In Re The Matter of: Pamela Annette Bowman v. James John Wieczorek
A16-458
| Minn. Ct. App. | Jan 30, 2017Background
- Bowman and Wieczorek are unmarried parents of two daughters (K.W., born ~1998; L.W., born ~2005). They lived together until 2010 and entered a 2011 custody/parenting-time agreement granting Bowman sole physical custody and joint legal custody.
- Bowman twice sought to relocate with the children (2010 Cayman Islands; 2013 Cedar Rapids). The court denied the earlier relocation motions. In 2014 Bowman moved the children to Iowa without court permission or notifying Wieczorek.
- In September–October 2014 Wieczorek moved for emergency relief; the court temporarily awarded him sole legal custody of both children and sole physical custody of L.W., with Bowman’s custody of K.W. conditioned on remaining in the Twin Cities.
- After an evidentiary hearing (May–June 2015) with testimony from parents, GAL, evaluators, teachers, therapists, and others, the district court (Oct. 2015) awarded Wieczorek sole legal and physical custody of L.W., Bowman sole legal and physical custody of K.W., denied Bowman’s relocation, and ordered Bowman to pay $30,000 in conduct-based attorney fees to Wieczorek.
- The court emphasized (1) Bowman’s relocation despite prior denials and deception around school enrollment, (2) K.W.’s negative influence over L.W. (including an episode where K.W. induced L.W. to run away), and (3) Bowman’s pattern of not involving Wieczorek in custodial decisions.
Issues
| Issue | Bowman’s Argument | Wieczorek’s Argument | Held |
|---|---|---|---|
| Whether court erred modifying custody without finding endangerment | Court must find endangerment before modifying custody | Modification was based on statutory paragraph (v) (parent relocated in defiance of court order), which does not require endangerment | Held: No error; court relied on §518.18(d)(v), which does not require endangerment |
| Admitting/considering children’s custodial preferences | Court improperly blocked/limited children’s testimony on preference | Court limited testimony for valid reasons; preferences were considered where reliable | Held: No error; court considered preferences and reasonably excluded K.W.’s testimony; L.W. deemed too young for reliable preference |
| Separating siblings (awarding different custodians) | Separation of siblings is improper or harmful | Separation warranted due to K.W.’s negative influence and Bowman’s inability to foster L.W.–father relationship | Held: No abuse of discretion; sibling separation permissible given best-interest findings |
| Parenting-time percentage (Bowman received ~8–10% with L.W.) | Court erred by failing to acknowledge 25% presumption and ordering <25% without findings | Court’s arrangement followed from custody outcome; Bowman did not object at hearing | Held: No reversible error; presumption not raised at hearing, so award stands |
| Award of conduct-based attorney fees ($30,000) | Award excessive; court exceeded requested amount | Fees appropriate because Bowman’s unauthorized relocation and conduct unreasonably lengthened proceedings | Held: No error; record supports conduct-based award and amount within court’s discretion |
Key Cases Cited
- Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471 (Minn. 1981) (endangerment requirement for some custody modifications)
- Geibe v. Geibe, 571 N.W.2d 774 (Minn. App. 1997) (custody modification analysis)
- Schwamb v. Schwamb, 395 N.W.2d 732 (Minn. App. 1986) (coached child preference need not be credited)
- Kennedy v. Kennedy, 403 N.W.2d 892 (Minn. App. 1987) (sibling separation not per se erroneous)
- Doren v. Doren, 431 N.W.2d 558 (Minn. App. 1988) (benefits may justify separating siblings)
- Thiele v. Stich, 425 N.W.2d 580 (Minn. 1988) (appellate review/preservation rules)
- Szarzynski v. Szarzynski, 732 N.W.2d 285 (Minn. App. 2007) (conduct-based attorney fees standard and preservation)
- Hagen v. Schirmers, 783 N.W.2d 212 (Minn. App. 2010) (25% parenting-time presumption and preservation)
- J.W. v. C.M., 627 N.W.2d 687 (Minn. App. 2001) (temporary custody orders generally not appealable)
- Sharp v. Bilbro, 614 N.W.2d 260 (Minn. App. 2000) (challenge to expired temporary order is moot)