All posts by Arrigoni Law

Barton v. Barton

Barton v. Barton

In Barton v. Barton, A13-0921 (Mar. 10, 2014), the Court of Appeals upheld the district court’s division of assets, allocating all the equity in the homestead to the wife. The parties had been married for seventeen years, and, at the time the wife sought a divorce, she was a registered nurse while her husband was and unemployed as a result of a work-related injury; he was receiving social security (SSI) and workers’ compensation benefits. The parties agreed that the wife would have full legal and physical custody of their two children.

The wife had inherited money from several relatives, and she used a significant amount of her inheritance to buy the parties’ homestead. The court applied the Schmitz formula; this formula calculates the current value of a party’s nonmarital interest in a homestead that the party purchased during marriage by dividing the equity at the time of the purchase by the value at the time of the purchase and then using that figure to determine the value at the time of the divorce. Any remaining amount is marital property. Because the wife’s nonmarital interest in the homestead was more than the net equity in the home, the court awarded the wife the homestead and divided the remainder parties’ marital property equally.

On appeal, the Minnesota Court of Appeals held that the wife’s nonmarital share of the property included not only the inherited money used for the purchase but also included nonmarital funds paid toward the mortgage when the homestead was refinanced.   The court also rejected the husband’s argument a $16,000 increase in the value of the homestead should have been classified as marital property. The court held that there was no evidence that marital funds had been used to improve the property. .

The fact that the parties owned the homestead as joint tenants did not abolish the nonmarital share of the home. The court held that the nonmarital share is only extinguished if there is evidence that the spouse intended to donate the nonmarital share to the marriage so that it becomes marital property

The court also held that the district court did not abuse its discretion in not finding that the husband suffered an undue hardship from failing to allocate some or all of the nonmarital property to the husband. Under Minnesota Statute 518.58, subd. 2, the court can apportion up to one-half of the nonmarital property if the court finds that, otherwise, there would be an undue hardship for either spouse.   The Minnesota Court of Appeals held that the statute does not require the court to evaluate whether either party would suffer any undue hardship. Here, although the district court found that the husband, due to his disability, would be unlikely to obtain employment in the future, it also found that both spouses earned too little to meet their monthly expenses or maintain their pre-dissolution standard of living.

Although the homestead was the principal issue, the Court of Appeals also rejected the husband’s claim to half of his wife’s retirement savings, as the district court divided the total of all marital assets, including the retirement savings, in half. Because the husband was on fixed disability benefits, the district court allotted all the marital debt to the wife. Thus, the district court did not abuse its discretion in dividing the assets.

The Court of Appeals also held the district court did not abuse its discretion in reserving the issue of spousal maintenance for the husband until the youngest child was emancipated, as the wife’s monthly expenses were greater than her income. She may be able to afford spousal maintenance when the children are emancipated.

Anyone who is concerned about the division of marital assets in a divorce proceeding should consult with an experienced family law attorney.

Child Custody and Religion

Child Custody and Religion

In Stancek v. Stancek, A13-0179 (Minn. Ct. App. 2014), the Minnesota Court of Appeals affirmed the award of sole legal and physical custody of three young daughters to their father while reversing the limitation that prohibited the children from attending or participating in their mother’s church.             The parents had both belonged to the same church, the Word of Life Church, during the marriage, and the mother’s mother and brother were pastors there. When the parties separated, the Church prohibited the father from attending the church and attending school events even though their oldest child attended kindergarten there at the time.

Under Minnesota law, child custody decisions are to be based on the child’s best interest, and courts are to consider thirteen factors in making that determination. Minn. Stat. Section 518.17 In addition, when the party seeks joint physical and/or legal custody, there are four additional factors: the parents’ ability to cooperate in raising the children; methods of dispute resolution for major decisions regarding the children and the parties’ willingness to use them; whether it would be detrimental if one child had sole authority of the child; and whether there has been domestic abuse. Minn. Stat. Section 518.17, subd. 2 (a)-(d).

Although the statute provides for a rebuttable presumption in favor of joint legal and physical custody, the court found that the record supported the court’s findings that joint custody was not appropriate here. The record indicated that the parties could not agree on anything, not even doctor’s appointments and exchanges of children, much less major decisions. The fact that the parents had agreed on the appointment of a parenting consultant was not sufficient to show that joint custody was workable, as the parties had previous used third-party decision-makers without success.   Two custody evaluations had been conducted, one by a court-appointed evaluator and one by an independent evaluator paid by the mother, and neither evaluator endorsed joint custody.

The Court of Appeals thus held that the district court’s award of sole custody rather than joint custody was not an abuse of discretion, given the extreme animosity between the parents, even though the court could also have awarded joint custody. To prevail, the mother needed to show that the district court abused its discretion; simply showing that the record could also support joint custody was not sufficient to show the court abused its discretion

The Court of Appeals also rejected the mother’s claim that sole custody should have been given to the mother, who had been the children’s primary caregiver during the marriage and was a fit parent. The court held that the district court acted within its discretion in awarding sole custody to the father, emphasizing that there is no presumption in favor of the primary caregiver. The district court had specifically found that the father was “marginally better than mother” at including the noncustodial parent in the children’s life.   The district court had emphasized that the mother had used the church to restrict the father’s access to the children. The Court of Appeals found that the references to the church did not indicate a bias against the church but reflected concern over the limitation of access to the children, nothing that the father now attends a church with similar religious teachings.

The Court of Appeals did find that the evidence did not support the court’s finding that the actions of the mother’s parents and other church members made it impossible for the court to permit the children to remain part of the Word of Life congregation.            The court noted that the temporary custody order had allowed both parents to take the children to their churches, and there was no evidence this harmed the children. Thus, the court found the restrictions on the children attending the Word of Life church or its daycare facility were unsupported and reversed.

The mother had argued that her right to free exercise of religion and the establishment clause of the United States and Minnesota Constitution had had been infringed, and the Faith & Freedom Fund, Inc. had filed a friend of the court brief in support of her argument. The Court of Appeals found the establishment clause argument was not preserved by the parties, and, because it eliminated the limitation on the children attending or being a part of the Word of Life Church, it did not address the free exercise of religion argument, as she would be able to take her children with her to the church.

For any child custody dispute, you should contact an experienced family law practitioner.

Court Holds that a Mother’s Educational Neglect Support a Change in Custody

Court Holds that a Mother’s Educational Neglect Support a Change in Custody

In Higgins v. Higgins, A12-2127 (Minn. Ct. App. Jan. 27, 2014), the Minnesota Court of Appeals affirmed the district court’s decision granting the father primary physical custody of his young daughter in large part because of the child’s excessive tardiness and absenteeism while in her mother’s custody, with the parties sharing joint legal custoday.

The appellate court held that the district court had not erred in finding that there was a significant change in circumstances since the mother was given custody, as required by the statute for modification of child custody, Minnesota Statute 518.18. The appellate court found that the there was evidence that the child had significant problems in attendance at school when in her mother’s custody and that her mother had difficulty in complying with the previous agreement on parenting time. The district court had found that the mother had educationally neglected her daughter, by allowing her to miss school and come to school late on numerous occasions.

The district court also considered the thirteen statutory factors for consideration in determining the best interest of the child for the purpose of child custody. Minnesota Statute 518.17. It found that six factors favored neither parent; those factors were the parents’ wishes regarding custody; the reasonable preference of the child if the child is old enough to express a preference; the closeness of each parent’s relationship with the child; the ability and willingness of the parents to give the child love, affection, and guidance and to raise the child in the child’s culture or religion; the child’s cultural background; and the effect on the child of domestic abuse. It also found that the mother’s background as the child’s primary caretaker favored her, but found that six other factors favored the father, including the child’s relationship with a sibling, the child’s adjustment to home, school, and community, the length the child has lived in a stable, satisfactory environment; the permanence of the family unit; and the mental and physical health of all individuals involved.

The court noted that the father was in a long-term (five year) relationship with a woman with whom he had a three year old child. The court found the fact this young child had a good attendance record at pre-school was a positive factor in favor of the father. The court also noted that the mother had physical and psychological ailments that raised questions about the stability of the child’s home environment. The court also noted that the mother had difficulty in providing the father with parenting time, but the father did not indicate that he would have any problems with cooperating with the mother’s visitation. Further, the appellate court held that the child would have a better opportunity for success in both academics and development if the father had custody.

The mother had argued that the father’s criminal history was a significant factor supporting her custody of the child. However, the court noted that the criminal history involved a sexual offense that occurred when he was thirteen, and that the district court had considered that evidence. Further, the guardian ad litem had recommended the father have physical custody.

Anyone who is considering moving for changing an order regarding child custody should consult with an experienced family law attorney.

Modifying Child Support and Spousal Maintenance, and Awarding Attorneys’ fees

Modifying Child Support and Spousal Maintenance, and Awarding Attorneys’ fees

The recent case of Ferris v. Szachowicz, #A12-2154, A13-0558 (Minn. Ct. App. Dec. 2, 2013) dealt with an ex-husband’s effort to reduce the amount of spousal maintenance and child support because his business, plastic surgery, allegedly suffered in the economic downturn. Because the statute provides for reducing spousal maintenance because of changed circumstances, he argued that the reduction in plastic surgeries, the recession, increasing tax arrearages, and business loan debt met the statutory criteria for changed circumstances.

The Court of Appeals began by noting that, on motions to modify child support, the court has broad discretion and its decision will only be reversed if it is against both the facts in the record and logic. Using this standard the court affirmed the district court’s decision. Finding it was supported by the record and the law. The court held that the district court acted within its discretion in calculating the husband’s income using a four-year average although the wife argued that including 2007 income was unreasonable. In this case, the husband had wanted to use a five-average and the wife preferred a three-year average, so the court’s decision to use a four-year average actually split the difference in the party’s position. The court noted that it would not include 2011 income because the data was incomplete. Although the wife argued that the income was on an upward trajectory, so included the year 2007 pulled the average down too far, the court held that the district within its discretion in choosing a time range for calculating an average when income fluctuates.

The court affirmed the district court’s decision denying the ex-husband’s first motion to modify spousal maintenance. Under Minnesota Statute 518 Section 39A, subd. 2 (2013), a party needs to show both a substantial change in circumstances and that the changed circumstances render the existing award both unreasonable and unfair. The court found the district court was within its discretion to find that the ex-husband failed to show a substantial change in circumstances because he did not produce loan documents to support his testimony about loan repayments.

The court then affirmed the district court’s decision granting the ex-husband’s second motion to modify spousal maintenance, finding the court made a correct decision despite procedural flaws. The court found that using a second motion to make the decision was an incorrect procedure because of the legal doctrine of res judicata. Nonetheless, the court found that the court could consider the evidence that should have been submitted with the first motion because rulings on support are not final decisions, and courts are required to respond to individual circumstances. The court emphasized that there had been substantial changes in the husband’s income from the time when the support order was first entered, so that the income was inadequate to support the parties’ lifestyle during marriage. The court also noted that the ex-wife was not working to her potential, in determining that continuing maintenance at the existing level was both unfair and unreasonable.

The court also upheld the district court’s denial of need-based attorney fees, provided in Minnesota Statute Section 518.14, subdivision 1 (2013). Although the court is required to consider the statutory factors, the lack of specific findings on each factor is not sufficient to reverse the decision as long as the decision indicates that the record included the parties’ finances and the court considered the relevant factors. The court noted that the district court had indeed made many findings on the parties’ finances, and had found that the wife had the ability to earn $42,500 annually, if she worked full-time.

The court also upheld the denial of attorney fees based on the husband’s conduct. Under the same fee provision, the court has discretion to award attorney’s fees on a party who unreasonably increases the length or expense of the proceeding. The court held that it was within the trial court’s discretion to consider the fact that the ex-wife’s refusal to agree to the appointment of “a neutral” in determining that her actions also increased the length or expense of the proceeding. Further, the ex-husband’s discovery requests related to the statutory grounds for modification, so they were not unreasonable.

Anyone who is considering moving for additional or reduced spousal maintenance should consult with an experienced family law attorney.

Stutler v Moreno

Stutler v Moreno

In Stutler v. Moreno, A13-0056, A3-0460 (Minn. Ct. App. Feb. 3, 2014), the Minnesota Court of Appeals issued several significant decisions regarding modifications of child support and spousal maintenance, including retroactive child support and child maintenance, life insurance requirements, and imputing spousal income.

Retroactive child support and spousal maintenance: The court held that an award of retroactive child support and spousal maintenance was impermissible. In this case, the court had reserved spousal maintenance and child support because the husband was unemployed at the time of the court order. Here, the husband began his new job on October 2nd, and the wife did no object to this employment and requested child support and spousal maintenance on November 18. The court held that child support and maintenance would begin on November 18, the day of the request, denying any child support and maintenance for the period prior to November 18th.

Child support in excess of guidelines: The court remanded the child support award because it was in excess of the net basic support guidelines and lacked the required findings for any child support in excess of those guidelines. The court held that the statute, Minnesota Statute 518A.43, sudivision 1(1) 58A.43, requires the court to consider factors including (1) each parent’s earnings, income and resources; (2) any extraordinary financial needs and resources, physical or emotional condition, and educational needs of the children; and (3) the standard of living the child would enjoy if the parents lived together. As a result, the district court was required to reconsider the child support award and issue specific findings.

Life Insurance: The court also reversed the district court’s order requiring the father to maintain $750,000 in life insurance. He had $200,000 in life insurance, as required by the original dissolution order, and obtained another $462,000 in life insurance from his employer, for a total of $662,000, leaving a balance of $88,000. The court held that the district court is required to make findings regarding the availability, insurability, and cost of insurance, and, reduce the insurance required, to “that available at a reasonable rate.”

Modification: The court upheld the district court’s decision granting the ex-wife’s motion to modify spousal maintenance and child support in light of the ex-husband’s new employment. Under Minnesota Statute 518.39A, subdivision. 2 (2013), a party needs to show both a substantial change in circumstances and that the changed circumstances render the existing award both unreasonable and unfair. The court held that a change in the circumstances of one party can be sufficient to justify a modification.

The court rejected the husband’s argument that the modification was beyond the parties’ marital standard of living. The husband had earned over $300,000 annually before the separation, but his income had declined to $140,000 when he started a new job in October 2011. However, by August 2012, he had started new employment paying $228,000 annually with a signing bonus and other potential bonuses. The court held that the district court did not abuse its discretion in finding that the earlier award of maintenance did not reflects the parties’ marital standard of living. However, the court found that the trial court erred in considering evidence from mediation regarding the parties’ marital standard of living without consideration of the mediation evidence although it could reopen the record for additional evidence.

The court held that the district acted within its discretion by awarding spousal maintenance of $6,500 base amount plus 25% of gross income, including cash bonuses earned over $228,000, up to a maximum of $20,000. The court noted that the bonuses had not been included in the base maintenance, and the ex-wife’s reasonable needs included parenting the parties ‘child with Down Syndrome, and the parties’ marital standard of living, as well as the cap on the amount and the fact it was contingent on the funds being paid.

The court did find that the district court erred in ‘calculating the father’s ability to pay the excluding the $668.97 monthly payment that the father paid for TEFRA, a form of medical assistance for children with disabilities. The court that this expense was so substantial that it could not be excluded.

Imputing income to an ex-spouse: The court upheld the trial court’s determination that, in calculating spousal maintenance and child support, $6,000 annual income would be imputed to the ex-wife. Although a vocational expert had found that she could earn $22,000, the court found that her responsibilities for caring for her eleven year old child with Down Syndrome precluded such full-time employment. However, the court rejected the ex-wife’s argument that no income should be imputed, noting that she could work at least four hours a day, given the child was in school for seven hours a day and also received personal care services.

Attorneys fees: The court also upheld the district court’s denial of need-based attorney fees, provided in Minnesota Statute Section 518.14, subdivision 1 (2013). The wife had $300,000 in her bank account and was expecting to receive $200,000 from the sale of the house. The court did uphold some conduct-based attorneys’ fees.

Anyone who is considering moving for additional or reduced spousal maintenance should consult with an experienced family law attorney.

Parenting Time after One Parent Moves

Parenting Time after One Parent Moves

A move by the custodial parent can cause havoc with visitation schedules, as demonstrated by the Minnesota Court of Appeals in a recent decision, In re Custody of D.M.D., A12-1975 (Minn. Ct. App. Dec. 9, 2013). In this case, the Court of Appeals upheld a decision by the district court to modify the parenting time, decreasing the father’s parenting time during the school year, without holding an evidentiary hearing.

This case involved parents who never married but entered into an agreement for joint legal custody and joint physical custody when the child was about ten years old. The parents had parenting time on alternate weeks, a system that worked well when they both lived in the same metropolitan area. Unfortunately for the father, the agreement did not stipulate that the parents would remain in the same metropolitan area and said nothing about a move by one parent or the other.

Two years later, after notifying the father, the mother relocated to a town about seventy miles away from the metropolitan area and enrolled the child in school at that location. According to the mother, she moved because she could not find affordable housing suitable for her child and their dog in the metropolitan area.

The father moved to change the parenting time during the school year, arguing that he could not afford to drive the seventy miles to visit the child frequently.

The district court modified the parenting time during the school year so that the father had the first three weekends of every month; the parents continued to alternate weeks during the summer. The Court of Appeals held that this change was necessitated by the child’s move to another school district seventy miles away from the father. It was no longer practicable for the parents to have the child on alternating weeks during the school year; the court found that the new school district was too far for the child to live with the father during the school week.

The Court of Appeals noted that the modification of the school year schedule, from alternating weeks to three weekends per month, was a substantial change in parenting time, but held that a hearing was not necessary, as there was not even a suggestion of any actual harm to the child.   In Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. Ct. App. 2001), the court had held that an evidentiary hearing is required for substantial modifications of visitation if there is a prima facie showing that visitation would likely endanger the child, either physically or emotionally. Because there was no such showing of harm in this case, and the purpose of the district court order was to accommodate the child’s school schedule and not to thwart the father’s visitation with his child, there was no need for an evidentiary hearing in this case.

This decision makes clear the importance of obtaining good legal advice in drafting an agreement regarding custody. The court noted that the decision might have been otherwise had the agreement contained a stipulation requiring the parties to remain in the same metropolitan area absent court approval. By the time the case was heard by the district court, the child had already begun school in the new school district, and by the time the case was heard by the Court of Appeals, the child had already been attending school in the new school district for more than a year (fourteen months).

Anyone who needs a child custody or parenting time agreement should consult with an experienced family law attorney before entering into such an agreement.

ALLOCATING THE VALUE OF THE FAMILY HOMESTEAD

ALLOCATING THE VALUE OF THE FAMILY HOMESTEAD

One contentious issue that arises in divorce proceedings is the division of the value of the homestead, the family home.   While often, the parties purchase the homestead during the marriage with marital property, allowing for an even 50/50 division, there many instances in which one party already owns a home at the time of the marriage, so there is nonmarital equity in the home from the outset.

In Mahowald v. Mahowald, A12-2243 (Minn. Ct. App. Sept. 9, 2013), the Minnesota Court of Appeals upheld the district court’s award of a portion of the current value of the homestead based on her premarital interest in the homestead to the wife. Before the parties were married in 1991, the wife had $7,400 in equity in the home, which amounted to 17.6% of the value of the home. The homestead at issue in Mahowald had been improved by the parties over the course of the marriage; they had added new siding, remodeled the kitchen, and added a new garage/shop. These improvements were marital property.

The district court calculated that 20% of the value of the homestead was attributable to the improvements made during the course of the marriage and, therefore, was marital property. Therefore, the court deducted the 20% of the value of the homestead first, leaving 80%, and then calculated the nonmarital portion owned by the wife as 17.6% of the balance (80%), or 14.08% of the total value of the homestead.

The court rejected the husband’s claim that nonmarital interest had been extinguished when the parties refinanced the home three times, relying on the Minnesota Supreme Court’s decision in Antone v. Antone and Minn. Stat. 518.003, subd. 3 (2013).

In Antone, the Minnesota Supreme Court held that a portion of the increased value of a home attributable to market forces is marital property and rejected the argument that refinancing eliminated marital property. The court explained the so-called “Schmitz rule,” as follows: “The present value of a nonmarital asset used in acquisition of marital property is the proportion the net equity or contribution at the time of acquisition bore to the value of the property at the time of purchase multiplied by the value of the property at the time of separation. The remainder of equity increase is characterized as marital property.” In applying this rule to the facts in Antone, the court said that the net equity at the time of the marriage is nonmarital property as it was acquired before the marriage. Then, when the parties used marital property to pay the mortgage, they created marital equity. The court held that refinancing the homestead did not amount to withdrawing nonmarital equity in the homestead. Thus, the case was remanded to the trial court to determine (1) the fair market value of the homestead on the date of the marriage and also at the dissolution of the marriage and (2) to apply the “Schmitz formula” to determine the marital and nonmarital interests in the homestead.

Anyone who has nonmarital funds invested in a homestead should consult with an experienced family law attorney before entering into a property settlement.

Myhre v. Myhre

Myhre v. Myhre

In Myhre v. Myhre, A12-2276 (Minn. Ct. App. Nov. 12, 2013), the Minnesota Court of Appeals made clear that district courts may reject parties’ stipulated facts but only if the parties are given an opportunity to litigate those facts and that district courts have discretion to choose which expert to accept in valuing businesses.

Rejecting Stipulated Facts without Giving Parties an Opportunity to Litigate those Facts Is an Abuse of Discretion

To reduce the issues to be tried before the court, the parties may enter into stipulations regarding facts. Once the facts are stipulated, the parties cannot withdraw the stipulation without consent from the other party or a judicial finding of good cause for withdrawing the stipulation. However, the parties’ stipulations are not binding on the court; the court may reject the stipulated facts altogether or just in part. If the court rejects the stipulation, the parties are entitled to litigate their claims. Thus, the Minnesota Court of Appeals held that the trial court abused its discretion in rejecting the parties’ stipulation that the mother’s income was $50,000 annually and calculating spousal maintenance and child support, finding that the mother’s income was lower than the stipulated income.

The court held that, before reaching a finding that the stipulation as to the mother’s income was not fair and reasonable, the court needed to provide both parties with notice, either before or during the trial, that it was considering evidence outside the stipulation regarding the mother’s income and give them the opportunity to litigate the issue by presenting evidence and arguing the issue.

The court also hold that the district court did not make sufficient findings of fact to show it had properly considered the statutory criteria in setting the amount of spousal maintenance. Minn. Stat. 518.552 (2013). Thus, the court must consider the party’s actual or reasonably anticipated income as well as the party’s reasonable expenses. In this case, the court had rejected the parties’ stipulation as to the mother’s income without making a finding as to her actual or reasonably anticipated income. Further, the absence of such a finding leaves the parties without a baseline to use in the future if either party seeks to modify the maintenance award.

Strangely enough, although the district court had rejected the parties’ stipulation as to the mother’s income for the purpose of calculating spousal maintenance, it relied on the stipulation in calculating child support. The Minnesota Court of Appeals held that such use of the stipulation was an abuse of discretion; the district court can accept the stipulation in whole or in part, but it cannot reject the same stipulated fact for one purpose and use it for another. Further, the court also held that, in calculating parental income for the purpose of child support, the district court is required to include spousal maintenance as income for the spouse receiving maintenance.

 

The District Court Acted within Its Discretion in Accepting an Expert’s Valuation of a Business

The Minnesota Court of Appeals affirmed the district court’s findings in valuing the father’s business, holding that the findings of fact regarding valuing an asset will only be set aside if clearly erroneous. The district court had accepted the valuation prepared by a neutral expert, who had been retained by both parties. The father had subsequently retained a second neutral expert, who valued the business at a lower amount.   The first expert had included income from 2010, which was significantly higher than other years and included a growth rate for the business. The court held that the district court acted within its discretion in accepting the first expert’s valuation, as both experts had given reasoned explanations for the valuation.

Getting Court Permission to Relocate to Another State, Separating Children from a Noncustodial Parent, Can Be Difficult

Getting Court Permission to Relocate to Another State, Separating Children from a Noncustodial Parent, Can Be Difficult

In Lee v. Holter, A12-2011 (Minn. Ct. App. Nov. 4, 2013), the Minnesota Court of Appeals held that the district court is not required to hold an evidentiary hearing before ruling on a motion for a parent to relocate to another state under Minn. Stat. 518.175(3)(2013) when no party has made a timely request for such a hearing.   In this case, the divorce decree provides that neither party could remove the children from Minnesota without court approval or permission of the other parent.   The parties had joint legal custody, and the mother, who sought to move to California, had sole physical custody of the two minor children, with the father having parenting (visitation) time on alternating week-ends and Wednesday overnight.

The court held that the neither statutory provision governing motions for court approval of out-of-state moves nor the family court rules require an evidentiary hearing. Further, the Family Court rules presume that such motions will be submitted on affidavits, exhibits, subpoenaed documents, memoranda, and counsels’ arguments. Minn. R. Gen. Pract. 303.03(d)(1). The rules require that parties make request for oral testimony by motion before or with the filing of the motion.   In this case, there was no evidence that the mother had ever requested an evidentiary hearing. The court noted that a request for oral testimony must include the names of witnesses as well as the nature and expected length of testimony.

The court also found the district court did not err in denying the motion for removal.   The court noted that the burden of proof in removal cases is on the parent seeking relocation. The court analyzed the eight factors used to determine whether removal is in the best interests of the child:

  1. The child’s relationship with parents and others. In this case, the court determined that the father attends school functions, helps the children with their school work, calls them daily, and has 30% parenting time. The court also noted that the children frequently see their father’s family members who live in parent. Minnesota, and they visited their mother’s family in California twice a year.
  2.  The children’s developmental and needs. The court held the children did not have any special physical or educational needs.
  3. The feasibility of preserving the children’s relationship with the non-relocating parent. The court held that although the mother’s proposal, with the children with their mother during the school year and with the father during the summer and other extended school vacations, would result in a small change in the total number of days with the father, it would significantly harm the children’s relationship with the father, as he would not be able to see the children frequently or attend their school and extracurricular activities.
  4. The children’s preference. Here, there was no dispute that the children were too young to express a preference.
  5. The court held the relocating parent did not have a pattern of promoting or thwarting the children’s relationship with the other parent.
  6. The relocation would enhance the quality of life of the children and the relocating parent. Here, the court held it was not clearly erroneous for the district court to reply on published unemployment statistics, indicating that the unemployment rate was lower in Minneapolis than in the intended relocation city, San Diego than to the mother’s affidavit stating that her employment prospect were greater in California. Further, because the children were doing well in school, the court held the district court court’s finding that the children did not have more favorable educational opportunities in California. The court also held that the district court’s failure to address the children’s greater exposure to Vietnamese culture in San Diego did not make its findings clearly erroneous, noting that the children did have the opportunity to visit their Vietnamese family members while living in Minneapolis.
  7. Each parent’s reason for opposing or supporting relocation. Here, the court held that district court’s findings, that the mother’s primary reason for moving to California was to be closer to her family members while the father opposed the move because it would reduce his time and regular interaction with his children, were not clearly erroneous.
  8. The safety and welfare of the children or the relocating parent. This factor did not apply as there was no evidence of domestic abuse.

Any parent who has a child custody agreement and seeks to relocate to another state, or who opposes another parent’s move to another state, should consult an experienced family law attorney.

Adoption and the Indian Child Welfare Act

The United States Supreme Court rejected a Native American father’s effort to block adoption of his daughter by non-Native Americans under the Indian Welfare Act this past June, Adoptive Couple v. Baby Girl, 398 S. Ct. 625 (2013).   This case may have significant ramifications for non-Native Americans seeking to adopt children, particularly newborns, who are of Native-American descent.

In this case, the biological parents broke up while the mother was pregnant, and, when the mother sent a text message asking whether the father wanted to pay child support or give up his paternal rights, he texted back that he relinquished his parental rights. Further, he did not provide any financial support before the child’s birth and for the first four months of her life even though he had funds to do so.   The biological mother then worked with a private adoption agency to find adoptive parents for the child. The parents were found well before the child was born, and they were present at the delivery and commenced adoption proceedings shortly afterward.   Although the father initially signed the adoption papers, the next day he contacted lawyer and requested that the adoption be stayed.

The Court held that the statutory provision in question, 25 U.S.C. Section 1912(f), bars involuntary termination of a parent’s rights in the absence of a showing that serious harm to the child is likely to result from the parent’s “continued custody” of the child. The Court found that this provision did not apply because the father never had custody of the child. The court held that 25 U.S.C. Section 1912(d), which provides that remedial efforts to prevent “the breakup of the Indian family” does not apply when the Native American parent abandoned the child before birth and never had custody of the child.   The court further clarified that the statutory preference for adoption of Native American children by Native American parents, 25 U.S.C. Section 1915 (2012), does not bar a non-Native American family from adopting a Native American child when “no other eligible candidates have sought to adopt the child.” The court noted that the father did not seek to adopt the child.   Justice Alito wrote the opinion, and he was joined by Chief Justice Roberts, and Justices Kennedy, Thomas, and Breyer. Justice Scalia wrote his own dissenting opinion, and Justice Sotomayor wrote a dissention opinion joined by Justices Ginsburg and Kagan, and, in part, by Justice Scalia.

In his concurring opinion, Justice Thomas explained his position that there is no constitutional basis for Congress to assert authority of adoption proceedings, as such proceedings do not involve commerce or Indian tribes. He joined the majority opinion as its “plausible interpretation” of the statute avoided these constitutional problems.

Justice Breyer offered his observations in his concurring opinion, appeared concerned concern that the opinion could apply to any father of a newborn baby, and he suggested that the opinion could be limited to its specific facts. He also suggested that a parent who opposes an adoption could also come forward as seeking to adopt the child, thus falling in the statutory preference for adoption by Native Americans.

Justice Scalia, in his dissent, opined that “continued custody” includes custody in the future and that the majority opinion “needlessly demeans the rights of parenthood.”   In her opinion, Justice Sotomayor notes that the majority’s concern that the statute, if interpreted to bar the adoption at issue, would make it more difficult to place Indian children for adoption is, at heart, a policy disagreement with Congress’s judgment that the trend of placing Indian children in non-Indian homes should be stopped.

If you are planning on adopting a child of Native American descent, or if you are a Native American seeking to oppose an adoption, you should consult an experienced family law attorney.

With Joint Legal Custody, If Parents Cannot Agree on Education and Health Care Decisions, the Court Will Decide

With Joint Legal Custody, If Parents Cannot Agree on Education and Health Care Decisions, the Court Will Decide

Under Minnesota law, Minnesota Statute 518.003(3)(b)(2013), joint legal custody means that both parents have equal legal rights regarding the child’s upbringing, including decisions regarding education and health care. If parents disagree on major decisions, such as which school a child should attend, they need to bring the dispute to the court to resolve rather than making unilateral decisions without the agreement of the other parent. Himley v. Himley, No. A-12-1876 (Minn. Ct. App. Aug. 26, 2013.

While in many cases, parents agree to joint legal custody because they share a parenting philosophy and get along well enough to make important decisions together, the court may order joint legal custody even if the parents disagree. Thus, in Himley, the district court had ordered joint physical and legal custody even though the parents had a “terrible relationship” and were incapable of cooperating on parenting issues because both were good parents and had good relationships with the child, making joint custody in the best interests of the child.

In Himley, although the court order provided that the child live with the mother in New Ulm during the school year and with the father in Edina during the summer, the mother and her new husband moved to Elk River without the father’s knowledge or consent. As a result, the father moved to require the child to attend school in Edina and live with the father during the school year.

In ruling that the district court did not abuse its discretion in finding that the child should attend school in Edina, the father’s hometown, the Minnesota Court of Appeals emphasized that one statutory factory in determining the child’s best interest was “the disposition of each parent to encourage and permit frequent continuing contact by the other parent with the child.” Minn. Stat. 518.17(1)(a)(13)(2013).   The court noted that the mother had used her living location, both in moving to New Ulm and later to Elk River, to limit the father’s access to his child. The court also noted that the mother had no right to unilaterally change the child’s school enrollment from New Ulm to Elk River without the father’s consult. In finding that living in Edina was in the child’s best interest, the court also noted that the child could be able to spend time before and after school with his father instead of having to attend childcare, and the child had no connections at all in Elk River whereas the child knew other children in Edina and would also be able to spend more time with his stepsister.

The court also held that the change in parenting-time was “a necessary, collateral consequence” of the joint legal custody decision regarding school choice and not a modification of custody or parenting time. The court noted that, with the modified schedule, the mother, who was a teacher, would have the summer, when she was off of work, with her child. The court also gave the mother every Wednesday overnight, even though it noted that the round trip distance between the two parents’ homes was 80 miles. The court found that the new schedule maximized the child’s time with both parents, spending time before and after school with the father during the school year and spending the summer with the mother, when she was not working.

The court also found that the district court was within its discretion in not holding an evidentiary hearing, noting that a party in a family-law case has a right to an evidentiary hearing only if he or she requests such a hearing. In this case, the mother did not request an evidentiary hearing although the court made it clear that it would not hold an evidentiary hearing unless one was requested.

The court also did not address the mother’s argument that the district court judge was biased against her because she did not make that argument to the district court, either by a motion to remove the judge or a motion for a new trial.

Any parent who has joint legal custody and disagrees with the other parent on a major parenting decision, such as which school the child should attend, should not act unilaterally and should consult an experienced family law attorney.