State of Minnesota, Respondent, vs. Donald Ted Bagaus, Appellant (C5-99-444), Joel Patrick Erickson, Appellant (C0-99-447).

STATE OF MINNESOTA
IN COURT OF APPEALS
C8-98-444

In Re the Marriage of:
Ronald R. Frauenshuh, Jr., petitioner,
Respondent,

vs.

Sherrie L. Giese,
f/k/a Sherrie L. Frauenshuh,
Appellant.

Filed August 18, 1998
Affirmed
Norton, Judge*

Big Stone County District Court
File No. F494141

David M. Gilbertson, Stephen Torvik, Nelson, Oyen, Torvik, P.L.L.P., 221 North First Street, P.O. Box 656, Montevideo, MN 56265 (for respondent)

Elizabeth A. Schading, Barna, Guzy & Steffen, Ltd., 400 Northtown Financial Plaza, 200 Coon Rapids Boulevard, Coon Rapids, MN 55433 (for appellant)

Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Norton, Judge.

U N P U B L I S H E D   O P I N I O N

NORTON, Judge

Appellant Sherrie Giese (a) challenges the findings supporting the district court's grant of respondent Ronald Frauenshuh's motion to modify the parties' stipulated custody agreement; (b) argues the district court misapplied the law because its order would not allow her to regain custody if she returned to Ortonville, Minnesota; (c) asks this court to strike Frauenshuh's appendix; and (d) seeks attorney fees on appeal. Because the district court's findings are not clearly erroneous, we affirm them. We also affirm the district court's order to allow Giese to be the custodial parent if she returns to Ortonville, Minnesota. We deny Giese's motions to strike and for attorney fees.

FACTS

The stipulated judgment dissolving the parties' marriage (a) awarded Giese physical custody of the parties' son; (b) awarded the parties joint legal custody; (c) temporarily precluded custody modification; and (d) stated that, if one party moved more than 50 miles from the family home in Ortonville, Minnesota, custody would be reevaluated based on the child's best interests. See Minn. Stat. § 518.17, subd. 1 (1996) (listing best interests considerations). While Giese was retraining, the child spent an increasing amount of time with Frauenshuh. Upon completion of her retraining, Giese took a job more than 50 miles from Ortonville and moved to the job, unilaterally taking the child with her. Frauenshuh moved to modify custody. The district court denied the motion, and this court remanded. Frauenshuh v. Giese, No. C8-96-2609 (Minn. App. May 27, 1997). On remand, the district court ruled the best option for the child would be if he could stay in Ortonville with Giese but, because that was not possible, that he should stay in Ortonville with Frauenshuh.

D E C I S I O N

A trial court has broad discretion when awarding custody. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). Review of custody awards is limited to "whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law[.] * * * [D]e novo review of the entire record * * * is inappropriate." Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985); see Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993) (same). On appeal, findings of fact are not set aside unless clearly erroneous and the record is reviewed in the light most favorable to the findings. Minn. R. Civ. P. 52.01; Ayers, 508 N.W.2d at 521.

I.

After discussing the history of the child and of the case, the district court found (a) each party was the child's primary parent at different times; (b) Frauenshuh's status as primary parent was due, at least in part, to "manipulation" by keeping the child overnight with him; and (c) the parties often shared parenting responsibilities. See Minn. Stat. § 518.17, subd. 1(3) (best-interest considerations include identity of child's primary parent). Viewing the record in the light most favorable to the district court's findings, we must reject Giese's claim that the finding of shared parenting responsibilities is clearly erroneous. See Pedro v. Pedro, 489 N.W.2d 798, 801 (Minn. App. 1992) ("clearly erroneous" is "manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole"), review denied (Minn. Oct. 20, 1992).

Giese challenges the findings which show there is more intimacy to the father-child relationship than the mother-child relationship. See Minn. Stat. § 518.17, subd. 1(4) (best-interest considerations include intimacy of parent-child relationship). The record supports these findings, particularly the affidavits of Frauenshuh and others describing (a) what Frauenshuh has taught his son; (b) the time Frauenshuh spends with his son; and (c) Frauenshuh's knowledge and encouragement of his son's friendships in Ortonville. See Minn. R. Civ. P. 52.01 (findings of fact, "whether based on oral or documentary evidence," not set aside unless clearly erroneous). Viewing the record in the light most favorable to the findings, we cannot say the findings are clearly erroneous. See Straus v. Straus, 254 Minn. 234, 235, 94 N.W.2d 679, 680 (1959) (appellate courts defer to district court resolution of fact issues presented by conflicting affidavits).

Noting the finding that Giese's mother had been "significantly involved" in the child's "life and [had] provided much care," Giese challenges the finding that it was unclear whether the child had a positive relationship his grandmother, claiming there is no evidence showing the boy lacks a bonded relationship with his grandmother. See Minn. Stat. § 518.17, subd. 1(5) (best-interest considerations include child's interaction with person(s) who may impact child's best interests). Because an appellant must show both error and prejudice caused thereby, Giese's argument, which essentially asks this court to assume that the district court erred, and that the error is prejudicial, is improper. See Midway Center Assocs. v. Midway Center, Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (to obtain reversal, appellant must show error and prejudice); Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949) (appellate courts cannot assume district court error). Also, because the record on the grandparent-child relationship is limited and because it conflicts, we cannot say that, when viewed in the light most favorable to the finding, it shows the finding to be clearly erroneous.(1)

The district court found the child's adjustment to his home, school, and community weighed in Frauenshuh's favor. See Minn. Stat. § 518.17, subd. 1(6) (best-interest considerations include child's adjustment to home, school, and community). The strength of the evidence supporting this finding is substantial and we reject any challenge to the finding.

Giese claims the trial court should have applied the Auge presumption to allow her to move the child from Ortonville. See Auge v. Auge, 334 N.W.2d 393, 399 (Minn. 1983) (when custodian asks court's permission to remove child to another state, court presumes removal in child's best interests and allows removal without hearing unless other party makes prima facie showing against removal). But Auge dealt with removals from the state made with the court's permission and involved the statutory standard for modifying custody. On this record, we decline to extend Auge to justify a party's unilateral removal of child from a locale, but not from the state, particularly where the parties stipulated to a non-statutory standard for reviewing custody in the event of such a move.

Finally, because the record has evidence supporting the finding that both parties violated and manipulated the visitation schedule, we reject any challenge to that finding.

II.

The district court's conclusions of law state it is in the child's best interest to live with Giese in Ortonville but that if this is not possible, it is in the child's best interest to live in Ortonville with Frauenshuh. Because Giese did not live in Ortonville, the district court awarded custody to Frauenshuh. To the extent Giese alleges the district court erred by not addressing its first conclusion, we note it did not have to do so because Giese did not live in Ortonville. See Izaak Walton League of Am. Endowment, Inc. v. State, Dep't of Natural Resources, 312 Minn. 587, 589, 252 N.W.2d 852, 854 (1977) ("[t]he judicial function does not comprehend the giving of advisory opinions").

III.

Giese argues that because the judgment ruled it was in the child's best interests to be in her physical custody and residence, it is illogical that her seven-year-old son is so irreversibly tied to a school and community that his best interests are better served by switching his physical custodian than by living with her in Cambridge. To support her argument, Giese cites Silbaugh v. Silbaugh, 543 N.W.2d 639 (Minn. 1996) and Gordon v. Gordon, 339 N.W.2d 269 (Minn. 1983).(2) Initially, the district court ruled it was in the child's best interests to be in Giese's custody in Ortonville, Minnesota. Also, Silbaugh and Gordon are based on the Auge presumption we rejected above. Silbaugh, 543 N.W.2d at 642; Gordon, 339 N.W.2d at 271. Therefore, we decline to apply those cases here.

IV.

Giese asks this court to strike Frauenshuh's appendix as containing documents outside the record. See Mitterhauser v. Mitterhauser, 399 N.W.2d 664, 667 (Minn. App. 1987) (matters outside the record on appeal must be stricken). The record on appeal is "[t]he papers filed in the trial court, the exhibits, and the transcripts of the proceedings[.]" Minn. R. Civ. App. P. 110.01. With the exception of the documents the parties agree should be stricken, we deny Giese's motion to strike because the relevant portions of Frauenshuh's appendix were part of the district court file.

V.

Giese seeks attorney fees on appeal. See Minn. Stat. § 518.14, subd. 1 (1996) (allowing fee awards at "any point" in proceeding); Gales v. Gales, 553 N.W.2d 416, 422-23 (Minn. 1996) (addressing fees on appeal). Whether to award fees on appeal is discretionary with the court. Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987). We decline to award fees because Giese did not submit current financial information to this court and because it is unclear how much of the total fee amount claimed by Giese is for fees incurred as a result of the appeal. See Minn. Stat. § 518.14, subd. 1 (need-based fee awards require recipient to be unable to afford to pay fees); Gales, 553 N.W.2d at 423 (denying fees on appeal where moving party did not submit current financial information); Johnson v. Johnson, 533 N.W.2d 859, 867 (Minn. App. 1995) (refusing to award attorney fees on appeal where doing so would include fees for district court proceedings, and fees had been granted there as well).

We reject Giese's argument that, under DeLaRosa v. DeLaRosa, 309 N.W.2d 755, 758 (Minn. 1981), we should award her attorney fees on equitable principles. The purpose of need-based fee awards under Minn. Stat. § 518.14, subd. 1, is to assure that one party is not able to use their disproportionate economic power (whatever the source) to unbalance the proceedings. Giese, however, failed to provide the information necessary to for application of Minn. Stat. § 518.14, subd. 1.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

(1) The limited record also addresses Giese's challenge to the finding that the child's half-brother, who is away at college, is not a significant factor in the child's life.

(2) Giese also cites Sefkow v. Sefkow, 372 N.W.2d 37 (Minn. App. 1985) to support her argument. That case, however, was remanded to this court for reconsideration in light of Pikula. Sefkow v. Sefkow, 374 N.W.2d 733 (Minn. 1985). Further, this court's Sefkow decision is distinguishable because there, the mother was the primary parent. 372 N.W.2d at 45 (stating district court erred by taking children from their primary parent).