In Re Mahasin Aseelah Vogel, petitioner, Respondent, vs. Brian Joseph Vogel, Appellant.

This opinion will be unpublished and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

A04-593

 

In Re Mahasin Aseelah Vogel, petitioner,

Respondent,

 

vs.

 

Brian Joseph Vogel,

Appellant.

 

Filed December 14, 2004

Affirmed

Gordon W. Shumaker, Judge

 

Dakota County District Court

File No. F9-02-12780

 

 

 

 

P. Areanne Coale, 5846 Hobe Lane, White Bear Lake, MN 55110 (for respondent)

 

John F. Wagner, McDonough, Wagner & Ho, LLP, 14502 Granada Drive, Suite 200, Apple Valley, MN 55124 (for appellant)

 

 

            Considered and decided by Shumaker, Presiding Judge; Lansing, Judge; and Forsberg, Judge.*

 

 

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

            Appellant challenges the district court's amended judgment in this custody dispute, arguing (1) the district court's amended award of sole legal custody to respondent is invalid because it modified the joint legal custody award in the partial judgment and Minn. Stat. § 518.18 was not satisfied; (2) the district court abused its discretion by awarding respondent sole legal custody and sole physical custody because the record does not support the district court's findings; (3) the district court abused its discretion by replacing the parties' second amended judgment with the third amended judgment; and (4) the district court's apportionment of the daycare costs does not comply with Minn. Stat. § 518.551, subd. 5(b).  Because the district court did not abuse its discretion, we affirm.

FACTS

            Appellant Brian Joseph Vogel and respondent Mahasin Aseelah Vogel married on June 22, 1996.  During the marriage, the parties had three children: a son born October 17, 1997, and twin daughters born November 11, 1999.

Respondent filed a petition for marriage dissolution in March 2002.  In November 2002, a court-appointed guardian ad litem reported to the district court that the parties agreed to joint legal and physical custody of their children.  After the parties stipulated on the record to the agreement outlined in the guardian ad litem's report, the district court entered a partial order for judgment that awarded joint legal and physical custody to the parties.  The district court also outlined a parenting-time schedule to accommodate the parties' work schedules.  Under the parenting-time schedule, the children's primary residence was with appellant and respondent had parenting time Mondays through Thursdays from 4:30 p.m. to 8:00 p.m., and the parties alternated weekends from Friday at 4:30 p.m. to Sunday at 6:00 p.m.

            In March 2003, respondent moved to vacate the partial judgment and to amend the parenting-time schedule.  Following a hearing, the district court amended the parenting-time schedule and vacated the award of joint physical custody, reserving the issue for trial.  The court also ordered that "[a]ll other terms and conditions of the . . . Partial Judgment and Decree entered on February 26, 2003 not inconsistent with this Order shall remain in full force and effect."

            Following a four-day trial, the district court entered an amended order for judgment and decree on October 29, 2003, and awarded sole legal custody and sole physical custody to respondent.  The district court found that, because the parties were unable to communicate with each other about their children, it was in the best interests of the children for respondent to have sole legal custody.  The district court also evaluated eleven factors to determine the best interests of the children and awarded respondent sole physical custody.  The parenting-time schedule provided appellant with parenting time on Wednesdays from after school to 8:00 p.m. and alternating weekends.

Appellant moved for amended findings, conclusions, and judgment or, in the alternative, a new trial.  On January 12, 2004, the district court filed a second amended order for judgment and modified the parenting time.  The district court found that "[a]lthough [respondent] shall have legal and physical custody of the children, the interests of the children are best served by the children staying with [appellant] during the week so that they may depart from school at a conventional time."  The district court based its finding on respondent's work schedule, which required the children to be dropped off at appellant's home at 5:30 a.m. on school days.

Respondent subsequently moved to vacate the second amended judgment and reinstate the parenting-time schedule outlined in the October 29 amended judgment.  Respondent also moved for one-half the cost to enroll the children in a daycare and preschool program.  The district court granted the motion, finding that "it has been brought to this Court's attention that the understanding that the Court had regarding the schedule of care of the minor children and transportation of the children to [appellant's] home was in error."  The district court also ordered appellant to pay one-half of the costs for the daycare and preschool program.  Appellant now challenges the award of sole legal custody and sole physical custody to respondent, the parenting time schedule, and the order to pay half of the daycare and preschool costs.

D E C I S I O N

1.         Section 518.18

            Appellant argues that the district court failed to comply with the requirements of Minn. Stat. § 518.18 (2002) when it awarded sole legal custody to respondent.  Appellate review of custody determinations is limited to determining 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).  Questions of statutory interpretation are reviewed de novo.  Burkstrand v. Burkstrand, 632 N.W.2d 206, 209 (Minn. 2001).

            Under Minn. Stat. § 518.18(a), parties generally may not move to modify a custody award until at least one year after the decree of dissolution, absent a written agreement by the parties.  But a district court may hear a motion to modify custody within one year of the decree if "the court finds that there is persistent and willful denial or interference with parenting time, or has reason to believe that the child's present environment may endanger the child's physical or emotional health or impair the child's emotional development."  Minn. Stat. § 518.18(c).  The district court vacated the portion of the partial order for judgment addressing joint physical custody, but the award of joint legal custody remained in full force and effect.  Therefore, Minn. Stat. § 518.18 applies to any subsequent modification of legal custody.

After trial, the district court awarded sole legal custody to respondent.  Although joint legal custody is presumed to be in a child's best interests, "joint legal custody should be granted only where the parents can cooperatively deal with parenting decisions."  Wopata v. Wopata, 498 N.W.2d 478, 482 (Minn. App. 1993) (quoting Estby v. Estby, 371 N.W.2d 647, 649 (Minn. App. 1985)).  "Where the evidence indicates that the parties lack the ability to cooperate and communicate, joint legal custody is not appropriate."  Id.  Here, the district court found that the parties would not meet to discuss major decisions involving the children and would communicate by knocking on windows when the children were dropped off or picked up; that appellant failed to provide respondent with the children's medical and dental information; and that appellant enrolled the oldest child in kindergarten without discussing it with respondent.  The court concluded that "[t]he parties demonstrated a complete inability to communicate about the minor children with each other," and awarded sole legal custody to respondent.  The evidence supports a finding that joint legal custody was inappropriate because of the lack of the parties' effective communication and, thus, we conclude that the district court's findings are sufficient to satisfy Minn. Stat. § 518.18(c).

2.         Custody

Appellant argues that the district court abused its discretion by awarding sole legal and physical custody to respondent because its factual findings are not supported by the record.  In order to successfully challenge a district court's findings of fact, the party challenging the findings "must show that despite viewing the evidence in the light most favorable to the trial court's findings . . . the record still requires the definite and firm conviction that a mistake was made."  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000). 

Appellant challenges the award of sole legal custody, asserting that the record does not support the district court's finding that appellant, on his own and without waiting for a response from respondent, enrolled their oldest child in a preschool program.  Appellant claims that he waited for a response, but enrolled the child in the program without hearing from respondent because of a deadline at the school.  But respondent testified that appellant would not discuss the decision with her and told her that, because the school day was his time with the children, he was allowed to do what he wanted.  Appellate courts defer to the district court's credibility determinations.  Id. at 472.  Therefore, this finding was adequately supported and the district court did not abuse its discretion by awarding respondent sole legal custody.

Appellant also challenges the district court's award of sole physical custody to respondent, arguing that nine of the eleven findings on the Minn. Stat. § 518.17 (2002) best interests of the children were not supported by the record.  Appellant challenges the district court's credibility determinations in his arguments on the following factors: the wishes of the parents as to custody, the reasonable preference of the children, the interaction and interrelationship of the children with the parents' families and friends, the mental and physical health of all individuals, and the capacity and disposition of the parents to give love, affection, and guidance.  But we defer to the district court's credibility determinations.  Id.  When the record is viewed in a light most favorable to these findings, none of them is clearly erroneous.

Appellant challenges the findings regarding the length of time that the children have lived in a stable and satisfactory environment, the permanence of the custodial home, the capacity and disposition of the parents to give love, affection and guidance, and the children's cultural background, by pointing out facts in the record that would support a contrary finding.  The mere fact that the record might support contrary findings does not establish that the district court's findings are clearly erroneous. Id. at 474.  Because a review of the record reveals that the court's findings are supported by the testimony and exhibits at trial, none of these findings is clearly erroneous.

            Appellant challenges the district court's finding regarding the intimacy of the relationship between each parent and the children, arguing that the district court mistakenly made findings as to the relationships between the children and each party's extended family network.  Although the district court's finding is not precisely relevant to that factor, a district court need not make findings on all 13 statutory factors, so long as it addresses those factors pertinent to the dispute between the parties.  See Nazar v. Nazar, 505 N.W.2d 628, 633 (Minn. App. 1993), review denied (Minn. Oct. 28, 1993), superseded by statute on other grounds, Minn. Stat. § 518.551, subd. 5b(d).  Moreover, respondent does not argue that she had a more intimate relationship with the children than appellant.  Because this factor is not disputed between the parties, any error in the finding is harmless.

            Because none of the best-interest-of-the-children findings is clearly erroneous, we conclude that the district court did not abuse its discretion by awarding sole physical custody to respondent.

3.         Second amended judgment

            Appellant argues that the district court abused its discretion when it vacated the second amended judgment by failing to apply Minn. Stat. § 518.18(c) to modify "the award of physical custody to [appellant]."  See Minn. Stat. § 518.18 (2002) (addressing modification of a custody order).  But appellant misreads the second amended judgment, because the district court ordered that "[l]egal and physical custody of the parties' children shall remain with [respondent]."  Because the district court did not modify the award of physical custody, Minn. Stat. § 518.18 does not apply.

            The district court has extensive discretion in deciding visitation and will not be reversed absent an abuse of discretion.  Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).  The best interests of the children are the determinative factors in disputes over parenting time.  Clark v. Clark, 346 N.W.2d 383, 385 (Minn. App. 1984), review denied (Minn. June 12, 1984).  In its second amended judgment, the district court found that, because respondent's work schedule required the children to be dropped off at appellant's home at 5:30 a.m. on school days, it was in the best interests of the children to reside with appellant during the week.  The district court subsequently vacated the second amended judgment, finding that "the understanding that the Court had regarding the schedule of care of the minor children and transportation of the children and transportation of the children to [appellant's] home was in error."  Therefore, the basis for the second amended judgment ceased to exist.  We conclude that the district court did not abuse its discretion by vacating the second amended judgment.

4.         Daycare costs

            Appellant argues that the district court improperly ordered appellant to pay half of the cost to enroll the children in a daycare and preschool program.  District courts have broad discretion to provide for the support of the parties' children.  Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002).

            As part of the child support guidelines,

[t]he court shall review the work-related and education-related child care costs paid and shall allocate the costs to each parent in proportion to each parent's net income, as determined under this subdivision, after the transfer of child support and spousal maintenance, unless the allocation would be substantially unfair to either parent. . . . The court shall require verification of employment or school attendance and documentation of child care expenses from the obligee and the public agency, if applicable.

Minn. Stat. § 518.551, subd. 5(b) (2002).  Appellant argues that the district court failed to comply with Minn. Stat. § 518.551, subd. 5(b), when it ordered appellant to pay half of the costs of the daycare/preschool program in the third amended judgment.  But the October 29 amended judgment, which was in effect at the time of the third amended judgment, included findings that the parties had the same income in 2001 and relatively similar income in 2002.  The district court specifically found that appellant was "deemed to have voluntarily reduced his income as a result of his actions."  Because the allocation of half of the daycare and preschool costs was proportional to the parties' respective income, we conclude that the district court did not abuse its discretion.

            Affirmed.

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