Opinion
Nos. CX-95-2665, C2-96-175.
Filed August 13, 1996
Appeal from the District Court, Hennepin County, File No. 169985.
Louis M. Reidenberg, (for appellant).
Gregory Dawson, (pro se respondent).
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994).
UNPUBLISHED OPINION
In two consolidated appeals from several orders of the district court, appellant-mother challenges (1) the denial of her motion asking that the judgment and decree be interpreted as granting her sole physical custody of the parties' minor children, (2) the denial of her motion for modification of custody and visitation, and (3) the award of attorney fees in favor of respondent-father. We affirm.
DECISION I.
Appellant requested that the judgment be interpreted to grant her sole physical custody of the parties' minor children. The district court denied appellant's request.
A district court's findings regarding the intended meaning of an ambiguous judgment should not be reversed unless it is clearly erroneous. Empire State Bank v. Devereaux, 402 N.W.2d 584, 587 (Minn.App. 1987). Construction of an unambiguous instrument is a question of law. Id. The judgment and decree should be interpreted as a whole, and if upon such consideration the language is ambiguous or open to two constructions, the whole record may be examined to determine "what was intended by the judgment and to evolve a more definite expression thereof." Palmi v. Palmi, 273 Minn. 97, 102-03, 140 N.W.2d 77, 81 (1966). The district court has the inherent power to correct errors so that the judgment accurately depicts what occurred and what was decided. Palmi, 273 Minn. at 103, 140 N.W.2d at 81.
The practice of sharing joint physical custody does not require an equal division of responsibility and time. Ayers v. Ayers, 508 N.W.2d 515, 520 (Minn. 1993). In fact, some courts choose "to designate joint physical custodians as primary and secondary joint custodians." Lutzi v. Lutzi, 485 N.W.2d 311, 314 (Minn.App. 1992). Furthermore, a stipulation that the children's primary residence shall be with the mother is not incompatible with the label "joint physical custody," [rather it] is consistent with an arrangement in which the residence of the children is "structured between the parties." Ayers, 508 N.W.2d at 520; see Minn. Stat. § 518.003, subd. 3(d) (1994) (defining "joint physical custody" as a system where "the routine daily care and control and the residence of the child is structured between the parties").
Here, appellant argues the district court erred by interpreting the judgment to mean she shared joint physical custody of the children with respondent because (1) her home is the children's primary residence, (2) she is the primary caregiver, and (3) she has custody of the children approximately 60% of the year. We are unpersuaded.
The parties' Marriage Termination Agreement (the agreement) provides:
8. Both parties are fit and proper parents. The best interests of the minor children would be served by granting the parties joint legal and physical custody, subject to the shared custody schedule * * *.
19. Custody. That the parties shall be granted joint legal and physical custody of the parties' two (2) minor children, * * *. That the primary residence of the minor children shall be with [appellant], subject to visitation by [respondent] * * *.
(emphasis added) The agreement further provides that the terms of this agreement shall be made a part of any decree issued, by reference, whether or not each and every portion of this agreement is literally set forth in said decree.
The resulting judgment specifically incorporates paragraph 8 of the agreement, but in curious nonconformity, only refers to "joint legal custody" in the Conclusions of Law. The judgment's single reference to joint legal custody — without mention of physical custody — appears to be a clerical error. However, regardless of whether it is an error, we affirm the district court because the totality of the agreement in conjunction with the Ayers and Lutzi holdings permits no other result.
II.
The district court concluded it did not have the power to change the custody and visitation schedule because "[t]here has been no showing of endangerment to the children, as required under the parties' judgment and decree * * *." Appellant challenges the district court's conclusion, arguing that application of the endangerment standard is improper in this case.
An appellate court will not reverse a custody or visitation determination unless the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. Manthei v. Manthei, 268 N.W.2d 45, 46 (Minn. 1978).
The endangerment standard applies both to the modification of joint custody orders and to the restriction of visitation rights. See Minn. Stat. § 518.18 (e), (d) (1994) (endangerment standard applies to the modification of a prior custody order, unless parties agree to use a different standard); Minn. Stat. § 518.175, subd. 5 (1994) (court may restrict visitation rights if visitation is likely to endanger the child).
Here, the parties agreed that neither party shall attempt to change this custody and visitation agreement without the consent of the other party, unless one of the "children's therapists" has stated, in writing, that the current environment "endangers the children's physical or emotional health or impairs the children'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."
Nevertheless, appellant argues it was inappropriate to apply the endangerment standard because her proposed modification does not "restrict" respondent's visitation rights.
Appellant's argument appears to be entirely based on Minn. Stat. § 518.175. It ignores both Minn. Stat. § 518.18 and the parties' bargained-for agreement, neither of which refers to or requires that the change be a "restriction." In light of Minn. Stat. § 518.18, as well as the express terms of the agreement, we hold that an application of the endangerment standard was not only appropriate, but mandatory.
III.
The district court concluded it was not in the "best interests" of the children to change school districts, citing the apparent academic superiority of the Hopkins school district, the children's long-standing ties to the Hopkins school district, their established circle of friends, their familiarity with teachers, their involvement in Hopkins school activities and sports, their success in the Hopkins school district, and the convenience of appellant's continuing, daily commute to the Hopkins school district area.
Findings of fact shall not be set aside unless they are clearly erroneous. Minn.R.Civ.P. 52.01. Appellant does not dispute the district court's findings. Rather, she argues the district court did not thoroughly consider the inconvenience of a long commute and the need for the children to make new friends in Chaska. There is nothing in the record to indicate that the court failed to consider these factors when it determined what was in the children's best interest, only that the greater weight of all factors considered resulted in a finding that it is in the best interests of the children to remain in the Hopkins school district. Consequently, given our standard of review, we affirm the district court's decision on the school district issue.
IV.
The district court awarded respondent $8,091 in attorney fees pursuant to the express language of the judgment, which provides:
[I]f a party does proceed to court on a motion to change custody, and if the change of custody is denied, the prevailing party shall be awarded his or her attorney's fees * * * from the other party.
An award of attorney fees will not be upset absent an abuse of discretion. Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987). The record supports the district court's award of attorney fees. Accordingly, the district court did not abuse its discretion.
Affirmed.
Appellant contends the "best interest" of the children is the appropriate standard to apply in this case. Even if it were, appellant fails to address the best interest factors enumerated in Minn. Stat. § 518.17 (1994), arguing instead that it is not in her children's adverse interest to modify custody and visitation. This simply is not the standard. See Sydnes v. Sydnes, 388 N.W.2d 3, 6 (Minn.App. 1986) (stating that the moving parent carries the burden of proving that the move is in the children's best interests).
The "best interest of the child" standard is the appropriate standard for determining the most appropriate school for a child to attend. See Novack v. Novack, 446 N.W.2d 422, 424 (Minn.App. 1989), review denied (Minn. Dec. 1, 1989) (instructing the district court to apply the best interests standard to determine whether the child should attend public school or be "home schooled" by the mother).