Opinion
A20-0436
01-08-2021
In re the Marriage of: Sharon Elizabeth Anderson, petitioner, Appellant, v. William Thomas Anderson, Respondent.
ORDER OPINION
Carver County District Court
File No. 10-FA-19-249 Considered and decided by Connolly, Presiding Judge; Reyes, Judge; and Halbrooks, Judge. BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
1. Self-represented appellant Sharon Elizabeth Anderson (mother) argues that the district court erred by modifying a prior child-custody order without applying the endangerment analysis under Minn. Stat. § 518.18(d)(iv) (2018) and failing to address her pending motion for contempt.
On appeal, mother raises other issues that were not raised before or decided by the district court. These issues are not properly before this court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). We have carefully reviewed the other issues raised and nevertheless decline to address them.
2. Mother and respondent William Thomas Anderson (father), who is a self-represented attorney, dissolved their marriage in 2012. They have four children, two of whom are still minors (child 1 and child 2).
3. In 2016, the district court issued an order granting mother sole physical custody and sole legal custody of the two minor children and granting father parenting time with the children on "the first, second and fourth weekends of every month."
4. On September 12, 2018, a day that father did not have parenting time with the children, father had a taxicab bring child 1 to his home where child 1 has been living since that same day. On November 9, 2018, the district court ordered father to return child 1 to mother by November 11. Father failed to comply with the district court order. On November 29, 2018, mother filed a motion for contempt based on father's failure to return child 1 in violation of the November 9 order and the 2016 custody order. At a hearing on December 20, 2018, the district court did not rule on mother's motion for contempt based on father's failure to return child 1. Instead, it continued the hearing and ordered the parties to attend child-inclusive mediation with the children, splitting the costs of mediation evenly. At the December 20, 2018 hearing, father told the district court that child 1 refuses to return to mother's house and that mother refused to let father see child 2. The district court's resulting order stated, "Once the mediation results are received the court will decide what will occur next."
5. In July, 2019, the district court granted mother's motion to change venue to Carver County, which father opposed. On September 20, 2019, the Carver County district court heard mother's motion for contempt for father's continued failure to return child 1. Father explained that the child-inclusive mediation never occurred because he could not pay his half of the expenses. Father again stated that child 1 is unwilling to go to mother's house and that mother refuses to allow father to see child 2. However, father did not file a motion to modify the prior order for custody and parenting time. The district court stated "I am not going to issue any order today with respect to contempt or change in custody . . . until I can figure out what is in the children's best interest moving forward." The district court then appointed a guardian ad litem (GAL) for the children to report on each child's preferences and set a review hearing to determine whether the children would testify, and set an evidentiary hearing to sua sponte address the parenting time and custody issues, but "not to readdress the contempt issues." The district court never granted or denied mother's motion for contempt based on father's failure to return child 1.
The district court did not cite to any caselaw allowing it to sua sponte modify custody despite a prior court order establishing the custody arrangement and a pending motion for contempt to enforce that order, and we have found none.
6. At the review hearing, the district court determined that the children were precluded from testifying at the evidentiary hearing based on the GAL's recommendations.
7, At the evidentiary hearing, the district court allowed the parties to personally testify and call witnesses to testify as to the best interests of the children. In its January 22, 2020 order, the district court modified child 1's physical custody based solely on the best-interests-of-the-child standard under Minn. Stat. § 518.17 (2018) and granted the parents temporary joint legal custody of child 1. The district court also ordered therapy for both children and that child 1 would remain with father until child 1 and mother, "with the assistance of the therapist," determined it appropriate for child 1 to return to mother's home. Under its January 22 order, mother's parenting time with child 1 is subject to the therapist's recommendations.
The district court never ruled on mother's motion for contempt based on father's failure to return child which she filed on November 29, 2018, and raised at the December 20, 2018, September 20, 2019, and December 12, 2019 hearings. --------
8. Physical custody involves the "routine daily care and control" of a child. Minn. Stat. § 518.003, subd. 3(c) (2018). Determining the applicable statutory standard of modification of physical custody on appeal is a question of law that we review de novo. In re of Custody of M.J.H., 913 N.W.2d 437, 440 (Minn. 2018). The endangerment standard, under section 518.18(d)(iv), applies to an endangerment-based motion to modify physical custody. Id. Under this standard, a district court "shall not modify a prior custody order or a parenting plan provision which specifies the child's primary residence" unless "(1) the circumstances of the children or custodian have changed; (2) modification would serve the children's best interests; (3) the children's present environment endangers their physical health, emotional health, or emotional development; and (4) the benefits of the change outweigh its detriments with respect to the children." Crowley v. Meyer, 897 N.W.2d 288, 293 (Minn. 2017). "Specific findings on these matters [by the district court] will insure compliance with section 518.18." Id. at 294 (quotation omitted). "The endangerment standard requires a significant degree of danger." Tarlan v. Sorensen, 702 N.W. 2d 915, 922 (Minn. App. 2005).
9. Because father exercises sole "routine daily care and control" over child 1 under the January 22 order, we conclude that the district court modified physical custody under section 518.18 (d)(iv). M.J.H., 913 N.W. at 442.
10. We conclude that the district court erred because it did not make specific findings on all of the endangerment considerations, including that the environment at the time of modification endangered child 1, before modifying child 1's physical custody under the 2016 custody order. M.J.H., 913 N.W. at 442. We therefore reverse and remand the district court's modification of child 1's physical custody.
11. We express no opinion about the merits of mother's outstanding motion for contempt based on father's failure to return child 1 in violation of the November 9 order and the 2016 custody order, because we have no final decision to review. But on remand, the district court may also address the contempt motion that mother filed on November 29, 2018.
IT IS HEREBY ORDERED:
1. The district court's January 22 order is reversed, and the matter is remanded for the district court to apply the endangerment standard, make the requisite findings, and in light of those findings, readdress whether to modify physical custody. In addition, the district court may address the contempt question. Whether to reopen the record on remand shall be discretionary with the district court.
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.
Dated: January 8, 2021
BY THE COURT
/s/_________
Judge Peter M. Reyes, Jr.