In re the Matter of: Michael James Bongo, Appellant, vs. Sharon Lee Norris, Respondent.

In re the Matter of: Michael James Bongo, Appellant, vs. Sharon Lee Norris, Respondent. A04-1471, Court of Appeals Unpublished, June 14, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1471

 

In re the Matter of:
Michael James Bongo,
Appellant,
 
vs.
 
Sharon Lee Norris,
Respondent.

 

Filed June 14, 2005

Affirmed as modified

Stoneburner, Judge

 

Anoka County District Court

File No. FX9751963

 

Richard A. Stebbins, N. Matla Titi, Stebbins & Hegranes, L.L.C., Suite D, 877 Jefferson Avenue, St. Paul, MN 55102 (for appellant)

 

David L. Garelick, Larry B. Leventhal, Larry Leventhal & Associates, Suite 420, Sexton Building, 529 South Seventh Street, Minneapolis, MN 55415 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge; Willis, Judge; and Crippen, Judge.*

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant Michael Bongo (father) asserts that the district court abused its discretion by modifying physical custody of the parties' teenage son to joint custody, rather than granting sole custody to him.  Father also alleges that the district court abused its discretion by failing to award child support pursuant to the guidelines; by granting respondent Sharon Norris (mother) the right to claim the tax exemption for the child in alternate years; by ordering father to partially pay mother's attorney fees, in addition to imposing a civil penalty for willful interference with mother's parenting time; and by ordering father to post a bond to secure his compliance with mother's custodial rights.  We modify the order to provide that the issue of child support is reserved and otherwise affirm.

FACTS

 

The child in this case was 15 years old at the time the district court modified custody.  The parties were never married but lived together from 1987 until the early 1990s.  Father was adjudicated the child's father in 1998, and the parties stipulated that mother would have sole physical custody subject to father's parenting time.  In May 2002, father moved for an order granting him sole physical custody of the child, alleging endangerment.  Since that time, the parties have made numerous motions, and the district court has issued numerous orders.  The district court characterizes the case as "one of the most complicated and perplexing family cases ever heard" by the court.

Shortly after father moved for a change of custody, the child refused to return to mother's home in Coon Rapids following parenting time with father.  Mother moved for immediate return of the child.  Before the hearing on this motion, the child returned to mother's home.  In June 2002, father's motion for a change of custody was denied, and a guardian ad litem was appointed to represent the best interests of the child.

In July 2002, father relocated from the metro area to Walker, Minnesota.  On July 18, the child ran away from mother's home to father's home in Walker.  Father's stated position is that the child can be with his mother whenever he wants to, but father will not return the child to mother against the child's wishes.  Mother again moved for immediate return of the child.  The district court granted mother's motion and ordered law enforcement to assist if the child ran away again.  The district court later found that father was aware that the child had planned to run away from mother's home on July 18 and actively assisted him in the endeavor. 

In August 2002, the child again ran away from mother to father's home, and father declined to return him because the child did not want to return.  The district court ordered law enforcement to assist and to place the child in detention if he refused to return to mother.  The child refused to return and was placed at Evergreen Shelter in Bemidji for approximately two weeks.  The district court then determined that father had made a prima facie showing of endangerment based on the child's running away from mother's home and failing in school, granted father temporary extended parenting time, scheduled an evidentiary hearing, and ordered psychological evaluations of the child and the parties and a custody evaluation.[1]  After a review hearing, the district court ordered that the child not be allowed to make decisions regarding parenting time.  Nonetheless, father informed mother that the child would not participate in parenting time with her until she and her parents signed an agreement purportedly drafted by the child.

In February 2003, the district court awarded mother compensatory parenting time and directed father to "ensure that [the child] participates in parenting time with his mother. . . ."  Despite this order, the child did not participate in parenting time with mother, which deprived the guardian ad litem of the opportunity to make an observational home visit with mother and the child.

Mother moved for an order finding father in contempt for willfully violating parenting orders.  Father then agreed that parenting time with mother would resume.  The child had weekend parenting time with mother in July 2003, but mother never received the two weeks of compensatory time the court ordered. 

After a combined hearing on father's motion for a change in custody and mother's contempt motion, the district court found that there had been a change in circumstances since the original award of sole physical custody to mother and engaged in an extensive and thorough analysis of the factors in Minn. Stat. § 518.17, subd. 1(1)(13) (2004), to determine if modification of custody was necessary to serve the child's best interests.  See Minn. Stat § 518.18(d) (2004).  The court also weighed the factors in Minn. Stat.       § 518.17, subd. 2 (2004), and concluded that joint legal and physical custody is in the child's best interests.

D E C I S I O N

 

I.          Award of joint custody

Father argues that the district court's award of joint physical custody is contrary to law and not supported by the facts.  "The district court has broad discretion in determining custody" and this court's role in reviewing custody decisions is limited "to determining whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law."  Lemcke v. Lemcke, 623 N.W.2d 916, 919 (Minn. App. 2001), review denied (Minn. June 19, 2001).  A district court's finding of fact is clearly erroneous if the reviewing court is "left with the definite and firm conviction that a mistake has been made."  LaChapelle v. Mitten, 607 N.W.2d 151, 160 (Minn. App. 2000), review denied (Minn. May 16, 2000).  An appellate court reviews the record in the light most favorable to the district court's findings.  Id.  And, this court defers to a district court's determinations on credibility.  Id. 

A district court may modify a custody order under Minn. Stat. § 518.18(d), if the moving party demonstrates: (1) a change in circumstances; (2) modification is necessary to serve the child's best interests; (3) the child's present environment endangers the child's health or emotional development; and (4) the harm caused by the change is outweighed by the benefit of the change.  Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997). 

When determining custody, the primary consideration is the best interests of the child.  E.g., Frauenshuh v. Giese, 599 N.W.2d 153, 158-59 (Minn. 1999) (stating that children's best interests are "paramount" concern in deciding custody issues); Pikula v. Pikula, 374 N.W.2d 705, 711 (Minn. 1985) ("The guiding principle in all custody cases is best interests of child").  When determining the child's best interests, the district court is required to examine the 13 factors outlined in Minn. Stat. § 518.17, subd. 1(a) (2004).  And, if the district court orders joint custody, the court must additionally consider four statutory factors.  Wopata v. Wopata, 498 N.W.2d 478, 481 (Minn. App. 1993).  The additional factors are (1) the ability of the parents to cooperate in the rearing of their children; (2) methods for resolving disputes regarding any major decisions concerning the life of the child, and the parents' willingness to use those methods; (3) whether it would be detrimental to the child if one parent were to have sole authority over the child's upbringing; and (4) whether domestic abuse has occurred between the parties.  Minn. Stat. § 518.17, subd. 2.  "[C]urrent law leaves scant if any room for an appellate court to question the trial court's balancing of best-interests considerations."  Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000).  A finding that joint custody is appropriate will not be disturbed on appellate review unless the district court abused its discretion.  Wopata, 498 N.W.2d at 481.

The district court made extensive findings on the child's best interests in a 26-page order.  The district court found that the child has had problems in school and has expressed an "unequivocal" desire to live with father, who supports the child's involvement in extra-curricular sports and other outdoor activities, and to whom the child believes he more easily relates.  The district court found that the child's preference is reasonable, but has clearly been inappropriately influenced by father, who has told the child that mother is "sick" and used "innuendo to leave [the child] with the strong impression that [mother] does not love [the child] by distorting [mother's] past conduct."  The district court found that the child has parroted father's language to the court and guardian ad litem and that father "has coached [the child] in his responses to this Court and the guardian ad litem" and "fostered, and, perhaps, exploited [the child's] strong will at the expense of [mother]." 

The district court found that the child and father have a very close relationship that sometimes "more closely resembles that of friends rather than a healthy parent-child relationship."  The district court noted the custody evaluator's concern that father is an ineffectual parent, who does not seem to have the ability to exercise healthy parental control, "particularly when it comes to the issue of [the child] seeing his mother," and is giving the child power and control in areas the child should not have it.  The district court found that father frequently treats the child as an equal and "empowers [him] to make choices no child should be making."  The district court found that father is in a position to, but declines to, require the child to maintain a relationship with his mother and that this aspect of the child's relationship with father is unhealthy.  The district court also found that appellant was aware of the child's plan to run away and encouraged it.  Because there is substantial evidence in the record to support these findings, they are not clearly erroneous. 

Because of the lack of contact between the child and his mother, the district court found that their current relationship is "nearly non-existent."  The court found that father has played a large part in the decay of the child's relationship with his mother.  The district court noted, however, the custody evaluator's concern that the child "would behave in a reckless or destructive manner were he to return to his mother's custody."

The district court found that father failed to show that mother's home endangers the child's emotional or physical health and that under a strict application of the statutory factors the district court would have retained sole custody in mother.  But the district court also found that the child is engaging in endangering behavior by running away from mother's custody[2] and that father has contributed in large part to the circumstances that place the child in danger.  The district court found that the child is doing well in his father's custody except for the continuing conflict over mother's parenting time.

The district court also made extensive findings on the factors listed in Minn. Stat. § 518.17, subd. 2, relating to joint legal or physical custody.  The district court found that the parties do not have the ability to cooperate, but that under the circumstances the district court was left with "no legitimate alternative other than to award joint physical custody to the parties."  And the district court found that despite the parents' lack of cooperation, the guardian ad litem, parenting-time expeditor, and the therapists involved in this case provide a "safety net" for resolving problems related to joint physical custody.

The district court found that it would be detrimental to the child to award father sole custody of the child and found that the only way to balance the competing factors and ensure that father cannot totally eliminate mother from the child's life is by awarding joint physical custody.  The court ordered the child to reside with father during the school year, with mother having parenting time on alternating weekends and during the child's spring and winter breaks.  The child is to reside with mother during the summer, but father has alternating weekend parenting time.

Father argues that the district court abused its discretion in ordering joint physical custody because it found that the parties have been unable to cooperate.  Father notes that previous decisions of this court have indicated joint physical custody is disfavored, particularly when there is evidence of the parties' inability to cooperate, and is appropriate only in "exceptional cases."  See, e.g., Rosenfeld v. Rosenfeld, 529 N.W.2d 724, 726 (Minn. App. 1995). 

District courts have discretion to weigh the statutory factors and are not bound by a set formula as long as all statutory factors are considered.  See Maxfield v. Maxfield, 452 N.W.2d 219, 223 (Minn. 1990) ("[s]ome statutory criteria will weigh more in one case and less in another").  Although the district court found that the parties had been

unable to cooperate with regard to respondent's parenting time, the district court also found that the parties have an extensive network of professionals to provide a safety net for resolving problems related to joint physical custody, which reflects that the district court gave substantial weight to the joint-custody factor at Minn. Stat. § 518.17, subd. 2(b), and determined that methods for dispute resolution are in place to address the problems related to parenting time.  And, in weighing the propriety of joint physical custody, the district court in this case clearly gave primary weight to the finding that an award of sole physical custody to father would be detrimental to the child.  Minn. Stat.      § 518.17, subd. 2(c).  The record supports the court's findings, and we cannot say under these circumstances that the award of joint physical custody is an abuse of discretion. 

Father also argues the court abused its discretion by not following the custody evaluator's recommendation that he have sole physical custody.  The district court has discretion regarding whether or not to follow a custody recommendation.  Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991).  In this case, the district court painstakingly analyzed the factors that led to rejecting the recommendation for an award of sole physical custody to father.  The court also explained how the award of joint physical custody addresses many of the concerns raised by the custody evaluator and guardian ad litem.  See Roehrdanz v. Roehrdanz, 410 N.W.2d 359, 362 (Minn. App. 1987) (holding that court did not abuse discretion in rejecting custody recommendation when it set out findings explaining its reasons for rejection), review denied (Minn. Oct. 28, 1987).  And the district court has ordered that the child reside with appellant a significant portion of the time, which is consistent with the child's wishes and the guardian ad litem's recommendation. 

Father argues that the district court did not give sufficient weight to the child's preference, but we disagree.  The child has been allowed to continue attending school in Walker and reside primarily with father, consistent with his preference.  There is no authority for the proposition that the labeling of a custody determination is a subject on which the district court must defer to the wishes of a child.

Father also argues that the custodial schedule established by the district court "bears no resemblance to a true joint custody arrangement."  But there is no merit to or authority to support the assertion that the amount of time the parties have primary custody of the child dictates what legal label will be applied to a custody arrangement.  The label "joint physical custody" does not require an equal 50/50 division of time and can be applied to any arrangement where the child's residence and routine daily care are structured between the parties.  Lutzi v. Lutzi, 485 N.W.2d 311, 314 (Minn. App. 1992), citing Minn. Stat. § 518.003, subd. 3(d).  "[District] courts may unequally divide physical custody but still label the arrangement as joint."  Id; c.f.Blonigen v. Blonigen, 621 N.W.2d 276, 283 (Minn. App. 2001) (Crippen, Judge, dissenting) (noting "joint physical custody" merely requires that the routine daily care and control of the child be structured between the parties, and that "[n]othing in the law precludes a 90%/10% care-sharing arrangement with the label ‘joint'"), review denied (Minn. Mar. 13, 2001).  

Although this is not the typical case in which joint physical custody is found to be in a child's best interests, we defer to the credibility findings of the district court as well as the factual findings, all of which are supported by the record.  The district court in this case has had the opportunity to observe the parties over a significant period of time, has interviewed the child, and has had input from the custody evaluator and guardian ad litem.  We conclude that, under all of the circumstances of this case, the district court did not abuse its discretion by awarding the parties joint legal and physical custody of their child.

II.        Child support

The district court originally declined to award child support based on the award of joint custody and the amount of parenting time.  In response to father's motion for amended findings, the district court noted that even if it were inclined to set child support based on the Hortis/Valento formula, it could not have done so because father failed to provide "a scintilla of financial information related to himself or [mother] either by affidavit or at the evidentiary hearing." 

The Hortis/Valento formula is the presumptively appropriate method of setting child-support when joint physical custody is awarded.  Schlichting v. Paulus, 632 N.W.2d 790, 792 (Minn. App. 2001) (stating that application of the Hortis/Valento formula in cases of joint physical custody is an application of child-support guidelines).  But we have held that a district court did not abuse its discretion by maintaining a current support order in force when the party requesting modification failed to submit adequate financial information to support a need for modification.  Taflin v. Taflin, 366 N.W.2d 315, 319 (Minn. App. 1985); State on Behalf of Johnson v. Howell, 359 N.W.2d 629, 631 (Minn. App. 1984). 

The record clearly demonstrates that father has previously been ordered to submit financial information to the district court and has failed to do so, and father did not submit financial information in connection with his motion for modification.  But the record does not support the district court's original decision not to award child support based on the custody arrangement.  We modify the district court's order to reserve the determination of child support until such time as father provides sufficient financial information to the district court to permit a determination of whether the guidelines should apply, and if not, to make appropriate findings on any deviation from guidelines support. 

III.       Requirement that father post bond to secure future compliance

The district court found that father has previously interfered with mother's parenting time and ordered a bond posted to secure future compliance.  The district court has authority to provide remedies for interference with court-ordered parenting time.  Minn. Stat. § 518.175, subd. 6 (2004); Matson v. Matson, 638 N.W.2d 462, 466 (Minn. App. 2002).  Minnesota courts have previously approved use of a bond to secure return of a child from visitation.  See Tischendorf v. Tischendorf, 321 N.W.2d 405, 412 (Minn. 1982) (approving use of bond to ensure return of child from unsupervised visitation; Meier v. Connelly, 378 N.W.2d 812, 818 (Minn. App. 1985) (requiring supervised visitation until parent posted bond to ensure child's return from unsupervised visitation). 

Father challenges the district court's authority to use a bond to secure mother's visitation rights, but argues that he is unable to make the child comply with court-ordered visitation.  We disagree.  The record demonstrates that when the father wants the child to cooperate with mother's parenting time, the child cooperates.  We find no abuse of discretion in adding a financial incentive for father's insistence on cooperation.

IV.       Tax exemption

The district court has discretion to allocate the federal tax exemptions.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).  The record contains no financial information on the parties from which this court could conclude that the district court's decision to award the exemption to the parties in alternate years is an abuse of discretion.

V.        Award of attorney fees

            Father asserts that the district court abused its discretion by ordering him to pay part of mother's attorney fees in addition to ordering him to pay a $500 civil penalty for willful interference with court-ordered parenting time.  Father provides no authority that combining a civil penalty for interference with parenting time and awarding conduct-based attorney fees constitutes an abuse of discretion, and we find such an assertion to be without merit.  Father's primary arguments against attorney fees appear to be his inability to pay, that his conduct did not contribute to the length and expenses of the proceedings, and that the district court's findings on conduct-based fees were insufficient to support the award.

            "Conduct-based fee awards are discretionary with the district court."  Sharp v. Bilbro, 614 N.W.2d 260, 264 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000).  Minn. Stat. § 518.175, subd. 6(c)(3), provides for an award of attorney fees against a party who wrongfully interferes with court ordered parenting time and § 518.14, subd. 1, permits a discretionary award of attorney fees, costs, and disbursements against a party who unreasonably contributes to the length or expense of the proceeding, regardless of ability to pay.  The district court relied on both provisions to support the award of attorney fees in this case.  The findings of the district court are adequate to support the award, and the record demonstrates that the findings are not clearly erroneous.  The district court did not abuse its discretion in awarding attorney fees to mother.

Affirmed as modified.

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

[1] The custody evaluation was completed, but there is no evidence in the record of the results of psychological evaluations for the parents or the child.

[2] Mother's shortcomings in fostering her relationship with the child are clearly set out in the court's findings but do not amount to endangerment.