In rе the Marriage of Becki Anne SULESKI, f/k/a Becki Anne Rupe, petitioner, Appellant, v. Ryan Michael RUPE, Respondent.
No. A13-2031.
Court of Appeals of Minnesota.
Oct. 20, 2014.
DECISION
The district court erred by granting summary judgment to Suck and Smith on Monson‘s negligent-maintenance claim on the basis of the statute of repose in section 541.051, subdivision 1(a), of the Minnesota Statutes. We reverse and remand to the district сourt for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Sharon K. Hills, Ryan J. Bies, Dougherty, Molenda, Solfest, Hills & Bauer, P.A., Apple Valley, MN, for respondent.
Considered and decided by CONNOLLY, Presiding Judge; JOHNSON, Judge; and HOOTEN, Judge.
OPINION
HOOTEN, Judge.
In this parenting dispute, appellant-mother argues that the district court erroneously modified the child‘s physical custody when it granted respondent-father increased summer parenting time, improperly restricted mother‘s parenting time and changed the child‘s primary residence,
FACTS
The November 8, 2008, stipulated judgment and decree dissolving the marriage of appellant-mother Becki Anne Suleski, f/k/a Becki Anne Rupe, and respondent-father Ryan Michael Rupe granted the parties joint legal custody of their then-eight-year-old child, granted mother sole physical custody of thе child, and set a parenting schedule. Under the parenting schedule, father had parenting time during the school year on Monday and Tuesday evenings, during the summer from Sunday evening to Tuesday evening, and during every other weekend all year. The judgment and decree also divided holidays between the parties and granted each party two weeks of uninterrupted vacation time during the summer.
Regarding transportation of the child, the judgment and decree states:
So long as the parties live in the Northfield [s]chool [d]istrict, the party who is to have physical custody shall pick up the minor child from school or the other parent‘s home. Regardless of the previous sentence regarding transportation, in the event [father] no longer lives in the Northfield [s]chool [d]istrict, [father] shall be responsible for transportation.
At the time of the entry of the judgment and decree, both parties lived in Northfield, but, as anticipated by the parties, a few months later, father moved to Randolph, which is 12 miles from Northfield. Sinсe the dissolution, father has worked overnight shifts, including Friday night to Saturday morning shifts, and he sleeps during the day.
In early 2009, mother moved to Dundas. Then, in July 2012, mother and her new husband moved to Ramsey in Anoka County, which is located 64 miles from father‘s home in Randolph and approximately 75 miles from the Northfield/Dundas area. Because both Randolph and Ramsey are outside the Northfield school district, the parties tried an informal transportation arrangement to accommodate the minor child‘s school schedule in Ramsey. When this informal agreement proved unsuccessful, however, mother then moved the district court to modify parenting time and the transportation provision in the judgment and decree. She proposed retaining sole physical custody, ending father‘s weekday parenting time during the school year, alternating weeks with the child during the summer, giving father year-round parenting time every other weekend, splitting the holidays, and retaining the grants of two weeks of uninterrupted parenting time during summer vacation. Mоther also proposed equally splitting the child‘s transportation.
Father also asked the district court to modify parenting time and for other relief. In light of his overnight shifts and the fact that mother moved farther from Northfield than he did, father‘s motion proposed that, rather than the parties equally splitting transportation of the child, the district court should adopt a parenting schedule under which, during the school year, the child would live with mother and father would have parenting time every other weekend, and during the summer, the child would live with father and mother would have the child every other weekend. Father also suggested dividing the holidays between the parties.
At the June 28, 2013 hearing, the same judge, who had earlier dissolved the mar-
When [father] is receiving the minor child from [mother‘s] care, [mother] shall deliver the minor child to Pilot‘s Truck Stop off Highway 52 in Inver Grove Heights. When [mother] is receiving the minor child from [father‘s] care, [father] shall deliver the minor child to [mother‘s] parent‘s home in Northfield. The parties may adjust these exchange locations by mutual agreement confirmed in writing.
Mother appeals.
ISSUES
1. Does the district court‘s order modifying parenting time, so that father has more parenting time than mother during the child‘s summer break from school and decreased parenting time during the school year, constitute a modification of custody or a change in the child‘s primary residence?
2. Does the district court‘s order modifying father‘s parenting time so that father has more parenting time than mother during the child‘s summer break constitute a restriction of mother‘s parenting time?
3. Did thе district court make adequate findings to support its grant to father of certain holidays and special days?
4. Did the district court abuse its discretion by modifying the transportation provision in the judgment?
5. Did the district court err by adopting a proposed order almost verbatim?
ANALYSIS
“If modification would serve the best interests of the child, the court shall modify . . . an order granting or denying parenting time, if the modification would not change the child‘s primary residence.”
I.
In her appeal of the modification increasing father‘s summer parenting time, mother, who was granted sole physical custody under the judgment and decree, аsserts that the district court erred by effectively modifying physical custody and the primary residence of the minor child during the summer without an evidentiary hearing and without making sufficient findings under
A modification of custody or a change of the child‘s primary residence requires that
The district court‘s modification of parenting time also did not change the child‘s primary residence. There is no definition of “primary residence” in
This court in Schisel v. Schisel, 762 N.W.2d 265, 269-70 (Minn.App.2009), observed that “‘[r]esidence’ is defined in the dictionary to mean the ‘place in which one lives; a dwelling,‘” citing The American Heritage Dictionary of the English Language 1535 (3d ed.1992), and noted thаt “its common meaning refers to ‘place’ or ‘geography.‘” The word “primary” is defined as “[f]irst or highest in rank or importance; principal.” The American Heritage Dictionary of the English Language, 1398-99 (5th ed.2011). Based upon this common meaning and usage, a child‘s “primary residence” is the principal dwelling or place where the child lives.
Here, the child lives in Ramsey with her mother for nine months out of the year and attends school in Ramsey. Under the district court‘s modification of parenting time, the child has рarenting time with her father every other weekend during the nine-month school year. Even with the increased parenting time granted to father, mother still has a majority of the parenting time during the course of a year. Although the child may live with father for three months during the summer, father does not dispute that the child‘s primary residence is still with her mother. Indeed, we note that mother‘s argument on this point assumes, without citing any support-ing authority, that the question of custody/primary residence be determined based on the summertime period only. Absent authority requiring us to read the law in this manner, we decline to do so.
On this record, absent an agreement by the parties or an indication by the district court that it intended to modify physical custody or change the child‘s primary residence by granting father summer parenting time, we will not infer such modification or change. Accordingly, we need not address mother‘s argument that the
II.
Alternatively, mother argues that even though there was no motion for a change in the child‘s primary residence, the modification of parenting time constituted a de facto change in the child‘s primary residence during the summers and a “restriction” of her parenting time. Mother claims that the district court, in imposing this change and alleged restriction on her parenting time, erred by misapplying the best-interests-of-the-child standard of
Subdivision 5 of section 518.175 provides thаt “[i]f modification would serve the best interests of the child, the court shall modify . . . an order granting or denying parenting time, if the modification would not change the child‘s primary residence.” As we noted earlier, a motion to change the residence of the child is governed by section 518.18(d). But subdivision 5 of section 518.175 also provides, similar to the requirements set forth in section 518.18(d), that parenting time may not be restricted unless the district court finds that: “(1) parenting time is likely to endanger the child‘s physical or emotional heаlth or impair the child‘s emotional development; or (2) the parent has chronically and unreasonably failed to comply with court-ordered parenting time.”
There is no statutory definition of what constitutes a “restriction” of parenting time. In Dahl v. Dahl, 765 N.W.2d 118, 124 (Minn.App.2009), we held: “To determine whether a reduction in parenting time constitutes a restriction or modification, the court should consider the reasons for the changes as well as the amount of the reduction.” Here, it is undisputed that the reason for the reduction of mother‘s parenting time is the distance between the parties’ homes and not a defect in mother‘s care of (or ability to care for) the child. Therefore, the reason-for-the-change prong of the restriction analysis is not at issue, and if this case involves a restriction, that restriction must arise solely from the amount-of-the-reduction prong of the analysis, rather than the reason-for-the-change prong, or from a combination of the two prongs.
Whether the district court must hold an evidentiary hearing in order to modify parenting time depends on the degree of modification and the reasons for the change. Id. When the modification is substantial, an evidentiary hearing is required. In re: Welfare of B.K.P., 662 N.W.2d 913, 916 (Minn.App.2003). Insubstantial parenting-time modifications or adjustments, however, do not require an evidentiary hearing. Matson v. Matson, 638 N.W.2d 462, 468 (Minn.App.2002); Braith v. Fischer, 632 N.W.2d 716, 721 (Minn.App.2001).
We have previously concluded, when addressing the amount-of-the-reduction prong of the restriction analysis, that parenting time was “restricted” when, over a four-year рeriod, there was a gradual, but substantial, decrease of the parenting time of a non-custodial parent from “reasonable and liberal” to five and one-half weeks. See Clark v. Clark, 346 N.W.2d 383, 386 (Minn.App.1984). And, in Lutzi v. Lutzi, 485 N.W.2d 311, 316 (Minn.App.1992), we determined that a motion requesting the reduction of parenting time from alternating weeks and holidays during the school year to having no parenting time during the school year constituted a request for a
On the record in this case, we conclude that the district court did not abuse its discretion in its modification of parenting time. The district court, without an evidentiary hearing, found that mother‘s move represented “a substantial change in circumstances that rendered the parties’ parenting time schedule and exchanges un-workable” and that its modification was in the child‘s best interests.
Significantly, the district court, while providing for a substantial increasе in parenting time for father during the summer, decreased father‘s parenting time during the school year, with an overall increase in father‘s, and a decrease in mother‘s, parenting time over the course of the year. In addressing whether mother‘s parenting time is restricted under the amount-of-the-change prong of the restriction analysis, we must determine whether the modified amount of parenting time is a substantial reduction in her parenting time as compared to her “baseline” parenting time set forth in the judgment and decree. See Dahl, 765 N.W.2d at 123 (requiring a comparison with the most recent ruling setting up a parenting-time schedule).
Here, the modification order increased father‘s parenting time from approximately 92 overnights per year to approximately 98 overnights per year, excluding the overnights for spring, winter, and fall breaks from school; Thanksgiving; Christmas; and New Year‘s Day. When father‘s holiday and school-break overnights are added under the modified schedule, father has a total of approximately 120 overnights, an increase for father, and a decrease for mother, of approximately 7% in parenting time. The district court did not err in considering this as an insubstantial reduction in mother‘s parenting time. Compare Matson, 638 N.W.2d at 468 (holding that a 50% reduction in parenting time was substantial even when that reduction was the result of an in-state move of one of the parties), with Danielson v. Danielson, 393 N.W.2d 405, 407-08 (Minn.App.1986) (holding that upon an out-of-state move of the custodial parent, the modification of pаrenting time of the non-custodial parent to extended summer parenting time, with other opportunities for parenting time during the school year, was not a restriction of the non-custodial parent‘s parenting time).
The district court did not abuse its discretion in concluding that the modification of parenting time was in the child‘s best interests. The purpose of parenting time is to “enable the child and the parent to maintain a child to parent relationship that will be in the best interests of the child.”
III.
Noting that, under the modified parenting schedule, father always has the child during the fall, winter, and spring school breaks, and on Thanksgiving, Christmas, and New Year‘s Day, mother asks this court to re-institute the original holiday schedule or remand for findings to support the modified holiday schedule. While the district court generally found that the new parenting schedule was in the child‘s best interests, the district court did not make findings explaining why it was in the child‘s best interests to grant father exclusive parenting time for every Thanksgiving and all Christmas, New Year‘s Day, and school breaks.
Because the district court‘s modification order apportions parenting time on holidays and other special days in a mаnner different from the generally applicable parenting schedule, it implicitly recognizes that holidays and other special days are distinct from the rest of the parenting schedule. Recognizing this distinction has support in caselaw. Cf. Anderson, 510 N.W.2d at 5-6 (Davies, J., concurring specially) (questioning whether a generic alternating-weekend-and-alternating-holiday parenting-time schedule actually is based on the best interests of children when that generic schedule does not take into account holidаys and other special days).
At a minimum, a parenting schedule that grants one parent—here, father—all Thanksgiving, Christmas, and New Year‘s Day holidays, as well as all spring, winter, and fall breaks from school, requires findings of fact explaining why that division of these holidays and special days is in the child‘s best interests. Because those findings are missing here, we reverse the portion of the district court‘s order involving holidays and other special days and remand to the district court for it to reconsider the apportionment of parenting time on those holidays and special days, and to make findings of fact explaining whatever parenting schedule it sets for those days. See Moravick v. Moravick, 461 N.W.2d 408, 409 (Minn.App.1990) (reversing and remanding a modification of parenting time where the court failed to make particularized findings as to the best interests of the child).
IV.
Based on mother‘s move to Ramsey, the district court modified the transportation provision in the dissolution judgment and decree. The original provision required father, if he moved out of the Nоrthfield school district, to provide all transportation of the child required by parenting time. The modified transportation provision required mother to provide most of the transportation required by parenting time. Mother argues that because the judgment and decree required father to provide transportation if he moved out of the Northfield school district, and because she offered to provide up to half of the transportation now required for parenting time, the district cоurt should not have required her to provide more than half of that transportation.
Consistent with father‘s affidavit stating that the transportation provision in the judgment and decree “presumed that [mother] would remain in the Northfield [s]chool [d]istrict,” the district court found that the provision “anticipated” father‘s move out of the Northfield school district, but “never addressed what happens if [mother] moved.” Because the provision was silent regarding transportation of the child if mother moved out of the Northfiеld
On this record, we agree with the district court. Generally, a document is ambiguous if it “is reasonably susceptible to more than one meaning.” Trondson v. Janikula, 458 N.W.2d 679, 681 (Minn. 1990); see Landwehr v. Landwehr, 380 N.W.2d 136, 138 (Minn.App.1985) (making a similar statement regarding a provision in a stipulated dissolution judgment and decree). Whether a provision in a dissolution judgment and decree is clear or ambiguous is a legal question. Anderson v. Archer, 510 N.W.2d 1, 3 (Minn.App.1993) (clarity); Halverson v. Halverson, 381 N.W.2d 69, 71 (Minn.App.1986) (ambiguity). A district court‘s determination of the meaning of an ambiguous judgment and decree prоvision is a fact question, which appellate courts review for clear error. Tarlan v. Sorensen, 702 N.W.2d 915, 919 (Minn.App.2005). Because the same judge who entered the judgment and decree in 2008 is the judge who determined its meaning in this proceeding, his reading of the provision is entitled to “great weight.” Id. at 919.
Mother also asserts that she should not be required to provide more than half of the transportation required by the parenting-time schedule because in her motion she offered to provide half of the transportation. Becausе she cites no authority for that proposition, however, she waived the argument. See Fannie Mae v. Heather Apartments Ltd. P‘ship, 811 N.W.2d 596, 600 n. 2 (Minn.2012) (“Summary arguments made without citation to legal support are waived.“); see also Angell v. Angell, 791 N.W.2d 530, 533-34 n. 3 (Minn. 2010) (same).
Mother‘s proposed transportation arrangement would result in an increase of father‘s transportation obligations, even though the increase was generated by her move and the enrollment of the minor child in a school district located a considerable distance from the school district referenced in the judgment and decree. Mother has not shown that the district court abused its discretion by rejecting her argument and making her responsible for most of the transportation necessitated by her own move.
V.
The district court adopted father‘s proposed order almost verbatim. Mother argues that the district court did so improperly. Appellate courts disfavor the verbatim adoption of a party‘s proposed ruling by the district court but do not automatically reverse a district court for doing so. See Schallinger v. Schallinger, 699 N.W.2d 15, 23 (Minn.App.2005), review denied (Minn. Sept. 28, 2005). Verbatim adoption of a proposed ruling raises questions about whether the district court independently evaluated the evidence and whether the ruling adopted by the district court is sufficient to allow meaningful appellate review. Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn.App.1992), review denied (Minn. Feb. 12, 1993).
Because this district court made its ruling from the bench and directed father‘s attorney to prepare an order accordingly, the district сourt made its ruling before it received the proposed order. These facts undermine any assertion that the district court failed to exercise independent judgment in the case. Further, while we are remanding the parenting schedule for possible adjustment and for additional findings, the other aspects of our opinion demonstrate that the district court‘s rulings on the other matters considered in this appeal are sufficient to allow appellate review of those rulings.
The district court did not modify the minor child‘s custody or change the child‘s primary residence by its modification of parenting time and did not abuse its discretion by modifying parenting time and the transportation obligations for parenting-time exchanges. The district court also did not err by adopting the proposed order submitted by father‘s attorney that conformed to the district court‘s ruling from the bench. The district court‘s findings addressing its grant to father of parenting time for every Thanksgiving, Christmas, and New Year‘s Day, as well as all of the child‘s spring, winter, and fall breaks from school, are inadequate, and we reverse that aspect of the parenting schedule and remand for the district court to reconsider its grant of parenting time on these holidays and special days. On remand, the district court shall have discretion to alter other aspects of the parenting schedule to the extent it deems it appropriate to do so, and shall make findings explaining the parenting schedule adopted. Additionally, on remand, the district court shall have discretion regarding whether to reopen the record.
Affirmed in part, reversed in part, and remanded.
HOOTEN
Judge