Hendrickson v. Hendrickson

may not be cited except as provided by

Minn. Stat. §. 480 A. 08, subd. 3 (1996).

 STATE OF MINNESOTA

 IN COURT OF APPEALS

 C5-96-1501

Pamela Jo Hendrickson, petitioner,

Respondent,

vs.

Keith Duncan Hendrickson,

Appellant.

 Filed December 31, 1996

 Affirmed in part, reversed in part,

 and remanded

 Foley, Judge[*]

Lake County District Court

File No. F3-95-59

Timothy N. Downs, MacDonald & Downs, 200 Alworth Building, 306 West Superior Street, Duluth, MN 55802-1973 (for Respondent)

Matthew K. Begeske, 506 Board of Trade Building, Duluth, MN 55802 (for Appellant)

Considered and decided by Parker, Presiding Judge, Willis, Judge, and Foley, Judge.

 U N P U B L I S H E D O P I N I O N

 FOLEY, Judge

In this dissolution action, appellant Keith Hendrickson argues the district court erred in dividing the marital debt, setting child support, and setting the shared parenting schedule. Respondent Pamela Hendrickson filed a notice of review, arguing the district court erred in awarding joint physical custody, setting the shared parenting schedule, dividing the marital property, and refusing to award her attorney fees. We affirm the property division and refusal to award attorney fees, reverse the award of joint physical custody, and remand for the district court to establish custody, visitation, and support.

 FACTS

The parties were married for three years. They had one daughter, C.J.H., who was four years old at the time the marriage was dissolved. Both parties were employed and waived the right to maintenance.

The primary issue at trial was custody of C.J.H. Appellant sought joint legal and physical custody and testified that the parties always were able to amicably work out their few disagreements concerning C.J.H. Respondent, however, testified that the parties fought every time they discussed C.J.H. and could not cooperate in raising her. They agreed that appellant had been late for scheduled exchanges of C.J.H., but disagreed about the frequency of his tardiness and its effect on C.J.H. and respondent. Each party also testified that the other had a history of chemical dependency and domestic abuse.

The district court awarded the parties joint legal and physical custody. The court found that the conduct giving rise to the chemical dependency and domestic abuse allegations had not interfered with either party's ability to parent. The court also found that each party recognized the importance of the other being significantly involved in C.J.H.'s upbringing. The court determined that although the parties had a history of conflict and a mutual willingness to argue about parenting issues, they also had demonstrated a willingness and ability to work on these issues and the situation had improved. The court believed the situation would continue to improve with the establishment of a set custody schedule, the resolution of the dissolution, and the passage of time.

The district court concluded that the parties had little equity in their few marital assets. The court awarded appellant the homestead, subject to a $4,500 lien in respondent's favor, payable within six months. This amount represented money lent to the parties by respondent's family. The court awarded appellant nearly $75,000 of the over $100,000 in marital debt, but refused to order him to pay for repairs to respondent's truck or for her attorney fees. Finally, the court ordered that the parties' tax refund be used to pay their guardian ad litem fees.

Both parties made motions for amended findings and submitted additional evidence that showed the conflict over exchanging C.J.H. had continued. The district court made some changes to its order that are not relevant to this appeal and denied all other relief. The court reiterated that it was optimistic that the transfer conflicts would diminish with the passage of time and, if necessary, the use of mediation.

 D E C I S I O N

1. Joint Physical Custody

Our review of custody decisions is limited to determining whether the district court abused its discretion by making findings unsupported by the record or improperly applying the law. Wopata v. Wopata, 498 N.W.2d 478, 481 (Minn. App. 1993).

Respondent argues the district court abused its discretion in awarding joint physical custody. It is well established that joint physical custody is not preferred, especially when a young child is involved. Peterson v. Peterson, 393 N.W.2d 503, 506 (Minn. App. 1986). The regularity and stability essential to a young child's well being cannot be attained when the child is frequently transferred back and forth between two homes. Id. Before awarding joint physical custody, the district court also must consider the parents' ability to cooperate in raising the child and to resolve disputes related to the child. Minn. Stat. § 518.17, subd. 2 (1994).

Appellant claims respondent has failed to present a justiciable controversy for review because she only proposes to change the label of their current shared-parenting arrangement and has not sought any real change in their actual caretaking responsibilities. See Rosenfeld v. Rosenfeld, 529 N.W.2d 724, 726-27 (Minn. App. 1995) (no justiciable controversy presented when relief sought was solely a change in the label of the joint custody arrangement that did not involve any change in actual caretaking responsibilities). But unlike the parent in Rosenfeld, respondent did not stipulate to a joint custody arrangement and then seek to end that agreement. See id. at 725 (parties' stipulated agreement regarding custody incorporated into divorce decree). Respondent also seeks a change in the parties' actual child care responsibilities. Thus, respondent has presented a justiciable controversy for review.

After careful review of the record, we agree that the joint physical custody award here was an abuse of discretion. C.J.H. is only four years old and her need for regularity and stability cannot be met by frequent transfers between the parties' homes. Moreover, the record here shows the parties frequently argue over most matters related to C.J.H.'s daily care and general upbringing. Although we generally defer to the district court's discretion in custody matters, the overwhelming evidence of the parties' inability to cooperate in raising C.J.H. and to resolve disputes related to her shows joint physical custody is not practical in this case. Thus, we reverse the award of joint physical custody.

We remand to allow the district court to determine which parent should have physical custody of C.J.H. and to establish a liberal visitation schedule for the other parent. In establishing custody and visitation on remand, the district court should revisit the issue of holiday visitation, including appellant's right to time with C.J.H. on Father's Day, and the issue of awarding appellant floating days with C.J.H. We agree with appellant that the 40 floating days awarded him are impractical to implement because of his work schedule. Finally, because of our decision on the custody issue, we reverse the support award in this case and remand for the district court to revisit this issue.

2. Property Division

In a dissolution the district court must make a just and equitable division of the marital property. Minn. Stat. § 518.58, subd. 1 (1994). The district court's division of marital property will not be reversed on appeal absent a clear abuse of discretion. Kriesel v. Gustafson, 513 N.W.2d 9, 12 (Minn. App. 1994).

Appellant argues the district court abused its discretion in ordering him to pay $4,500 to respondent. Respondent argues the district court abused its discretion by not awarding her the tax refund and not ordering appellant to pay for her truck repairs. But evidence in the record supports the finding that the parties still owed $4,500 to respondent's family. Moreover, after reviewing the record, we cannot say that the district court's allocation of the marital property, including the parties' substantial debts, was unjust or inequitable. In short, the property division here was not an abuse of discretion.

3. Attorney Fees

Respondent argues the district court abused its discretion in failing to award her attorney fees. The decision to award attorney fees in a dissolution rests almost entirely in the district court's discretion. Solon v. Solon, 255 N.W.2d 395, 397 (Minn. 1977). Given the large share of the marital debt allocated to appellant, the district court did not abuse its discretion in refusing to order him also to pay respondent's attorney fees.

  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.