*1 hаve not been reached of record erations courts, I would remand the
by the lower issue, that factual consideration of
case for than have this court become fact
rather
finder. Marriage
In re the of Ronald FRAUENSHUH, Jr.,
R.
Respondent, GIESE, L. Sherrie
Sherrie f/k/a Frauenshuh, petitioner,
L.
Appellant.
No. C8-98-444.
Supreme of Minnesota. Court
Sept.
OPINION LANCASTER, Justice.
We are confronted with the difficult and important permit issue of when to modifi- cation an physical custody. award of sole involving custody dispute This is case nearly that has lasted years; three parties in this case have been to the dis- trict court twice and the court of granted twice before we review. The issue parties before agree us is whether who grant their dissolution decree to рhys- sole ical parent may stipulate to one a standard for physical modification of cus- tody different than the standard by statute. require- We conclude that the (1998) ments Minn.Stat. 518.18 for modification of sole custody apply parties stipulated even when the different their dissolution de- Accordingly, cree. we reverse the court of appeals.
Appellant, Sherrie L. Giese (formerly Frauenshuh) known as Sherrie L. and re- spondent, Frauenshuh, Ronald R. were married in October 1986. Their son Lo- gan was born in March and was years three old at the time of the marital par- dissolution November 1994.1 The judgment ties’ and decree of dissolution upon stipulated was based marital termi- (MTA). agreement Frauenshuh, nation lawyer, who is a represented was through- Barna, Schading, Elizabeth A. Guzy & divorce, out the but atwho the time Steffen, Ltd., Rapids, appellant. Coon for of the dissolution was in training to be a Gislason, Cross, Daniel A. Dustan J. Gis- county executive director for the Minneso- lason, Dosland, Malecki, Hunter & Department Agriculture, ta unrep- was P.L.L.P., Ulm, respondent. New resented at the time agreement signed. The MTA granted sole custody to Giese and parent awarded each joint legal custody.2 Frauenshuh was previous 1. Giese also has a son from mar- ered insurance. [Giese's] [Frauenshuh] riage who was 16 at the pay time Giese’s di- shall medical bills not covered insur- vorce from Frauenshuh. ance, agrees pay pre- and [Giese] scriptions not covered insurance for thе adopted by 2. The MTA as the district court boys. parties The shall both love and care provided: They acknowledge for their children. shall they important are [M]ajor both to the other agreed upon by decisions [will be] education, they acknowledge parties regarding on-going both shall major treatment, importance religious upbringing, medical of one another to the children braces, glasses, split spite etc. The shall of and after the dissolution of mar- (for expеnses boys) riage. which are not recognize cov- further shall Tuesday and Wed- Minn.Stat. awarded visitation on evenings every other weekend nesday their dissolution decree. with a four- during year along the school Specifically, the district court found in the summer. extended visitation week if allegations even Frauenshuh’s were sub- provided: MTA an evidentiary hearing, stantiated at there *3 statute, modification Minn.Stat. no showing Logan’s environment applicable § be for a 518.18 shall not endangered his or emotional de- following under the situa- modification velopment.
tions: party If either shall move distance B. First decision of the court of fifty than miles. greater Under peals circumstance, this the best interest appealed, Frauenshuh and the court of thoroughly
of the child will be exam- decision, appeals, unpublished in an re pursuant ined to Minn.Stat. part versed in and remanded the case to 518.17. court, the district instructing the district par- that if either agreement apply court to thе best interests standard moved, ty the move would “constitute parties’ as found in the dissolution decree. change substantial circumstances and See Frauenshuh v. schedule will be re-done in [visitation] 27, 1997) (Minn.App. May 1997WL 275002 fair manner.” [a] (Giese I). The court of noted that in August learned 1996 that she Giese if and even Frauenshuh Giese “should not appointed job county to the had been stipulate have been allowed to to a stan executive director for the Minnesota De- statute, dard other than the one in the Cambridge. partment Agriculture so, they approved did the trial court days accepting job, after her new Two thereon, stipulation, judgment was entered posi- notified Frauenshuh of her new Giese (cita appeal.” and there was no Id. at *1 tion, Logan and she moved with to Cam- omitted). petition tions Giese did not this Following bridge from Ortonville. Giese’s move, brought a court for further review of the court of decision to Frauenshuh motion for modification of custo- decision. appeals’ that he was entitled to a de dy, claiming
novo review of because Giese’s District court order on remand C. 150-mile move constituted substantial remand, the district court considered change pursuant On circumstances parties’ argu- MTA. the case on affidavits and written ments; testimony no new oral was taken. A.District court’s initial order The district court determined that Giese’s “unilateral,” Logan was move with The district court issued an order dated ordered that no evidence of еvents occur- 18, 1996, allowing November Giese 16, 1996, ring after October could be sub- Logan Cambridge. move with The dis- coupled with mitted. This restriction was upon endangerment trict court relied in their MTA agreement an standard found Minn.Stat. temporary that because each was in a rejected the best communicating directly responsible' be importance that both shall regard they to the children and shall deciding boys' activities is to allow in- put not the children the middle of their put visita- on both sides so аs to determine concerning issues riage. the dissolution of mar- manipulation by tion and decrease either party. importantly, Most these determina- responsible decid- Both shall be be with the best interests tions shall made activities, camp, ing school, boys' as such of the children in mind. lessons, swimming etc. The reason situation,3 parties agreed work review involving order the merits or be during “no evidence shall introduced affecting judgment. They may review period temporary regarding [the work] аny other matter justice as the interest of proceed- change situations for a may require.”). ing.” The district court determined that Our role in reviewing custody training period lasted from Decem- modification cases is limited. See Pikula 1, 30, ber until November Pikula, (Minn. peri- ruled that no evidence from this time 1985). An appellate court will not reverse determining od considered in would be a custody determination unless the district Essentially, custody. par- because of the by making abused its discretion find rul- stipulation ties’ and the district court’s *4 ings unsupported by by the evidence or
ing,
period
the time
from which to evaluate
improperly applying the law. See id. On
custody was reduced to December 1995 to
appeal,
fact,
a district
findings
court’s
September
just 10 months of Logan’s
whether based on documentary or oral
Logan
years
life.
was almost seven
old
evidence, are not set
clearly
aside unless
when the district court issued its order on
erroneous, and the record is
in
reviewed
a
9, 1998,
February
ruling:
It
in
“[1]
is
light most favorable to the findings. See
Logan’s best interest to reside with [Giese]
in
Ortonville, MN;
[2]
In the
event
# 1
Minn. R. Civ. P.
52.01; Ayers
Ayers,
(Minn.1993).
N.W.2d
in
possibility,
Logan’s
above is not a
it is
Ortonville, MN,
in
best interests to reside
We
our
begin
analysis by looking to the
The district court or-
[Frauenshuh].”
physical
legal
definitions of
and
custody
physical custody
dered that
of Logan be provided by
legislature.
the
legisla-
Frauenshuh,
to
stayed
awarded
but
its
ture has defined physical custody and resi-
appeal.4
order pending
dence as “the
daily
routine
care and con-
trol and the residence of the child.” Minn.
D.
decision
the
Second
3(c)
518.003,
(1998).
Stat.
subd.
peals
legislature has
legal custody
defined
as
appealed
Giese
and the court of appeals,
right
“the
up-
determine the child’s
decision,
in
unpublished
an
affirmed the
bringing,
education,
care,
including
health
district court. Frauenshuh v.
3(a).
religious
and
training.” Id. at subd.
(Minn.App.
ing disputes.” we future Here, agreed Id. have not claims parties’ light consider modification and district court custody to as award of sole Giese found, on amply supported a record that decree. contained in their dissolution the child had finding, not been *5 integrated family of into the Frauenshuh nearly dec we statеd three As party.5 with the the other consent of The ades in Tammen v. Tammen: “Courts ago * (iii), * * remaining subdivision provision, which by the of will be controlled welfare is referred as the “endanger- to sometimes paramount the as the consideration.” child standard, ment” the fulcrum of cus- is this 28, 30, 840, 842 289 Minn. 182 N.W.2d tody dispute. (1970). time, the At the same role of the proceedings courts in dissolution is “strict A seeking a party modification for ly provided that statute.” limited to (iii) physical under subdivision Melamed, 716, 286 v. N.W.2d Melamed must elements to a estаblish four make (Minn.1979); Pep also v. Morey 717 see (1) prima facie case for modification: cir (Minn.1985) (stat 19, 22 fin, 375 N.W.2d changed involving have the cumstances superseded ing have the that “statutes (2) the parent; child or modifica custodial aspects family in most common law in tion would be the best interests of the law”); Rosa, v. DeLa 309 DeLa Rosa (3) child; physical child’s or emotional the (Minn.1981) 755, (stating N.W.2d 757-58 development health or is endan emotional statutory that is a action and “dissolution environment; gered his or her trial court authority of the is limited (4) pro that harm associated (citation statute”) that for provided custody would out posed be change omitted). of the weighed by change. the benefits proce- The has established legislature 518.18(d); § see also Val See Minn.Stat. for dures and standards modification Lutz, (Minn. entine v. 871 physical custody. Modification of sole 1994). governed by is
physical custody orders 518.18(d). 518.18(d) has differ legislature Section Minn.Stat. involving cases awards of ent standards for provides cоurt shall retain the than cases joint physical custody involving previously ordered custody arrangement joint custody physical custody. sole When unless: best argued application the case at the district court and for Frauenshuh v. I See Frauenshuh C8- in Giese appeals Logan was standard. the court of 96-2609, (Minn.App. *2 integrated family grounds WL at as mod- 1997 into his 27, 1997). May ample Logan endangered There is evidence in ification and that support district custody. rejected the record to сourt’s rul- The district court ing that demonstrated neither in- arguments. appeals did Frauenshuh these tegration endangerment. not because it remanded nor address these issues 158 awarded, parents the statute allows joint
is modification of sole physical custody bind the court to a standard for awards “is indicative of a custody. modification of See Minn.Stat. legislative intent to impart a measure of 518.18(e) 518.18(e) (1998). pro- Section stability to custody determinations in most vides: circumstances.” ex rel. State Gunderson Preuss, (Minn. deciding modify prior whether to N.W.2d 1983). order,
joint custody ap- the court shall Our case law is in accordance with approach ply paragraph legislature the standards set forth taken (1) (d) parties agree in writ- policy stability unless: reflects settled view that ing application of a different usually is in the child’s best standard, party Pikula, seeking or interest. See 711-1 N.W.2d at asking per- modification is the court for mission to move the residence of the case, In this child to another state. I Giese determined that the should added). contrast, (emphasis
Id. In marked (or permitted be at had in least fact been legislature compara- has not enacted permitted by the district court order provision agree ble to a proving the marital termination agree- different modification standard when one ment) to establish their own standard for parent physical custody. is awarded sole custody, despite modification of legisla- If legislature wanted to be application ture’s clear intent to limit the stipulate opportunity afforded the of the best interests standard of section different modification standard cases in- joint 518.17 to involving situations volving physical custody, it would sole custody. Accordingly, we conclude that unambiguous language, said so with as it *6 appeals the court of erred as matter of joint custody did for situations. Minn. See law in remanding the to case the district (1998) (providing purpose Stat. 645.16 of application сourt for of the best interests statutory interpretation is to ascertain and agreed by parties.7 standard to the legislature effectuate the intentions of the disregard plain and the courts will not the acknowledge importance We the statutes). language of We conclude that stipulations of resolving as means for provides section unambiguously martial dissolutions and in no way seek to endangerment applies that the standard to discourage creative and amicable resolu parties seeking a modification of an award tion of these cases within the confines of physical custody. of sole the law. We have said that considerable legisla The determination the weight given stipulations will be to entered provide counsel, ture to different standards with the benefit of para- but the referring 6. statutory Without rule of appeals' The court of decision in Giese I is it, permit that also inconsistent with construction would the dissent- earlier deсisions of the Hill, appeals. court of In Hill v. the court ing opinion ignores plain language the of sec- appeals unpublished concluded in an decision language tion 518.18. The of that statute parties stipulate could not “out of the clearly legislature’s reflects the intention to requirements” strict of section 518.18 for permanent provide stability a measure of custody. modification of object the a child life of who has been the of a 91676, Mar.5, WL (Minn.App. 1996 at *3 custody dispute finally and who has been 1996); Tiggelaar Tiggelaar, see also v. 433 physical custody awarded to the sole of one 145, 1988), (Minn.App. N.W.2d 148 rev. denied parent. place statutory protection of the (Minn. 10, 1989) (applying endanger Feb. dissenting opinion stip- the ulation, would substitute a ment standard to modification of sole effectively which leaves for another custody). No decision of this court or the day any bring decision that would some mea- had, parties at the time the stability permanenсy physi- sure of divorced, permitted stipulated circumvention cal of this child. requirements of the modification stat ute.
159 custody stipulation. I can- approved court welfare and is the consideration mount See Peter- this decision of the children. not concur with because best interests 148, Petersen, 296 Minn. v. inequities respect that result with the sen (stating that courts N.W.2d parents and their child. both the We have by stipulations). are not bound strictly are not bound Although courts waive may stipulate to рarties held that litigating parties, between by stipulations cases. See statutory rights dissolution heavily in dissolu- stipulations are favored Karon, 435 N.W.2d v. Karon custody proceedings. tion and “Courts fa- (Minn.1989) express waiv- (allowing for an stipulations vor dissolution cases as a maintenance). However, we spousal er of simplifying expediting litiga- means of the contravene cannot allow tion, legis- intent the to what fre- unambiguous bring and to resolution plain and and closure permanence рrovide lature to rela- quently has become an acrimonious cannot custody matters. We in child parties.” v. tionship between the Shirk custody to regarding child equate decisions (Minn.1997). Shirk, 519, 521 561 N.W.2d property. It is one regarding decisions stipu- in a “Custody provisions contained relat- day another issues thing to hold for good must accorded a deal lated decree be party; it is money property or ed to deference, represent they stipulation which permit another to quite specifically agreed terms day another deci- effectively holds for adopted Ayers Ay- the court.” custody of a child. sion of who has (Minn.1993). ers, 515, 520 plain language upon Based Rules of Practice Similarly, General the re- hold that legislature, we and in encourage, District Courts § 518.18 for of Minn.Stat. quirements mandate, alternative dis- certain instances custody apply of sole modification Minn. pute family resolution cases. See even when majority R. Prac. 310.01. While Gen. in their dissolution de- standаrd different lip precedent, service to this opinion pays Therefore, reverse the court of we cree. disregards stip- entirely it nevertheless district conclude that appeals and parents in ulation entered into between the endangerment correctly applied case. 518.18(e) original in its of section *7 we remand this case Accordingly, ruling.8 their Marital Termination part As of proceedings court for consis- to the district (MTA), Frauenshuh and Giese Agreement oрinion. tent with this importance providing agreed on community envi- with a stable their child and remanded. Reversed end, they entered into ronment. To that GILBERT, (dissenting). Justice that their child would stipulation to ensure community environ- out of his not be taken majority respectfully I dissent from the such a move was consistent 5-year-old ment unless which sets aside a opinion, parent in a child's best interests unless affirmed the is in GieseII The court that, the best parent prima on under facie district court remand noncustodial makes Minn.Stat. standard of showing against removal. The (1998), Logan's best interests to live it was in Auge to extend the peals in Giese II declined mother, with his but if that in Ortonville move when the presumption to an in-state Logan’s possible then it was in best inter not nonstatutory parties stipulated standard Frauenshuh in Ortonville. ests to live with reviewing custody the event of a move 1998 See Frauenshuh v. we conclude than 50 miles. Because of more 1998). (Minn.App. Aug.18, Giese WL 481890 properly applied the that the district appeals should ex argued that the court of 518.18, we endangerment of section standard rule first an an in-state move the tend to Auge the issue of whether do not address Auge, Auge 334 N.W.2d nounced in apply within the state should to moves (Minn. 1983). Auge, we announced a 399 Minnesota. the custodial presumption that removal with (1973). the best interests the child. The As the invalid, stipulation majority now holds this demonstrate, facts of the case 518.18(d)(iii) reasoning Minn.Stat. however, majority’s interpreta- narrow precludes parties joint рhysical without application tion and strict of section 518.18 custody seeking from modification of a cus- undermine this standard. tody order unless the child is endangered. stipulation entered into Frauen- majority relies on several canons that, shuh and Giese
statutory interpretation support to the event its as- sertion that the legislature parent miles, intended the either moved more than 50 endangerment standard set forth sec- custody would be by looking determined to 518(d)(iii) tion apply to in all cases where Thus, the best interests of child. parent one granted has been sole parties sought apply very standard however, custody. In so doing, majori- majority purports protect Upon ty ignores equities of this case and the case, review of the facts of this the trial findings of the trial court. court ruled that it inwas the best interests The majority’s opinion undermines and, of the child to remain in Ortonville Frauenshuh’s and Giese’s well-settled end, ordered that Frauenshuh be rights expectations. and Frauenshuh and granted physical custody of the child. The Giese to certain dissolution and however, majority, now elevates boiler- conditions. If stipu- of those plate designed promote per- lations were not in the best interest of the manency and closure in child mat- child, the trial rejected court should have ters of what has been determined to ahead couple’s them when the MTA was original- be in the best interests of the child in this ly presented to the court. The trial court pаrticular Thus, case. majority opin- Rather, did not do this. the court read ion renders the best interests of the child approved stipulation dissolution irrelevant. incorporated the terms thereof into its judgment and dissolution decree. Neither Importantly, Frauenshuh and Giese did party appealed from that judgment and try not statutory provi- circumvent Now, decree. approximately years after designed protect sions children. Rath- the finalization of the trial judg- court’s er, that, they аgreed in the event one of ment, the majority is changing the rules made a move disruptive to family. this What believed environment, their community child’s their and the trial court a legally declared to be child’s interest given should be even binding condition on custo- greater protection requires. than the law dy, the majority now declares to be invalid. Nevertheless, the majority now refuses to *8 In so doing, majority is effectively, and apply standard, the best interests and in- somewhat paradoxically, permitting Giese applies stead the endangerment standard unilaterally modify and eliminate an ex- 518.18(d)(iii). set forth in Minn.Stat. press condition original custody or- doing, majority so parents denies the der. the right to determine what factors are troubling Most about this unilateral important most to the well being of their original amendment of the custody order is child and thus deserving most high- that it to incorporate, fails inmay fact protection est level of provide. the law can violate, the parties’ best interests of the At a parents time when should be minor child. The majority correctly recog- plauded placing their child’s interests nizes that custody matters, child “the paramount above their own in post- dissolution and consideration is the welfare and best interests of dissolution proceedings, majority’s the children.” See Petersen, also Petersen v. 296 Minn. opinion only serves to thrust the courts family re- micromanaging into even more I affirm Accordingly, would
lationships. appeals.
the court
PAGE, (dissenting). Justice Gilbert. in the dissent of Justice join
I
STRINGER, (dissenting). Justice Gilbert. in the dissent of Justice join
I al., Appellants, BLANCHE, et
James (VIN: PRIX GRAND
1995 PONTIAC
162WJ12M95F268403),
Respondent.
No. C4-97-2259. of Minnesota.
Supreme Court
Sept.