In re the Marriage of: Christina Marie Rexine v. Joey Lee Rexine ( 2015 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-2206
In re the Marriage of: Christina Marie Rexine, petitioner,
Appellant,
vs.
Joey Lee Rexine,
Respondent.
Filed October 26, 2015
Affirmed
Hooten, Judge
Hennepin County District Court
File No. 27-FA-13-2505
Erick G. Kaardal, James V.F. Dickey, Mohrman, Kaardal & Erickson, P.A., Minneapolis,
Minnesota; and
Samantha J. Gemberling, Wolf, Rohr, Gemberling & Allen, P.A., St. Paul, Minnesota
(for appellant)
Susan M. Gallagher, Gallagher Law Office, L.L.C., Eagan, Minnesota (for respondent)
Considered and decided by Halbrooks, Presiding Judge; Cleary, Chief Judge; and
Hooten, Judge.
UNPUBLISHED OPINION
HOOTEN, Judge
In this marital dissolution proceeding, appellant mother argues that the district
court erred by: (1) awarding sole legal custody to respondent father; (2) declining to order
the parties to take their children to Catholic Mass on a weekly basis; (3) dividing marital
property in an inequitable manner; and (4) ordering the parties to share their children’s
extracurricular activity costs according to their PICS percentages. We affirm.
FACTS
Appellant mother, Christina Marie Rexine (n/k/a Christina Marie Bulisco), and
respondent father, Joey Lee Rexine, were married on July 14, 2001, and separated in
April 2013. During their marriage, the parties had four children, all of whom who were
minors at the time of the separation. In April 2013, Bulisco petitioned for dissolution of
the parties’ marriage. The district court held a dissolution trial on March 12–14, 2014.
In June 2014, the district court issued findings of fact, conclusions of law, an order for
judgment, and a judgment and decree. The same day, the district court also issued an
order appointing a special master to consider the tax consequences of the forgiveness of
certain marital debt and an order to reopen the record as to that issue.
In July 2014, Bulisco moved to amend the judgment and decree, challenging the
district court’s award of sole legal custody to Rexine, the district court’s findings and
conclusions regarding the children’s religious upbringing, and certain financial and tax
determinations. The district court held a hearing on the motion in September 2014. In
December 2014, the district court issued an order partially granting and partially denying
the motion, as well as an amended judgment and decree. This appeal by Bulisco
followed.
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DECISION
I.
Bulisco challenges the district court’s decision to award Rexine sole legal custody
of the children. The legal custodian of a minor child has “the right to determine the
child’s upbringing, including education, health care, and religious training.” Minn. Stat.
§ 518.003, subd. 3(a) (2014). “Appellate review of custody determinations is limited to
whether the district court abused its discretion by making findings unsupported by the
evidence or by improperly applying the law.” In re Custody of N.A.K., 649 N.W.2d 166,
174 (Minn. 2002). A district court’s findings of fact will be upheld unless they are
clearly erroneous. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).
In the amended judgment and decree, the district court awarded the parties joint
physical custody of the four minor children and awarded Rexine sole legal custody. In
support of its custody decision, the district court found that “both parties are good parents
that love and desire the best for their children,” but ultimately concluded that “the parties’
inability to agree on anything relating to the children” and the “extraordinary animosity
that plagues the parties’ relationship necessitates an award of sole [legal] custody to one
parent.” The district court found that “evidence supports an award of sole legal custody
to [Rexine]” because the record showed that Bulisco would use sole legal custody to
“continue to control [Rexine’s] parenting time to the degree that would alienate [Rexine]
from his children.”
Bulisco argues that, because the parties contemplated joint legal custody, the
district court improperly applied the law by declining to analyze the joint-custody factors
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under Minn. Stat. § 518.17, subd. 2(b) (2014).1 Section 518.17, subdivision 2(b),
requires that, “where either joint legal or joint physical custody is contemplated or
sought,” the district court must make its custody determination in light of the following
factors:
1. the ability of parents to cooperate in the rearing of their
children;
2. methods for resolving disputes regarding any major
decision concerning the life of the child, and the parents’
willingness to use those methods;
3. whether it would be detrimental to the child if one parent
were to have sole authority over the child’s upbringing;
and
4. whether domestic abuse, as defined in [Minn. Stat.
§ 518B.01 (2014)], has occurred between the parents.
The statute also establishes “a rebuttable presumption that upon request of either or both
parties, joint legal custody is in the best interests of the child.” Id. In its amended
judgment and decree, the district court stated that it would not specifically analyze the
factors under section 518.17, subdivision 2(b), because “neither party is seeking joint
legal or joint physical custody of the minor children.”
1
We note that section 518.17, subdivision 2, was recently repealed and its content
partially incorporated into the revised subdivision 1 of that section. See 2015 Minn.
Laws ch. 30, art. 1, § 3 (amending Minn. Stat. § 518.17, subd. 1 (2014)); id., ch. 30, art.
1, § 13 (repealing Minn. Stat. § 518.17, subd. 2)). Because this was a substantive change
to the statute and the legislature did not indicate that the revisions apply retroactively, the
2014 version of subdivision 2 applies to this case. See Interstate Power Co. v. Nobles
Cty. Bd. of Comm’rs, 617 N.W.2d 566, 575 (Minn. 2000) (citation omitted) (“The general
rule is that appellate courts apply the law as it exists at the time they rule on a case, even
if the law has changed since a lower court ruled on the case. An exception to this rule
exists when rights affected by the amended law were vested before the change in the
law.”).
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Bulisco points out that, at the beginning of the proceedings, Rexine had requested
joint legal and joint physical custody. However, as the custody evaluation progressed,
Rexine changed his request in light of the escalating conflict between the parties. At
trial, Rexine requested sole legal and sole physical custody, but with an even split of
parenting time between the parties. Bulisco argues that even if neither party was seeking
joint legal custody by the time of trial, Minn. Stat. § 518.17, subd. 2, requires the district
court to analyze the joint-custody factors if either party ever sought joint custody. In the
alternative, Bulisco argues that because the district court awarded joint physical custody,
the district court was required to analyze the joint-custody factors.
Statutory interpretation is a question of law that we review de novo. Swanson v.
Swanson, 856 N.W.2d 705, 709 (Minn. App. 2014). If the language of a statute is
unambiguous on its face, “our role is to enforce the language of the statute and not
explore the spirit or purpose of the law.” Sanvik v. Sanvik, 850 N.W.2d 732, 735 (Minn.
App. 2014) (quotation omitted). One of the situations requiring the district court to
analyze the joint-custody factors is when “joint physical custody is contemplated.” Minn.
Stat. § 518.17, subd. 2(b). Although neither party requested joint physical custody at the
time of trial, the district court clearly “contemplated” joint physical custody by awarding
joint physical custody. The statute does not specify that joint custody must be
“contemplated or sought” by the parties. Rather, the statute requires the district court to
analyze the joint-custody factors if either the parties or the district court contemplates
joint legal or joint physical custody. See id.5
In expressly declining to amend its findings to include analysis of the joint-
custody factors, the district court pointed out that if it were required to analyze the joint-
custody factors every time it awarded joint physical custody, then “the [c]ourt would
always be required to analyze subd. 2 despite the parties’ request.” But, this is exactly
how we have previously interpreted Minn. Stat. § 518.17, subd. 2(b):
When a district court awards joint legal or physical
custody over the objection of one parent, the court must make
detailed findings on each of the statutory joint-custody factors
and explain how the factors led to the court’s determination
that joint custody would be in the best interests of the child.
Zander v. Zander, 720 N.W.2d 360, 366 (Minn. App. 2006), review denied (Minn. Nov.
14, 2006). Here, the district court erred in its legal conclusion that it was not required to
address the subdivision 2(b) joint-custody factors.
However, this error was harmless because the district court’s detailed and
extensive findings pertain directly to the joint-custody factors. See Minn. R. Civ. P. 61
(requiring harmless error to be ignored). In its thorough and thoughtful analysis of the
difficult issues in this custody dispute, the district court made very extensive findings
regarding the involvement of both parents in the children’s lives and the importance of
awarding joint physical custody in order to allow the children’s relationships with both
parents to continue to thrive. Relying upon the custody evaluator’s testimony and report,
which specially addressed the subdivision 2(b) factors, the district court found that the
parties were not able to cooperate in rearing their children, effectively resolve their
disputes, or agree even on such common issues as the selection of a parenting
coordinator. The district court also noted its concern with Bulisco’s history of interfering
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with Rexine’s parenting time and relationship with their children, and the likely negative
effect on the children’s relationship with Rexine if Bulisco had sole legal custody of the
children. The district court also found, consistent with the testimony of the custody
evaluator, that even though the parties could not “effectively co-parent in a joint legal
custody arrangement,” it was in the best interests of the children that the parties have
joint physical custody because the children needed “both parents equally present in their
lives.” Finally, the district court found that there was no domestic abuse in this case.
Although the district court erred in its legal conclusion that it was not required to address
the subdivision 2(b) factors, this erroneous conclusion was harmless in light of the district
court’s extensive findings fully addressing those factors. Based upon the record and
these findings, we conclude that the district court did not abuse its discretion by awarding
the parties joint physical custody and sole legal custody to Rexine.
Bulisco also argues that the district court abused its discretion by finding that it
was in the children’s best interest for Rexine to have sole legal custody because Bulisco
is “undoubtedly more likely to continue educating and raising the children in their culture
and religion.” The record does not support Bulisco’s assertion; Rexine testified that,
consistent with the children’s religious training during the marriage, it was his intent to
continue raising the children in the Catholic faith. The district court did not abuse its
discretion in awarding sole legal custody to Rexine in light of the parties’ high-conflict
relationship, their inability to resolve their disputes, and Bulisco’s continuing effort to
undermine and restrict Rexine’s parenting time and relationship with the children.
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II.
Bulisco argues that the district court abused its discretion by declining to order
that the children attend Catholic Mass weekly. She argues that the district court should
have upheld the parties’ agreement to raise their children in the Catholic faith by
directing the parties to require the children to attend a specific schedule of religious
events, including attendance at weekly Mass. In support of this argument, Bulisco cites
extensively to “Catholic doctrine as set forth in Canon Law and the Catechism” and
asserts that noncompliance with such doctrine would cause the children to “risk grave
sin.”
The record shows that the parties at some point verbally agreed to raise their
children as Catholics, but their agreement was unspecific as to what that meant. The
district court found that during the marriage Rexine actually took the children to Mass
more often than Bulisco, and this finding is supported by Bulisco’s testimony that she
sometimes stayed home from Mass to work. Bulisco testified that, after the parties
separated, Rexine failed to take the children to Mass “consistently.” But, Rexine
contradicted this assertion, explaining that because of Bulisco and her parents’ harassing
behavior during Mass, he began taking the children to Mass at times when he knew that
they would not be there. The district court found Rexine’s testimony to be “credible and
consistent.”
In the amended judgment and decree, the district court found “that the children
shall continue to be raised in the Catholic faith” and ordered the parties to “continue to
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support the minor children in their Catholic faith.” The district court also provided that
“the parties, along with the minor children on their scheduled parenting time, may attend
any church of their choosing and whichever Mass time,” and ordered that if the parties
attend the same Mass time, “the off-duty parent shall not harass [or] interfere with the
other [parent’s] parenting time.” In its order on Bulisco’s motion to amend the judgment
and decree, the district court denied Bulisco’s request to be designated as “sole legal
custodian as to religious upbringing of the minor children.” Instead, the district court
found that “the evidence supports that it should be [left] to the discretion of the parent
with parenting time to determine whether the children should attend [M]ass or any other
holy days of obligation.”
Rexine was awarded sole legal custody, which, by statute, means that he has the
sole authority to determine the children’s “religious training.” Minn. Stat. § 518.003,
subd. 3(a). If the district court had ordered the parties to ensure that the minor children
attend Catholic Mass weekly, the district court would have infringed on Rexine’s rights
as sole legal custodian by placing a limitation on his ability to determine the children’s
religious training.2 Based upon this record, where there was evidence that Bulisco and
her family were using the children’s attendance at Mass as an opportunity to interfere
2
We note that the district court, by ordering the parties to “continue to support the minor
children in their Catholic faith,” nonetheless appears to have already limited Rexine’s
rights as sole legal custodian of the minor children because Rexine does not have full
authority over the children’s “religious training.” Minn. Stat. § 518.003, subd. 3(a).
According to these limiting provisions in the amended judgment and decree, Rexine is
prevented from raising the children in a religion other than Catholicism, or from raising
the children with no religion at all. Rexine, however, did not file a notice of related
appeal and does not contest this judicially imposed limitation of his authority as the sole
legal custodian.
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with Rexine’s parenting time, the district court did not abuse its discretion by declining to
limit, or infringe upon, Rexine’s statutory rights as the sole legal custodian by ordering
that the children attend Catholic Mass weekly.
III.
Bulisco alleges two errors in the district court’s division of the marital estate.
“District courts have broad discretion over the division of marital property and appellate
courts will not alter a district court’s property division absent a clear abuse of discretion
or an erroneous application of the law.” Sirek v. Sirek, 693 N.W.2d 896, 898 (Minn.
App. 2005). When dividing property, a district court abuses its discretion if it resolves
the matter in a manner “that is against logic and the facts on record.” Rutten v. Rutten,
347 N.W.2d 47, 50 (Minn. 1984). “This court will affirm the district court’s division of
property if it had an acceptable basis in fact and principle even though this court might
have taken a different approach.” Passolt v. Passolt, 804 N.W.2d 18, 25 (Minn. App.
2011) (quotation omitted), review denied (Minn. Nov. 15, 2011).
Student loan debt
Bulisco first argues that the district court abused its discretion by awarding all of
the parties’ student loan debt to Rexine and ordering Bulisco to make an equalizer
payment. The district court found that an equal division of the marital estate was
equitable here. To that end, the district court allocated the entire amount of the parties’
student loan debt to Rexine and required Bulisco to make an equalizer payment to Rexine
in order to make up for the uneven allocation of the debt. If Bulisco failed to pay the
equalizer within 90 days of the judgment and decree, then the marital homestead would
10
be subject to a lien in Rexine’s favor in the amount of the equalizer payment. Bulisco did
not pay the equalizer within 90 days, so the district court entered a summary real estate
disposition judgment, imposing a lien in Rexine’s favor in the amount of the equalizer
payment.
In Bulisco’s motion to amend the judgment and decree, she asked the district court
to find that she had “no ability to pay a large cash equalizer” and that she was awarded no
assets that she could liquidate to pay the equalizer, except for the homestead. She also
requested that the district court reassign the larger of the two student loans to her in the
division of property. The district court declined to do so.
Bulisco argues on appeal that the uneven distribution of student loans and the
imposition of the equalizer payment were unfair because she had no ability to pay the
equalizer without selling the homestead. But, the record supports the district court’s
finding that Bulisco had adequate resources to pay the equalizer. As the district court
pointed out, the equity in the home awarded to Bulisco was approximately $120,000,
which is “about the amount of the cash equalizer”; Bulisco is a physician and earned
$439,014 gross income in 2013; and Bulisco was awarded other valuable property in the
division of the estate, including a retirement asset worth approximately $60,000. The
record does not support Bulisco’s claim that she would have to sell the homestead to pay
the equalizer.
The district court’s decision to allocate the entire amount of the student loans to
Rexine also had a reasonable basis in fact and principle. The district court found that
Rexine should be responsible for the entire amount of the student loans because he bore
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the entire financial risk for the student loans. Rexine testified that the loans were solely
in his name, and Bulisco did not provide any evidence to the contrary. Moreover, in the
order on Bulisco’s motion to amend, the district court explained that it was “inclined to
assign all the debt to one party in situations where the parties are unable to effectively
communicate” because “a clear separation of financial obligations will help lessen the
need to communicate.” Because the district court’s decision was not against logic or the
facts in the record, we conclude that the district court did not abuse its discretion by
assigning the student loans to Rexine and requiring Bulisco to pay a corresponding
equalizer.
Promissory notes
Bulisco also challenges the district court’s decision that the parties should share
the tax consequences of four promissory notes that Rexine incurred in connection with
his medical school fellowship. Rexine incurred the promissory notes during the
marriage, and the stipends were used for marital expenses. The promissory notes were
advances on Rexine’s future payments from his employer, and the notes’ terms stated that
the loans would be forgiven if Rexine remained employed with that employer through
certain dates. The district court concluded that, because the benefits of these promissory
notes were shared by both parties, both parties should share in the tax consequences of
forgiveness of the promissory notes. However, at trial, the district court lacked sufficient
evidence to make an informed decision as to the division of the tax consequences because
there was no evidence in the record regarding the fourth promissory note. Therefore, the
district court retained jurisdiction over the matter, reopened the record to receive
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supplemental evidence on the fourth promissory note, and appointed a special master to
decide how the tax consequences should be divided between the parties.
A district court may consider future tax consequences when dividing marital
property in a marital dissolution if the district court has a reasonable and supportable
basis for making an informed judgment as to the probable liability. Maurer v. Maurer,
623 N.W.2d 604, 607–08 (Minn. 2001). The district court may not assign liability for tax
consequences based on “generally insufficient evidence.” Id. at 607. “The court must
have sufficient information that the actual tax liability resulting from the property
division can be calculated with a reasonable degree of certainty.” Miller v. Miller, 352
N.W.2d 738, 744 (Minn. 1984). This court reviews the district court’s decisions as to the
division of tax consequences for an abuse of discretion. Maurer, 623 N.W.2d at 607.
Bulisco argues that the district court impermissibly speculated as to tax
consequences by finding that both parties benefitted from the promissory notes and
should therefore be responsible for the tax consequences. But, the record supports this
finding. Rexine testified that the majority of the proceeds from the loans were disbursed
during the parties’ marriage and that both parties used these loan proceeds for marital
living expenses. Moreover, Bulisco failed to produce any evidence refuting Rexine’s
claim that that they both benefitted from the funds provided during the marriage as a
result of the promissory notes.
Bulisco also tries to characterize the district court’s actions of appointing a special
master and its failure to conduct its own inquiry into the tax consequences as
impermissible speculation based upon insufficient evidence. However, both parties
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consented to the appointment of the special master. Additionally, the alleged errors that
Bulisco raises were intentional actions by the district court to avoid speculating upon
insufficient evidence. See Miller, 352 N.W.2d at 744 (stating that the district court
“should not speculate about [the] possible tax consequences” of its property division).
The district court declined to determine the proportional liability for the tax consequences
precisely because it recognized that there was insufficient evidence before it to make
such a determination. Instead, the district court left it to the special master to make an
inquiry into the terms of the notes and to determine, based upon sufficient evidence, how
the tax consequences should be divided.
The district court did not abuse its discretion by determining that the parties
should share the tax consequences of the promissory notes and appointing a special
master to determine those tax consequences based upon a complete record as to the
promissory notes.
IV.
Bulisco argues that the district court abused its discretion by requiring the parties
to split the children’s extracurricular activity costs according to their parental income for
determining child support (PICS) percentages. “We will reverse a district court’s child-
support order only if we are convinced that the district court abused its broad discretion
by reaching a clearly erroneous conclusion that is against logic and the facts on record.”
Hunley v. Hunley, 757 N.W.2d 898, 900 (Minn. App. 2008) (quotation omitted).
The district court calculated the parties’ basic child support obligations based on
the parties’ respective PICS percentages. After the judgment and decree addressed basic
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support, it designated responsibility for “other support-related expenses,” including costs
incurred for the children’s extracurricular activities. The district court ordered the parties
to pay such costs in proportion to their PICS percentages.
Bulisco argues that the district court abused its discretion in its division of
responsibility for the costs of extracurricular activities because Rexine could potentially
“select any activity, regardless of the input of Bulisco, and regardless of the cost.”
Bulisco alleges that this could result in “a de facto reduction of Bulisco’s parenting time”
because Rexine could choose only activities that occurred during Bulisco’s parenting
time, and that this could allow Rexine to “increase his support payment by signing the
children up for the most expensive activities.” The record does not support Bulisco’s
allegations; rather, the record indicates that Rexine is far less inclined than Bulisco to
schedule extracurricular activities for the children. Bulisco’s unsubstantiated fears that
Rexine would abuse the child support arrangement do not support the conclusion that the
district court abused its discretion in its division of the children’s extracurricular activity
costs.
Bulisco does not present any other argument as to why it was an abuse of
discretion to divide extracurricular costs according to the parties’ PICS percentages.
Such an approach is logical and supported by the facts in the record regarding the parties’
respective ability to pay for extracurricular activities.
Affirmed.
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