LaChapelle v. Mitten

• Decision Date: 14 March 2000
• Docket Number: No. C5-99-1304.,C5-99-1304.
• Citation: 607 N.W.2d 151
• Parties: In re the Matter of Mark LaCHAPELLE, petitioner, Respondent, v. Denise MITTEN, Appellant, In re the Custody of L.M.K.O., Valerie Ohanian, petitioner, Respondent, and Denise Mitten, Appellant, and Mark LaChapelle, Respondent.
• Court: Minnesota Court of Appeals

607 N.W.2d 151

In re the Matter of Mark LaCHAPELLE, petitioner, Respondent, v. Denise MITTEN, Appellant,

In re the Custody of L.M.K.O., Valerie Ohanian, petitioner, Respondent, and

Denise Mitten, Appellant, and

Mark LaChapelle, Respondent.

No. C5-99-1304.

Court of Appeals of Minnesota.

March 14, 2000.

Review Denied May 16, 2000.

Mary Madden, Madden Law Offices, Minneapolis, for respondent LaChapelle.

Christopher D. Johnson, Best & Flanagan, Minneapolis, for respondent Ohanian.

Gary A. Weissman, Weissman Law Office, and Susan Rhode, Moss & Barnett, Minneapolis, for appellant Mitten.

Rosanne Nathanson, Leonard, Street & Deinard, Minneapolis, guardian ad litem for child. Considered and decided by HALBROOKS, Presiding Judge, LANSING, Judge, and SHUMAKER, Judge.

OPINION

SHUMAKER, Judge.

Appellant Denise Mitten gave birth to a child as a result of artificial insemination from sperm donated by respondent Mark LaChapelle. Mitten and her partner, respondent Valerie Ohanian, agreed with LaChapelle and his partner as to custody and visitation of the child. When Mitten and Ohanian severed LaChapelle's visitation with the child, LaChapelle commenced paternity proceedings. When Mitten and Ohanian later terminated their relationship, the parties commenced various proceedings to determine custody and visitation rights.

After trial, the court determined physical and legal custody, visitation rights, and financial issues, and denied Mitten's motion to change the child's surname.

On appeal, Mitten contends that the court abused its discretion by granting her sole physical custody on the condition that she and the child reside in Minnesota, granting joint legal custody to her and Ohanian, apportioning trial fees equally among the parties, requiring her to pay certain travel expenses for visitation, refusing to award additional past child support, and denying her motion to change the child's surname. We hold that the trial court did not abuse its discretion as to its awards and determinations. Therefore, we affirm.

FACTS

Mitten and Ohanian were lesbian partners. LaChapelle was in a gay partnership with another man. The four met in 1990 to discuss the possibility of conceiving and raising a child. They agreed in writing that LaChapelle would donate sperm for the artificial insemination of Mitten, that LaChapelle would have no parental rights, and that Mitten would not hold him responsible for the child. Mitten became pregnant in April 1992.

In May 1992, the four signed another agreement stating that Mitten and Ohanian would have physical and legal custody of the child and LaChapelle and his partner would be entitled to a "significant relationship" with the child. The child, L.M.K.O., was born January 4, 1993.

After L.M.K.O.'s birth, Mitten and Ohanian petitioned for adoption. On the petition they identified the father as "artificial insemination" and did not inform the court of the donor's identity or of the parties' various agreements. The court granted the adoption in September 1993.

LaChapelle visited L.M.K.O. regularly until August 1994, when Mitten and Ohanian terminated visitation. LaChapelle then moved the court to vacate the adoption, alleging fraud on the court for failure to disclose the parties' agreements. The court vacated the adoption. In August 1995, LaChapelle filed an affidavit with the court stating his intention to retain parental rights. He then filed a petition to adjudicate paternity. The court granted Mitten temporary custody of L.M.K.O.

Mitten and Ohanian ended their relationship in the spring of 1996. Later, Mitten requested the court's permission to move with L.M.K.O. to Michigan for employment reasons. At the same time, Ohanian petitioned for custody. The court granted Mitten's request pending further proceedings, ordered blood tests in the paternity action, and granted Ohanian's motion to consolidate her custody petition with LaChapelle's paternity petition.

Mitten moved to Michigan with L.M.K.O. in October 1996. The court granted visitation rights to Ohanian and LaChapelle while L.M.K.O. was in Michigan. One month they would fly to Michigan and visit with L.M.K.O. for three or four days. The next month L.M.K.O. would fly to Minnesota to visit them. The court adjudicated LaChapelle to be L.M.K.O.'s biological father in June 1997, but allowed Mitten to retain interim custody. The court then ordered a custody and visitation evaluation, joined L.M.K.O. in the action, and appointed a guardian ad litem for her. In November 1997, the court ordered LaChapelle to pay past and future child support.

After a trial in February 1999, the court awarded sole physical custody of L.M.K.O. to Mitten on the condition that Mitten provide a permanent residence for L.M.K.O. in Minnesota. The court found that the parties had agreed before trial that Mitten and Ohanian would have joint legal custody of L.M.K.O., and the court ruled that such custody was in L.M.K.O.'s best interests. The court made awards of visitation, child support, and expenses for the daycare, medical, and dental needs of L.M.K.O.; denied Mitten's request to change L.M.K.O.'s surname; and apportioned trial fees evenly among the parties.

Mitten appeals the grant of joint legal custody, conditional sole physical custody, the final awards, and the denial of the name change. She seeks need-based attorney fees and moves to strike parts of Ohanian's brief and appendix.

ISSUES

1. Did the trial court err in finding that Ohanian had standing to seek custody of L.M.K.O.?

2. Did the trial court abuse its discretion in granting joint legal custody to Mitten and Ohanian?

3. Did the trial court abuse its discretion in conditioning the grant of sole physical custody to Mitten on her moving back to Minnesota from Michigan?

4. Did the trial court abuse its discretion in evenly apportioning trial costs among the three parties?

5. Did the trial court abuse its discretion in requiring Mitten to pay visitation expenses for L.M.K.O. to visit LaChapelle and Ohanian in Minnesota?

6. Did the trial court abuse its discretion in refusing to grant Mitten additional past child support?

7. Did the trial court abuse its discretion in refusing to change L.M.K.O.'s surname upon Mitten's motion?

8. Is Mitten entitled to attorney fees on appeal?

9. Should this court grant Mitten's motion to strike portions of Ohanian's brief and appendix?

ANALYSIS

The court's "paramount commitment" in all matters involving court-established relationships of a child is the best interests of the child. Olson v. Olson, 534 N.W.2d 547, 549 (Minn.1995). "The trial court has broad discretion to determine matters of custody." Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn.1989). Review of custody determinations "is limited to whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law." Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn.1985). "The trial court's findings must be sustained unless clearly erroneous." Id.

1. Standing of a non-parent

Mitten argues that Ohanian does not have standing to seek custody of L.M.K.O. because: (1) Minn.Stat. § 518.156 (1998), which permits custody petitions by a third person, does not apply here because chapter 518 is the Marriage Dissolution Act, and here there was no marriage; and (2) therefore Ohanian would have had to bring her petition for custody under chapter 257, the Parentage Act, which speaks only to biological mothers and father. Because Ohanian is not a biological mother, Mitten argues, she has no standing under Minnesota law to seek custody of L.M.K.O.

Standing to seek custody under chapter 518 is conferred by Minn. Stat § 518.156. See In re Custody of E.A.Q.D., 405 N.W.2d 262, 264 (Minn.App.1987)

(addressing standing to seek custody under Minn.Stat. § 518.156). Under the statute, a custody proceeding may be commenced "by a person other than a parent" under certain circumstances. Therefore, the fact that Ohanian is not L.M.K.O.'s biological parent does not preclude her from seeking custody of L.M.K.O. The circumstances under which a non-parent may seek custody are defined as situations "where a decree of dissolution or legal separation has been entered or where none is sought[.]" Minn. Stat. § 518.156, subd. 1(b). Here, because the parties were not seeking a dissolution decree, Ohanian could start a custody proceeding "by filing a petition or motion seeking custody[.]" Id. Because this is what Ohanian did, the district court did not err in ruling that she had standing to seek custody.

The statute is clear on this point; therefore, we need not, and cannot, look beyond its plain language. See Minn.Stat. § 645.16 (1998) (stating "[w]hen the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under pretext of pursuing the spirit"); Phelps v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 274 (Minn. 1995) (stating "[w]here the intention of the legislature is clearly manifested by plain unambiguous language * * * no construction [of the statute] is necessary or permitted"). Because this court is limited in its function to correcting errors it cannot create public policy. Thus, in the face of clear statutory language, Mitten's policy arguments must fail. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn.1988)

(reversing court of appeals, noting "[t]he function of the court of appeals is limited to identifying errors and then correcting them").¹ The wisdom of allowing non-parents to seek custody of a child is not relevant to whether such persons have standing to do so. See, e.g., Blanche v.1995 Pontiac Grand Prix, 599 N.W.2d 161, 169 (Minn.1999) (Stringer, dissenting) (stating "[w]e have long recognized that `[c]ourts have nothing to do with the wisdom or expediency of statutes. The remedy for unwise or inexpedient legislation is political and not judicial'") (quoting Hickok v....