Freking v. Buxengard
| Decision Date | 03 December 2018 |
| Docket Number | A18-0250 |
| Parties | In re the Marriage of: Jesse A. Freking, petitioner, Appellant, v. Audra Jo Buxengard f/k/a Audra Jo Freking, Respondent. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016).
Affirmed in part, reversed in part, and remanded
Nobles County District Court
Maryellen Suhrhoff, Muske, Suhrhoff & Pidde, Ltd., Windom, Minnesota (for appellant)
Jacob M. Birkholz, Michelle Olsen, Birkholz & Associates, LLC., Mankato, Minnesota (for respondent)
Considered and decided by Rodenberg, Presiding Judge; Schellhas, Judge; and Smith, John, Judge.*
UNPUBLISHED OPINION
Appellant challenges a district court's grant of child custody, division of property and liabilities, and contempt finding. We affirm in part, reverse in part, and remand.
Appellant-father Jesse Freking and respondent-mother Audra Buxengard married in May 2004, and are parents to three children: K.F., born in September 2001; N.F., born December 2007; and C.F., born in June 2011. During their marriage, the parties engaged in farming and father worked as a long-haul trucker for his partly owned corporation, Central Pacific Express, Inc. (CPE), that he formed during the marriage. Mother worked as a bookkeeper for CPE.
In February 2015, Father commenced a marriage-dissolution proceeding. On April 8, based on the parties' stipulation, the district court issued an order for temporary relief, granting the parties joint legal custody, mother primary physical custody, father parenting time, and mother child support from father. On November 19, the court awarded a marital car to mother.
On February 5, 2016, the court dissolved the parties' marriage and reserved the issues of custody, parenting time, and the division of property and liabilities. On March 9, based on the parties' stipulation, the court amended the parenting-time schedule, ordering that "[t]he parties shall have a fifty/fifty (50/50) parenting-time schedule," incorporating alternate weeks, running from Sunday at 7:00 p.m. to Sunday at 7:00 p.m.; "awarded" thehomestead to mother, subject to the first and second mortgages;1 ordered the forgiveness of father's child-support arrearages if he satisfied the loan against mother's car; and ordered father to make payments on mother's homestead debt. On May 13, the court denied a contempt motion by mother against father and appointed an appraiser for the marital property, including father's trucking-business property. On October 31, based on mother's motion and over father's objection, the court "deemed" the homestead to be mother's non-marital property.
In March and June 2017, the district court conducted a trial of the disputed issues. On July 11, the court issued findings of fact, conclusions of law, order for judgment, and judgment and decree (dissolution judgment), granting the parties joint legal custody of the children; mother sole physical custody of the children, subject to father's parenting time; dividing the parties' marital assets and liabilities; and awarding mother the homestead as nonmarital property. In August, mother moved for emergency relief, seeking a finding of contempt against father for his alleged failure to comply with the final dissolution judgment, regarding the transfer of personal property. On September 3, the court found father to be in contempt and granted mother the relief that she requested.
Regarding the final dissolution judgment, father moved for amended findings and judgment or a new trial. On December 14, 2017, the district court amended the dissolution judgment to allow father "six . . . non-consecutive weeks of additional parenting per year" and denied the remainder of father's requests for relief. On January 24, 2018, by agreementof the parties, the court amended "Paragraph 2 of the Conclusions of Law- Personal Property and attached Exhibit A- to add VIN numbers to the two Peterbilt semi's, the Stepdeck trailer and the 2004 Ford Excursion so that the State of Minnesota can transfer the titles to these items from [father] to [mother]."
Father appeals from the dissolution judgment, both amended judgments, and the September 3, 2017 contempt order.
In reviewing the judgment and amended judgments, we also may review the district court's denial of father's motion for amended findings or a new trial. See Minn. R. Civ. App. P. 103.04 (). We review the denial of a motion for amended findings or a new trial for an abuse of discretion. Zander v. Zander, 720 N.W.2d 360, 364-65 (Minn. App. 2006), review denied (Minn. Nov. 14, 2006). "When determining whether findings are clearly erroneous, this court views the record in the light most favorable to the district court's findings." Id. at 364 (quotation omitted).
The district court granted mother sole physical custody, "subject to reasonable parenting time of [father]," and ordered that "[mother's] residence shall be the primary residence of the minor children." The court's dissolution judgment includes 42 custody and parenting-time findings that reference the following: trial testimony; two expert reports; the parties' relationship, historically and at the time of trial; credibility of trial witnesses;and each of the best-interest factors listed in Minn. Stat. § 518.17 (2016). Father argues that the court's findings do not support the grant of physical custody to mother.
Upon a marital dissolution, the district court must make "just and proper" orders concerning "the legal custody of the minor children" and "their physical custody and residence." Minn. Stat. § 518.17, subd. 3(a)(1), (2). "In determining custody, the court shall consider the best interests of each child." Id., subd. 3(a)(3). "The statute and caselaw make clear that the ultimate issue is the child's best interests as assessed under the totality of the considered factors." Hagen v. Schirmers, 783 N.W.2d 212, 216 (Minn. App. 2010) (emphasis added). "In evaluating the best interests of the child for purposes of determining issues of custody and parenting time, the court must consider and evaluate all relevant factors." Minn. Stat. § 518.17, subd. 1(a) (listing best-interest factors). "District courts have broad discretion on matters of custody and parenting time." Hansen v. Todnem, 908 N.W.2d 592, 596 (Minn. 2018). Review of a district court's grant of custody "is limited to whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law." Id. (quotation omitted). In reviewing a custody determination, "the weight and credibility of . . . testimony are left to the factfinder." In re Welfare of S.R.K., 911 N.W.2d 821, 831 (Minn. 2018).
Father focuses only on the district court's findings that support his argument and ignores numerous other findings that do not, such as: a finding about multiple instances when father exhibited a "cruel and vindictive attitude and willingness to attack and denigrate" mother in front of the children; a finding that mother possesses a flexible work schedule to be home every day with the children after school, and continues to provide thechildren with "stability and routine that [they] have become accustomed to . . . maintain[ing] their bedrooms at [mother's] home and [a] regular schedule"; findings that contrast mother's relationship with the children with father's such as: "[father] has recently developed an ongoing relationship with the minor children and an ability to parent them, [but] the work obligations of farming are likely to result in [his] significant other having to care for [his] children in addition to her own." (Emphasis added.) We conclude that the court did not clearly err in making these findings and did not otherwise abuse its discretion in consideration of these findings when granting custody. See Hansen, 908 N.W.2d at 599 ().
The district court made findings on each best-interest factor. See Minn. Stat. § 518.17, subd. 1(a) (). When conducting an analysis of the best-interest factors, a district court "may not use one factor to the exclusion of all others, and the court shall consider that the factors may be interrelated." Id., subd. 1(b)(1). Father challenges the court's finding that mother is the children's primary caretaker. The court found that mother "provided a majority of the care for the children" during the parties' marriage because father "was absent for a significant portion of time spanning from the birth of the minor children until the separation" due to his job. Father provides no support for his argument that his "ability to effectively parent the children coupled with the children's desire and welfare should override the finding that [mother] was the primary caregiver."
One of the best-interest factors is the "ability of each parent to provide ongoing care for the child; to meet the child's ongoing developmental . . . needs; and to maintain consistency and follow through with parenting time." Id., subd. 1(a)(7) (emphasis added). Father argues that the district court erroneously speculated regarding his ability to parent. The court found that both "parents are willing to provide for the ongoing care of the minor children and both have the ability to do so," but expressed concern about father's "work obligations of farming [that] are likely to result in [his] significant other having to care for the minor children," noting that father has prioritized his work over the children in the past. Father also argues that the district court penalized him "for...
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