In re the Matter of Hagen v. Schirmers, No. A09-743 (Minn. App. 6/8/2010), A09-743.
| Decision Date | 08 June 2010 |
| Docket Number | No. A09-743.,A09-743. |
| Parties | In re the Matter of: Amy Sue Hagen, petitioner, Respondent, v. Daniel John Schirmers, Appellant. |
| Court | Minnesota Court of Appeals |
A court determining a noncustodial parent's parenting time must address application of the statutory presumption for 25% parenting time when the statutory presumption is raised by a party and the court awards less than the presumed amount. Minn. Stat. § 518.175, subd. 1(e) (2008).
Appeal from the District Court, Benton County, File No. 05-F3-04-050166.
Lori L. Athmann, Rajkowski Hansmeier Ltd., St. Cloud, Minnesota, (for respondent).
John E. Mack, Mack & Daby, P.A., New London, Minnesota, (for appellant).
Considered and decided by Klaphake, Presiding Judge; Minge, Judge; and Wright, Judge.
In this child-relocation dispute, appellant-father argues that the district court abused its discretion by (1) misapplying the statutory factors for allowing the custodial parent to relocate to another state with the child; and (2) reducing father's parenting time below the statutory 25% presumption. We affirm on the relocation issue but reverse and remand the determination of parenting time.
T.R.H. was born in April 2004 and was four years old at the time of the district court decision on review. Appellant Daniel Schirmers is the father. Respondent Amy Hagen is the mother. The parties never married. Mother is engaged to Steve Casazza, a resident of California.
In 2005, the parties entered into a stipulation establishing paternity, custody, and parenting time. The resulting order granted sole physical custody to mother and joint legal custody to both parents. Father's parenting time schedule was structured and graduated. From the child's third birthday until her fifth birthday in 2009, father had parenting time of two hours for two days per week and 24 hours every other weekend from Saturday morning to Sunday morning. After that, father's parenting time was set to increase to every other weekend for 48 hours and one day per week for four hours; extended summer parenting time was to be considered at a later time. In January 2008, the parties agreed to the appointment of a third-party expediter to resolve disputes over parenting time.
In November 2008, mother petitioned to relocate with the child to California in order to marry Casazza. She requested and received a transfer to her employer's Los Angeles office. An evidentiary hearing was held; father, father's wife, mother, Casazza, and one of mother's brothers testified. The expediter testified by deposition. Mother submitted a parenting-time schedule that called for father to have 32 days of parenting time per year. Father requested all summer-vacation time, alternating school breaks, and half-time during his own visits to California.
The district court granted mother's petition and followed mother's parenting-time proposal. This appeal followed.
1. Did the district court abuse its discretion in allowing mother to remove the child to another state?
2. Did the district court abuse its discretion in granting father parenting time that is less than the 25% presumed amount under Minn. Stat. § 518.175, subd. 1(e)?
This dispute concerns allocation of parenting time, formerly known as visitation, see 2000 Minn. Laws ch. 444, art. 1, §§ 1-8 (). Although the parties never married, paternity was established and acknowledged. Thus, the court looks to marriage-dissolution statutes, sections 518.17 and 518.175, to decide custody, child support, and parenting time. Minn. Stat. § 257.541, subd. 2(a) (2008). Father complains that the district court erred by misapplying (1) the statutory standard permitting the child's removal by the custodial parent to another state,
Minn. Stat. § 518.175, subd. 3; and (2) the statutory presumption that each parent receives 25% of parenting time, id., subd. 1(e).
District courts have broad discretion in deciding parenting-time questions. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995). A district court abuses that discretion by making findings unsupported by the evidence or improperly applying the law. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). Fact findings are reviewed for clear error. Id. The appellate court defers to and does not reassess the district court's credibility determinations. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).
The first issue is whether the district court abused its discretion in approving the move to California. The parenting-time law provides that if the non-custodial parent has parenting time by court decree, a parent with whom the child resides cannot move the child's residence to another state without the consent of the other parent or court approval. Minn. Stat. § 518.175, subd. 3(a). The statute provides courts two key points of guidance: first, it directs denial if "the purpose of the move is to interfere with" the other parent's parenting time, and second, it imposes a "best interest" standard on the ultimate determination. Id., subds. (a), (b). That standard includes several factors: (1) the child's relationship with the parents and others; (2) the child's development and needs; (3) the feasibility of preserving the child's relationship with the nonrelocating parent; (4) the child's preference; (5) whether there is a pattern by the relocating parent to promote or thwart the child's relationship with the other parent; (6) whether relocation will enhance the child and the relocating parent's quality of life; (7) each parent's reasons
for opposing or supporting relocation; and (8) the safety and welfare of the child or relocating parent relating to domestic abuse. Id., subd. 3(b). Finally, the statute places the burden of proof on the parent petitioning to relocate.1 Id., subd. (c). Each factor is discussed in turn:
(1) Child's relationship with parents and other significant persons
The district court found that mother has been the primary caretaker and had the "most significant presence" in the child's life and that father's role, while important, has not been as significant by comparison. The district court also found that the child has significant relationships with family and other friends in California, including cousins and soon-to-be step-siblings. There is ample evidence to sustain these findings. For most of the child's life, father's contact has been two afternoons per week and 24 hours every two weeks.
(2) Age, developmental stage, and needs of the child
The district court found the child was well adjusted and would "not be hindered in her development by a move" to California. Again, the record contains ample evidence supporting this finding. Father objects, emphasizing that the expediter testified that the move would be "traumatic" for the child. Because the expediter admitted that she had neither met the child nor had any personal knowledge of her needs, the district court did not abuse its discretion in disregarding this testimony.
(3) Feasibility of preserving the child's relationship with nonrelocating parent
Based on the record and testimony from the expediter, the district court found that mother would help maintain father's relationship with the child. The record indicates that the parties have had a difficult time agreeing on parenting-time matters and that there is little to support the expectation that mother will endeavor to promote visits with father. The district court, however, noted that the child will continue to see father during scheduled parenting time in Minnesota,2 that the child is accustomed to interstate travel, that mother can accompany the child to Minnesota and temporarily work from her employer's St. Cloud office, that the parties have the resources to pay for such travel, and that the child, although young, has a knack for maintaining long-distance relationships. These facts support the district court's finding that it is feasible for the child to maintain a relationship with father.
Even recognizing that the child's relationship with father is diminished by such a cross-country move, one negative factor does not require rejection of a relocation. 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. See Minn. Stat. § 518.175, subd. 3(b) (describing best-interests test); Clark v. Clark, 346 N.W.2d 383, 385 (Minn. App. 1984) (), review denied (Minn. June 12, 1984).
(4) Child's preferences
The district court found the child lacked the age and maturity to competently express a preference for or against relocation. Father admits this finding "is supportable."
(5) Pattern by relocating parent to promote/thwart child's relationship with other parent
Father testified that mother obstructed parenting time under the 2005 order. Mother and the expediter both testified that mother had not violated the 2005 order. Whether there has been a pattern of bad faith by mother to thwart father's relationship with the child is a fact dispute. Although the record does not provide much evidence to expect that mother will voluntarily facilitate father's informal communications with the child, there is record support for the district court's determination that mother has not exhibited a pattern of bad faith. The district court determined that mother "only rescheduled parenting time on a handful of occasions and has done so pursuant to the parties' agreement" and "rearrange[d] her schedule to accommodate [father's] requests to modify parenting time." On a mixed record, we conclude that the district court's finding regarding this factor was not an abuse of discretion.
(6) Effect on child's quality of life
The...
To continue reading
Request your trial
-
Brevik v. Brevik, A12-2242
...below the statutory 25% presumption. "District courts have broad discretion in deciding parenting-time questions." Hagen v. Shirmers, 783 N.W.2d 212, 215 (Minn. App. 2010) (citing Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995) ("The trial court has broad discretion to determine what is in......