In re the Matter of: Jennifer Ann Stanley, Appellant, vs. Brooks Joseph Moening, Respondent.

In re the Matter of: Jennifer Ann Stanley, Appellant, vs. Brooks Joseph Moening, Respondent. A04-1667, Court of Appeals Unpublished, May 24, 2005.

This opinion will be unpublished and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

A04-1667

 

In re the Matter of:

 

Jennifer Ann Stanley,

Appellant,

 

vs.

 

Brooks Joseph Moening,

Respondent.

 

Filed May 24, 2005

Affirmed

Kalitowski, Judge

 

Washington County District Court

File No. F6-03-50139

 

Michael C. Black, Michael C. Black Law Office, Ltd., 265 West Seventh Street, Suite 201, St. Paul, MN 55102 (for appellant)

 

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

 

            Considered and decided by Peterson, Presiding Judge; Kalitowski, Judge; and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Jennifer Ann Stanley challenges the district court's decision to grant respondent Brooks Joseph Moening joint physical custody of the parties' two-and-a-half-year-old son, C.J.M., arguing that the district court erred by (1) making a joint physical custody award that is contrary to established Minnesota law; (2) adopting a parenting time schedule that does not reflect the child's best interests; and (3) denying appellant's motion to reopen the record.  We affirm.

D E C I S I O N

 

I.

 

            Appellant argues that the district court erred by awarding joint physical custody to the parties since they are unable to cooperate or communicate effectively.  Appellate review of a custody determination 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).  The district court's custody determination must be based on a balancing of the best interests of the child.  Vangsness v. Vangsness, 607 N.W.2d 468, 476-77 (Minn. App. 2000).

            Appellant argues that because the evidence in the record does not support the court's finding that the parties can cooperate and communicate effectively, an award of joint physical custody was not appropriate.  This court has reversed a joint physical custody award where the evidence indicated that the parties were unable to cooperate and communicate.  Wopata v. Wopata, 498 N.W.2d 478, 483 (Minn. App. 1993).  But courts have affirmed a grant of joint physical custody where the record indicated that the parties were able to cooperate and maintain a joint physical custody arrangement on their own for an extended period of time.  Veit v. Veit, 413 N.W.2d 601, 605 (Minn. App. 1987); Berthiaume v. Berthiaume, 368 N.W.2d 328, 332-33 (Minn. App. 1985).

            Here, as required by Minnesota law, the district court made findings on the 13 factors addressing the best interests of the child.  See Minn. Stat. § 518.17, subd. 1 (2004).  And current law leaves scant, if any, room for an appellate court to question the district court's balancing of best-interests considerations.  Vangsness, 607 N.W.2d at 477.  In addition, the district court properly made findings regarding the factors for joint physical custody under Minn. Stat. § 518.17, subd. 2 (2004).

            We conclude that the district court's findings are supported by evidence.  At trial, appellant initially testified that the parties could not cooperate effectively.  But on cross-examination, appellant acknowledged examples where the parties cooperated in assuring respondent's involvement in parenting C.J.M.  And there was evidence that appellant, acting in the best interests of C.J.M., included respondent in the child's life from birth.  Specifically, the record indicates that respondent:  (1) attended the child's birth and spent three nights in the hospital following the birth; (2) attended all the "well baby" checks and other doctor appointments for illnesses; (3) participated in baby photo shoots; and (4) hosted the child's baptism party.  In addition, respondent and appellant agreed to the selection of respondent's sister and respondent's friend to be the child's godparents.  Finally, appellant admitted that the parties have reached "some" agreements with regard to scheduling and use e-mail to communicate.

            Citing Steinke v. Steinke, 428 N.W.2d 579, 584 (Minn. App. 1988), appellant argues that joint physical custody is disfavored and should only be used in exceptional circumstances.  We note that the requirement of exceptional circumstances to justify joint physical custody has never been adopted by the legislature or the Minnesota Supreme Court.  And the circumstances here, as summarized above, support the district court's finding that the statutory factors are met and the parties can communicate and cooperate effectively.  Therefore, we conclude that the district court properly applied the statute and did not abuse its discretion in awarding joint physical custody in this matter.

            Finally, appellant argues, without authority, that parentage actions should be treated differently under the best-interest factors of subdivisions 1 and 2 of Minn. Stat. § 518.17, where the parents have not cohabitated during their relationship.  We disagree.  In fact, a contrary legislative intent is reflected in the fact that the parentage action statutes direct the district court to use the best-interests factors under section 518.17 and section 518.175 to determine custody and parenting time once paternity has been acknowledged and established.  See Minn. Stat. § 257.541 (2004).

II.

            The district court has broad discretion in deciding parenting time questions based on the best interests of the child and will not be reversed absent an abuse of discretion.  Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001), review denied (Minn. Oct. 24, 2001).  Here, when the parties were unable to mediate a parenting time schedule, the district court requested that each party propose a schedule.  The district court adopted respondent's schedule, which provided that respondent's parenting time would gradually increase until the parties shared equal parenting time with the child every week. 

            In making this decision the district court heard testimony from both parties and determined that they could cooperate and communicate.  In addition, the district court made specific findings on the child's best interests that are supported by the evidence, including that:  (1) the parties live close to each other as a result of respondent moving to be closer to his child; (2) the parenting time schedule takes appellant's work schedule into account; and (3) the parties can appropriately use the child's daycare as an exchange place.  Based on the evidence in the record, we cannot say that the district court abused its discretion in adopting respondent's parenting time schedule. 

III.

            A decision to allow a party to reopen the record rests within the sound discretion of the district court, and will not be disturbed absent a clear abuse of discretion.  Hamilton v. Killian, 296 Minn. 256, 259-60, 207 N.W.2d 703, 705 (Minn. 1973).  Appellant argues that the district court should have reopened the record under Minnesota Rules of Civil Procedure 59.01.  But rule 59.01 is a discretionary rule and appellant does not identify any grounds under rule 59.01 that would justify reopening the record.  See Minn. R. Civ. Pro. 59.01 (allowing a new trial if a party shows irregularity in the proceedings, misconduct of a prevailing party, accident or surprise, among other grounds).  We conclude that the district court did not abuse its discretion in denying appellant's motion to reopen the record.

            Affirmed.