Opinion
No. C1-00-27.
Filed July 25, 2000.
Appeal from the District Court, Hennepin County, File No. DC244860.
Kathryn A. Graves, and Elizabeth A. Schading, (for appellant)
Robert L. Weiner, (for respondent)
Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Parker, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
On appeal in this dissolution proceeding, appellant Wendy Lee Johnson Dosedel alleges the district court erred in (1) granting joint physical custody of the parties' two boys, aged 12 and 10; (2) denying her motion to move the children to New York; (3) awarding father a liberal visitation schedule; (4) determining child support using the Hortis/Valento formula; (5) limiting her testimony at the hearing; (6) allowing respondent's custody evaluator to testify; and (7) refusing to recuse himself for gender bias. We affirm.
DECISION
First, appellant argues that it was an abuse of discretion for the district court to award joint physical custody . Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985) (refusing to reverse custody determination absent abuse of discretion); Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (holding district courts have broad discretion to provide for custody of children). Joint physical custody is usually reserved for the exceptional case where the parents are able to cooperate in shared parenting. McDermott v. McDermott, 192 Minn. 32, 36, 255 N.W. 247, 248 (1934) (holding joint custody not preferred because instability and lack of continuity inherent in such an arrangement is usually not in child's best interests); Rosenfeld v. Rosenfeld, 529 N.W.2d 724, 726 (Minn.App. 1995) (same).
A district court faced with a request for joint physical custody must consider: (1) whether the parents will be able to cooperate in raising their child; (2) whether the parents have established methods for resolving disputes regarding major decisions and are willing to use those methods; and (3) whether it would be detrimental to the child to grant one parent sole physical custody. Minn. Stat. § 518.17, subd. 2 (1998); Brauer v. Brauer, 384 N.W.2d 595, 598 (Minn.App. 1986); see also Wopata v. Wopata, 498 N.W.2d 478, 481 (Minn.App. 1993) (requiring district court's grant of custody be based on child's best interests).
The district court determined that (1) the parties could cooperate in raising their children because the parties demonstrated some ability to cooperate in the past; (2) there were "no major difference[s]" in the parties' values and "no striking divisions" between the parties; (3) the parties are bright, professional individuals who have the ability to cooperate on major decisions concerning their children; (4) the children need regular contact with their father; and (5) allowing mother to move the children to New York would be detrimental to the children.
The district court weighed the statutory factors in light of his findings and concluded it was in the children's best interests to award joint physical custody . Ayers v. Ayers, 508 N.W.2d 515, 518, 521 (Minn. 1993) (holding district court findings must be sustained unless clearly erroneous, viewing the record in the light most favorable to the findings); Maxfield v. Maxfield, 452 N.W.2d 219, 222-23 (Minn. 1990) (noting there is no set formula on how courts should weigh and balance statutory factors, so long as all are credited in the decision-making process). Because evidence in the record supports the district court's findings, the district court did not abuse discretion by awarding joint physical custody.
Second, appellant contends the district court erred in refusing to allow her to move the children to New York. Appellate review of district court removal decisions is limited. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996); see also Ayers, 508 N.W.2d at 518 (holding this court reviews custody decisions to determine "whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law").
In initial custody proceedings, district courts treat a party's proposed change of residence as one factor to balance in determining custody of a child. LaChappelle v. Mitten, 607 N.W.2d 151, 162 (Minn.App. 2000), review denied (Minn. May 16, 2000); Stangel v. Stangel, 355 N.W.2d 489, 490 (Minn.App. 1984), review denied (Minn. Feb. 6, 1985). The district court held that it was not in the children's best interests to relocate to New York. The district court found: (1) the children have already been forced to move homes many times and moving again would further disrupt their stability; (2) the children have a strong need to have both parents actively involved in their lives; (3) the children have strong connections to Minnesota including family, friends, current schools and extra-curricular activities; (4) there is no compelling reason for appellant to move because any gain in her salary would be consumed by travel costs, a similar lifestyle is available in Minnesota, and the children have more family in Minnesota than in New York; (5) visits with father should not be simply recreational and exchanges should not occur on Sundays, which would be virtually unavoidable if the children moved to New York; and (6) Dr. Gilbertson testified that his opinion is "that the move may not entirely serve these children's best interests at this point in time." The district court weighed all the factors and determined that
[a]ll things considered, the benefits to the children associated with the move to Ithaca do not outweigh the benefit to be gained by remaining in close proximity to father.
Considering the district court's extensive findings supporting the determination that moving to New York was not in the children's best interests, the district court did not abuse discretion in refusing to allow removal.
Appellant also claims the district court impermissibly used gender classifications to make its decision concerning removal. However, the district court's analysis focused on the preference that the children have normal, regular contact with both parents. Even if the district court had decided to deny appellant's move based on gender considerations, protection of the children's best interest is a compelling state interest, which would likely survive even the strict scrutiny test. LaChappelle, 607 N.W.2d at 163. The district court did not violate appellant's equal protection rights by considering the children's need for their father.
Third, appellant challenges the parenting schedule established by the district court. District courts have extensive discretion in deciding issues related to custody and visitation and will not be reversed absent an abuse of discretion. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995); Manthei v. Manthei, 268 N.W.2d 45, 45 (Minn. 1978). The parenting plan was supported by expert testimony that the children needed extended periods of time with their father so the visits would be more than recreational. Because the record supports the district court's finding that regular, normal interaction with both of their parents is in the best interests of the children, we cannot say the district court abused discretion in adopting this parenting schedule.
Fourth, appellant claims it was an abuse of discretion for the district court to use the Hortis/Valento formula to determine the parties' child support obligations. Rutten, 347 N.W.2d at 50 (holding district courts have broad discretion in setting child support and will not be reversed absent abuse of that discretion demonstrated by a clearly erroneous conclusion); see also Tweeton v. Tweeton, 560 N.W.2d 746, 747 (Minn.App. 1997) (determining child support by subtracting amount owed by parent owing less from amount owed by parent owing more and requiring parent owing more to pay resulting net amount), review denied (Minn. May 28, 1997); Valento v. Valento, 385 N.W.2d 860, 863 (Minn.App. 1986) (calculating each parent's support obligation as guideline amount during time other party has custody ), review denied (Minn. June 30, 1986); Hortis v. Hortis, 367 N.W.2d 633, 636 (Minn.App. 1985) (requiring father to pay guideline support when mother has custody and vice versa).
The Hortis/Valento formula is appropriate in cases of joint custody where both parents are expected to share in the caretaking responsibilities. Here, the district court determined that appellant has physical custody of the children 65% of the time and respondent has custody the remaining 35% of the time. After determining the parties' net incomes, the court multiplied each by the statutory support percentage and by the percentage of time the children spend in the other party's care. In his amended findings, the district court determined that it was in the children's best interest to deviate from Hortis/Valento and require respondent to pay approximately $160 per month more than the formula prescribed. Because the district court recognized that strict application of the formula might result in unfairness and not be in the best interests of the children, he deviated appropriately. The district court did not abuse discretion in determining child support.
Fifth, appellant claims that the district court erred by not allowing her to fully present her testimony. The record shows that, although worried about time, the district court actually offered to bifurcate the trial and deal with the financial issues at a later date to allow more time for custody issues. Appellant's counsel rejected that option. Moreover, the record shows that appellant's testimony was not arbitrarily cut off at the end of the first day of the hearing; instead, appellant's testimony was allowed to continue the next day. Then appellant's counsel indicated there were no further questions and rested her case without any objection about the time. Appellant has not presented any evidence that shows the district court abused discretion in attempting to limit the parties to a two-day hearing. In fact, the district court indicated a willingness to go into a third day of trial: "[I]f we don't finish today, and if there is any compelling reason to take more testimony tomorrow, I'm considering doing that." Neither party requested more time. The district court cannot be said to have erred in attempting to keep to a reasonable schedule.
Sixth, appellant argues that respondent's custody expert, Dr. Faricy, should not have been allowed to testify because respondent did not disclose his intention to call her as a witness in a timely manner. Respondent sought out and decided to call Dr. Faricy when it became clear that Dr. Gilbertson refused to give an opinion on custody, despite his role as the neutral custody evaluator. The district court determined that he wanted more information and was "very receptive to input from any source, even though it might be late in relation to the timing of a normal, non-expedited manner." Appellant's arguments go more to the weight to be given the testimony than its admissibility. Moreover, appellant was not prejudiced by Dr. Faricy's testimony because her opinions matched very closely with the testimony by Dr. Gilbertson, who appellant agreed should testify. We conclude that it was within the district court's discretion to allow Dr. Faricy to testify. See State v. Koskela, 536 N.W.2d 625, 629 (Minn. 1995) (holding the decision of whether to admit expert testimony rests within district court's discretion and will not be overturned absent clear error ); see also Benson v. Northern Gopher Enters., 455 N.W.2d 444, 445-46 (Minn. 1990) ("[E]videntiary rulings, including a decision to exclude expert testimony, lie within the sound discretion of the trial court.").
Seventh, appellant alleges the district court erred in not recusing himself. Carlson v. Carlson, 390 N.W.2d 780, 785 (Minn.App. 1986), review denied (Minn. Aug. 20, 1986) (noting denial of recusal motion is within district court's discretion and should not be reversed absent clear abuse of discretion); Durell v. Mayo Found., 429 N.W.2d 704, 705 (Minn.App. 1988) ("Whether to honor a request for removal based on allegations of actual prejudice is a matter for the trial court's discretion.") (emphasis omitted), review denied (Minn. Nov. 16, 1988).
Appellant never formally moved for removal, and the district court never ruled on it. Frequently at this stage of a case counsel are dissatisfied because their clients are not doing as well as hoped, but this is not a good reason for judges to be asked to remove themselves. Appellant has not presented any evidence showing that the district court judge exhibited any actual prejudice against her, nor has she shown that she was prejudiced by any allegedly biased actions by the district court. We hold that the district court judge did not abuse discretion by refusing to remove himself from this case.