In re the Marriage of: Daniel Frank Ostrander, petitioner, Respondent, vs. Shannon Marie Ostrander, n/k/a Shannon Marie Fragmin, Appellant.

In re the Marriage of: Daniel Frank Ostrander, petitioner, Respondent, vs. Shannon Marie Ostrander, n/k/a Shannon Marie Fragmin, Appellant. A05-1703, Court of Appeals Unpublished, July 18, 2006.

This opinion will be unpublished and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

A05-1703

 

In re the Marriage of: Daniel Frank Ostrander, petitioner,
Respondent,
 
vs.
 
Shannon Marie Ostrander, n/k/a Shannon Marie Fragmin,
Appellant.

 

Filed July 18, 2006

Affirmed

Minge, Judge

 

St. Louis County District Court

File No. 69-F0-02-300185

 

 

James Perunovich, Law Offices of James Perunovich, P.F., 402 East Howard Street, Hibbing, MN 55746 (for respondent)

 

Kent Carlson, Legal Aid Service of Northeast Minnesota, 820 North Ninth Street, Suite 150, Virginia, MN 55792 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Peterson, Judge; and Minge, Judge.

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            Appellant-mother challenges the district court's modification of joint physical custody to give respondent-father sole physical custody of the parties' three children.  Because the district court did not clearly err in finding that mother's out-of-state move constituted a change in circumstances, that modification was in the children's best interests, and that the children were integrated into father's home with mother's consent, we affirm.

FACTS

            The parties, appellant Shannon Ostrander (n/k/a Shannon Fragmin), the mother, and respondent Daniel Ostrander, the father, married and had three children together, divorced, and remarried in 1997.  Their children were born in 1990, 1992 and 1995.  The family lived in Nashwauk and the children attended the Nashwauk-Keewatin public schools.  The parties separated in 2001. 

            Mother's residency changed several times during the period between 2001 and June 2004.  She spent the summer of 2001 in West Virginia with John Fragmin, her then-boyfriend.  Two of the children accompanied her.  The children returned to Nashwauk for school in September, and mother stayed in West Virginia for the fall.  The children lived full time with their father during this time.  Mother moved to Hibbing in December 2001, and the children resumed the rotated residency between their parents.

            The parties' second marriage was dissolved on July 3, 2002.  The dissolution judgment provided for joint physical and joint legal custody with the children's residence shifting between the parties every four days. At the time the parties agreed to joint custody, father continued to live in Nashwauk and mother lived in Hibbing. 

            In June 2003, mother and her new husband returned to West Virginia.  Two of the children spent the summer of 2003 with mother; all three children spent the summer of 2004 with her.  The children spent the entire 2003-04 and 2004-05 school years with their father in Nashwauk.  The parties agreed on the residency shifts and living arrangements for the children.

            In September 2004, when mother had been living in West Virginia for 15 months, father moved for sole physical custody on the ground that the children were integrated into his home with the mother's consent.  An evidentiary hearing was held on this motion in June 2005.  Just five days prior to the hearing, mother moved back from West Virginia to Hibbing and indicated that she wished to resume the alternating residential arrangement for the children.  She represented that she would maintain her residence in Hibbing until the youngest child finished high school.  Although she was making arrangements to purchase a home, neither she nor her husband had yet found employment in the Hibbing area.  Father asserted that the children are now accustomed to residing in the Nashwauk community and that joint physical custody and an alternating residential arrangement was no longer in their best interests.  There was evidence at the hearing that at lease one of the children did not get along with the step-father, Fragmin.

            Just prior to the hearing, the mother requested that the children testify in court or in camera regarding their preferences about physical custody.  The district court denied that request.  The district court determined that the mother's earlier moves to West Virginia constituted a change in circumstances, that a modification of the joint physical custody arrangement was in the best interests of the children, and that as a result of the children's changed residential patterns, they had been integrated into father's household with mother's consent.  Mother appeals.

D E C I S I O N

I.

            The first issue is whether the district court abused its discretion by modifying custody.  "In custody determinations, review is limited to whether the trial court abused its discretion by making findings unsupported by the evidence or improperly applying the law."  Lenz v. Lenz, 430 N.W.2d 168, 169 (Minn. 1988); see Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996).  Findings of fact are only set aside if clearly erroneous, and the record is viewed in the light most favorable to the findings.  Frauenshuh v. Giese, 599 N.W.2d 153, 156 (Minn. 1999).  "So long as there is evidence to support the trial court's decision, there is no abuse of discretion."  Doren v. Doren, 431 N.W.2d 558, 561 (Minn. App. 1988).

            To support a modification of custody, Minnesota law requires more than simply a finding that modification would be in the best interests of the child.  State ex rel. Gunderson v. Preuss, 336 N.W.2d 546, 547-48 (Minn. 1983).  Relevant to the pending proceeding, the statute requires that custody not be modified unless the court finds that: (1) "a change has occurred in the circumstances of the child or the parties;" (2) "modification is necessary to serve the best interests of the child;" and (3) the child has "been integrated into the family of the petitioner with the consent of the other party."  Minn. Stat. § 518.18(d)(iii) (2004).

            A.        Change in Circumstances

            First, we must determine whether the district court clearly erred when it determined that there had been a change in circumstances since the time of the dissolution judgment and decree.  "A change in circumstances must be significant and must have occurred since the original custody order."  Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997).  Whether a change in circumstances exists is a case-by-case determination.  Sharp v. Bilbro, 614 N.W.2d 260, 263 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000).  The district court must make express findings on each statutory requirement "to impart a measure of stability to custody determinations."  Gunderson, 336 N.W.2d at 548.  The moving party has the burden to demonstrate that there has been a change of circumstances.  Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981).

            Here, the judicially approved custody agreement gave the parties joint physical custody.  Joint physical custody "means that the routine daily care and control and the residence of the child is structured between the parties."  Minn. Stat. § 518.003, subd. 3(d) (2004).  The dissolution judgment suggested a four-day rotating parenting time schedule, but also allowed "parenting time as mutually agreed upon." 

            However, the circumstances changed between the time that the dissolution judgment was entered and the time father made his modification motion.  The district court specifically found "a change in circumstances in the family dynamic as [mother] has not resided in [Minnesota] for at least two years . . .  The children have now spent two entire school years solely residing with their father."  Although mother kept in close contact with her children while in West Virginia, e-mailing, telephoning, and exchanging cards and letters on a weekly, sometimes daily basis, her prolonged absence resulted in a change in circumstances.  Now, the children have a more stable home while in school and participating in extracurricular activities.  We cannot say that the district court clearly erred in finding a change in circumstances.  See Durkin v. Hinich, 442 N.W.2d 148, 152 (Minn. 1989) (stating district court's finding of change of circumstances was not "clearly erroneous").

            B.        Best Interests of the Children

            Next, we must consider whether the record supports the district court's determination that modification was in the best interests of the children.  "In addition to the substantial change in circumstances, the modification must be necessary to serve the children's best interests."  Gustafson v. Gustafson, 376 N.W.2d 290, 293 (Minn. App. 1985); see Frauenshuh, 599 N.W.2d at 158-59 (stating that children's best interests are the "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 the best interest of the child.").  The court determines the best interests of the children by considering all relevant matters, including the thirteen statutory factors.  See Minn. Stat. § 518.17, subd. 1 (2004).  Currently, the 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).

            Here, after observing that both parents loved the children and could meet their basic needs, the district court nevertheless determined that modification was in the children's best interests.  Noting that the alternate-weeks schedule worked in the past, the district court was concerned that, as the children were accustomed to living with father during the school year, returning to a schedule where they would alternate residences every week would be unnecessarily disruptive to their lives.  Moreover, the district court recognized that the children have friendships in Nashwauk and have not attended any other school, and found that the instability in mother's new marital relationship and "possible friction" between the children and mother's new husband meant mother's custody was not in the children's best interests.  Finally, the district court found that father had been the primary caretaker, that the children were succeeding in school while in father's care, that the children experienced a stable household while living with father, and that the permanence of the father's home was preferable to mother's frequent moves.  Based on all the foregoing considerations, the district court found it to be in the children's best interests for father to have sole physical custody.

            The legislature intended "to impart a measure of stability to custody determinations" by requiring the court to consider the children's best interests, in addition to modification requirements.  Gunderson, 336 N.W.2d at 548.  Here, the district court placed a high value on keeping the children in the most stable environment, while also acknowledging that the children wanted relationships with both parents.  The court's decision that it was in the children's best interests to modify custody is supported by evidence in the record and was not an abuse of discretion.

            C.        Integration

            Finally, we must determine whether the district court properly found that modification was appropriate because the children had been integrated into father's home with mother's consent.  See Minn. Stat. § 518.18, subd. (d)(iii).  "The consent requirement has a narrow purpose and should be viewed in that context."  Gibson v. Gibson, 471 N.W.2d 384, 386 (Minn. App. 1991), review denied (Minn. Aug. 12, 1991).  Generally, absent any showing of kidnapping, fraud or coercion, consent may be implied if the child has been integrated into another family.  Id.

            Whether a child has been integrated is a fact-specific inquiry.  See Gibson, 471 N.W.2d at 386 (finding no integration where the child resided with father for 17 months because mother was financially unable to care for the child, where the arrangement was expected to be temporary); Peterson v. Peterson, 365 N.W.2d 315, 318 (Minn. App. 1985) (finding no integration where the child lived with the father for only two of the nine years since dissolution, and where the child abruptly left the father's home after a violent confrontation with the father's new wife), review denied (Minn. June 14, 1985); Downey v. Zwigart, 378 N.W.2d 639, 642 (Minn. App. 1985) (finding preliminary showing of integration where five-year-old child lived with mother for all but 7 months, and had developed a close relationship with his half-sister).

            Here, the parties agreed to let the children reside with father during the school year, while mother would have the children in the summer.  This arrangement continued for two years.  During the school year, mother regularly communicated with the children and visited at Christmas.  However, father was charged with their daily care and supervision for most of the year.  Given the mutually agreed-to custody arrangement, it is only natural that the children made strong ties to the Nashwauk community, particularly through friends at school and extracurricular activities.  Under the circumstances, the district court did not clearly err in determining that the children were integrated into father's home with mother's consent.

            Finally, we note that for years the parties successfully arranged their joint physical parenting time by mutual agreement.  While concluding that on the facts in this case the district court did not abuse its discretion in determining that the statutory requirements for modification were met, we do not suggest the evidence would preclude the contrary result.  Further, we caution that courts use care in relying on mutually agreed-to modifications in the residence of children as a basis for changing physical custody so as to not create an undo risk that mere cooperation by one parent exposes that parent to the risk of losing custody.  The move by mother to West Virginia, however, takes this case beyond such a situation.

II.

            The second issue is whether the district court abused its discretion by not interviewing the children to ascertain their custody preferences.  The district court may interview a child to ascertain a child's reasonable custody preference, as provided by Minn. Stat. § 518.166 (2004).  Yet, this is not the only way to determine the child's preference, and the decision whether to interview the child is a discretionary choice for the district court.  Madgett v. Madgett, 360 N.W.2d 411, 413 (Minn. App. 1985); see Kramer v. Kramer, 372 N.W.2d 364, 366 (Minn. App. 1985) (finding no abuse of discretion where the district court may not have interviewed the children but noted the children's preferences as stated in the child custody investigation report).  The custody preferences of teenage children are often considered by courts on motions for modification.  See Geibe, 571 N.W.2d at 778; Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991).

            Mother moved the district court at the evidentiary hearing to either interview the children in camera or to have the children testify as to their custody preferences.  The children range in age from 11 to 15.  However, we note that eight months elapsed from the first hearing on father's modification motion to the evidentiary hearing, yet mother waited to make her motion until the day of the hearing.  No reason was given for this delay.  Under the circumstances, we conclude that the district court did not abuse its discretion in denying mother's motion to interview the children.

            Affirmed.