In re the Marriage of: Wendell Rhett Bonner, petitioner, Respondent, vs. Stephanie K. Bonner, Appellant.

In re the Marriage of: Wendell Rhett Bonner, petitioner, Respondent, vs. Stephanie K. Bonner, Appellant. A07-320,Court of Appeals Unpublished Decision, September 18, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

 IN COURT OF APPEALS
A07-320
 
In re the Marriage of:
Wendell Rhett Bonner,
petitioner,
Respondent,

 

vs.
 
Stephanie K. Bonner,
Appellant.

            

Filed September 18, 2007

Affirmed in part, reversed in part, and remanded

Klaphake, Judge

 

St. Louis County District Court

File No. 69-FX-04-601101

 

Wendell Rhett Bonner, 3098 Elm Road, Duluth, MN  55804 (pro se respondent)

 

Michael S. Husby, 915 U.S. Bank Place, 130 W. Superior Street, Duluth, MN  55802 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge; Klaphake, Judge; and Muehlberg, Judge.*

 

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Stephanie K. Bonner and respondent Wendell Rhett Bonner were divorced in December 2006, after 13 years of marriage.  On appeal directly from the judgment, appellant challenges the district court's award of sole physical custody of the parties' two young daughters to respondent, its parenting time schedule, and its denial of spousal maintenance.  Respondent, who appears pro se following the withdrawal of his attorney, has filed a notice of review challenging the district court's decision to require him to make a property equalization payment to appellant.

            Because the district court's findings are not clearly erroneous and adequately support its custody decision, because the district court's parenting time schedule is reasonable and workable, and because the district court did not abuse its discretion in ordering respondent to make an equalization payment to appellant, we affirm on those issues.  But because the district court's findings fail to demonstrate that the court properly considered the parties' marital standard of living when it awarded appellant no spousal maintenance, we reverse and remand on that issue.

D E C I S I O N

I.

            Appellant challenges the district court's decision to award physical custody of the children to respondent.  A district court has broad discretion when determining custody of children.  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989).  Our 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) (quotation omitted).  A district court's findings will not be set aside unless clearly erroneous, and due regard shall be given to the district court's opportunity to judge the credibility of the witnesses.  Minn. R. Civ. P. 52.01; Ruzic v. Ruzic, 281 N.W.2d 502, 503 (Minn. 1979).

            Appellant challenges many of the district court's best interests findings, including: (1) respondent took over more of the parenting duties following appellant's stroke in December 2000; (2) "[t]he children appear to have a loving relationship with both parents, as indicated by the evidence, testimony from the parties and the witnesses," and (3) "[b]oth parties appear to have the capacity, and have demonstrated their effort, to give love, affection and guidance, as shown through their love of the children."

            Appellant insists that the evidence shows that the parties hired a nanny to assist appellant with child care duties that she could not perform because her left arm was partially disabled by the stroke.  She further notes that she remained at home with the children and nanny, while respondent continued to work as a physician and was involved in his athletic training and competition.

            Appellant further criticizes the district court's reliance on the report of the parenting evaluator and on the testimony of the nanny, who claimed that appellant did not have a close relationship with the younger daughter and treated both girls in more of a "friendly" or "sisterly" manner than as a mother.  Appellant insists that the court should have given more weight to her testimony and to the testimony given by her brother and by one of her close friends, who described a relationship in which appellant was very involved with her children.  Appellant finally insists that the court failed to make any specific findings about the intimacy of respondent's relationship with his daughters and claims that the evidence merely demonstrates respondent's disciplinary parenting style and his commitment to his work and athletic training.

            Appellant ignores other evidence presented at trial, including respondent's testimony that he shared in the parenting duties when he was not working, that his training consumed less than 12 hours per week and that he often trained while the children were asleep or in school, and that he worked part time so that he could spend more time with his children.  Appellant also ignores other evidence that shows the children are well adjusted and happy after 22 months in his care.  Because the district court's findings are supported by evidence in the record, they are not clearly erroneous or otherwise defective.  See Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000) ("That the record might support findings other than those made by the trial court does not show that the court's findings are defective.").

            Finally, appellant criticizes the district court's overall reliance on the opinions of the nanny and the custody evaluator.  But a court is entitled to rely on the recommendation of a custody evaluator or on the opinions of third persons who are close to the children and have had an opportunity to observe the children and their interactions with a parent.  See Minn. Stat. § 518.167 (2006) (authorizing district court to order investigation and report concerning custody and may receive such report in evidence).  Because the district court's findings are supported by evidence in the record, and because those findings support the court's decision that the best interests of the children are served by remaining in Duluth in the custody of their father, the district court did not abuse its discretion in awarding respondent sole physical custody.  See Vangsness, 607 N.W.2d at 475 (stating that "determination of the ultimate best-interests issue will be affirmed unless it constitutes an abuse of the trial court's discretion or the trial court rationale suggests an erroneous application of law").  

II.

            Appellant challenges the district court's determination to grant her parenting time that consists of alternate weekends, alternate holidays, a week for summer and winter breaks, and four non-consecutive weeks during the summer.  She insists that the parenting time granted her by the district court is "minimal" and that her relationship with her daughters requires "much more."

            A 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 that discretion.  Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).  The court "shall . . . grant such parenting time on behalf of the child and a parent as will enable the child and parent to maintain a child to parent relationship that will be in the best interests of the child."  Minn. Stat. § 518.175, subd. 1(a) (2006).

            The parenting time schedule adopted by the district court here is substantially identical to the schedule that the parties have been following since appellant moved to the Twin Cities in December 2004.  The evidence at trial established that this schedule has worked well.  On this record, the district court did not abuse its discretion in its fashioning of the parenting time schedule.

III.

            Appellant asserts that an adjustment of child support will be necessary if this court decides to reverse the district court's custody decision or substantially increase her parenting time.  The district court set appellant's child support obligation at $750 per month based on the guideline amount for two children when the obligor's net monthly income is $2,500.  See Minn. Stat. § 518.551, subd. 5(b) (2004)[1] (setting child support for two children at 30% of net monthly income falling between $1,001-5,000).  Appellant does not challenge the district court's findings regarding her net monthly income or its application of the child support guidelines.  The district court did not err in its application of the child support guidelines or otherwise abuse its discretion in setting child support.  See Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002).

IV.

            Appellant challenges the district court's decision to award "no spousal maintenance at this time."  The district court reserved the issue and ordered that appellant "may be awarded spousal maintenance in the future upon a proper showing of change in circumstances [to support] a modification."  The reservation was based on the district court's "concern[] about the nature of [appellant's] income and the lack of control she has over it."  Given these uncertainties, the district court's decision to at least reserve maintenance was appropriate.  See, e.g., Van de Loo v. Van de Loo, 346 N.W.2d 173, 178 (Minn. App. 1984) (reservation of maintenance proper exercise of discretion to protect wife should her cancer return).

            Nevertheless, we conclude that the district court's decision to award no maintenance must be reversed because the court failed to properly consider the parties' marital standard of living.  The statute governing maintenance requires a district court to consider the "standard of living established during the marriage," when determining whether the spouse seeking maintenance "lacks sufficient property" to provide for her reasonable needs or "is unable to provide adequate self-support . . . through appropriate employment."  Minn. Stat. § 518.552, subd. 1(a), (b) (2006).

            Here, the district court's findings merely examine appellant's ability to support herself considering the $38,000 that she receives in annual salary from her grandfather's company, along with a $20,000 bonus that she has received for the past few years.  The findings state that while appellant claims monthly expenses of $4,894, several of her expenses are "questionable," and that during the two years she has been on her own, appellant "has been able to maintain herself, establish a home in Edina and not incur substantial debt for ordinary living expenses."

            The district court, however, fails to mention or discuss the parties' marital standard of living, despite evidence that the parties enjoyed an affluent lifestyle, particularly once respondent completed his medical residency and began working as a physician.  During the marriage, the parties were able to take several vacations a year, live in a $617,500 home on 80 acres, and hire a nanny and housekeeper.  Respondent continues to earn in excess of $160,000 per year while working .75 or .8 time, claims monthly expenses of $8,529, and intends to remain living in the parties' homestead.  Appellant earns between $38,000 and $58,000 from her grandfather's company, claims monthly expenses of $4,894, and rents what she describes as a modest duplex.  Under these circumstances, we conclude that the district court abused its discretion by failing to consider the standard of living established by the parties during their 13-year marriage.        The district court's spousal maintenance decision is therefore reversed and remanded to allow the court to consider the standard of living enjoyed by the parties during the marriage.  On remand, the district court has the discretion to reopen the record, if necessary.

V.

            Respondent has filed a notice of review challenging the district court's determination that respondent make "[a]n equalization payment . . . of $42,877.31" to appellant in order to make the parties' pension awards "equitable."  Respondent claims that the court should have allowed him to make the equalization payment by the transfer of funds from his pension assets rather than by means of a cash transfer to appellant.  The parties otherwise stipulated to the marital aspects and values of the pension and retirement assets.

            A present division of pension benefits is preferred when sufficient other liquid or readily liquid assets are available to make such a division.  See Quinlivan v. Quinlivan, 359 N.W.2d 276, 281 (Minn. App. 1984) (sufficient assets were available so that division of pension rights could be based on present cash value method).  The district court considered respondent's situation and found:

            [Respondent's] future monthly living expenses may make such an equity or equalization payment difficult.  However, that is because of his refinancing of the homestead to pay off the debt owed [appellant's] grandfather.  It is [respondent's] choice to keep the homestead and have to mortgage nearly its full value of $617,500.00.  If the homestead was sold and the debt satisfied, [respondent] could find a less expensive home well within his means.  His choice about the homestead cannot be a reason to avoid an appropriate equity payment as a part of the property award herein.

 

The district court properly considered respondent's assets and did not abuse its discretion in ordering an equalization payment to be made here.

            Affirmed in part, reversed in part, and remanded.

 

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

[1] Although this section was repealed and replaced by 2005 Minn. Laws ch. 164, § 31, and 2006 Minn. Laws ch. 280, subd. 43, the effective date of the change, January 1, 2007, occurred after the district court issued its order.