Crosby v. Crosby

• Decision Date: 15 December 1998
• Docket Number: No. C0-98-339,C0-98-339
• Citation: 587 N.W.2d 292
• Parties: In re the Matter of Douglas Allen CROSBY, petitioner, Respondent, v. Dawn Rachelle CROSBY, Appellant. In re the Marriage of Douglas Allen Crosby, petitioner, Respondent, v. Dawn Rachelle Crosby, Appellant.
• Court: Minnesota Court of Appeals

Page 292

587 N.W.2d 292

In re the Matter of Douglas Allen CROSBY, petitioner, Respondent, v. Dawn Rachelle CROSBY, Appellant.

In re the Marriage of Douglas Allen Crosby, petitioner, Respondent, v. Dawn Rachelle Crosby, Appellant.

No. C0-98-339.

Court of Appeals of Minnesota.

Dec. 15, 1998.

Review Denied Feb. 18, 1999.

Syllabus by the Court

When determining whether a parent should share extensively in the physical care of children, the trial court is free to evaluate the parents' ability to cooperate differently than when deciding whether the parents could successfully act as joint legal custodians.

Thomas T. Smith, Smith Law Firm P.A., Bemidji, MN (for respondent).

Thomas L. D'Albani, James W. Haskell, Cann, Haskell, D'Albani, Schueppert, Hazelton & Rodgers, P.A., Bemidji, MN (for appellant).

Loisanne Kopp, Bemidji, MN (guardian ad litem).

Considered and decided by SHUMAKER, Presiding Judge, and CRIPPEN and KLAPHAKE, Judges.

O P I N I O N

CRIPPEN, Judge.

Pointing to evidence of conflict between the parties, appellant, who was named as sole legal custodian of the parties' two children, challenges the trial court's determination that respondent should provide nearly one-half of the physical care of the children. We affirm the trial court's custody determination. We also find no trial-court error on additional issues raised by appellant.

FACTS

In the December 1997 judgment that ended the marriage, sole legal custody of the parties' two children was placed with their mother, appellant Dawn Crosby. Appellant was also named primary physical custodian, but the court decided respondent Douglas Crosby's visitation contacts would involve approximately one-half of the physical care of the children. This division of physical custody is almost the same as that in a temporary order issued one year earlier.

The guardian ad litem testified that joint legal custody of the children "probably isn't possible." She based her conclusion on her observation that the parties have an inability to cooperate in or communicate about the rearing of their children. Despite not recommending joint legal custody, the guardian testified that respondent was doing a fine job "insofar as the parenting is concerned" and that he had done a "nice job with the children." The guardian recommended that the children spend substantial time with each parent.

The trial court found that both parties had significantly provided for the needs of the children and were capable of providing adequate care for the children. Moreover, the court found respondent had a disposition better suited to encourage and permit contact by the other parent. But the court felt joint legal custody would be inappropriate because the parties have difficulty communicating and resolving disputes and these disputes had erupted in front of the children. Given these competing concerns, the judge found that "[a] structured division of physical custody will give the children substantial time with each parent and the opportunity to experience the best each parent has to offer."

ISSUES

Did the trial court err in deciding that respondent should have one-half of the physical care of the children?

Did the court err in its classification and division of marital and non-marital property, or in other decisions?

ANALYSIS

1. Physical care of the children

A trial court has broad discretion to provide for the custody of the parties' children. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn.1984). The trial court has extensive discretion in deciding visitation questions and will not be reversed absent an abuse of discretion. Manthei v. Manthei, 268 N.W.2d 45, 45 (Minn.1978). Its underlying findings of fact will be upheld if they are not clearly erroneous. Minn. R. Civ. P. 52.01.

Appellant contends that the grant of extensive visitation to respondent was tantamount to joint physical custody and inappropriate given these circumstances in which the court determined that sole legal custody should be with the mother. Before awarding joint legal custody or joint physical custody, a trial court judge must evaluate, among other things, the cooperation ability of parents, their dispute resolution methods, and their willingness to use these methods. Minn.Stat. § 518.17, subd. 2 (1996). ¹ In this case, the trial court found that joint legal custody would be inappropriate given the difficulty the parties have in communicating and in resolving disputes. The unhappy marital history, the allegations and counter-allegations of abuse, and the guardian ad litem's testimony all support the determination that joint legal custody would be inappropriate given the parties' communication difficulties.

Despite this determination, the court could properly observe that problems in communicating with each other would not impair the ability of appellant and respondent to share joint physical custody of the children if the custody arrangement were structured. The court could reasonably expect that the history of disputes between the parties should not contradict the court's determination that they could successfully comply with a schedule of times for exchange of physical custody in the same community. In fact, the parties shared custody on a nearly equal basis during 1997 and it is undisputed that the parties have not experienced significant difficulties in this regard. When determining whether a parent should share extensively in the physical care of children, the trial court is free to evaluate the cooperativeness of the parents differently than when deciding whether the parents could successfully act as joint legal custodians.

The trial court noted that both parents have played a large role in the children's lives and that both have been good parents. The guardian ad litem testified to this effect. Moreover, given the trial court's finding that respondent has a disposition better suited to encouraging and permitting contact by the other party, the court could rightfully refrain from limiting respondent's contacts with the children because of communication problems between the parties.

Appellant also disputes the sufficiency of the evidence to support the trial court's findings that "[b]oth parents have the capacity and disposition to give the children love, affection and guidance," that "both parties have positive attributes the children could benefit from and need to experience," and that respondent "has a disposition better suited to encourage and permit contact by the other parent." To support her argument, appellant points to evidence of prior angry outbursts by respondent and testimony of other witnesses about his bad behavior. In contrast, she points to evidence regarding her positive attributes as a parent. Although this recitation of facts by appellant might prompt another trier of fact to different findings, because there is sufficient contradictory evidence to reasonably support the trial court's findings, the evidence submitted by appellant does not render the trial court's findings clearly erroneous.

2. The division of marital and non-marital property; other issues.

a. Property. Neither child support nor maintenance was granted either party, but respondent received temporary maintenance during the pendency of the proceedings. The trial court identified marital property of approximately $117,000 and unsecured marital debt of approximately $18,000. The court awarded approximately $39,000 of the marital property to respondent Douglas Crosby and $78,000 to appellant Dawn Crosby. In addition, the court identified over $170,000 in disputed property as appellant's non-marital property. However, appellant was made responsible for the $18,000 unsecured marital debt. In order to offset the discrepancy in the award of marital property, the court awarded respondent approximately $27,000 of appellant's non-marital property consisting of a rock picker, a snowmobile with trailer, and a pickup truck with plow.

The trial court has broad discretion regarding the division of property in marriage dissolutions and will be reversed only for a clear abuse of discretion. Hein v. Hein, 366 N.W.2d 646, 649 (Minn.App.1985). Appellant challenges the amount of property deemed marital property, the division of the marital property, and the award of some of her non-marital property to respondent.

Appellant was injured as a child; as a result, she receives a lifelong annuity payment of $4,048 a month. She also has other substantial non-marital assets. Unquestionably, she used her assets to provide the majority of the family budget during the marriage.

Appellant claims that the trial court incorrectly deemed too much property to be marital property, given her extensive financial contributions to the parties' financial well-being. To overcome the presumption that property is marital, a party must demonstrate by a preponderance of the evidence that the property is non-marital. Wopata v. Wopata, 498 N.W.2d 478, 484 (Minn.App.1993). Appellant does not claim that the judge erred in naming specific items as non-marital. Instead, she argues that the bulk of their property is derived from appellant's pre-marital assets and therefore should remain non-marital. But the trial judge found that appellant regularly co-mingled non-marital and marital funds "to such an extent that deposited non-marital funds lost that character." Appellant did not adequately trace her allegedly non-marital assets, thus failing to meet her burden of proof. The record supports the trial judge's conclusion that although appellant's "non-marital assets were the primary source of funds expended by the parties, that fact alone was insufficient to establish the non-marital character of assets acquired during the marriage."

Appellant claims that the trial court's division of marital property was not equitable. A trial court must make a just and equitable division of marital property. Minn.Stat. § 518.58, subd. 1 (Supp.1997). An equitable division of marital...