Opinion
No. C3-00-1874.
Filed July 24, 2001.
Appeal from the District Court, Scott County, File No. F9917493.
Louise A. Bruce, (for respondent)
Patricia A. O'Gorman, (for appellant)
Considered and decided by Willis, Presiding Judge, Halbrooks, Judge, and Hanson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant argues that the district court abused its discretion by (1) setting a visitation schedule different from the one to which the parties had agreed, (2) requiring appellant to bear new and reallocated costs of transportation associated with the modification of visitation, (3) imposing visitation requirements that will impede appellant's career, and (4) ordering appellant to pay a portion of respondent's attorney fees and costs without making required findings. We affirm the district court's modification of the visitation schedule and remand the attorney-fee issue for findings.
FACTS
In August 1998, the marriage of appellant S. Paul Horsley and respondent Janie Severance was dissolved in a Texas proceeding. The parties had separated in 1996, and Severance moved to upstate New York with their minor child.
The Texas court gave Horsley physical custody of the child and established a visitation plan. Shortly after the dissolution, Horsley and his current wife, both pilots for Northwest Airlines, moved to Minnesota. In October 1999, Severance moved the Minnesota court to enforce certain provisions of the Texas decree. One month later, she moved to modify custody, alleging endangerment to the child. With the assistance of a court-appointed "visitation facilitator," Horsley and Severance reached an agreement regarding visitation. The facilitator's report, which included the agreement, was submitted to the court in December 1999.
Later that month, the district court determined that an evidentiary hearing regarding custody was warranted and appointed a guardian ad litem to "represent the best interests and welfare" of the child. At a March 2000 hearing, Severance asserted that Horsley interfered with her visitation rights and that he failed to provide the child with stable and consistent daycare. The court granted Horsley's motion to dismiss the custody issue, concluding that Severance had failed to prove that the child was endangered. But the court stated that because Horsley's behavior towards Severance with regard to their child was "reprehensible" and "offensive," it was going to restructure the parties' visitation schedule. The court also acknowledged that Severance had valid concerns regarding consistent daycare for the parties' minor child.
The court ordered that Horsley provide the child with a "structured, stable care provider, rather than a series of providers or revolving system of providers" and that he provide Severance with "all information" on any persons hired to care for the child.
In a June 2000 order, the court modified visitation and awarded attorney fees to Severance, stating that because Horsley "controlled the information needed to bring this matter to a more timely, far less costly conclusion," his "conduct in regards to parenting and this litigation cannot go unnoticed or unpunished."
The court denied Horsley's motion for an amended order, and Horsley appeals.
DECISION I.
Horsley argues that the district court abused its discretion by failing to adopt the parties' agreement regarding a visitation schedule, as included in the visitation-facilitator's report. District courts have broad discretion to determine what visitation is in the best interests of a child, and a court's determination will not be reversed absent an abuse of that discretion. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).
Horsley contends that the agreement included in the facilitator's report is a formal stipulation that the district court was obligated to accept. But whether the agreement by the parties is a stipulation or not is irrelevant because district courts have the authority to refuse to accept the terms of a stipulation. Toughill v. Toughill, 609 N.W.2d 634, 639 n. 1 (Minn.App. 2000) (explaining that "district court is not bound by a stipulation merely because the parties have entered it."). Therefore, Horsley's assertion that the district court abused its discretion by not accepting the terms of a stipulation of the parties is without merit.
II.
Horsley argues that, in modifying the visitation schedule, the district court abused its discretion by imposing new visitation travel expenses on him, which he claims is a "reallocation" of expenses that requires a showing of a substantial change of circumstances. See Kellen v. Kellen, 367 N.W.2d 648, 650-51 (Minn.App. 1985) (holding that district court, by redistributing costs of visitation between parties, effectively modified terms of child support thereby requiring finding of changed circumstances). Horsley contends that because the court did not make a finding of changed circumstances as required by Minn. Stat. § 518.64, subd. 2 (2000), the order should be vacated. Specifically, Horsley asserts that the court imposed new expenses on him by putting no limit on the number of "buddy passes" that he is required to provide to Severance. But any new visitation travel expenses are not a reallocation of expenses within the meaning of Kellen because no expenses that previously were Severance's obligation have been made Horsley's obligation. See Ballard v. Wold, 486 N.W.2d 161, 163 (Minn.App. 1992) (explaining that Kellen court "dealt with the decision to switch transportation expense obligations from one spouse to another.").
A "buddy pass" allows its holder to fly at 10% of the normal cost of a ticket. As a Northwest pilot, Horsley may give these passes to whomever he wants, provided that he pays for 10% of the ticket's value.
Further, we conclude that the district court's order in fact imposes no new travel-expense obligation on Horsley. The Texas decree provides that Horsley is responsible for paying "the requisite air travel expenses" for the child for her monthly visits to Severance and that, in the event that Horsley cannot accompany the child to New York, he is "authorized to designate a responsible adult known to the child" to travel with her. These provisions remain unaffected by the Minnesota order. The Minnesota order further provides that Horsley must provide Severance with buddy passes to travel with the child "if necessary." It therefore appears that the only circumstance under which it would be necessary for Horsley to provide Severance with a buddy pass is if either he or a responsible adult known to the child is not available to travel with the child. Because Horsley presumably would provide a buddy pass to a responsible adult traveling with the child, providing one to Severance when such a responsible adult is not available does not add to Horsley's visitation travel expense.
Finally, even if the district court's order imposed new travel expenses on Horsley, this court has noted that allocation of new expenses associated with a change in visitation is not a modification of support and does not require a showing of changed circumstances. See Ballard, 486 N.W.2d at 163 (distinguishing Kellen, where there was no change in visitation). The district court did not, therefore, abuse its discretion in allocating the costs of transportation under the modified visitation schedule.
Further, we conclude that the district court's modification of visitation is not substantial. Insubstantial modifications of visitation schedules are within the district court's discretion. Funari v. Funari, 388 N.W.2d 751, 753 (Minn.App. 1986). Appellant overstates the effect of the modification here by suggesting that the district court's order requires that the child travel for every school break and one weekend per month. The order in fact provides that the district court "anticipated" that Severance would exercise her monthly parenting time during school breaks in the months when school breaks occur.
III.
Horsley argues that the modified visitation schedule impedes his ability to further his career, asserting that "[i]n order to have sufficient seniority to be able to bid for and get time off over every school holiday," he will not be able to move to other aircraft "since he will then be at the bottom of the seniority scale." Horsley apparently interprets the district court's directive to mean that he is personally required to accompany the child on a plane. The Texas decree, however, specifically states that Horsley can designate a responsible adult known to the child to travel with her to New York. Because he is not required to travel with the child, his ability to further his career is not affected.
IV.
Horsley argues that the district court erred in ordering him to pay a portion of Severance's attorney fees because the court failed to make the statutorily required findings. Appellate courts review an attorney-fee award under an abuse-of-discretion standard. Ed Herman Sons v. Russell, 535 N.W.2d 803, 808 (Minn. 1995). Under Minn. Stat. § 518.14, subd. 1 (2000), a district court shall award attorney fees, costs, and disbursements if it finds that (1) the fees are necessary for the good-faith assertion of the party's rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding, (2) the party from whom fees, costs, and disbursements are sought has the means to pay them, and (3) the party to whom fees, costs, and disbursements are awarded does not have the means to pay them. The statute also provides that district courts may award additional fees against a party who unreasonably contributes to the length or expense of a proceeding. Id.
Severance maintains that we cannot hear this issue because "the judgment was satisfied in full." But in an order dated November 28, 2000, this court determined that because "the payment [of the attorney-fee award] was not voluntary and did not waive appellant's right to appeal," the court has jurisdiction to consider this issue.
The district court ordered that Horsley pay Severance $8,000 for attorney fees and $2,000 for expenses and costs. The memorandum attached to the order states that the award recognizes Horsley's "superior financial position." But the court made no findings regarding (1) whether payment of a portion of Severance's attorney fees was necessary for the good-faith assertion of her rights, (2) Horsley's ability to pay the award, or (3) Severance's inability to pay her own fees. This court, therefore, has no basis on which to review the district court's need-based award of attorney fees.
Moreover, the district court failed to indicate to what extent the award was based on Severance's need or Horsley's conduct, or both. See Haefele v. Haefele, 621 N.W.2d 758, 767 (Minn.App. 2001) (remanding because lack of findings precluded effective review of fee award where district court awarded need-based and conduct-based attorney fees but did not indicate how the award was to be apportioned), review denied (Minn. Feb. 21, 2001).
The district court concluded that Horsley played a primary role in prolonging the proceeding. "n award of conduct-based fees under Minn. Stat. § 518.14, subd. 1, may be made regardless of the recipient's need for fees and regardless of the payor's ability to contribute to a fee award. Gales v. Gales, 553 N.W.2d 416, 423 (Minn. 1996). But the district court failed to identify what conduct by Horsley justified the award of conduct-based attorney fees. See Geske v. Marcolina, 624 N.W.2d 813, 819 (Minn.App. 2001) (remanding conduct-based fee award for necessary findings where district court failed to identify what conduct justified the award or whether that conduct occurred during litigation).
This court does not have an adequate basis to review the district court's award of attorney fees because we lack necessary findings. We remand the issue of attorney fees for additional findings and also remand Severance's request for appellate fees. See Minn.R.Civ.App.P. 139.06 1998 advisory comm. cmt. (citing cases and providing that appellate court may determine fees or may remand to district court for determination of appellate fees). The district court may reopen the record on remand in its discretion.