Opinion
No. C3-02-2110.
Filed July 22, 2003.
Appeal from the District Court, Wright County, File No. F7991819.
John C. McIntosh, McIntosh Law Office, (for appellant)
Richard D. Clough, (for respondent)
Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Hudson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant-father Jack Jay Korthof challenges the district court's refusal to modify sole physical custody from respondent-mother Betty Grace Korthof to joint physical custody, claiming that integration occurred from mother's household to an equal division between mother's and father's households and that the children were endangered under the visitation schedule in the original dissolution order. Because we find no clear error in the district court's factual findings, and the district court properly applied the law, we affirm.
FACTS
Mother and father dissolved their marriage in February 2000. The parties' dissolution order granted the parties joint legal custody of their two minor children, D.K. and V.K., and awarded sole physical custody to mother. The dissolution order awarded father visitation Tuesday and Thursday evenings, every other weekend, agreed-on holidays, and two one-week periods of uninterrupted vacation time each year for each parent. In addition, the dissolution order allowed father "additional periods of visitation with the minor children of the parties at times mutually agreed upon." From approximately February until October 2000, the parties attempted to adhere to the original visitation schedule. Both parents observed that the children did not like this arrangement because they were being "bounced back and forth" every other day. Mother thought the children needed consistency and time to adjust and resisted efforts by father to alter the visitation schedule. The parties communicated mainly in writing because they were unable to talk about the children without fighting.
Father wrote mother several times regarding the children's concerns with the visitation arrangement. In a few of these letters, father attached a copy of a proposed visitation schedule drafted by V.K. Mother was not receptive to the idea of changing the visitation schedule and consistently rejected the proposed schedule. D.K. spent nearly the entire month of September 2000 with father. During late October 2000, mother wrote to father suggesting a trial period of the proposed visitation schedule for two months.
The new visitation schedule allowed father visitation Monday and Tuesday of every week, while the children stayed with mother Wednesday and Thursday of every week. The parties alternated weekends, so that on father's weekend, the children stayed with him Friday through Tuesday; on mother's weekend, the children stayed with her Wednesday through Sunday. The parties have successfully utilized this visitation schedule since November 2000.
Father brought a motion in May 2002, seeking a change in physical custody from sole to joint custody and a subsequent reduction in the amount of child support he was obligated to pay. The district court determined that father was entitled to an evidentiary hearing on the issue of the parties' physical-custody arrangement. The district court held an evidentiary hearing in September 2002. In October 2002, the district court filed an order, finding that father did not meet his burden under section 518.18 of showing an entitlement to a modification of physical custody. The court also found that the revised visitation schedule allowed for a more equal division of visitation between the parents with fewer interruptions, the children were unhappy with the original visitation schedule but are pleased with the current arrangement, and school performance and attendance have returned to their former levels.
Moreover, the court found that the best interests of the children would not be served by modification of physical custody because the original decree permits and encourages the parties to agree to other visitation, as they did here. The court found that because the parties have difficulty communicating, because father has previously physically abused mother, and because mother objects to a change in physical custody, the court could not conclude that granting father's motion would be in the children's best interests. Finally, the court found that no integration had occurred, despite mother's consent to alter the visitation schedule because the original order allowed the parties to mutually agree upon additional visitation time. This appeal followed.
DECISION I
This court's role in reviewing child-custody determinations is limited to determining whether the district court improperly applied the law or abused its discretion by making factual findings unsupported in the record. Frauenshuh v. Giese, 599 N.W.2d 153, 156 (Minn. 1999). We must uphold a district court's findings of fact unless those findings are clearly erroneous. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). We defer to the district court's unique ability to assess witness credibility. Id.
Section 518.18(d) (2002) governs the modification of child custody and provides, in relevant part:
[T]he court shall not modify a prior custody order * * * unless it finds * * * that a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child. In applying these standards the court shall retain the custody arrangement * * * unless:
(i) the court finds that a change in the custody arrangement * * * is in the best interests of the child * * * ;
(ii) both parties agree to the modification;
(iii) the child has been integrated into the family of the petitioner with the consent of the other party; or
(iv) the child's present environment endangers the child's physical or emotional health or impairs the child's emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.
Minn. Stat. § 518.18(d). "Section 518.18 unambiguously provides that the endangerment standard applies to parties seeking a modification of an award of sole physical custody." Frauenshuh, 599 N.W.2d at 158 (interpreting child custody modification statute). In Frauenshuh, the court explained that there can be different standards for modifying joint and sole physical custody and that these different standards are meant to "impart a measure of stability to custody determinations in most circumstances." Id. (quotation omitted). Finally, "joint physical custody is not preferred." Nolte v. Mehrens, 648 N.W.2d 727, 731 (Minn.App. 2002) (citations omitted).
Father contends that he is entitled to modification of custody under section 518.18(d)(iii) because the children no longer spend the majority of their time with mother but rather divide their time equally between both parents; thus they have been integrated into father's home. Therefore, father claims, the parties now have de facto joint custody, and he is presumptively entitled to a Hortis/Valento calculation of his child-support obligation. Father relies on a series of child-support cases that held that joint custody is determined by the percentage of time the child spent with each parent and that a 60/40 split was generally indicative of a joint-custody arrangement. But since the supreme court's reversal of this court's Rogers opinion, recent cases have focused the characterization of the custody arrangement on the initial custody designation; regardless of the time the child actually spends with either parent. See, e.g., Nolte v. Mehrens, 648 N.W.2d at 730 (citing Ayers v. Ayers, 508 N.W.2d 515, 520 (Minn. 1993)) (whether physical-custody arrangement is properly characterized as joint custody such that Hortis/Valento formula presumptively applies depends on district court's description of the physical-custody arrangement); Blonigen v. Blonigen, 621 N.W.2d 276, 281 (Minn.App. 2001), review denied (Minn. Mar. 13, 2001).
See, e.g., Rumney v. Rumney, 611 N.W.2d 71 (Minn.App. 2000); Rogers v. Rogers, 606 N.W.2d 724 (Minn. App. 2000), rev'd in part, aff'd in part, 622 N.W.2d 813 (Minn. 2001); Tweeton v. Tweeton, 560 N.W.2d 746 (Minn.App. 1997), review denied (Minn. May 28, 1997).
Section 518.18(d)(iii) also requires the other party's consent to the integration. Here, father further asserts that mother consented to the integration as evidenced by her October 2000 letter suggesting a "trial period" of two months for the new visitation schedule, and her ultimate acceptance of the revised visitation schedule. But "it is error to examine consent in terms of the custodial parent's subjective intentions." Gibson v. Gibson, 471 N.W.2d 384, 386 (Minn.App. 1991), review denied (Minn. Aug. 12, 1991). Rather, "the primary aim of the court is to protect the child's interests, not to secure fairness for the parents." Id. Even if we were to examine mother's subjective intentions, the record suggests that mother consented to expanded visitation as contemplated by the original order — not to integration/joint custody. Notably, father fails to even acknowledge the clause in the original dissolution order that allowed for additional visitation as agreed on by the parties. This clause was the basis for the district court's denial of change in the physical custody label, and we see no clear error in its decision.
II
The district court also found that father did not sustain his burden of demonstrating endangerment in order to justify a change in the physical custody label. See e.g., Minn. Stat. § 518.18(d) (iv) (requiring showing of endangerment in present environment or harm of change outweighs possible benefit to child); Frauenshuh, 599 N.W.2d at 158 (endangerment standard applies in sole-physical-custody modification proceedings).
Endangerment in a child-custody proceeding is determined "on the particular facts of each case." Sharp v. Bilbro, 614 N.W.2d 260, 263 (Minn.App. 2000), review denied (Minn. Sept. 26, 2000) (quotation omitted). Endangerment requires "a showing of a significant degree of danger." Id. (quotation omitted). Significantly, the present environment must pose a threat to the child's physical or emotional health and the harm caused by the change in custody must be outweighed by the benefit to the child. Hassing v. Lancaster, 570 N.W.2d 701, 702 (Minn.App. 1997). In a custody-modification proceeding, the court must consider the circumstances of the "judicially approved environment," as well as those in which the child is found. See e.g., id. at 703 (court must consider child's past and present circumstances). Entitlement to an evidentiary hearing on a motion to modify custody under the endangerment standard requires a prima facie showing of endangerment. See, e.g., Niemi v. Schachtschneider, 435 N.W.2d 117, 119 (Minn.App. 1989) (stating "striking evidence" on child's best interests not sufficient showing of endangerment).
Father contends that the children were endangered at the time of the last custody order, that is, the original dissolution decree. Further, father urges this court to find endangerment from February through October of 2000, even though the record shows, and both parties agree, that the children have adapted to their current environment.
Father's argument is misplaced. As previously mentioned, father must show endangerment in order to succeed in a custody modification proceeding. Frauenshuh, 599 N.W.2d at 158. But father focuses entirely on the children's difficulties prior to the November 2000 alteration of the visitation schedule. Since then, the parties have resolved the visitation conflict within the bounds of the original dissolution order and father is hard-pressed to show endangerment under the current visitation schedule. See, e.g., Sharp, 614 N.W.2d at 263 (stating high threshold for endangerment in child-custody proceedings). Counsel for father conceded as much at oral argument. But even under the original visitation schedule, nothing in the record demonstrates that the children were subject to a significant degree of danger warranting a finding of endangerment under section 518.18(d)(iv). For these reasons, we affirm the district court's decision.