Ayers v. Ayers

• Decision Date: 19 November 1993
• Docket Number: No. C1-92-997,C1-92-997
• Citation: 508 N.W.2d 515
• Parties: In re the Marriage of Douglas L. AYERS, Petitioner, Appellant, v. Annette C. AYERS, n/k/a Annette C. Kotz, Respondent.
• Court: Minnesota Supreme Court

Page 515

508 N.W.2d 515

In re the Marriage of Douglas L. AYERS, Petitioner, Appellant, v. Annette C. AYERS, n/k/a Annette C. Kotz, Respondent.

No. C1-92-997.

Supreme Court of Minnesota.

Nov. 19, 1993.

Syllabus by the Court

1. Where the parties have agreed, by stipulated decree, to joint legal and joint physical custody of their children and to specific terms for the implementation of that custody, and the court has accepted that denomination, the parties will be bound by it.

2. The trial court correctly applied Minn.Stat. § 518.18(e) in deciding whether to modify this prior joint custody order.

3. The record adequately supports the findings of the trial court that the best interests of the minor children will be served by maintaining joint legal custody and joint physical custody in both parties, with the primary residence of the children to remain in Minnesota with petitioner/appellant.

Richard D. Goff, Sonja Trom Eayrs, St. Paul, for petitioner, appellant.

Jo Marie Alexander, Laura J. Zdychoec, Brooklyn Center, for respondent.

Heard, considered, and decided by the court en banc.

WAHL, Justice.

Douglas L. Ayers appeals from a decision of the court of appeals reversing an order of the trial court which denied respondent, Annette C. Kotz (formerly Annette C. Ayers), permission to remove the parties' two children to Illinois for the purpose of establishing their permanent residence in that state; and transferred the primary residence of the children from Kotz to Ayers. Appellant claims that the court of appeals improperly applied the "endangerment" standard of Minn.Stat. § 518.18(d) (1992) rather than the "best-interests-of-the-child" standard required by section 518.18(e) (1992). We reverse and reinstate the order of the trial court.

The judgment and decree dissolving the parties' marriage, dated July 18, 1984, incorporated a written stipulation entered into by the parties. The provision of the stipulation regarding custody of the parties' two children, Rose and Preston, was adopted by the court as follows:

That custody of the minor children of the parties, namely: Rose Ellen Ayers, born December 18, 1980, and Preston Douglas Ayers, born February 17, 1982, shall be joint and in both of the Co-Petitioners herein, and each of the parties shall have reasonable visitation rights with the said children when in the custody of the other party.

The judgment set out no schedule as to the allocation of physical custody.

Shortly after the divorce, in November 1984, Annette and Douglas reconciled and lived together with their children until January or February of 1986, when they again separated. In the fall of 1986, Annette began dating Petr Kotz, an old high school friend of both Annette and Douglas. In the summer of 1988, Annette and the children moved from Bayport to Detroit Lakes, Minnesota, where Petr, now Annette's fiance, had gotten a job as an editor for Detroit Lakes Printing. Annette and Petr were married in January 1989.

On September 1, 1988, Annette brought a motion seeking sole physical custody of Rose and Preston. Douglas moved that he be granted physical custody for nine months out of the year. Annette then asked for an evidentiary hearing. These motions were denied without prejudice. In November 1988, when Douglas failed to return the children after a weekend visitation, Annette brought a motion requesting that Douglas be directed to turn over to her the physical custody of the children, that she be granted interim sole physical custody, and that the court clarify and modify the custody provision in the divorce decree. Douglas asked the court to affirm the decree's award of joint custody and renewed his request to have physical custody established in him during the school year. After a hearing, the court ordered court services to provide custody and visitation mediation, and, if mediation proved unsuccessful, to undertake a custody evaluation.

On June 8, 1990, the parties entered into a second stipulation to amend the custody provision of the July 18, 1984 decree as follows:

The parties shall have joint legal and joint physical custody of their two minor children, namely Rose Ellen Ayers, born December 18, 1980, and Preston Douglas Ayers, born February 17, 1982.

The primary residence of said minor children shall be with [Annette] and [Douglas'] physical custody of said children shall be as follows: [Here a detailed schedule, omitted because of its length, gave Douglas physical custody on alternating weekends during the school year, most of the summer, every other major holiday, and half of all school vacations].

Annette was required to keep Douglas informed of the important activities in the lives of the children and of her current address and any plans to move in the future. The amendment also provided that "if [Annette] desires to move the permanent residence of the minor children to a state other than Minnesota, she must first obtain the advance written consent of [Douglas], or an Order from the Court."

In September 1991, Petr accepted a position as editor of the daily newspaper in Effingham, Illinois. On October 18, 1991, Annette filed a motion asking the court for permission to move the children to Illinois to establish their permanent residence there. She also sought to modify the custody provision of the amended decree. Douglas brought a responsive motion requesting denial of Annette's motion and asked that he be granted primary physical custody or that an evidentiary hearing be scheduled to determine which parent should have physical custody. On November 8, 1991, the court denied Annette's motion for permission to move the children out of state and ordered an evidentiary hearing set as soon as court services submitted a custody and visitation evaluation.

The evidentiary hearing was held on February 12, 13, and 21, 1992. In chambers and outside the presence of the parties, the trial judge talked with each of the children individually. Preston told the judge, "I don't really want to move to Illinois." When asked where he would want to live if his mother moved to Illinois, Preston responded, "Probably live with Dad." Rose indicated that she had no preference about where she lived.

The court heard testimony from Donna Berner, the counselor with court services who had done the custody evaluation; Dr. Robert Barron, a licensed consulting psychologist called by Annette; and Douglas' expert, licensed psychologist Cindy Nollette. Berner testified that neither child had expressed a preference. She further testified that, although each parent had assumed the role of primary caretaker when that parent had the children, the children seemed to have spent more time with their mother. ¹ Berner recommended that they be permitted to move to Illinois with Annette and spend the summers in Minnesota with Douglas.

On direct examination, Barron testified that, during his interviews with the children, Rose indicated she had no preference about where she lived and Preston, although having no preference as to which parent he lived with, wanted to stay in Minnesota. On the morning of the hearing, Preston told Barron that he had changed his mind and wished to live with his father, his primary reason being his desire to remain in Minnesota. On cross-examination, Barron indicated that Rose had stated a preference for remaining in Minnesota.

Nollette, who also had interviewed the children, testified that Rose loved both parents and stated no preference, but that Preston did not want to move and expressed a clear preference for living with his father.

A good deal of the testimony given at the hearing revolved around Petr Kotz' history of chemical abuse. Jack Erickson, an assessment counselor for Human Services, Inc. who evaluated Petr in November 1991, testified that Petr had used marijuana, cocaine, amphetamines, and alcohol in the past, but that the drug use had ended in 1986 and the alcohol use, though continuing until November of 1991, did not constitute abuse. Erickson saw Petr again on February 11, 1992, and concluded that he was not at that time abusing any substances. Petr testified that he had abstained from the use of all alcohol since November of 1991 and had attended Alcoholics Anonymous and Narcotics Anonymous meetings.

Petr also testified about his employment history, which included his jobs with the Chaska Herald and The Voice, then a move to Detroit Lakes where he edited several publications, and finally the editorial position with the daily paper in Effingham, Illinois. Petr testified that each of the job changes, especially the last, was a significant jump for him in terms of money and status in the trade. Petr testified on direct examination that he and Annette planned to stay in Effingham until Preston graduated from high school. On cross-examination, when asked whether he would accept a position, if offered within the next six months, with a larger newspaper in a larger town, and a higher salary, Petr answered, "No, I don't think so." ²

Finally, there was additional testimony about the generally positive relationships the children enjoyed with their immediate and extended families, including their half-sisters, Annette and Petr's two little girls.

In its Findings of Fact and Order issued May 1, 1992, the trial court found that the provisions of Minn.Stat. § 518.18(e) rather than the provisions of § 518.18(d) were controlling and required consideration of the best interests of the children, including the statutory factors contained in Minn.Stat. § 518.17. Finding that it would be in the best interests of Rose and Preston to have their primary residence in Minnesota with their father, the court ordered joint legal and joint physical custody maintained, with the primary residence of the children with Douglas. Annette was to have physical custody of the children according to the schedule set out in the order.

On appeal, a divided panel of the court of appeals reversed, finding...