Tishchenko v. Cmiel (In re Marriage of Tishchenko)
| Decision Date | 06 July 2021 |
| Docket Number | A20-1379 |
| Parties | In re the Marriage of: Varvara Viktorovna Tishchenko, petitioner, Respondent, v. Joseph Monroe Cmiel, Appellant. |
| Court | Minnesota Court of Appeals |
This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
Affirmed in part, reversed in part, and remanded
Ramsey County District Court
Carla C. Kjellberg, Kjellberg Law Office, PLC, St. Paul, Minnesota (for respondent)
Nahid Abuelhassan, Abuelhassan Law, P.L.L.C., St. Paul, Minnesota (for appellant)
Considered and decided by Bjorkman, Presiding Judge; Segal, Chief Judge; and Reyes, Judge.
NONPRECEDENTIAL OPINION
Appellant challenges the judgment dissolving his marriage, arguing that (1) the district court abused its discretion by denying his request for joint physical custody and equal parenting time, (2) the district court erred in determining his income for child-support purposes, (3) the district court abused its discretion by denying his request to alternate tax- dependency exemptions, (4) the record does not support the district court's determination that judgments against him are his nonmarital debt, and (5) the district court abused its discretion in allocating the parties' personal property. Because the record does not support the allocation of marital personal property, we reverse in part and remand. But we affirm in all other respects.
Appellant-father Joseph Cmiel and respondent-mother Varvara Tishchenko were married in 2007 and have one child, born in 2009. On March 19, 2018, mother moved out of the marital home, taking the child with her. Shortly thereafter, she obtained an ex parte order for protection (OFP) excluding father from the home. Mother and the child returned to the home, and father moved in with his parents nearby. On May 10, mother petitioned to dissolve the marriage. While the matter was pending, the parties agreed to a temporary arrangement with mother retaining custody of the child (staying in the marital home) and father receiving parenting time one weekday evening, one weekday overnight, and every other weekend. They also agreed to dismiss the OFP.
Before trial, the parties agreed to joint legal custody and to the disposition of certain real estate. But they disputed numerous other issues, including physical custody and parenting time, their incomes for purposes of child support, and the status and allocation of their marital property. After a two-day trial, the district court awarded mother sole physical custody, continued the existing parenting-time schedule, ordered father to pay child support, and divided the parties' property. Both parties moved for amended findings;the court denied father's motion but granted mother's motion, modifying its decision regarding the parties' marital personal property. Father appeals.
A district court has broad discretion in determining custody and parenting time. Goldman v. Greenwood, 748 N.W.2d 279, 282 (Minn. 2008) (custody); Shearer v. Shearer, 891 N.W.2d 72, 75 (Minn. App. 2017) (parenting time). We review factual findings for clear error, giving particular deference to the court's assessment of credibility. Thornton v. Bosquez, 933 N.W.2d 781, 790 (Minn. 2019). We will reverse only if we are "left with the definite and firm conviction that a mistake has been made." Id. (quotation omitted).
When deciding which custody and parenting-time arrangement will serve a child's best interests, the district court must "consider and evaluate all relevant factors," including each parent's history of providing care for the child, each parent's willingness and ability to provide ongoing care, the effect of the proposed arrangements on the child's well-being and relationships, and whether domestic abuse has occurred within the family. Minn. Stat. § 518.17, subd. 1(a) (2020) (listing 12 factors). The court is required to make "detailed findings" explaining "how each factor led to its conclusions and to the determination of custody and parenting time." Id., subd. 1(b)(1) (2020). When domestic abuse has occurred between the parents, the court "shall use a rebuttable presumption" that joint custody is not in the child's best interests. Id., subd. 1(b)(9) (2020).
The district court made extensive and thoughtful findings weighing the statutory best-interests factors. It found that six of them are neutral, one favors father's proposal, and five favor mother's request for sole physical custody and continuation of the existing parenting-time schedule. In particular, the court noted that mother has been the child's almost exclusive caretaker throughout his life, and her central role in fostering the child's emotional and academic development and connection to the child's Russian cultural heritage. The court acknowledged that father has spent more time with the child in the last two years. But because mother continues to be the child's primary caretaker, the court reasoned that equalizing the parties' custody and parenting time would disrupt that arrangement and negatively affect the child. And the court found that father committed domestic abuse against mother, which warrants continuation of a no-contact order.
Father asserts several challenges to the district court's custody and parenting-time decisions. First, he argues that three of the court's factual findings—that the child needs to know extended family on both sides; the child has a stable, attached relationship with both parents and sets of grandparents; and the parties agreed to joint legal custody—favor his request for joint physical custody and equal parenting time. This argument is unavailing. Father does not dispute the numerous findings detailing mother's past and ongoing role as the child's primary caretaker and the importance of maintaining continuity for the child. But he urges us to ignore those findings and focus instead on the three findings stated above—in short, to reweigh the statutory factors. It is not our role to do so. Vangsness v. Vangsness, 607 N.W.2d 468, 475 (Minn. App. 2000) ().
Second, father argues that the district court erred by weighing his history of domestic abuse in mother's favor, pointing to the court's finding that "[m]any of the reasons for the court to consider domestic abuse in this case have been addressed." We agree with father that this finding means that his past abuse of mother does not, in and of itself, preclude joint physical custody. Indeed, the district court determined that the statutory presumption against joint custody was overcome. But the court carefully contextualized that history, finding that a no-contact order between the parties is still warranted. And the district court explained that it awarded mother sole physical custody not because of the history of domestic abuse but because mother has demonstrated her commitment to providing for the child's "routine daily care and control." We discern no abuse of discretion in the district court's consideration of the domestic-abuse factor.
Father next asserts that the district court erred by faulting him for not taking a more active role in caring for the child. He emphasizes the financial support he has provided over the years and asserts that he has been more involved in the child's life since an injury in 2017 reduced his work schedule. We are satisfied that the district court appropriately accounted for father's work. It rejected as "disingenuous" father's contention that mother somehow forced him to work as much as he did. And while the court recognized father's increased involvement with the child in recent years, it found that mother continues to be the child's primary caregiver. This finding is borne out by the parties' testimony, thechild's reading log from December 2017 to March 2018,1 and evidence that father's work schedule continues to be demanding and irregular.
Finally, father characterizes the district court's parenting-time decision as the difference between Monday evenings and Monday overnights, suggesting that the court abused its discretion by denying him the minimal additional time with the child. But he proposed a 5-2-2-5 schedule, which called for frequent switching of the child's overnight placement and significantly more time away from mother than the child is accustomed to. On this record, the district court did not clearly err by finding that disruption is not in the child's best interests.
Gross income for child-support purposes includes self-employment income. Minn. Stat. § 518A.29(a) (2020). Self-employment income is "gross receipts minus costs of goods sold minus ordinary and necessary expenses." Minn. Stat. § 518A.30 (2020). The party seeking to deduct an expense "has the burden of proving, if challenged, that the expense is ordinary and necessary." Id. And the court may exclude any expenses that it determines to be "inappropriate or excessive." Id. We will not disturb a district court's finding on net self-employment income unless it is clearly erroneous. Schisel v. Schisel, 762 N.W.2d 265, 272 (Minn. App. 2009).
Father argues that the district court clearly erred by finding that his self-employment yields him gross monthly income of $9,688. He contends he earns gross income of $3,619, which is the monthly average of the net profit he reported on his 2017 and 2018 income tax returns. Mother disputed the claim that he received only $42,520 in net profit in 2018 and requested documentation of the $85,304 he claimed in "car and truck" expenses during discovery. In response, father provided his American Express credit-card statements, which mother presented at trial as evidence...
To continue reading
Request your trial