In re the Marriage of: Stephen John Navin, petitioner, Appellant, vs. Christina Marie Navin, Respondent.

In re the Marriage of: Stephen John Navin, petitioner, Appellant, vs. Christina Marie Navin, Respondent. A06-1442, Court of Appeals Unpublished, February 20, 2007.

This opinion will be unpublished and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

A06-1442

 

In re the Marriage of:

Stephen John Navin,

petitioner,

Appellant,

 

vs.

 

Christina Marie Navin,

Respondent.

 

Filed February 20, 2007

Affirmed
Klaphake, Judge

 

Ramsey County District Court

File No. F9-04-541

 

Cathryn C. Schmidt, Swaden Law Offices, 7301 Ohms Lane, Suite 550, Edina, MN  55439 (for appellant)

 

Kathryn A. Graves, Katz, Manka, Teplinsky, Due & Sobol, Ltd., 225 South Sixth Street, Suite 4150, Minneapolis, MN  55410 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Stephen John Navin and respondent Christina Marie Navin lived together for ten years before they were married in February 2001.  They have three children, two of whom were born before the marriage.  When respondent moved out of the parties' home in November 2003, the children were 10, 8, and 2 years old.  A judgment and decree of dissolution was entered in December 2005, based on the record compiled during a four-day trial.

            On appeal from the district court's denial of his posttrial motions for amended findings or a new trial, appellant challenges the district court's (1) award to respondent of sole physical custody of the children; (2) denial of his request for an updated custody evaluation; (3) refusal to give him access to statements made by the two older children to the custody evaluator regarding their preferences; (4) alteration of the parenting time schedule that was followed and used by the parties before trial; (5) distribution to appellant of all of his credit card debt; and (6) award to respondent of a substantial portion of his nonmarital interest in the homestead.  Because the district court's findings are reasonably supported by the evidence and because those findings adequately support the court's conclusions of law and its exercise of discretion, we affirm.

D E C I S I O N

I.

            Our 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."  Schallinger v. Schallinger, 699 N.W.2d 15, 19 (Minn. App. 2005), review denied (Minn. Sept. 28, 2005).  We have "scant if any room . . . to question the [district] court's balancing of best-interests considerations," and there must be a "definite and firm conviction that a mistake was made" before we will reverse a district court's custody decision.  Vangness v. Vangness, 607 N.W.2d 468, 474, 477 (Minn. App. 2000).

            Appellant argues that the district court abused its discretion in granting respondent sole physical custody of the children when examination and balancing of the best interest factors fail to support such an award.  But the district court made very detailed findings addressing each of the 13 best interests factors set out in Minn. Stat. § 518.17, subd. 1 (2006).  While many of those factors favored neither party, the court found that other factors tended to favor awarding sole physical custody to respondent.  Those factors included respondent's continuing status as the children's primary caretaker; respondent's ability to maintain continuity and permanence as exhibited by her willingness to move back to St. Paul in order to be close to the marital homestead and the children's school; appellant's history of chemical abuse and dependency, even though he successfully completed treatment and is currently in recovery; and the parties' history of domestic abuse and inability to cooperate in certain areas.  The district court's findings on the best interests factors are reasonably supported by the evidence and support the award of sole physical custody to respondent.

            Appellant also argues that the district court abused its discretion by refusing to award the parties joint physical custody.  He insists that such an award was appropriate because the parties were essentially sharing custody prior to trial and the court acknowledged that the children were doing very well with that arrangement.  However, courts have consistently held that joint physical custody is appropriate only in exceptional cases.  See, e.g., Wopata v. Wopata, 498 N.W.2d 478, 483 (Minn. App. 1993); Brauer v. Brauer, 384 N.W.2d 595, 598 (Minn. App. 1986).  When there is evidence that the parties are unable to communicate or reach agreement concerning the children, joint physical custody may not be appropriate; just because parents are "equally qualified to raise the children does not mean that they are qualified to raise them jointly."  Wopata, 498 N.W.2d at 483; see Minn. Stat. § 518.17, subd. 2 (2006) (when joint physical custody is sought, court must consider the parties' ability to cooperate).  Here, the district court made findings regarding the parties' inability to cooperate and the history of domestic violence, both of which weigh heavily against an award of joint physical custody.  These findings are reasonably supported by the evidence and adequately support the district court's determination that joint custody is not appropriate in this case.  We therefore affirm the award of sole physical custody to respondent.

II.

            Appellant argues that the district court abused its discretion by denying his request for an updated custody evaluation.  Respondent asserts that the court properly denied appellant's request, which was made only two months before trial was scheduled to begin.  The custody evaluator's supervisor told the court that the evaluator's calendar was full through July 1, 2005, thus making it impossible for an updated report to be ready for the July 18, 2005 trial date.  We agree that the district court did not abuse its discretion by refusing to postpone or continue trial to allow an updated evaluation to be completed.

            Appellant further insists that an update was necessary due to the changes in several key facts since the date of the original evaluation in August 2004.  For example, (1) respondent moved from White Bear Lake back to a home in St. Paul;  (2) respondent was now working full time; (3) the parties' parenting schedule had changed considerably; (4) an order for protection had expired; (5) psychological evaluations had been completed; and (6) appellant's request for joint custody was not addressed by the evaluator.  As respondent notes and the district court concluded, however, the lack of an updated evaluation did not prejudice appellant because testimony was presented on the changes that had occurred in the parties' circumstances and because the district court's findings specifically addressed these changes as they related to the best interests factors.  Finally, as respondent notes, appellant had ample time and could have hired his own custody expert to review the original report and provide an opinion as to whether the changes in the parties' circumstances should alter the original recommendation.  On this record, we conclude that the district court did not abuse its discretion in denying appellant's request for an updated custody evaluation.

III.

            Appellant argues that the district court abused its discretion by refusing to give him access to the custody evaluator's notes regarding the custodial preferences of the two older children.  The evaluator's report indicates that both children were of sufficient age to express a preference and that both were interviewed, but that the children's "statements are considered confidential and available to the Court only."  But when appellant sought access to the statements made by the two children to the evaluator, the district court denied his request, explaining that it was in the children's best interests to protect their privacy and keep their statements confidential.  The court further made it clear that it had considered the statements in making its custody decision.  Finally, the court denied appellant's request that the children be interviewed in camera as untimely.

            Under Minn. Stat. § 518.167, subd. 3 (2006), the file of data and reports underlying a custody evaluator's report "shall" be made available to a party's counsel upon request.  Because the children's statements were considered by the evaluator here and used in the preparation of his report, the district court erred in denying appellant access to those statements.  While we are deeply troubled by the district court's decision to deny appellant access to the evaluator's notes, we do not believe that this decision was overly prejudicial.  The preference of a child is only one of many factors to consider when determining a child's best interests, and a court "may not use one factor to the exclusion of all others."  Minn. Stat. § 518.17, subd. 1(a).  Based on our review of the district court's findings and on the entire record, we cannot conclude that the lack of access to this information made any difference in the outcome of the district court's custody decision.  Cf. Grein v. Grein, 364 N.W.2d 383, 387 (Minn. 1985) (declining to remand custody question for adequate findings where review of the record showed district court would reach same result).

IV.

            Absent an abuse of discretion, we will not disturb a district court's decision regarding parenting time schedules.  Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).  Minn. Stat. § 518.175, subd. 1 (2006), states that the "court shall, upon the request of either parent, grant such parenting time . . . as will enable the child and the parent to maintain a child to parent relationship that will be in the best interests of the child."  In fashioning a schedule, "the court shall consider the age of the child and the child's relationship with the parent prior to the commencement of the proceeding."  Id.

            Appellant argues that the district court abused its discretion by modifying the parties' parenting time schedule, particularly given the court's own finding that the children were doing well under the current schedule.  However, despite appellant's claim that the children were faring well under his proposed schedule, there was some evidence and testimony that the children had begun to exhibit increased behavior problems during the summer of 2005, when they were going back and forth between the parties' homes.  Moreover, in rejecting appellant's proposed schedule, which essentially would have given the parties equal time with the children, the district court noted that it had decided to award sole physical custody to respondent given the continuing conflicts between the parties and that "[i]t would be illogical for the Court to then create a 50/50 parenting time schedule which would have created an additional source of conflict between the parties."  Under these circumstances, we cannot conclude that the district court abused its discretion in fashioning the parenting schedule as it did.

V.

            Marital debts are apportioned in the same manner as the division of marital property, and are part of a district court's overall division of marital property.  Korf v. Korf, 553 N.W.2d 706, 712 (Minn. App. 1996).  The court's decision on the distribution of debt must be affirmed if it has an acceptable basis in fact and principle, even if a reviewing court may have taken a different approach.  Bliss v. Bliss, 493 N.W.2d 583, 587 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).  A district court may consider the underlying purpose of a debt, the ability of a party to repay the debt, when the debt was incurred, and whether it was incurred to provide the necessary support for the parties and the children.  See, e.g., Nazar v. Nazar, 505 N.W.2d 628, 635 (Minn. App. 1993) (cash advance taken out by wife following separation properly treated as wife's separate responsibility), review denied (Minn. Oct. 28, 1993); Bliss, 493 N.W.2d at 587 (debts incurred prior to separation or reasonably incurred after separation to provide necessary support for family treated as marital debts); Wehner v. Wehner, 374 N.W.2d 569, 572 (Minn. App. 1985) (husband ordered to pay marital debt as he had greater ability to pay).

            Appellant argues that the district court abused its discretion when it ordered the parties to pay the debts incurred in their individual names.  The district court found that the parties had separate credit cards during the marriage, with respondent owing approximately $4,424, which she paid off with the proceeds from an inheritance she received after her mother's death, and appellant owing approximately $14,000 on his credit cards at the time of the parties' separation in November 2003.  The district court concluded that each party should be responsible for his or her debts, noting that respondent had also agreed to assume responsibility for her student loans, which totaled $18,000.  The district court further found that most of appellant's debt was not incurred for family expenses, noting that respondent "had no personal knowledge of [appellant's] credit card debt" and "was shocked to find he had . . . debt of over $14,000."  On these facts, the district court did not abuse its discretion by ordering each party to be solely responsible for his or her own credit card debts.

VI.

            Appellant argues that the district court abused its discretion by awarding respondent a 44% interest in the homestead, which he claims was his nonmarital asset.  Respondent insists that there is some marital equity in the homestead and that the facts support an award to her of a portion of appellant's nonmarital interest based on a finding of unfair hardship.

            Minn. Stat. § 518.58, subd. 2 (2006), allows a court to grant a party up to 50% of the value of the other party's nonmarital asset if one party's resources or property, "including the spouse's portion of the marital property[,] . . . are so inadequate as to work an unfair hardship, considering all relevant circumstances."  "Relevant circumstances" include "the length of the marriage, any prior marriage of a party, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, needs and opportunity for future acquisition of capital assets and income of each party."  Id.

            The district court found that kitchen remodeling completed during the marriage added $30,000 to the value of the homestead and that this increase in value was marital property.  The district court further found that the current equity in the homestead was $148,313 and that it would "create an unfair hardship to Respondent if she does not receive an equal interest in the homestead equity."  The court considered several factors and made findings to support its award of nonmarital property to respondent, including respondent's substantial contributions of funds and labor to improve the value of the homestead during the ten years that the parties lived together, the lack of any other significant marital assets, and the "obvious disparity in employment status of the parties."  Even if we were to disagree with the district court's decision, the court's findings are supported by evidence, and we are not firmly convinced that a mistake has been made.  We therefore affirm the district court's decision to award respondent a portion of appellant's nonmarital interest in the homestead.

            Affirmed.