Dailey v. Chermak, No. A05-1244.
| Decision Date | 21 February 2006 |
| Docket Number | No. A05-1244. |
| Citation | 709 N.W.2d 626 |
| Parties | Anne Elizabeth DAILEY, petitioner, Respondent, v. Tony Christopher CHERMAK, Appellant. |
| Court | Minnesota Court of Appeals |
M. Sue Wilson, Amy Yanik Meisel, James T. Williamson, M. Sue Wilson Law Offices, P.A., Minneapolis, MN, for respondent.
Michael L. Perlman, Karin Gjerset, Perlman Law Office, Minnetonka, MN, for appellant.
Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and GORDON W. SHUMAKER, Judge.
On appeal from the district court's order granting respondent Anne Elizabeth Dailey permission to remove the residence of the parties' minor child from Minnesota to South Dakota, appellant Tony Christopher Chermak argues that the district court (1) abused its discretion because the removal order contradicts a statement in the findings of fact that physical custody is contingent upon Dailey remaining in the Twin Cities metropolitan area, and (2) abused its discretion when it denied Chermak an evidentiary hearing on the motion for permission to change the child's residence.
Although the district court did abuse its discretion by erroneously concluding as a matter of law that conditional custody provisions limiting the minor child's geographic residence are unenforceable, it correctly granted Dailey's motion for removal on the ground that the dissolution conclusions of law, which became the judgment and decree, are binding, and that the best interests of the child did not depend on Dailey remaining in Minnesota. And because Chermak did not satisfy the requirements for an evidentiary hearing, the district court did not abuse its discretion in denying such hearing. Therefore, we affirm.
A judgment and decree dissolving the marriage of appellant Tony Christopher Chermak and respondent Anne Elizabeth Dailey was entered on May 20, 2004, after a contested trial. A principal issue in the trial was that of the custody of the parties' minor daughter, born June 4, 2002.
In its conclusions of law, which became the judgment and decree, the dissolution court awarded to the parties the joint legal custody of their daughter and to Dailey sole physical custody. Neither party appealed or otherwise challenged the custody awards in posttrial proceedings.
On May 2, 2005, Dailey moved for permission to change the residence of the parties' daughter from Minnesota to Mitchell, South Dakota. In opposition to the motion, Chermak cited, among other grounds, a provision in the amended findings of fact in the dissolution judgment stating: "The Court's ruling on physical custody is conditional upon petitioner remaining in the Twin Cities metropolitan area."
In its amended order granting Dailey's change-of-residence motion, the district court addressed the alleged "conditional custody" statement by ruling (1) that it did not appear that the dissolution court's "analysis of the statutory custody factors relies upon [Dailey] residing in a particular location . . ."; (2) that the conclusions of law rather than the findings of fact are binding; and (3) that the custody condition is unenforceable as contrary to Minnesota law.
The district court further determined that Chermak was not entitled to an evidentiary hearing on the motion because he failed to show the legal prerequisites to such a hearing, namely, prima facie evidence of the physical or emotional endangerment of the child or that the purpose of the residence change is to interfere with Chermak's parenting time.
From the district court's amended order denying an evidentiary hearing and permitting the change of the child's residence, Chermak appeals.
1. Did the district court abuse its discretion by concluding that the conditional custody provision in the dissolution court's amended findings of fact was not legally enforceable when it conditioned Dailey's award of sole physical custody of the parties' minor child upon Dailey's residence in the Twin Cities metro area?
2. Did the district court abuse its discretion when it granted Dailey's motion to relocate the parties' minor child to Mitchell, South Dakota, and denied Chermak's request for an evidentiary hearing on the removal issue?
On appeal, this court reviews decisions respecting the custody modification and change of residence of minor children for an abuse of discretion. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996); Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn.1985). A district court abuses its discretion when it makes unsupported findings of fact or improperly applies the law. Wopata v. Wopata, 498 N.W.2d 478, 481 (Minn.App.1993). Findings of fact must be sustained unless they are clearly erroneous. Pikula, 374 N.W.2d at 710. A finding is clearly erroneous if the reviewing court is "left with the definite and firm conviction that a mistake has been made." LaChapelle v. Mitten, 607 N.W.2d 151, 160 (Minn.App.2000) (quotation omitted), review denied . The appellate court "views the record in the light most favorable to the trial court's findings." Id. We apply the abuse-of-discretion standard of review to each of the three bases upon which the district court rejected Chermak's conditional custody argument and to the court's denial of an evidentiary hearing and its grant of permission to change the child's residence.
The district court ruled that the conditional custody provision in the dissolution court's amended findings of fact is legally unenforceable, citing a pronouncement in the Imdieke case as authority: "To base custody or care on a parent's remaining in a certain area is a restrictive condition contrary to Minnesota Law." Imdieke v. Imdieke, 411 N.W.2d 241, 244 (Minn.App.1987), review denied (Minn. Oct. 30, 1987).
The Imdieke court relied on Auge v. Auge, 334 N.W.2d 393 (Minn.1983), to support the proposition that conditional custody respecting a minor child's residence is contrary to Minnesota law. However, Auge did not involve an issue of conditional custody, and there is no statement in the Auge opinion that custody conditioned on maintaining a particular residence for a child is contrary to Minnesota law. Id.
Nor did Imdieke itself involve conditional custody or any dispositive issue regarding the residence of the parties' minor children. The issue there was whether it was appropriate for the district court to award split custody of the parties' four children. The court of appeals held that it was not and directed that the custody of all children be awarded to their mother.
The appellate court also commented on the district court's concern that the mother's living arrangements were uncertain. The appellate court noted that the mother had been forced to move from the homestead in Melrose because it was to be sold to pay the father's debts; that her substitute housing in Melrose had been declared substandard by the health department; and that she had to reside temporarily with her mother in Anoka while she sought employment because there were no jobs available in Melrose. There was no claim that the move from Melrose to Anoka implicated any change-of-residence laws or procedures, and there was no analysis by the appellate court as to whether the move impaired the best interests of the children, which is the paramount concern in all custody and custody-related decisions. LaChapelle, 607 N.W.2d at 158. Thus, the pronouncement in Imdieke regarding conditional custody was dictum and without basis in the law.
As determined in LaChapelle, there can be circumstances in which child custody may properly be made conditional on maintaining a particular geographical residence for the child. Id. But any such condition must demonstrably serve the child's best interests. Id. at 163.
Besides the unique facts of LaChapelle, it is conceivable that a custody award might be properly conditioned on maintaining a certain residence because of the availability in that location of special health or educational services that the child particularly needs and that are not readily or inexpensively obtainable elsewhere. Thus, we hold that there is no absolute prohibition under Minnesota law against awarding child custody on the condition of maintaining a specific geographic residence for the child, as long as that residence is shown clearly and genuinely to serve the child's best interests.
In relying on the contrary proposition here, the district court misapplied the law and thereby abused its discretion.
Another reason the district court gave for rejecting Chermak's conditional custody argument was that no such condition was stated in the dissolution court's conclusions of law, which became the judgment and decree, and that conclusions of law prevail over findings of fact. The court relied on an unpublished opinion of the court of appeals in support of this reason. However, unpublished opinions have no precedential effect. Minn.Stat. § 480A.08, subd. 3 (2004).
Other than the unpublished case on which the district court relied, there does not appear to be any Minnesota authority that has addressed this precise issue. There is caselaw authority that the mislabeling of a finding of fact as a conclusion of law, or vice versa, is not determinative of the true nature of the item. Graphic Arts Educ. Found., Inc. v. State, 240 Minn. 143, 145-46, 59 N.W.2d 841, 844 (1953); 2 David F. Herr & Roger S. Haydock, Minnesota Practice § 52.5 (2004). But the concern here is not mislabeling; rather, it is the inclusion in the findings of fact a statement about conditional custody that is at odds with the conclusions of law that provide for unconditional physical custody.
Despite the absence of precedent to resolve the issue, we are persuaded that the district court was correct in ruling that conclusions of law (which become the judgment in the case) prevail over an...
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