clearly erred in finding no domestic abuse. We do not address these arguments because the issue of what standard applies to father's motion is dispositive of this appeal. See Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981) ("As our resolution of this question is dispositive of the appeal, we do not address the other issues raised by the appellant."). We also do not address whether the district court erred in its award of child support, as the child-support award is dependent on parenting time and the parties may present other evidence on remand. See Minn. Stat. § 518A.34(b)(6) (2022) (setting forth as a step in computing child-support obligations application of the "parenting expense adjustment formula provided in section 518A.36"); Minn. Stat. § 518A.36, subd. 1(a) (2022) (explaining that "[t]he parenting expense adjustment under this section reflects the presumption that while exercising parenting time, a parent is responsible for and incurs costs of caring for the child"). Finally, we do not reach mother's arguments related to what motions the district court considered or the weight the district court generally gave expert evidence.
12. We take this opportunity to emphasize that on remand, Christensen sets forth the analytical framework that the district court must follow. To determine if a proposed parenting-time modification is a de facto change in physical custody, the district court must consider whether the "proposed modification . . . would effectively modify [the other parent's] routine daily care and control of the child" by evaluating "the totality of the circumstances," including factors such as "the apportionment of parenting time, the child's age, the child's school schedule, and the distance between the parties' homes." Christensen, 913 N.W.2d at 441-43 (quotation omitted). And Christensen directs that "joint" physical custody is not necessarily defined as equal parenting time, nor does it necessarily require equal parenting time. See id. at 442-43 (stating "although a joint physical custody arrangement may involve equal parenting time, it is not required," that "merely increasing [father's] parenting time to 50 percent, without more, would not modify the award to [mother] of sole physical custody," and that "a motion for equal parenting time should not be treated as a motion for joint physical custody entirely on the basis that the sole physical custodian would no longer have the majority of the parenting time." (quotation omitted)).
13. Mother also argues that the district court erred (1) in issuing a temporary order while father's motion to modify parenting time was pending because Minn. Stat. § 518.131, subd. 1 (2022), does not explicitly authorize a temporary order under such circumstances, and (2) by not analyzing the best-interests factors in its temporary order. We disagree.
Mother also asserts that she was prejudiced at the evidentiary hearing by the temporary order, in violation of Minn. Stat. § 518.131, subd. 9 (2022), because the district court and custody investigator "used the temporary order against [mother by] not reviewing the increase in parenting time pursuant to the time awarded by judgment, but rather the temporary order." Because we reverse and remand on the issue of what standard applies to father's motion, we do not reach this issue.
14. First, the district court is authorized to issue a temporary order in this context. The district court is empowered to issue a temporary order "[i]n a proceeding brought for custody." Minn. Stat. § 518.131, subd. 1. A "custody proceeding" is defined as "includ[ing] proceedings in which a custody determination is one of several issues." Minn. Stat. § 518.003, subd. 3(g) (2022). A "custody determination" means "a court decision and court orders and instructions providing for the custody of a child, including parenting time." Id., subd. 3(f) (2022); see also Niemi v. Niemi, No. C5-95-2301, 1996 WL 118293, at *3 (Minn.App. Mar. 19, 1996) (relying on the definitions in Minn. Stat. § 518.003, subd. 3(f), (g) (1994), to interpret reference in Minn. Stat. § 518.131, subd. 1 (1994), to "a proceeding brought for custody"), rev. denied (Minn. May 16, 1996). Thus, father's motion to modify parenting time is a custody proceeding because it involves the issue of a custody determination (i.e., a court decision on parenting time). Accordingly, the district court was authorized to issue a temporary order under Minn. Stat. § 518.131, subd. 1, while father's motion to modify parenting time was pending.
We cite nonprecedential opinions for their persuasive authority. Minn. R. Civ. App. P. 136.01, subd. 1(c).
15. Second, mother points to no authority requiring the district court to explicitly analyze the best-interests factors or make specific findings in issuing a temporary order. In fact, the weight of the caselaw supports a conclusion that such analysis or findings is not required. See Bitker v. Nielson, No. A11-1981, 2012 WL 4475713, at *1, *4 (Minn.App. Oct. 1, 2012) (addressing temporary order granting joint legal custody and establishing a temporary parenting-time schedule, recognizing that Minn. Stat. § 518.131, subd. 7 (2012), "merely requires that the court shall be guided by" the best-interests factors and "does not require explicit findings" (quotation omitted)); Ekblad ex rel. N.M. v. Ekblad, No. C2-96-838, 1996 WL 636214, at *2 (Minn.App. Nov. 5, 1996) (addressing temporary order granting physical custody and concluding that Minn. Stat. § 518.131, subd. 7 (1994), "does not require the [district] court to make detailed findings as to each factor"); cf. DonCarlos v. DonCarlos, 535 N.W.2d 819, 821 (Minn.App. 1995) (stating that neither an evidentiary hearing nor detailed findings are required for a temporary maintenance order under Minn. Stat. § 518.131 (1992)), rev. denied (Minn. Oct. 18, 1995).
16. Mother next argues that the district court judge who presided over this matter should have recused himself because he was biased toward the custody investigator, did not properly oversee the investigation, and failed to obtain the parties' consent to waive disqualification or permit time for the parties to decide whether to consent.
17. The Minnesota Rules of Civil Procedure provide that a judge may be removed upon an affirmative showing that the judge is disqualified under the Minnesota Code of Judicial Conduct. Minn. R. Civ. P. 63.03. The code of judicial conduct provides that "[a] judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned," including when the judge "has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of facts that are in dispute in the proceeding." Minn. Code Jud. Conduct Rule 2.11(A)(1). Prior adverse rulings alone are insufficient to show judicial bias. State v. Mems, 708 N.W.2d 526, 533 (Minn. 2006). And "[t]here is the presumption that a judge has discharged his or her judicial duties properly." Id. "We will not reverse a district court's decision to deny a removal motion absent an abuse of discretion." Haefele v. Haefele, 621 N.W.2d 758, 766 (Minn.App. 2001), rev. denied (Minn. Feb. 21, 2001).
18. We have reviewed the record related to the custody investigator and find no support for mother's argument that the district court judge demonstrated impermissible bias in favor of the custody investigator. The custody investigator's report complies with the requirements set forth in Minn. Stat. § 518.167, subd. 2(b) (2022), and the scope of the investigation was reasonably tied to the district court's appointment order, agreements by the parties, and information available to the investigator. The custody investigator testified that she considered all of the information she gathered as a whole and that her opinion did not change after hearing expert testimony at the evidentiary hearing. That the custody investigator worked at the same place as the wife of the district court judge is too attenuated a connection to amount to impermissible bias, particularly in the absence of evidence that the judge's wife had directly worked with the investigator. Based on this record, we conclude that mother has not made an affirmative showing the district court judge was personally biased in favor of the custody investigator.
19. We disagree that the district court judge abused his discretion by failing to oversee the custody investigator's work or by failing to terminate the custody investigator because a district court judge is not obligated to oversee a custody investigator's work. See Minn. Stat. § 518.167 (2022) (setting forth the authority of the court to appoint a custody investigator without imposing a duty on the district court to supervise the investigation).
20. And because the district court judge was not subject to disqualification, he was not required to obtain the consent of the parties to continue presiding over the matter. See Minn. Code Jud. Conduct Rule 2.11(C) (stating that a judge who is "subject to disqualification," may continue presiding over if a matter if the parties waive the disqualification); In re Jacobs, 791 N.W.2d 300, 303 (Minn.App. 2010) (reasoning that Minn. Code Jud. Conduct Rule 2.11(C) "assumes that the judge has already determined that [they were] subject to a disqualification provision"), aff'd, 802 N.W.2d 748 (Minn. 2011).
21. Finally, mother argues that the district court abused its discretion by not granting her need-based attorney fees. Our review of the record does not show that mother moved for, requested, or otherwise argued for attorney fees before the district court at this stage in the litigation. Because whether mother should be awarded need-based attorney fees was not before the district court, we decline to consider this argument on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) ("A reviewing court must generally consider "only those issues that the record shows were presented and considered by the trial court in deciding the matter before it." (quotation omitted)).
IT IS HEREBY ORDERED:
1. The district court's judgment is affirmed in part, reversed in part, and remanded. On remand, the district court may exercise its discretion as to whether to reopen the record.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.