Heidi L. Hilliker, Respondent, vs. Steven Angus Miller, Appellant.

Heidi L. Hilliker, Respondent, vs. Steven Angus Miller, Appellant. A05-1538, Court of Appeals Unpublished, May 9, 2006.

This opinion will be unpublished and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

A05-1538

 

Heidi L. Hilliker,

Respondent,

 

vs.

 

Steven Angus Miller,

Appellant.

 

Filed May 9, 2006

Affirmed in part, reversed in part, and remanded

Crippen, Judge*

 

Hennepin County District Court

File No. PA 48925

 

Susan A. McKay, McKay & Perusse, LLC, Lake Calhoun Executive Center, 3033 Excelsior Boulevard, Suite 10, Minneapolis, MN 55416 (for respondent)

 

Linda Ojala, Ojala Law Office, 3300 Edinborough Way, Suite 550, Edina, MN  55435 (for appellant)

 

Rana SA Fuller, Battered Women's Legal Advocacy Project, 1611 Park Avenue South, Suite 2, Minneapolis, MN 55404 (for amicus curiae Battered Women's Legal Advocacy Project)

 

Elizabeth J. Richards, Minnesota Coalition for Battered Women, 590 Park Street, Suite 410, St. Paul, MN 55103 (for amicus curiae MN Coalition for Battered Women)

 

Kaarin Long, Minnesota Coalition Against Sexual Assault, 161 St. Anthony Avenue, Suite 1001, St. Paul, MN 55103 (for MN Coalition Against Sexual Assault)

 

James Kaster, Sexual Violence Center, 2100 Pillsbury Avenue South, Minneapolis, MN 55404 (for amicus curiae Sexual Violence Center)

 

            Considered and decided by Toussaint, Chief Judge; Ross, Judge; and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            In this appeal in a parentage proceeding, appellant Steven Miller contends that the business that employs him has been and continues to be owned by the woman he married in 2004 and that the district court erred when it determined that he was a 50% owner of the business.  Respondent Heidi Hilliker contends that the district court erred by failing to find that the child was conceived through a nonconsensual sexual act and then granting liberal visitation rights.  Because we find that the evidence precludes a determination that the district court's findings are clearly erroneous, we affirm.  We reverse the court's appointment of a parenting-time expeditor because respondent claims to have been abused by appellant.

FACTS

            In October 2003, respondent filed a complaint alleging that appellant was the father of her child, J.R.H., born in August 2003; she also sought sole legal and physical custody, in addition to reasonable support from respondent.  Appellant filed an answer seeking joint legal and physical custody of the child, a child-support calculation pursuant to the Hortis/Valento formula, and the appointment of a parenting-time expeditor.  The parties eventually signed a recognition-of-parentage document.

            The district court ultimately entered an order granting temporary sole legal and physical custody to respondent, granting appellant liberal parenting-time, and appointing a parenting-time expeditor to resolve parenting-time disputes and implement the court's liberal parenting-time order.  Appellant was ordered to pay child support of $1,448 per month, premised on his net monthly income of $5,791.03.

D E C I S I O N

            A determination of the amount of an obligor's income for purposes of support is a finding of fact and will not be altered on appeal unless clearly erroneous.  Ludwigson v. Ludwigson, 642 N.W.2d 441, 446 (Minn. App. 2002).  And 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.  Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).  A district court's findings of fact, on which a parenting-time decision is based, will be upheld unless they are clearly erroneous.  Griffin v. Van Griffin, 267 N.W.2d 733, 735 (Minn. 1978).   

1.  Appellant's Income

            Appellant challenges the district court's child support order and underlying findings about his income, particularly the court's determination that he is a half-owner of the Chatterbox Pub.  The district court "made an adverse credibility determination with regard to [appellant and his wife's] testimony" about the pub's ownership, determined that appellant had not been forthcoming about his income, and concluded that "[w]hile [appellant] maintains that he is only an employee of the Chatterbox Pub, the facts reflect that since 2002, he has been a 50% owner."  The district court therefore determined that appellant's gross yearly income is $96,262.25, including 50% of the Chatterbox's average ordinary income, $69,262.25, and his yearly salary of $27,000. 

            Appellant points to numerous pieces of evidence that he claims support his contention that the district court erred in failing to find that the pub had been and remains solely owned by his wife, Andrea Lefavor.  It is undisputed that Lefavor purchased the pub in May 2000, that she and appellant lived together at that time, and that the couple married in November 2004.  Appellant has served as a manager of the pub since Lefavor acquired it.  He worked without compensation for two and a half years, but began earning a yearly salary that totaled approximately $22,000 in 2002.  His 2003 salary was $27,000.  

            First, appellant challenges the district court's findings concerning co-ownership representations made in on-sale wine applications, and he claims that a Minneapolis city official's testimony concerning those applications was erroneous.  Appellant argues that the Minneapolis liquor control ordinances require a city's approval of any change in ownership of a licensee and that there is no evidence in the city's records or elsewhere showing an application for or an actual transfer of ownership from Lefavor to appellant. 

            Second, appellant contends that the district court's attribution of a one-half interest in the Chatterbox's income was inappropriate without consideration of evidence of Lefavor's payment of the business's initial purchase price, intervening financial investments, ongoing contributions, or services and their value.  Similarly, appellant argues that this income distribution calculation attributes 69% of the Chatterbox Pub's total income to appellant, leaving Lefavor with well below her 50% share of the income. 

            Third, appellant argues that the district court's income calculation involved an imputation of his earnings and an attribution of Lefavor's earnings to him, and that the resulting calculation grossly overstates his earning experience.[1] 

            Lastly, appellant contends that although he worked as a manager at the pub without a salary for two and a half years, his compensation was in the form of free housing and payment of other living expenses by Lefavor.  

            Although we agree that these issues present important considerations, there is no demonstration of clear error in the district court's findings.  The finding that appellant is a co-owner of the pub is supported by (1) at least three attested license applications submitted to the city in 2002 and 2003 naming appellant and Lefavor as co-owners; (2) appellant's distribution of business cards indicating that he was "Owner/General Manager" of the pub; and (3) evidence that he introduced himself as a part-owner of the pub.  And although appellant claims that the representation of co-ownership in his licensing applications was motivated by a mistaken belief that such a claim was important to the city, the court's weighing of that evidence is premised upon the credibility of the witnesses.  We cannot redetermine issues of credibility because appellate courts defer to the district court's credibility determinations.  Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).  

            In light of the district court's adverse credibility determination and the court's explicit determination that appellant was not forthcoming with his income information, we conclude that the district court acted within its discretion in calculating appellant's income and did not clearly err in its related findings.

2.   Parenting Time and Custody

            Respondent challenges the district court's grant of liberal parenting time to appellant.  Respondent and amicus strenuously argue that granting appellant parenting time is inappropriate based singularly on the assertion that the parties' child was conceived through a nonconsensual sexual act.

            It is undisputed that the parties met at a bar where they were both drinking and where respondent became intoxicated.  They left the bar together and sexual contact occurred later at appellant's house.  Appellant and respondent both claim that they were unaware that sexual intercourse took place between them because of their intoxication.    

            On this record, there is no clear error in the district court's finding that respondent offered too little evidence to establish as a matter of fact that the sexual contact was nonconsensual.  Because we must defer to the district court's findings on the issue of consent, we have no occasion to confront respondent's claim that conception of a child through nonconsensual contact automatically precludes a grant of parenting-time rights.      

            Even given the circumstances surrounding the child's conception, there is adequate evidence to permit the district court's ultimate finding that liberal visitation is in the best interests of the child.  "It is well established that the ultimate question in all disputes over visitation is what is in the best interest of the child."  Clark v. Clark, 346 N.W.2d 383, 385 (Minn. App. 1984), review denied (Minn. June 12, 1984).  We have recognized the rights of both natural parents, noting that "either parent is presumed to be a fit and suitable person to be entrusted with care of child or children born to and belonging to them.  The burden of disproving this presumption rests upon those who challenge it."  Durkin v. Hinich, 442 N.W.2d 148, 152 (Minn. 1989) (quotation omitted).

            Respondent contends that the child's best interests are not served by granting parenting time to appellant because of the circumstances of the conception and the risks to the child's identity, stability, and development; her contentions that appellant lied about the sexual contact resulting in conception; and the assertion that appellant tried to convince her to have an abortion.  But there is adequate evidence supporting the award of liberal parenting time, including evidence from the court-appointed evaluator that appellant is "focused on supporting [the child's] intellectual, physical, and social development," and from a doctor who concluded that there was no direct evidence that the child's well-being is at risk in appellant's presence.  On this record and the district court's findings, there is adequate substantiation permitting the district court's ultimate finding concerning the child's best interests, and the district court acted within its discretion in granting appellant liberal parenting time.

            Respondent also contends that she is a victim of domestic abuse, relying on her allegations that appellant sexually assaulted her and that she contracted the herpes virus from him.  We have already noted that the district court did not clearly err in finding that there was not enough evidence to establish that the sexual contact constituted a sexual assault.  And the record also supports the district court's finding that there was no evidence that respondent contracted the herpes virus from appellant.  The record contains insufficient evidence regarding causation because there is insufficient evidence to conclude that respondent contracted the virus from appellant and there is evidence that appellant has tested negative for the virus.

            Finally, respondent argues that the district court erred by altering the permanency of the custody award from granting her permanent sole legal and physical custody in the court's first order to granting her temporary sole legal and physical custody in the court's amended order.  Respondent fails to cite any authority for her position, and the there is adequate support in the record for the court's determinations that respondent "requires counseling to work through her feelings about co-parenting with [appellant]" and that "[i]t is important that [respondent] demonstrates her ability to foster [the child's] relationship with his father".  We conclude that the district court acted within its discretion when it modified the custody order to an award of temporary custody.  

3.  Appointment of a Parenting-Time Expeditor

            Respondent alleges that the district court erred by appointing a parenting-time expeditor.  We review the district court's decision on whether to appoint a parenting-time expeditor under an abuse-of-discretion standard.  Nolte v. Mehrens, 648 N.W.2d 727, 731 (Minn. App. 2002).

            The district court may appoint a parenting-time expeditor to resolve disputes that arise under a parenting-time order.  Minn. Stat. § 518.1751, subd. 1 (2004).  But "[a] party may not be required to refer a parenting time dispute to a parenting time expeditor
 . . . if . . . one of the parties claims to be the victim of domestic abuse by the other party[.]"  Minn. Stat. § 518.1751, subd.1a (2004).  Respondent and amici curiae argue that the appointment of the expeditor was inappropriate because respondent has claimed that she is the victim of domestic abuse perpetrated by appellant during the conception of their child.  Appellant argues that the appointment of the parenting-time expeditor was appropriate because of the district court's finding that no domestic abuse occurred. 

            When interpreting statutes, our goal is to give effect to the intention of the legislature.  Educ. Minn.-Chisholm v. Indep. Sch. Dist. No. 695, 662 N.W.2d 139, 143 (Minn. 2003).  If the meaning of a statute is clear, then it shall be given effect according to the plain meaning of the words used.  Molloy v. Meier, 679 N.W.2d 711, 723 (Minn. 2004); see also Minn. Stat. § 645.08(1) (2004) (stating canons of statutory construction).

            The plain meaning of the governing statute is that a party may not be required to utilize a parenting-time expeditor if that party claims to have been the victim of domestic abuse at the hands of the other party to the parenting-time dispute.  The statute does not require proof or a judicial finding of domestic abuse, nor does it give the court the power to compel cooperation with an expeditor if the court finds the claim of domestic abuse to be without sufficient support.  Because respondent has claimed to be the victim of domestic abuse here, the court may not require her to participate with a parenting-time expeditor.  Minn. Stat. § 518.1751, subd.1a.  We reverse the district court's appointment of a parenting-time expeditor and remand for an order consistent with this ruling.

            Affirmed in part, reversed in part, and remanded.

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

[1] There is no merit in appellant's contention that the district court imputed income to him.  None of the district court's findings of fact suggests an imputation of income.  Rather, the findings reflect the court's determination that appellant is an actual owner of the Chatterbox Pub, with a 50% interest in its business profits.