In Re the Marriage of: Susan Jean Klasen, f/k/a Susan K. Wyman, petitioner, Respondent, vs. Scott B. Wyman, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-00-1319

 

In Re the Marriage of:

 

 Susan Jean Klasen, f/k/a Susan K. Wyman,

petitioner, Respondent,

 

vs.

 

Scott B. Wyman,

Appellant.

 

Filed April 3, 2001

Affirmed as modified Hanson, Judge

 

Stearns County District Court

File No. F4 96 2692

 

 

Kim Pennington, 111 First Street North, P.O. Box 1756, St. Cloud, MN 56302; and

 

Alan J. Albrecht, Albrecht & Associates, Ltd., 7066 Brooklyn Boulevard, Brooklyn Center, MN 55429 (for respondent) 

 

Mark A. Olson, Olson Law Office, 2605 E. Cliff Road, Burnsville, MN 55337 (for appellant)

 

 

            Considered and decided by Harten, Presiding Judge, Crippen, Judge, and Hanson, Judge.

 

 

U N P U B L I S H E D   O P I N I O N

HANSON, Judge

            On appeal in a dissolution proceeding, appellant-husband alleges that the district court: (a) failed to incorporate the terms of the parties' stipulation into the judgment; (b) improperly adopted respondent-wife's proposed findings of fact and conclusions of law verbatim; (c) deprived husband of his stipulated status as a joint legal custodian of the parties' child; and (d) abused its discretion by not awarding husband post-valuation-date interest earned by pension assets awarded to him.  We affirm as modified.

FACTS

            Appellant Scott Wyman and respondent Susan Klasen were married in 1989 and divorced in 1997.  The original divorce decree did not resolve marital property issues or the custody of their sole child.  The parties agreed to share joint legal custody on a trial basis.  Upon review of the effectiveness of this arrangement, the guardian ad litem recommended that Klasen have sole physical custody of their son and final say over disputes about their son's upbringing and that Wyman retain joint legal custody. 

            In July of 1999, the parties appeared before the district court for resolution of the custody and marital property issues.  During the hearing, the parties stipulated to the resolution of a majority of the issues, submitting only four for determination by the court.  In reading their stipulation into the record, Wyman's attorney referred to the paragraphs of a draft marital termination agreement to identify the parties' agreement on non-parenting issues and Klasen's attorney recited the substance of the parties' agreement on parenting issues, including custody and visitation.  Each party made some comments clarifying the recitations by the other.  The court accepted the stipulation and directed counsel to submit memoranda on the unresolved issues.

            The four issues submitted to the district court were: (1) which party could claim the child as a dependent; (2) who would resolve disagreements on parenting issues; (3) the proper division of personal property; and (4) the valuation and award of pension assets.  The district court thereafter advised the parties by letter of its decision on these issues, determining that Klasen could claim the child as dependent, Klasen would resolve parenting disagreements, the personal property would be divided according to the division the parties made when they separated, and the valuation date for the pension assets would be November 18, 1996.  The court encouraged the parties to jointly submit proposed findings of fact and conclusions of law, reflecting both their stipulation and the court's decision.  The parties instead submitted separate documents. 

In issuing its judgment, the district court adopted Klasen's proposed findings and conclusions verbatim.  Those proposed findings and conclusions did not use the precise language of the draft marital termination agreement referenced by Wyman's attorney.  They also varied in some respects from the substance of the agreements recited by Klasen's attorney.  The district court did not explain these variances.  The district court denied Wyman's motion to amend the findings and conclusions.  This appeal followed.         

D E C I S I O N

Wyman argues that (1) the district court's conclusions of law depart from the stipulation and were adopted verbatim from Klasen's proposed conclusions; (2) the naming of Klasen to resolve parenting disagreements negated the stipulation of joint legal custody and (3) the use of a November 18, 1996, valuation date for pension assets deprived Wyman of his share of appreciation in the assets after that date. 

With respect to the district court's interpretation of the stipulation, this is a question of law subject to de novo review by this court.  Jensen v. Jensen, 440 N.W.2d 152, 154 (Minn. App. 1989).  With respect to custody issues, we will not reverse unless the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  However, to the extent the parties reached a stipulation on questions of custody, "considerable weight is given to stipulations intelligently entered with the benefit of counsel."  Thesing v. Thesing, 390 N.W.2d 469, 470 (Minn. App. 1986) (quotation omitted). With respect to the district court's valuation of assets, we will not reverse unless it is clearly erroneous.  Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975).

I.

Wyman argues that Klasen's proposed conclusions of law, as adopted by the district court, departed in material respects from the stipulation agreement of the parties.  Wyman also contests the district court's verbatim adoption of respondent's proposed findings of fact and conclusions of law.  While verbatim adoption of one party's proposed findings and conclusions does not constitute reversible error per se, it does raise the question of whether the court made an independent evaluation of the issues.  Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).  Of course, where the findings are based largely on the parties' stipulation, the verbatim adoption of one party's proposed findings and conclusions is less questionable, so long as they accurately reflect the terms of the stipulation.

We conclude that the district court's verbatim adoption of Klasen's proposed findings and conclusions was not reversible error.  Further, we affirm those findings and conclusions that determine the issues resolved by the district court and those that either reflect or do not materially depart from the parties' stipulation.  However, to the extent that certain conclusions do materially depart from the parties' stipulation, there was no basis for doing so and we direct that they be modified as follows:

1.         Conclusion of Law number 1, under the paragraph entitled Holidays, shall include "MEA," as in the stipulation, and subparagraph (f) shall eliminate the requirement that Wyman obtain Klasen's consent before appearing at the child's school, each party having agreed to abide by the guidelines of the school as to contact and participation.

 

2.         Conclusion of Law number 2, under the paragraph entitled Child Support, shall eliminate the words "along with daycare expenses per the statutory formula (if applicable)," since the stipulation included day care expenses in the amount agreed upon for child support, and shall substitute "each party" for "Respondent" with respect to the obligation to continue or obtain life insurance, which was stipulated to be an obligation of each party.

 

3.         Conclusion of Law number 8 shall provide that each party shall hold the other harmless for his or her pre-separation debts, as stipulated.

 

II.

            Wyman argues that the district court's decision to give Klasen the authority to resolve parenting disagreements effectively negated the appellant's right to joint legal custody.  Joint legal custody provides both parents with "equal rights and responsibilities, including the right to participate in major decisions determining the child's upbringing, including education, health care, and religious training." Minn. Stat. §§ 518.003, subd. 3(b) (2000).  However, this right to participate does not preclude the designation of one parent as the tie-breaker.  The guardian ad litem recommended this tie-breaking mechanism to avoid an impasse.  While Wyman objected to that recommendation, he agreed to submit it to the district court for decision.  That decision was not an abuse of discretion.

III.

Wyman contends that the district court erred by failing, in its division of a pension account held by respondent, to grant him the interest that has accrued on his allocated share since the valuation date of November 18, 1996.  Wyman relies upon Minn. Stat. § 518.58, subd. 1 (2000), which requires the court to make a "just and equitable division of the marital property of the parties * * *."  With regard to the interval between the valuation date and distribution of the assets, the statute provides that where there has been "a substantial change in value of an asset * * *, the court may adjust the valuation of that asset as necessary to effect an equitable distribution."  Id. (emphasis added); see Minn. Stat. § 645.44, subd. 15 (2000) (stating "[m]ay is permissive"). 

Wyman points to nothing in the record to indicate that a substantial increase in respondent's pension account has occurred.  Further, as Wyman himself points out, the district court's conclusions of law state that it "shall reserve jurisdiction over this matter and a separate qualified domestic relations order shall be prepared in order to effectuate this transfer."  We conclude that the issue of the increase in value after the valuation date has not yet been decided by the district court.  Thus, that issue is not presently before us and may be addressed by the district court when modifying the judgment and before issuing the qualified domestic relations order.  We otherwise affirm the district court's valuation.

Affirmed as modified.