Opinion
No. A03-1591.
Filed June 15, 2004.
Appeal from the District Court, Isanti County, File No. F5-01-1332.
Douglas G. Sauter, Barna, Guzy Steffen, Ltd., (for respondent).
David L. Paron, (pro se appellant).
Considered and decided by Randall, Presiding Judge, Kaltowski, Judge, and Wright, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
In this custody dispute, pro se appellant-father argues that the district court erred by refusing to award joint physical custody as was recommended by the custody evaluator. We affirm.
FACTS
Appellant David Paron and respondent Beverly Paron were married on June 2, 1990 in Grand Forks, North Dakota. The parties have two daughters from the marriage. C.P. is currently thirteen years old, and R.P. is currently seven years old. On November 6, 2001, respondent petitioned to dissolve the marriage seeking sole legal and physical custody of the children. Appellant also sought sole legal and physical custody of the children. While awaiting resolution of the marital dissolution, the parties initially lived together in the family home in Isanti, and maintained their usual roles and routines with their children. Approximately a year after commencement of the dissolution, respondent moved out of the family home, and established a residence in Cambridge approximately 12 miles away. The children remained in the family home after respondent moved out, and the parties established an access schedule that would work for them as well as the children.
The district court appointed a custody expert to complete a child custody evaluation report of the parties' children. In her report, the expert noted that both parents "have shared some of the primary caretaking responsibilities for [the children], and that [respondent] has provided the majority of these duties in many areas." She stated that "[respondent] has provided much more of the day to day caring for the girls — physically and emotionally, as well as the scheduling of their lives." The expert noted that C.P. expressed some concerns about "having to ride the bus when she stays with her father, and that her father doesn't know whose clothes [are] whose, as he recently gave R.P. her swimsuit to wear." She also stated that C.P. "didn't just want to see one parent on the weekends." The expert stated that R.P. expressed no preference.
The expert recommended that the parties be awarded joint legal and physical custody of the children. She found that both parties have good relationships with their children and stated that both parents "appear very capable of providing the primary caretaking for [the children]." The expert stated that "it seems more beneficial to the children in this family to share their time more equally between their parents" and "[i]t might be detrimental to the children if one parent had custody and the other parent became somewhat of a peripheral parent." She also stated that both parents "each provide their daughters with quite different, but essential, aspects of parenting, and that a physical custodial arrangement that allows for as much time as possible with both parents, most closely accommodates" the children's best interests. The expert stated that many different parenting time schedules could work, and the parties could possibly work it out themselves.
On November 18, 20, 25, and 26, 2002, both parties, each represented by counsel, appeared for trial regarding issues related to the marital dissolution. A transcript of these proceedings was not provided in this appeal. Following the trial, the district court allowed the parties to submit proposed findings of fact, conclusions of law, and order for judgment.
Respondent proposed that the parties receive joint legal custody of the children, with sole physical custody to her. Respondent proposed a parenting time schedule, most of which, the district court later adopted. Respondent proposed that during the academic year, appellant would see the children every other weekend, commencing Friday at 5:00 p.m. to Sunday at 6:00 p.m. with midweek access every Tuesday from 4:00 p.m. to 8:00 p.m. During the summer, respondent requested that the parties alternate parenting time every other week with respondent having midweek access during appellant's parenting time on Wednesdays from 5:00 p.m. to 9:00 p.m., and appellant having midweek access during respondent's parenting time on Tuesdays from 4:00 p.m. to 9:00 p.m. In her proposed findings, respondent alleged that the custody expert "did not have a great deal of confidence in [her] recommendation" that the parties receive joint physical custody. Respondent also stated that, at trial, the expert agreed it would be a good idea and likely successful if respondent was awarded sole custody during the school year and appellant awarded sole physical custody during the summer. Respondent also pointed to the expert's findings that respondent acted as the sole caretaker for the children by organizing the children's day-to-day schedule, and was more perceptive of the children's emotional needs to support her request for sole physical custody.
Appellant requested joint legal and physical custody of the children. Appellant requested joint physical custody because he "believ[ed] [that an award of sole physical custody to him] would be unfair to [respondent] as well as [the children]" and "[joint physical custody] would provide the most continuity for the children." He proposed "the parties alternate custody on a weekly basis with one mid-week over night to the other parent." Appellant cited the custody expert's findings and recommendation that the parties receive joint physical custody of the children in support of his request.
On March 24, 2003, the district court issued its findings of fact, conclusions of law, and order for judgment, dissolving the parties' marriage and dividing their property. Regarding custody, the district court awarded the parties joint legal custody, but awarded respondent sole physical custody of the children. The court ordered that appellant have "reasonable and liberal" parenting time with the parties' children. Regarding parenting time, the district court stated appellant would have access to the children during the academic school year "every other weekend, commencing after school on Thursday to Sunday at 5:00 p.m." and "every Tuesday evening from 4:00 p.m. to 8:00 p.m." The district court adopted respondent's proposed schedule regarding parenting time during the summer months, and holidays and birthdays.
Regarding the recommendations by the custody expert, the district court stated:
Although in [the expert's] report, she recommended joint physical custody, alternating custody on a weekly basis, at trial she wavered. She testified that she viewed joint physical custody as a workable solution in this matter and therefore chose to lean in that direction. She tempered that, however, with her comment that she regarded [respondent's] custodial proposal, where [respondent] would have primary custody of the children during the academic school year and that [appellant] be awarded primary custody of the children in the summer, equally suitable.
Appellant subsequently filed a motion for amended findings concerning parenting time, custody, and other issues. On August 26, 2003, the district court filed an amended order denying all of appellant's motions except, in part, amending the paragraph regarding appellant's parenting time. In support of its decision to amend the order, the court stated that it "did not intend to so restrict [appellant's] access to his children." Accordingly, the district court amended the order to provide that "at a minimum, [appellant] shall have access to the children during the designated days and times, and that [respondent] shall allow [appellant] additional access to the children on a reasonable and liberal basis." The court amended the order to read: "[Respondent] shall allow [appellant] additional visitation on a reasonable and liberal basis and upon the terms as agreed to by both parties." This appeal follows.
DECISION
Appellate court review of custody determinations is limited to whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996); Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). However, when appellant fails to provide a transcript on appeal, this court is unable to review the findings and our review is limited to assessing whether the district court's legal conclusions are supported by the findings of fact. Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn. App. 1995); Wanglie v. Wanglie, 356 N.W.2d 850, 852 (Minn. App. 1984) (recognizing that this court could not consider a claim where relevant portions of the transcript were not provided), review denied (Minn. Feb. 6, 1985).
Custody awards are based on a child's "best interests." Minn. Stat. § 518.17, subd. 3(a)(3) (2002); see Minn. Stat. § 518.17, subd. 1(a) (listing best-interests-of-the-child-factors). When deciding whether to award joint physical custody, the district court must also consider certain statutory factors that "center on the ability of the parents to cooperate in making parenting decisions[.]" Bateman v. Bateman, 382 N.W.2d 240, 249 (Minn. App. 1986), review denied (Minn. Apr. 24, 1986); see Minn. Stat. § 518.17, subd. 2 (2002) (listing joint custody considerations).
1. Joint Physical Custody
Appellant argues that the district court erred by refusing to adopt the custody expert's recommendation of joint physical custody. Whether to accept a custody expert's custody recommendation is discretionary with the district court, and a district court can refuse to accept an expert's recommendation if it (1) expresses reasons for the rejection; or (2) makes detailed finding on the children's best interests. Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991). In rejecting the expert's recommendation of joint physical custody, the district court satisfied both prongs of Rutanen. The court explained its reasons for rejecting the recommendation and gave detailed findings on the best interest factors and joint-custody factors.
A. Reasons for Rejecting Expert's Recommendation
The district court's rejection of the expert's recommendation of joint physical custody is consistent with its finding that the expert "wavered" on this recommendation by admitting at trial that joint physical custody and respondent's recommendation that she receive sole physical custody during the academic school year, were "equally suitable." Also, consistent with the district court's final conclusions, are the various portions of the expert's report suggesting that respondent had a closer relationship with the children than appellant. In her report, the expert found that the family relied upon respondent for the day-to-day care of the children and that respondent was more perceptive to the children's emotional needs. In his brief, appellant admitted that the expert wavered in her testimony at trial. These findings support the district court's award of joint legal custody coupled with sole physical custody to respondent. On this record, we conclude the district court fairlyexplained its reasons for rejecting the custody evaluator's recommendation on physical custody.
B. Best Interest Findings
The district court also made detailed findings addressing each of the best interests factors. The court's findings that both parents: (1) were capable of providing the children's primary care; (2) are supportive of the other parent's relationship with the children; and (3) have a high capacity to provide their children with love, affection, and guidance favor appellant's request for joint physical custody. Then, the district court made findings favoring respondent's request for sole physical custody. The court found that respondent was the primary caregiver, and provide the majority of the children's emotional support. The district court found that one child expressed concerns about living with appellant. The court found that the children adjusted well to respondent's new home in Cambridge, and found no reason respondent's home would not provide continuity for the children. Appellant does not challenge the district court's best interest findings. Without a transcript, we are unable to negate those findings. On this record, we conclude the best interests findings support the district court's decision to award sole physical custody to respondent and not award joint physical custody.
C. Joint Physical Custody Findings
In addition to addressing its reasons for rejecting the expert's recommendation of joint physical custody, the district court also addressed each of the joint physical custody factors listed in Minn. Stat. § 518.17, subd. 2. The court found, among other things, that although the parties cooperated during the time they remained in the same household after commencement of the marital dissolution, the cooperation "was in part attributable to [respondent's] willingness to defer to [appellant's] viewpoint," and that "[respondent] was willing to defer to [appellant] during this time in order to shelter her daughters from the parties' conflict and maintain a peaceful home environment." The district court also found that the parties' prior attempts to use alternative dispute resolutions "[had] not been successful," and that awarding sole physical custody to one parent would not be detrimental to the children "so long as the children have liberal access to the non-custodial parent, awarding sole physical custody to one parent would not be detrimental to [the children]."
Joint physical custody is not typical custody due to tendencies of instability and lack of continuity. See Wopata v. Wopata, 498 N.W.2d 478, 482-83 (Minn. App. 1993); Peterson v. Peterson, 393 N.W.2d 503, 506 (Minn. App. 1986). Here, however, appellant and respondent are good parents, each capable of serving as their children's primary caretaker. Both the expert and the district court acknowledged this fact when they found that the children have a close relationship with both parents. The expert and the district court also found that both parents have a high capacity to provide their children with love, affection and guidance and that each parent is supportive of the other parent's relationship with the children. The district court worked hard to accommodate the best interests of the children and the wishes of the parents when it awarded sole physical custody to respondent and then gave appellant "reasonable and liberal" parenting time. The court gave appellant more weekend access than the amount requested by respondent. The district court also made certain that appellant would receive "reasonable and liberal" parenting time when it amended its original order to read: "[respondent] shall allow [appellant] additional visitation on a reasonable and liberal basis and upon the terms as agreed to by both parties." On these facts, we find joint physical custody would not have been inappropriate. See Veit v. Veit, 413 N.W.2d 601, 605 (Minn. App. 1987) (affirming joint physical custody award where parents had been able to cooperate on joint physical custody arrangement after separation and prior to dissolution); Berthiaume v. Berthiaume, 368 N.W.2d 328, 332-33 (Minn. App. 1985) (upholding joint physical custody award granted to parents who were able to communicate and cooperate on issues regarding their children.) Joint physical custody in this instance could have realistically been considered, but the district court did not abuse its discretion in awarding joint legal custody, and then sole physical custody to respondent with liberal visitation and plenty of access to appellant. The district court's findings support its decision to not follow the expert's recommendation, and the court did not abuse its discretion in awarding respondent sole physical custody of the children.
2. Parenting Time
Appellant also challenges the district court's decision regarding his parenting time schedule during the children's academic school year. Appellant does not dispute his parenting time during the summer months. The ultimate question in all disputes over parenting time is what is in the best interests of the children. Clark v. Clark, 346 N.W.2d 383, 385 (Minn. App. 1984), review denied (Minn. June 12, 1984). A district court has broad discretion in deciding parenting time questions and will not be reversed absent an abuse of discretion. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).
The district court's amended ruling gave appellant parenting time as set out in the parenting time schedule and gave appellant "additional visitation on a reasonable and liberal basis and upon the terms as agreed to by both parties." Appellant requests that this court "act on" the district court's amended order because this language does not specify "how much" additional access he should receive and he argues he will not receive additional access unless it is specified.
The language stated in the amended order is clear, although general. Appellant gets additional parenting time in the amount agreed on by both parties. The district court was mindful of appellant when it ordered liberal visitation and liberal access to the children in both the original and the amended order. The district court actually gave appellant more parenting time than proposed by respondent during the academic school year. While appellant may desire even more parenting time, the district court did not abuse its discretion with its parenting time schedule. Moreover, appellant is certainly free to seek additional parenting time from the district court. See Minn. Stat. § 518.175, subd. 5 (2002) (addressing modification of parenting time).