Sefkow v. Sefkow

• Decision Date: 15 July 1988
• Docket Number: No. CX-87-403,CX-87-403
• Citation: 427 N.W.2d 203
• Parties: In re the MARRIAGE OF Robert J. SEFKOW, Petitioner, Appellant, v. Paula D. SEFKOW, Respondent.
• Court: Minnesota Supreme Court

Page 203

427 N.W.2d 203

In re the MARRIAGE OF Robert J. SEFKOW, Petitioner, Appellant, v. Paula D. SEFKOW, Respondent.

No. CX-87-403.

Supreme Court of Minnesota.

July 15, 1988.

Syllabus by the Court

1. The trial court's conclusion that the older child of the parties properly belonged with her father was adequately supported by findings of fact and references to the record. The court of appeals exceeded its scope of review when it reversed the award.

2. The trial court erred in modifying custody of the younger child because the non-custodial father failed to meet his burden of proof that it was not in the best interests of the child to move out of state with her custodial parent.

3. Respondent/wife did not demonstrate that her reasonable needs were in excess of her spendable income for the two year period prior to her remarriage. Therefore, maintenance is denied.

4. Appellant/husband is ordered to pay net child support to respondent/wife, based on the disparity in the parties' incomes, in an amount consistent with the child support guidelines set forth in Minn.Stat. § 518.551, subd. 5 5. Respondent is awarded partial attorneys fees on her response to this appeal.

Charles R. Kennedy, and Sally I. Robertson, Wadena, for petitioner, appellant.

Wallace B. Goulet, Jr., and Cynthia Wagner Goulet, Grafton, N.D., for respondent.

Joanne Thatcher Swanson, Family Law Section, Minnesota State Bar Ass'n, St. Paul, amicus curiae.

Heard, considered and decided by the court en banc.

AMDAHL, Chief Justice.

Appellant, Robert J. Sefkow, appeals from a court of appeals decision which reversed a trial court's determination of custody and awarded temporary maintenance, which had been denied by the trial court, to respondent, Paula D. Sefkow.

This marital dissolution proceeding is now in its fourth year and third appeal. Paula Sefkow appealed the original judgment and Decree of Dissolution, filed November 21, 1984, which awarded joint physical and legal custody of the parties' minor children but ordered a split residence arrangement. Minimal maintenance was provided. Sefkow v. Sefkow, 372 N.W.2d 37 (Minn.App.1985) (Sefkow I). The court of appeals reversed, and Robert J. Sefkow petitioned for further review of that decision.

In the meantime, this court decided Pikula v. Pikula, 374 N.W.2d 705 (Minn.1985) and remanded Sefkow I to the court of appeals for further consideration in light of that decision. Sefkow v. Sefkow, 374 N.W.2d 733 (Minn.1985). The court of appeals, in turn, remanded the case to the trial court for determination of the custody of the older child. Sefkow v. Sefkow, 378 N.W.2d 72 (Minn.App.1985) (Sefkow II). Robert Sefkow's petition to include the younger child in the remand proceeding was denied.

Following a remand hearing in August 1986, the trial court awarded permanent physical custody of the older child to her father and modified the custody of the younger child to her father as well. Maintenance was denied.

Paula Sefkow appealed, and once again, the court of appeals reversed, ordering physical custody of both children to their mother and maintenance for a period of two years. Sefkow v. Sefkow, 413 N.W.2d 127 (Minn.App.1987) (Sefkow III).

We reverse the court of appeals' determination of the custody of the older child and the award of maintenance, and we affirm the decision not to modify the custody of the younger child.

Paula and Robert Sefkow were married on September 6, 1969, when both were students at the University of Minnesota. Upon graduation, Robert entered law school at the University of Wisconsin while Paula taught school to support them both.

The couple settled in Fergus Falls in 1974, where Robert began the practice of law and Paula obtained a teaching position. She also pursued a Master's Degree in gifted education which was substantially completed by the spring of 1979.

The parties are parents of two daughters, both adopted as infants. Laura Noelle was placed in the home in August 1979; Joanna Joy joined them in June 1982. Prior to the adoptions, the parties had agreed that both would share in the care of the children; the record shows that each did indeed take an active parenting role with both girls.

Paula resigned from her teaching position when Laura arrived and spent the next two years at home full-time with the infant. Robert's office was three blocks from the family home, and he often came home for lunch, as well as devoting evenings and weekends to the family.

In 1981, the parties mutually agreed that Laura would profit from the Montessori experience, and Paula spent six weeks acquiring that training. During that time, Paula's mother provided live-in babysitting for Laura while Robert was at work; the family spent weekends together. The following school year, when Laura was two, she was enrolled in the Montessori school in Fargo, North Dakota. Paula began an internship in the same school at that time. Mother and daughter commuted the 50 miles to Fargo daily, spending evenings and weekends at home with Robert. Robert also assisted during the early morning hours as the family prepared for the upcoming day.

During the summer of 1982, Joanna Joy was placed in the Sefkow home. The entire family spent that summer at the parties' new lake home about 25 miles from Fergus Falls, within easy commuting distance for Robert. The following fall, Laura was again enrolled in the Montessori school in Fargo; baby Joanna stayed in Fergus Falls in the care of a babysitter during the day. Again, Robert shared the caretaking responsibilities of the children.

By the next summer, the Sefkow marriage began to crumble; it became apparent that divorce was imminent. On September 23, 1983, Robert picked up Joanna from the babysitter, and when Paula returned to the family home from the Fargo Montessori school with Laura, she was served with the Summons and Petition for Dissolution of Marriage.

Until December of that year, Laura and Paula continued to live in the family home; Joanna stayed with her father. In December the parties entered into a stipulation for temporary joint physical custody and joint legal custody. The children were with Paula from Saturday through Thursday and with Robert from Thursday afternoon through Saturday and one other evening during the week; although there were many exchanges between the parents, Laura and Joanna always stayed together.

On September 12-14, 1984, nearly a year after the initial separation, the case was tried, and on October 25, the trial court issued Findings of Fact, Conclusions of Law and Order for Judgment. The court found that "[b]oth parents are competent to be the custodial parent." Further, "[t]he parents have competent parenting skills, are attentive to the best interests of the children, have the capacity and disposition to provide the children with love, affection, and guidance, and can continue to educate and raise them." The court found that Robert had been responsible for the day to day provision of the physical needs, while Paula had assumed a primary role in their education. While Robert was deemed to be a better choice for the sole custodial parent, the court awarded joint physical and joint legal custody of both girls, as defined in Minnesota Statutes § 518.003, subd. 3(b), (d) (1984). Laura's primary residence was designated with her father in Fergus Falls; Joanna's residence was designated with her mother in either Fergus Falls or the Fargo-Moorhead area, where she could attend the Fargo Montessori School. These living arrangements were made contingent on Paula's staying in the area. Liberal visitation between the parents was ordered.

Paula was awarded $1,000 per month as child support for Joanna. Spousal maintenance was denied, except for tuition and books, should Paula elect to pursue a Ph.D. Payments were limited to two years of full time academic studies, to be started within three years of the date of the Judgment and Decree and completed within five years of the initial matriculation date.

Paula appealed, and the court of appeals reversed. Sefkow v. Sefkow, 372 N.W.2d 37 (Minn.App.1985) (Sefkow I) The court of appeals found that "the trial court arbitrarily disregarded the mother's primary parenting role with each of the children." Id. at 43. Further, no support could be found in the findings for the award of split custody and the alternative award of sole custody to the father. Id. at 44. The court of appeals emphasized the trial court's findings that both parents had competent parenting skills, had the capacity to provide the children with love and guidance, and were competent to be the custodial parent.

The court of appeals noted that Laura had been with her mother almost constantly for four and one-half years, including the first two years of her life when Paula did not work outside the home in order to be with her child. Id. at 45. The court stated: "The trial court's findings erroneously omit the subject of Paula Sefkow's daily parenting role, except as to schooling and mention only the activities of respondent." Id.

The court of appeals further noted the statutory preference for allowing siblings to reside together. Id.; see Minn.Stat. § 518.17, subd. 1(c). Therefore, the judgment was modified to place both Sefkow children with Paula. The joint physical custody description of the trial court was recast in a traditional award of sole physical custody to Paula, subject to reasonable visitation rights of the father. Id. at 47.

The trial court's order had expressly conditioned Joanna's custody with Paula on her remaining in the Fergus Falls/Fargo area. Robert had expressed concern that Paula's prospective educational plans would take her some distance away; he contended that for that reason, she should not have custody. The court of appeals dismissed this claim as seriously disturbing the balanced scheme of law. "[U]nnecessary limits on movement of the family unit unlawfully interfere with the stable...