In the Matter of: Kenneth Robert Hottinger, Appellant, vs. Jennifer Lynn Wilmes, Respondent.

In the Matter of: Kenneth Robert Hottinger, Appellant, vs. Jennifer Lynn Wilmes, Respondent. A04-2285, Court of Appeals Unpublished, September 6, 2005.

This opinion will be unpublished and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

A04-2285

 

 

In the Matter of:

 

Kenneth Robert Hottinger,

Appellant,

 

vs.

 

Jennifer Lynn Wilmes,

Respondent.

 

 

Filed September 6, 2005

Affirmed

Lansing, Judge

 

Nicollet County District Court

File No. F9-04-50050

 

T. Oliver Skillings, Skillings & Associates, 100 Voyager Bank Building, 107 North Second Street, Mankato, MN 56001 (for appellant)

 

Kenneth R. White, Esq., 325 South Broad Street, Suite 203, Mankato, MN 56001 (for respondent)

 

            Considered and decided by Minge, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

In this appeal from judgment establishing custody and setting child support, Kenneth Hottinger challenges the district court's rejection of joint physical custody and the imposition of a child-support obligation based on the statutory child-support guidelines.  Because the district court properly applied the law, reasonably exercised its discretion, and relied on facts fully supported by the record, we affirm.

F A C T S

Kenneth Hottinger and Jennifer Wilmes are the parents of MRH, who was born on December 15, 2000.  Hottinger's paternity, which was undisputed, was adjudicated by court order on May 5, 2004.  At that time Hottinger and Wilmes shared the same household, and the order provided that they would also share temporary joint legal and physical custody of MRH.  In July 2004 Hottinger and Wilmes ended their relationship and established separate residences.

Following the separation, Hottinger sought joint physical custody of MRH.  The district court held an evidentiary hearing and issued an order that incorporated Hottinger and Wilmes's agreement on joint legal custody and provided that Wilmes would have sole physical custody of MRH.  The order set Hottinger's child-support obligation at $538 a month and daycare reimbursement at $174 a month.  These amounts, which the court stated were "agreed to by the parties," had been previously established by Nicollet County in a child-support determination under Minn. Stat. § 256.87 (2004) after the order establishing paternity.

Hottinger appeals from the judgment, challenging the district court's (1) denial of joint physical custody and (2) failure to apply the Hortis/Valento formula in setting child support.

D E C I S I O N

I

A district court has broad discretion in resolving custody issues.  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989).  Appellate review of a custody decision is narrow and "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) (quotation omitted).  The overriding concern in custody determinations is the best interests of the child, which requires consideration of the factors listed in Minn. Stat. § 518.17, subd. 1(a) (2004). 

When joint legal or physical custody is contemplated, the district court must consider, if relevant, four additional factors: (1) the ability of parents to cooperate in the rearing of their children; (2) methods for resolving disputes on major decisions that affect 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 parents.  Id., subd. 2 (2004).

Appellate courts will not reverse a factual finding that underlies a custody determination unless the finding is clearly erroneous.  Minn. R. Civ. P. 52.01; Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  A finding is clearly erroneous if the reviewing court is left with the definite and firm conviction that a mistake has been made.  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).  In applying this clear-error standard, we view the record in the light most favorable to the district court's determination, giving appropriate deference to the district court's credibility determinations.  Id. at 472. 

Hottinger raises two challenges to the district court's custody determination:  (1) the record does not support all of the court's findings on the statutory factors for determining the child's best interests and (2) the district court's findings are insufficient on the joint-custody factors.  We disagree.

The district court separately addressed each best-interests factor.  It found that both Hottinger and Wilmes have an intimate relationship with MRH; that Wilmes was the primary caretaker for MRH and provided "the vast majority of caretaking"; that MRH had a positive relationship with her fifteen-year-old stepsister who lived with Wilmes and MRH; that MRH was adjusted to her current daycare arrangement, which might not continue if physical custody changed; that living with Wilmes was MRH's "main stability," which would be diminished by a change in custody; and that Wilmes and Hottinger had an "inability to communicate" and that their relationship was "not good."

Hottinger challenges the factual basis for two of these findings.  First, he disputes that the record is unclear on whether he would continue to use the current daycare provider if he obtained physical custody.  The record indicates that the daycare facility was near Wilmes's then-current residence and that Hottinger lived twenty miles away.  Although the record does not indicate that Hottinger would place MRH in a different facility, it does not affirmatively demonstrate that he would want to use the same provider.  Consequently the district court's finding is not clearly erroneous.  Second, Hottinger disputes the district court's finding that MRH had primarily lived with Wilmes and that this arrangement "is the main stability."  The record shows that MRH had lived with Wilmes in the same house since birth, that she continued living in the house with Wilmes after Hottinger and Wilmes separated, and that Wilmes had consistently been MRH's primary caretaker. 

With respect to the factors that apply to consideration of joint physical custody, the district court specifically addressed Hottinger and Wilmes's ability to cooperate in the rearing of their child.  The court determined Hottinger and Wilmes are unable to communicate, they have a poor relationship, and they frequently argue.  These findings are fully supported by the record.  Both Hottinger and Wilmes testified at length on their inability to get along and their inability to communicate.  The record establishes that they frequently disagreed on when to pick up or drop off MRH and that their disagreements involved profanity and hanging up the phone on one another.

The court's findings also address the second factorthe method for resolving disputes and their willingness to use these methods.  The district court found that Hottinger and Wilmes have significant trouble relating positively to each other and that they are incapable of providing MRH with any guidance on how to communicate or relate to other people.  This finding is supported by the testimony of both Hottinger and Wilmes as well as the testimony of Wilmes's sister and a friend for whom Wilmes provided daycare.

The third factorwhether it would be detrimental for one parent to have sole authority over MRH's upbringingwas addressed by the court's finding that, if Hottinger were to "receive physical custody, the environment would be less stable for the child than if she remained with [Wilmes]" and that living with Wilmes provides stability for the child.  The court found that the fourth and final factorphysical abusedid not apply, and this point is not disputed.

The record supports the district court's findings on the statutory best-interests factors set out in Minn. Stat. § 518.17, subd. 1 (2004).  The record also supports the district court's findings on the joint-custody factors set out in Minn. Stat. § 518.17, subd. 2.  Hottinger disputes the particularity of the district court's findings on the joint-custody factors, but specific findings on these factors are required only when the court grants joint custody over a parent's objections.  Although the court did not grant joint custody, it did make findings.  Based on these findings, the court concluded that MRH's parents' inability to communicate or cooperate weighed against joint custody and granted sole physical custody to Wilmes.  The court did not abuse its discretion in making its determination on custody.

II

            The second issue that Hottinger raises is whether the district court erred in ordering him to pay the guidelines child-support amount instead of applying the Hortis/Valento formula to determine his child-support obligation.  See Valento v. Valento, 385 N.W.2d 860, 862-63 (Minn. App. 1986) (prorating child support between parents who were joint physical custodians); Hortis v. Hortis, 367 N.W.2d 633, 635 (Minn. App. 1985) (determining that parents exercising joint physical custody may be co-obligors). 

Hottinger did not raise the Hortis/Valento issue at the contested hearing.  Instead he agreed that the support amounts previously determined by Nicollet County were the proper amounts, depending on the district court's custody decision.  In his testimony, Hottinger stated that he would pay guidelines support even if the court granted Wilmes sole physical custody.  We need not, however, determine whether Hottinger waived any challenge to the absence of a Hortis/Valento analysis; the guidelines support amount is presumed to be correct and, in this case, specific findings on the application of the guidelines amount are not required.  See Minn. Stat. § 518.551, subds. 5(c), (i) (2004) (establishing guidelines as rebuttable presumption and requiring findings for deviations from guidelines).  Although findings would have been necessary if the district court had applied the Hortis/Valento factors, the district court had no obligation to consider these factors because Wilmes had sole physical custody.  See id.;Rogers v. Rogers, 622 N.W.2d 813, 821 (Minn. 2001) (providing that person with sole physical custody is presumed not to be child-support obligor and is not required to make child-support payments unless district court makes specific written findings to overcome presumption).  

The district court granted Wilmes sole physical custody, implemented the parents' stipulated parenting-time schedule, and imposed the guidelines child-support amount that was previously in place.  Because the district court did not depart from the child-support guidelines, specific findings on the Hortis/Valento formula are not required.  The  district court did not err in setting the amount of child support or abuse its discretion in determining custody.

            Affirmed.