In re: Anastasia M. Farman, petitioner, Appellant, vs. David C. Farman, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1788

A03-1813

 

 

In re:  Anastasia M. Farman, petitioner,
Appellant,
 
vs.
 
David C. Farman,
Respondent.

 

 

Filed September 28, 2004

Affirmed in part and reversed in part; motion granted Wright, Judge

 

 

Hennepin County District Court

File No. DC 225-721

 

 

Anastasia M. Farman, 19046 Bruce B Downs Boulevard, #217, Tampa FL  33647 (pro se appellant)

 

John R. Jesperson, Jesperson Law Office, 1012 Grain Exchange Building, 400 South Fourth Street, Minneapolis, MN  55415 (for respondent)

 

 

            Considered and decided by Peterson, Presiding Judge; Stoneburner, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N

Wright, Judge

 

In this dissolution action, respondent brought postdecree motions for parenting-time assistance, compensatory parenting time, and modification of parenting time.  The district court ordered a temporary parenting-time schedule and compensatory parenting time.  Appellant challenges these orders, contending that the district court (1) awarded compensatory parenting time without sufficient findings; (2) allowed compensatory parenting time by overnight visits though not permitted under the decree; (3) improperly set off compensatory parenting-time expenses from respondent's future child-support payments; (4) failed to decline jurisdiction as an inconvenient forum under the Uniform Child Custody Jurisdiction and Enforcement Act; and (5) denied her an opportunity to be heard on modification of parenting time.  Appellant also moves to strike documents from the appendix to respondent's brief.  We affirm in part, reverse in part, and grant the motion.

FACTS

 

            The marriage of appellant Anastasia Farman and respondent David Farman was dissolved on January 30, 1998.  By stipulation of the parties, appellant received sole legal and sole physical custody of the parties' two children.  Respondent received parenting time according to a precise schedule.  Because of domestic abuse concerns, respondent initially had only supervised visits and could not keep the children overnight.  The parenting-time schedule accommodated appellant's move to Florida after the dissolution was finalized.  The decree provided, "[I]n the event [appellant] fails to produce the children for [parenting time], then the following month Respondent may deduct from his child support the cost of [travel expenses to Florida] provided he verifies those costs with receipts, without obtaining a further Order of the Court." 

Respondent moved for compensatory parenting time on June 22, 2000.  He alleged that appellant had refused him reasonable access to the children for more than a year, specifically preventing parenting time during a week-long trip to Florida over Christmas 1999.  Appellant did not dispute these allegations in her cross-motion filed on July 11, 2000, or appear at the scheduled hearing on July 25, 2000. 

In its ensuing order of August 8, 2000, the district court accepted respondent's allegations as true and granted one week of compensatory parenting time.  The order did not specify whether respondent was entitled to have the children remain with him overnight.  The district court also deducted the cost of respondent's Christmas 1999 trip from his past-due child support.

            On October 8, 2000, appellant brought the first appeal in this matter, challenging the district court's parenting-time order.  We reversed in part and remanded by an unpublished opinion on July 10, 2001.  See Farman v. Farman, No. CX-00-1757, 2001 WL 766815 (Minn. App. July 10, 2001).  Regarding the compensatory parenting time, we concluded:

While the district court had discretion to allow more visitation or a different type of visitation, the court essentially modified the existing order by granting [respondent] overnight visits not allowed under the [decree]. . . .  Overnight visitation was prohibited by the judgment, in part because of the history of abuse in the marriage.  Because the district court modified visitation rights under the order without considering the best interests of the children, we remand for findings regarding the nature of the compensatory visitation.

 

Id. at *2.  We also concluded that the deduction of travel expenses from past-due child support was improper; but we observed that, in accordance with the terms of the parties' decree, reasonable travel expenses could be set off against subsequent child-support payments.  Id. at *3.

Following remand, respondent renewed his motion for compensatory parenting time and modification of parenting time on December 6, 2001.  In its January 15, 2002, order, the district court found that respondent had been denied parenting time for the past two years and ordered parenting-time mediation, or in the event of unsuccessful mediation, a parenting-time evaluation to determine if compensatory parenting time and overnight stays were appropriate.

Allegedly due to appellant's failure to cooperate with a parenting-time evaluation, further proceedings were delayed until respondent renewed his motion for parenting-time assistance on April 28, 2003.  Appellant opposed this motion and separately moved the district court to decline jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) on the ground that Minnesota is an inconvenient forum.  Respondent added a motion for modification of parenting time on July 17, 2003, seeking unsupervised and overnight parenting time.

            By its order of September 23, 2003, the district court issued an interim parenting-time schedule through the end of March 2004.  The order further provided that, when parenting time takes place in Minnesota, respondent could offset half the cost to transport the children from Florida against his future child-support payments.

            In its October 27, 2003, order, the district court denied appellant's motion to decline jurisdiction, concluding that Minnesota remains the most suitable forum for the parenting-time dispute.  Finding that appellant had "consistently managed to evade" parenting-time orders, the district court granted compensatory parenting time, authorizing respondent to visit "two (2) times per month" for the remainder of 2004.  It also allowed respondent to deduct reasonable travel expenses in connection with parenting-time visits from the following month's child-support payment.  Again, the district court did not specify whether overnight visits were allowed, dictate a parenting-time schedule, or make findings as to the best interests of the children.  This appeal followed.

D E C I S I O N

 

I.

            Appellant first challenges the district court's decision to grant respondent compensatory parenting time.  Because the district court has broad discretion to grant compensatory parenting time, we review this aspect of the district court's decision for an abuse of that discretion.  Matson v. Matson, 638 N.W.2d 462, 465 (Minn. App. 2002).  Viewing the record in the light most favorable to the findings, we review the district court's findings of fact for clear error.  Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).  The findings will be sustained absent a firm conviction that a mistake has been made.  Id.

            If a parent is deprived of court-ordered parenting time, then the district court "shall order the parent who has interfered to allow compensatory parenting time to the other parent . . . ."  Minn. Stat. § 518.175, subd. 6(b) (2002).  When the record establishes that a custodial parent "consistently and intentionally" interfered with parenting time, it is proper for the district court to grant compensatory parenting time.  Doren v. Doren, 431 N.W.2d 558, 561-62 (Minn. App. 1988).  A compensatory-parenting-time order does not require findings on the best interests of the child.  See Minn. Stat. § 518.175, subd. 6; Doren, 431 N.W.2d at 562.

            When viewed in the light most favorable to the district court's findings, the record contains ample documentary evidence to support the determination that appellant consistently interfered with respondent's parenting time.  Indeed, appellant has not contested that interference occurred.  Rather, she contends that respondent's poor parenting skills and failure to pay child support should bar parenting time.  Accordingly, we conclude that the district court did not abuse its discretion by granting compensatory parenting time.

II.

Appellant next contends that, in its grant of compensatory parenting time, the district court allowed overnight stays in violation of the decree.  The district court's October 27, 2003, order does not expressly authorize overnight parenting time.  Appellant's argument is based on her interpretation of the district court's order.  Such interpretation is a question of law, which we review de novo.  See Mikoda v. Mikoda, 413 N.W.2d 238, 243 (Minn. App. 1987) (treating ambiguities in the interpretation of a decree as questions of law), review denied (Minn. Dec. 22, 1987).

Compensatory parenting time shall be "at least of the same type and duration as the deprived parenting time and, at the discretion of the court, may be in excess of or of a different type than the deprived parenting time."  Minn. Stat. § 518.175, subd. 6(b)(1).  In accordance with the plain meaning of this provision, we presume that any grant of compensatory parenting time will be consistent with the deprived parenting time, unless the district court exercises its discretion to award parenting time "of a different type."  See Joel v. Wellman, 551 N.W.2d 729, 731 (Minn. App. 1996) (interpreting parenting-time statute according to its plain meaning).

            Under the unmodified parenting-time provisions of the decree, respondent is not eligible for overnight parenting time.  The district court ordered that, "[a]s compensatory visitation, respondent may travel to Florida up to two (2) times per month."  The district court's order is silent regarding whether this time may be taken in the form of overnight visitation.  To be consistent with the original decree, any award of compensatory parenting time must also exclude overnight stays.  Moreover, the district court only ordered compensatory parenting time in Florida, where the children reside, obviating the need for overnight stays.  We, therefore, conclude as a matter of law that the district court order did not authorize overnight compensatory parenting time.

III.

            Appellant next argues that, per respondent's exercise of compensatory parenting time, the district court improperly allowed respondent to set off reasonable travel expenses from future child-support payments.  Because there are two separate sources from which the setoff remedy may be derived, two standards of review are applicable.  We review de novo unambiguous stipulated provisions of a dissolution decree.  Blonigen v. Blonigen, 621 N.W.2d 276, 281 (Minn. App. 2001), review denied (Minn. Mar. 13, 2001).  But we review the district court's subsequent child-support and parenting-time orders for an abuse of discretion.  Matson, 638 N.W.2d at 465. 

Here, one source for the setoff remedy is the decree, which sets out an agreement in accordance with a stipulation of the parties.  The decree provides that, when appellant prevents respondent from exercising parenting time, respondent may subtract the Florida travel expenses from the following month's child support.  Although a stipulated decree typically is favored in dissolution actions, a stipulated decree may be given less force if it has an unfair impact on the children.  Moylan v. Moylan, 384 N.W.2d 859, 865 (Minn. 1986); Kielley v. Kielley, 674 N.W.2d 770, 776 (Minn. App. 2004).  Because child support is a nonbargainable interest of the children, not the custodial parent, portions of a stipulated decree that interfere with child support ordinarily are not enforced.  See, e.g., Moylan, 384 N.W.2d at 865; LeTendre v. LeTendre, 388 N.W.2d 412, 416 (Minn. App. 1986); Quaderer v. Forrest, 387 N.W.2d 453, 457 (Minn. App. 1986).

Another source for the setoff remedy is Minn. Stat. § 518.175, subd. 6(c). If the district court finds that a party wrongfully failed to comply with a parenting-time order, remedies under this provision permit the district court to

(1)       impose a civil penalty of up to $500 on the [violating] party;

(2)       require the party to post a bond . . . to secure the party's compliance; . . .

(4)       require the party who violated the parenting time order . . . to reimburse the other party for costs incurred as a result of the violation of the order . . . ; or

(5)       award any other remedy that the court finds to be in the best interests of the children involved.

 

Minn. Stat. § 518.175, subd. 6(c).  Although section 518.175, subdivision 6(c), does not necessarily allow a setoff against future child support, it does permit a district court to require the noncustodial parent to reimburse for expenses incurred as a result of that parent's intransigence.  Id., subd. 6(c)(4).  Arguably, the district court's accounting shift prevents the necessity for respondent to obtain a judgment against appellant.

No Minnesota authorities have directly addressed the district court's power to order a setoff under either a stipulated decree or Minn. Stat. § 518.175.  But it is clear that "wrongful deprivation of [parenting-time] rights will not affect the obligation of child support."  State of Wisconsin ex rel. Southwell v. Chamberland, 361 N.W.2d 814, 817 (Minn. 1985); see also County of Hennepin ex rel. Johnson v. Boyle, 450 N.W.2d 187, 188-89 (Minn. App. 1990) (following statutory dictate that "child support enforcement and child [parenting time] are not interrelated"), review denied (Minn. Mar. 16, 1990).  This rule reflects two central policies:  (1) that noncustodial parents participate in the upbringing of their children regardless of compliance with child-support obligations and (2) that children receive financial support notwithstanding misconduct by the custodial parent.  See Minn. Stat. § 518.612 (2002); see also State of Colorado ex rel. McDonnell v. McCutcheon, 337 N.W.2d 645, 650 (Minn. 1983) (finding that, under predecessor of UCCJEA, custodial parent's interference with parenting time does not affect noncustodial parent's financial obligation to children).

            Regardless of the source of the setoff remedy ordered by the district court, the setoff improperly conflates child support with parenting time.  The setoff operates to reward respondent and punish the parties' children as a result of appellant's resistance to parenting-time orders.  We, therefore, conclude that the child-support setoff in the stipulated decree is invalid and unenforceable.  See LeTendre, 388 N.W.2d at 416 (finding privately executed stipulation regarding child support invalid because welfare of children took precedence).  And if the district court ordered the setoff without relying on the stipulated decree, it was nonetheless an abuse of discretion to authorize a child-support setoff because it improperly modifies the children's nonbargainable financial interest.  Cf. Johnson, 450 N.W.2d at 189 (holding that it was an abuse of discretion to suspend child support based on custodial parent's refusal to allow parenting time).

Our holding is consistent with the compensatory parenting-time statute.  Although Minn. Stat. § 518.175, subd. 6(c)(4), allows compensation "for costs incurred as a result of the violation of the order," it does not specifically allow the type of setoff ordered here.  But the district court has broad discretion to order "any other remedy that the court finds to be in the best interests of the children involved."  Minn. Stat. § 518.175, subd. 6(c)(5) (emphasis added).  According to the foregoing analysis, because child support is a nonbargainable financial interest of the children, the child-support setoff does not serve the children's best interests.

Although we reject the child-support setoff contemplated here, we observe that an equivalent outcome may be reached in accordance with the procedures for modification of child support.   A noncustodial parent may move to modify child support "if the court finds that there is persistent and willful denial or interference with parenting time."  Minn. Stat. § 518.18(c) (2002).  One factor the district court may consider when deviating from guidelines child support is "the financial needs and resources, physical and emotional condition, and educational needs of the child or children to be supported."  Minn. Stat. § 518.551, subd. 5(c)(2) (2002).

Respondent has a compelling interest to participate in the upbringing of his children.  Nothing precludes the district court from finding that, in the best interests of the emotional welfare of the children, a downward deviation in child support will foster parenting-time opportunities for respondent.  We caution, however, that such a deviation must be based on a careful assessment of both the parents' and children's needs and set forth in particularized findings.  See Minn. Stat. § 518.551 subd. 5(c) (listing factors to consider); Swick v. Swick, 467 N.W.2d 328, 332 (Minn. App. 1991) (affirming downward deviation in child support after careful review of obligor's income flow), review denied (Minn. May 16, 1991).

IV.

            Appellant also challenges the district court's decision to deny the motion to decline jurisdiction as an inconvenient forum under the UCCJEA, codified at Minn. Stat. §§ 518D.101-.317 (2002).  Absent an abuse of discretion, we will not disturb a district court's decision on whether to decline jurisdiction for inconvenient forum.  Danielson v. Nat'l Supply Co., 670 N.W.2d 1, 9-10 (Minn. App. 2003); see also Minn. Stat. § 518D.207(a) (2002) (providing that a court with exclusive, continuing jurisdiction "may decline to exercise its jurisdiction").

            A district court that issues an initial child-custody determination obtains exclusive, continuing jurisdiction.  Minn. Stat. § 518D.202(a) (2002) (codifying section 202(a) of the UCCJEA).  This jurisdiction continues until either (1) a Minnesota district court finds that the parties or the children "do not have a significant connection with [Minnesota] and that substantial evidence is no longer available in [Minnesota]" or (2) a district court from any jurisdiction finds that neither the parties nor the children continue to reside in Minnesota.  Minn. Stat. § 518D.202(a)(1), (2).  The definition of "child custody determination" includes decrees affecting parenting time.  Minn. Stat. § 518D.102(d) (2002).

            Notwithstanding continuing, exclusive jurisdiction, a district court has discretion to decline jurisdiction as an inconvenient forum.  Minn. Stat. § 518D.207(d).  The district court may do so on its own motion, by motion of a party, or on request of another court.  Id.  When considering whether to decline jurisdiction, the district court shall consider "all relevant factors," including

(1)       whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(2)       the length of time the child has resided outside [Minnesota];

(3)       the distance between the court in [Minnesota] and the court in the state that would assume jurisdiction;

(4)       the relative financial circumstances of the parties;

(5)       any agreement of the parties as to which state should assume jurisdiction;

(6)       the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

(7)       the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and

(8)       the familiarity of the court of each state with the facts and issues in the pending litigation.

 

Minn. Stat. § 518D.207(b)(1)-(8).

 

            Minnesota courts have not directly considered a district court's discretion to decline jurisdiction under this provision.  Caselaw under the predecessor to the UCCJEA offers no guidance because it employed a different standard.  See Abu-Dalbouh v. Abu-Dalbouh, 547 N.W.2d 700, 704 (Minn. App. 1996) (requiring a district court to make "home state," "best interests," and "dual jurisdiction" analyses before proceeding to issue of inconvenient forum).  Since the recent promulgation of the UCCJEA in July 1997, only a few foreign authorities have directly addressed the substantive issue of law presented here.

            Stoneman v. Drollinger involved parents with an extensive history of domestic abuse, including an outstanding domestic abuse restraining order in the state where the custodial parent resided.  64 P.3d 997, 1004-05 (Mont. 2003).  After reviewing all of the section 207 factors and emphasizing the strong policy interest against domestic violence, the Montana Supreme Court held that the district court abused its discretion by failing to decline jurisdiction as an inconvenient forum.  Id.

            In Ruth v. Ruth, the district court summarily denied the custodial parent's motion to decline jurisdiction for inconvenient forum.  83 P.3d 1248, 1253-54 (Kan. Ct. App. 2004).  On review, the Kansas Court of Appeals affirmed this outcome, noting that the noncustodial parent continued to reside in the forum state; that the children had significant, continuing contact with the noncustodial parent in the forum state; and that a parenting-time study and several mediations were ordered in that state's courts.  Id.

Here, the district court made particularized findings on each of the factors set forth in Minn. Stat. § 518D.207.  Regarding respondent's history of domestic abuse, the district court found one substantiated incident of physical abuse from 1992 and a history of abusive language during supervised visitation in 1996 and 1997 and concluded that Minnesota was a better forum to monitor respondent's current behavior.  Regarding access to evidence and familiarity with the case, the district court recounted much of the procedural history and found that the Minnesota courts are familiar with the facts and issues in the pending litigation.  The court also found that the parties' locations were not convenient to one another and that each had equivalent financial resources.  Moreover, in accordance with the stipulated decree, the parties agreed to Minnesota jurisdiction over parenting-time issues.

            As in Ruth, the district court concluded that, in light of the lengthy and acrimonious history of the parties, Minnesota courts are better equipped to monitor the relationships between the parties.  Given its careful analysis of the statutory factors, we hold that the district court did not abuse its discretion by continuing to exercise jurisdiction.

V.

            Appellant also claims that the district court denied her an opportunity to contest modification of parenting time.  But on close examination of the record, there are currently no orders modifying the parenting-time provisions in the original decree.  On occasion, the district court issued interim parenting-time orders that arguably were contrary to the decree.  But the most recent such order, filed September 23, 2003, had no effect after April 2004.  To the extent that a final determination on parenting-time issues is still pending, we note that appellant will have an opportunity to contest parenting time.  Cf. Sharp v. Bilbro, 614 N.W.2d 260, 262-63 (Minn. App. 2000) (holding that defects in temporary child-custody order are moot once final child-custody order issues), review denied (Minn. Sept. 26, 2000).

            Over the history of this matter, appellant has disregarded the district court's orders and consistently obstructed respondent's efforts to exercise parenting time.  At the time of this appeal, a final determination of respondent's motion to modify parenting time awaits the outcome of a parenting-time study.  Should appellant fail to cooperate with this study, we observe that the district court may expedite the matter by taking adverse inferences against appellant on the relevant factual issues.  See Spooner v. Spooner, 410 N.W.2d 412, 413 (Minn. App. 1987) (holding that failure to provide financial information to trial court justifies adverse inferences on issue of child-support modification).  But even if such an adverse inference operates, appellant is entitled to a hearing before any substantial modification of parenting time is entered.  Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001), review denied (Minn. Oct. 24, 2001).

VI.

            Finally, appellant moves to strike documents included in the appendix to respondent's brief.  She specifically challenges three documents:  (1) a memorandum by respondent, from the prior appeal, opposing a temporary stay of the district court's parenting-time order; (2) appellant's motion from a Florida proceeding to obtain temporary emergency jurisdiction in this matter and supporting memorandum; and (3) a letter from respondent's counsel to the district court, an apparent ex parte communication, dated November 18, 2003. 

            Under Minn. R. Civ. App. P. 110.01, the record on appeal consists solely of "[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any."  Thus, we ordinarily are precluded from considering documents that are not filed in the district court.  State ex rel. Humphrey v. Delano Cmty. Dev. Corp., 556 N.W.2d 922, 924-25 (Minn. App. 1996), aff'd, 571 N.W.2d 233 (Minn. 1997).  But cf. Podvin v. Jamar Co., 655 N.W.2d 645, 648 (Minn. App. 2003) (allowing publicly available records not presented to the district court to be included in the record on appeal).

            Because respondent's memorandum from the prior appeal is already part of the record in this matter, we need not strike it.  But neither the Florida pleading nor the November 18 letter is part of the district court record.  We, therefore, grant appellant's motion to strike these documents.

            Affirmed in part and reversed in part; motion granted.