In re the Marriage of: Amy Daiker Werger v. Brett Michael Werger ( 2016 )

This opinion will be unpublished and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
A15-1527
In re the Marriage of:
Amy Daiker Werger, petitioner,
Respondent,
vs.
Brett Michael Werger,
Appellant.
Filed April 4, 2016
Affirmed
Cleary, Chief Judge
Hennepin County District Court
File No. 27-FA-13-3518
Steven T. Hennek, Hennek Klaenhammer Law, PLLC, Roseville, Minnesota (for
respondent)
Amy D. Joyce, Skolnick & Joyce, P.A., Minneapolis, Minnesota (for appellant)
Considered and decided by Cleary, Chief Judge; Rodenberg, Judge; and Smith,
John, Judge.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
CLEARY, Chief Judge
Appellant-father challenges the district court’s interpretation of the parties’
stipulated dissolution judgment as allowing the parties’ minor children to remain in
California with respondent-mother while she continues her clinical medical trial. He also
argues that the district court abused its discretion by determining that allowing the children
to remain in California during respondent’s treatment is in their best interests. We affirm.
FACTS
The parties’ stipulation to the dissolution of their marriage was incorporated into
the judgment and decree filed in August 2013. The parties are parents to two joint minor
children. In summer 2012, respondent began experiencing symptoms related to a benign
brain tumor with which she had been diagnosed years earlier. These symptoms included
seizures, vision and hearing loss, migraines, and balance issues. Respondent was not a
surgical candidate due to the tumor’s location.
At the time of the parties’ dissolution, respondent had been accepted into a clinical
medical trial in California involving the use of a clinical investigational drug and radiation
therapy. As relevant to this appeal, the stipulated judgment and decree provides:
The parties have agreed that they will move to California for
[respondent’s] Clinical Trial Treatment at Cedars Sinai
sometime after August 4, 2013 . . . Minnesota shall retain
jurisdiction over the minor children at all times including while
the parties temporarily reside in California. Both parties agree
that their domicile shall remain in Minnesota, and that they
intend to return to Minnesota upon completion of
[respondent’s] clinical medical trial treatment. The parties
2
agree that the move to California is temporary and that the
parties intend to return to the State of Minnesota within 30 days
of [respondent’s] completion of her clinical trial treatment,
unless otherwise agreed. Both parties waive their right to
object to the children returning to Minnesota upon completion
of [respondent’s] medical trial treatment. [Respondent’s]
medical trial treatment is expected to begin on November 1,
2013 and conclude in October 2014. Unless otherwise agreed,
if one party elects to return to Minnesota upon completion of
[respondent’s] medical trial treatment, the children shall return
to Minnesota with the returning parent.
Respondent’s clinical trial was later estimated to be completed in January 2015.1 In
fall 2014, respondent learned that she might be eligible to continue in the clinical trial
beyond the initial one-year plan. That December, the parties entered into a mediated
agreement postponing respondent’s motion to permit the children to remain in California
after January 2015 until she learned whether she qualified for “the second phase of the
clinical drug trial.” To continue in the clinical trial, respondent was required to obtain at
least a partial response to the first phase of the trial, defined as a greater than or equal to 15
percent reduction in the size of the tumor. Respondent achieved a 23.8 percent reduction
and therefore qualified to continue with the clinical drug treatment trial.2
1
The parties liberally cite to documents included in both parties’ affidavits that were filed
under seal in the district court. Neither party sought leave to file a confidential and a
nonconfidential version of the appellate briefs. Because the parties’ briefs are not under
seal, we are not constrained in disclosing information contained in the briefs. See
Coursolle v. EMC Ins. Grp., Inc., 794 N.W.2d 652, 655 n.1 (Minn. App. 2011) (discussing
Minn. R. Pub. Access to Recs. of Jud. Branch 4, subd. 1), review denied (Minn. Apr. 19,
2011).
2
Respondent does not qualify for radiation therapy due to other medical issues.
3
In April 2015, the parties separately moved for relief based on their interpretation
of the stipulated dissolution judgment, with respondent requesting an order requiring the
parties’ children to remain in California and appellant requesting that the children be
permitted to return with him to Minnesota.
At the motion hearing, respondent testified that she remained in the clinical trial that
she had been accepted into at the time of the stipulated dissolution judgment and that the
trial was now expected to conclude in March 2019. Respondent stated that she only
anticipated the clinical trial lasting one year, but health issues prevented her from being
able to complete the clinical trial within that timeframe. Respondent argued that both
parties were aware of the unknowns concerning her health and that was the reason the
parties used the language “upon completion of [respondent’s] medical trial treatment.”
Respondent also testified that she would relocate from California to Minnesota if the
district court ordered the children to return, which would eliminate her ability to participate
in the clinical trial that has improved her symptoms and would likely lead to a worsening
of symptoms related to a different disorder. Relocating to Minnesota would also cause
respondent to lose her job and health insurance. Finally, respondent presented evidence
indicating that she had close relationships with the children and that the children had
adjusted well to California.
Appellant argued that the parties had agreed that the California relocation would
only be for one year. He acknowledged that respondent had not completed the clinical trial
treatment, but claimed that she had completed the portion of the trial that the parties had
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agreed upon at the time of the stipulated dissolution judgment. Appellant argued that
respondent failed to properly research other alternative options that might avoid her having
to remain in California; that he never intended to put his life on hold for more than one
year; and that returning to Minnesota was in the children’s best interests.
The district court granted respondent’s motion. The district court first concluded
that the parties’ December 2014 mediated agreement was unambiguous and did not
preclude respondent from bringing her motion because she achieved the partial response
as defined by the agreement and was able to continue with the clinical trial.3 The district
court denied appellant’s request for conduct-based attorney fees, a determination appellant
also does not appeal. The district court then found that the stipulated dissolution judgment
unambiguously conditioned the children’s return to Minnesota upon respondent’s
completion of her clinical trial. The district court determined that the one-year estimation
in the stipulated dissolution judgment was not binding because it was “aspirational in
nature.” Because respondent credibly testified that she would complete the clinical trial in
March 2019, the district court concluded that returning the children to Minnesota before
that time would be “premature.”
3
Appellant argued at the motion hearing that the mediated agreement precluded respondent
from bringing her motion because she failed to qualify for the “second phase” (which he
characterized as “Phase II”) of the clinical study. Although appellant appears to allege that
the district court’s conclusion that respondent was permitted to bring her motion was
erroneous, he does not adequately brief this issue on appeal. Therefore, this issue is not
properly before this court. See McKenzie v. State, 583 N.W.2d 744, 746 n.1 (Minn. 1998)
(applying the rule that arguments not briefed are not addressed in a case where the appellant
“allude[d] to” an issue but “fail[ed] to address [the issue] in the argument portion of his
brief”).
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The district court found that even if the stipulated dissolution judgment was
ambiguous, the parties’ concern at the time of signing the document was with respondent
completing the clinical trial, rather than with returning to Minnesota by a specific date.
The district court concluded that the parties did not know or anticipate exactly when the
clinical trial would end, and used the language “completion of [the] clinical trial” instead
of setting a specific date based on their hope that respondent could participate in the clinical
trial so that her health would improve.
Finally, the district court addressed the best interest factors as required under Minn.
Stat. § 518.175, subd. 3 (2014), and determined that granting respondent’s motion to
relocate with the children to California until she completed her clinical trial was in the
children’s best interests. The district court therefore ordered that the children return to
Minnesota with the returning parent within 30 days of the end of the 2018-2019 academic
year. This appeal followed.
DECISION
Interpretation of the stipulated dissolution judgment
Appellant challenges the district court’s interpretation of the stipulated dissolution
judgment as unambiguous and its conditioning of the children’s return upon respondent’s
completion of her clinical medical trial. Appellant also argues the district court erred in
concluding that the children would remain in California even if the relevant judgment
provision was ambiguous because the parties’ intent in the move was to allow respondent
to participate in the clinical trial.
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The stipulated dissolution judgment is unambiguous.
A stipulated dissolution judgment is a binding contract. Shirk v. Shirk, 561 N.W.2d
519, 521 (Minn. 1997). Whether a provision in a stipulated dissolution judgment is clear
or ambiguous is a legal question that we review de novo. 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). 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). When its language
is unambiguous, the judgment is construed according to its plain meaning. Starr v. Starr,
312 Minn. 561, 562-63, 251 N.W.2d 341, 342 (1977).
Appellant argues that the district court erred by ignoring the parties’ “clear intention
that the move to California would be of [a] limited duration” of approximately one year.
Appellant claims that the district court ignored documentation showing that respondent had
completed “year one threshold testing” within the “expected” timeframe that the parties
had agreed to in the judgment and decree. Finally, appellant argues that the “district court
has transformed a temporary arrangement—generously and compassionately made on
[a]ppellant’s part . . . into a move that will last at least five years and potentially until the
children reach majority.”
Here, the plain meaning of the relevant language of the stipulated dissolution
judgment clearly states that the children would return to Minnesota “upon completion of
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[respondent’s] clinical medical trial treatment.” The language does not limit respondent’s
participation in the clinical trial to only the first year of testing or to the “Phase I” portion
of the clinical trial. Appellant admits that respondent continues to participate in the clinical
trial. The stipulated judgment does not specify a date by which the children would be
required to return to Minnesota whether or not respondent had completed her clinical trial.
Appellant’s arguments would essentially require us to violate the general rule that prohibits
courts from relying on extrinsic evidence to establish contractual ambiguity in an
unambiguous term. Wilcox v. State Farm Fire and Casualty Co., ___ N.W.2d ___, ___,
2016 WL 516707, at *3 (Minn. Feb. 10, 2016) (citing In re Hennepin Cty. 1986 Recycling
Bond Litig., 540 N.W.2d 494, 498 (Minn. 1995)).
Because the language in the stipulated dissolution judgment unambiguously permits
the children to remain in California until respondent completes the clinical medical trial,
and because respondent remains enrolled in the trial, the district court correctly determined
that it would be premature to require the children to return to Minnesota.
Even if the stipulated dissolution judgment is ambiguous, the district court did not
err in interpreting it as permitting the children to remain in California until the
completion of respondent’s clinical trial.
A district court’s determination of the meaning of an ambiguous judgment and
decree provision is a fact question, which appellate courts review for clear error. Tarlan v.
Sorensen, 702 N.W.2d 915, 919 (Minn. App. 2005), review denied (Minn. Mar. 15, 2005).
Because the same judge who entered the stipulated dissolution judgment in 2013 is the
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judge who determined its meaning in this proceeding, her reading of the provision is
entitled to “great weight.” Id. at 919.
Appellant argues that the district court gave no weight to his interpretation of the
stipulated dissolution judgment, which he claims is supported by documentation indicating
that the parties only intended that respondent would participate in a temporary one-year
trial. Appellant’s argument lacks merit. The district court found that both parties expected
the clinical trial to only last one year at the time of the stipulated dissolution judgment.
However, the district court concluded that the parties intended to move to California to
permit respondent to participate in the clinical trial and hopefully improve her symptoms.
Because respondent was still participating in the clinical trial that was improving her
medical condition, the district court found that the children should remain in California
until respondent completes her clinical trial. The district court’s conclusion is amply
supported by the record.
Moreover, appellant does not cite any legal authority for his interpretation that the
word “temporary” cannot be considered a period longer than one year. When interpreting
a contract, “the language is to be given its plain and ordinary meaning,” and a contract
should be interpreted “in such a way as to give meaning to all of its provisions.” Brookfield
Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 394 (Minn. 1998). “Temporary”
is defined as “[l]asting for a time only; existing or continuing for a limited (usu[ally] short)
time; transitory.” Black’s Law Dictionary 1602 (9th ed. 2009). Because “temporary” could
be interpreted to extend to a period of years based on its ordinary meaning, the district court
9
did not err in interpreting the term as consistent with “completion of [respondent’s] clinical
trial.”
Appellant also appears to argue fraudulent inducement for the first time on appeal.
Because this issue was not raised in the district court, we decline to address it here. Thiele
v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
Relocation
Appellant argues that the district court abused its discretion by granting
respondent’s request to relocate the children to California and challenges several of the
district court’s findings. In reviewing a district court’s relocation decision, we are “limited
to considering whether the [district] court abused its discretion by making findings
unsupported by the evidence or by improperly applying the law.” Goldman v. Greenwood,
748 N.W.2d 279, 284 (Minn. 2008) (quotation omitted). We will “set aside a district
court’s findings of fact only if clearly erroneous, giving deference to the district court’s
opportunity to evaluate witness credibility.” Id. “Findings of fact are clearly erroneous
whe[n] an appellate court is left with the definite and firm conviction that a mistake has
been made.” Id. (quotation omitted). Interpretation of a statute is a question of law
reviewed de novo. Id. at 282.
When a party challenges a district court’s findings, that party shall summarize the
evidence “tending directly or by reasonable inference to sustain” the challenged findings.
Minn. R. Civ. App. P. 128.02, subd. 1(c). “That the record might support findings other
than those made by the [district] court does not show that the court’s findings are
10
defective.” Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000); see Elliott
v. Mitchell, 311 Minn. 533, 535, 249 N.W.2d 172, 174 (1976) (affirming findings, but
noting that evidence might have supported another conclusion); Zander v. Zander, 720
N.W.2d 360, 368 (Minn. App. 2006) (observing that, while the record could support a
different decision, “this court may not substitute its judgment for that of the district court”),
review denied (Minn. Nov. 14, 2006). It is not the role of this court to reweigh the evidence
presented to the district court. Vangsness, 607 N.W.2d at 475. An appellate court’s “duty
is performed when we consider all the evidence . . . and determine [whether] it reasonably
supports the [district court’s] findings.” Wilson v. Moline, 234 Minn. 174, 182, 47 N.W.2d
865, 870 (1951).
If a parent has been awarded court-ordered parenting time, the other parent may not
move the child’s residence to another state except upon court order or with the consent of
the other parent. Minn. Stat. § 518.175, subd. 3(a) (2014).4 In determining whether to
permit a parent to move a child’s residence to another state, the district court must base its
decision on the best interests of the child, and consider eight statutory factors. Id.,subd. 3(b) (2014). These factors include:
(1) the nature, quality, extent of involvement, and
duration of the child’s relationship with the person proposing
4
It could be argued that appellant already consented to the relocation by virtue of the
stipulated dissolution judgment, rendering any further analysis superfluous. This case does
not involve a parent seeking to permanently relocate children to a new location; rather, it
involves a question of whether the children should remain living in California (as they have
since August 2013) during respondent’s clinical trial. Because neither party raises this
argument, we examine the district court’s best-interest analysis.
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to relocate and with the nonrelocating person, siblings, and
other significant persons in the child’s life;
(2) the age, developmental stage, needs of the child, and
the likely impact the relocation will have on the child’s
physical, educational, and emotional development, taking into
consideration special needs of the child;
(3) the feasibility of preserving the relationship between
the nonrelocating person and the child through suitable
parenting time arrangements, considering the logistics and
financial circumstances of the parties;
(4) the child’s preference, taking into consideration the
age and maturity of the child;
(5) whether there is an established pattern of conduct of
the person seeking the relocation either to promote or thwart
the relationship of the child and the nonrelocating person;
(6) whether the relocation of the child will enhance the
general quality of the life for both the custodial parent seeking
the relocation and the child including, but not limited to,
financial or emotional benefit or educational opportunity;
(7) the reasons of each person for seeking or opposing
the relocation; and
(8) the effect on the safety and welfare of the child, or
of the parent requesting to move the child’s residence, of
domestic abuse, as defined in section 518B.01.
Id.Best-interest factors
Because the district court has broad discretion in deciding what is in the best
interests of the children, there is “scant if any room for an appellate court to question the
[district] court’s balancing of best-interests considerations.” Vangsness, 607 N.W.2d at
477. The district court considered testimony from a motion hearing and exhibits provided
by both parties before making findings on the factors below.
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The child’s relationship with the parent proposing to relocate, the nonrelocating
parent, siblings, and other significant persons.
The district court acknowledged that the parties have joint physical and joint legal
custody and share nearly equal parenting time. The district court found that the children
have close relationships with both parents who continue to be actively involved in their
lives. The district court also found that the children’s relationships with the parties’
families were “no more significant than the typical grandparent or aunt and uncle
relationship.” Therefore, the district court determined that this factor was neutral.
Appellant does not specifically challenge the district court’s findings on this factor.
The age and needs of the child, and the impact of relocation on the child.
The district court found that the children, ages 9 and 11 at the time of the hearing,
were at “very formative and adaptable ages and it is important for them to have both of
their parents actively involved in their lives.” The district court found that while the impact
of the relocation itself was neutral, respondent’s testimony that she would leave her clinical
trial prior to its completion if the children returned to Minnesota favored remaining in
California because it was not in the children’s best interests “to have to witness their
mother’s potential deterioration.” Appellant challenges this finding, claiming that the
district court erroneously relied on respondent’s “potential deterioration,” which he
characterizes as based on respondent’s “inappropriate threat to abandon treatment” and her
unsupported assertions that she could not continue with the experimental drug used in the
California trial and might die.
13
Appellant does not dispute that remaining in the clinical trial is recommended by
respondent’s doctors and that she has shown positive results. Although appellant argues
that respondent “failed to prove that continuing treatment was unavailable to her in or near
Minnesota,” he also acknowledges her testimony that she had conducted online research
concerning the clinical drug. Respondent testified that she only qualified for two studies
in neighboring states, but that those studies did not involve the use of the drug that has
decreased the size of her tumor. Additionally, respondent also stated that she had initially
sought a second opinion from Cedars Sinai because two Minnesota hospitals had offered
only treatment for symptoms. The district court apparently found respondent’s testimony
to be credible, and “credibility determinations . . . are the province of the district court.” In
re Welfare of Children of D.F., 752 N.W.2d 88, 96 (Minn. App. 2008).
Moreover, appellant’s argument that respondent used an “inappropriate threat to
abandon treatment” is inaccurate because she testified that while she would prefer to follow
her doctors’ recommendation to remain in the clinical trial, she would try to find some
other type of treatment if she returned to Minnesota. Respondent simply testified that she
would return with the children to Minnesota if that was what the district court ordered, just
as appellant admitted that he would remain in California if the district court granted
respondent’s motion. Because the children enjoy a close relationship with respondent, and
respondent’s symptoms have improved during the clinical trial, it was logical for the
district court to consider the impact that respondent’s deteriorating health may have on the
children if they were required to return to Minnesota.
14
The feasibility of preserving the relationship between the nonrelocating parent and
the child through parenting time arrangements.
The district court found that this factor was neutral, potentially irrelevant, and
“largely hypothetical” given appellant’s testimony that he would remain in California if
respondent’s motion was granted. The district court found that appellant would maintain
a “substantial and significant relationship” with the children if he chose to return to
Minnesota alone because the children would spend extended periods with appellant during
the summer and school breaks. The district court considered the relocation as “temporary”
and believed that any modification would be “limited in duration.” The district court also
found that the parties’ incomes are such that traveling costs for parenting time would not
“overly tax the parties’ financial circumstances.”
Appellant argues that these findings are clearly erroneous because respondent did
not produce any evidence that relocation would not negatively impact the children’s
relationship with him and that he can only maintain a close relationship with them if he
remains in California. But appellant cites no legal authority requiring respondent to prove
that appellant’s relationship with the children would not be negatively impacted if he
potentially made the choice to return to Minnesota.
Appellant also claims that it is “undisputed that he would be denied the significant
and ongoing contact with his children that he has maintained throughout their lives unless
he is forced to remain in California.” But the district court expressly found that appellant
would maintain a “substantial and significant relationship” with the children if they
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remained in California and he returned to Minnesota because they would spend extended
periods with him during the summer and school breaks.
Finally, appellant argues that the district court’s characterization of the relocation
as “temporary” is erroneous. Once again, he cites no legal authority in support of this
position. As discussed above, the ordinary meaning of the word “temporary” may include
a term of years. Further, even if the children’s relationship with appellant might be
diminished by such a cross-country move, one negative factor does not require rejection of
respondent’s motion. “The statute and caselaw make clear that the ultimate issue is the
child[ren]’s best interests as assessed under the totality of the considered factors.” Hagen
v. Schirmers, 783 N.W.2d 212, 216 (Minn. App. 2010) (citing Minn. Stat. § 518.175,
subd. 3(b) (describing best-interests test) and Clark v. Clark, 346 N.W.2d 383, 385 (Minn.
App. 1984) (“It is well established that the ultimate question in all disputes over [parenting
time] is what is in the best interest of the child.”), review denied (Minn. June 12, 1984)).
The child’s preference, considering the child’s age and maturity.
The district court determined that this factor was neutral because the children are
too young for their preference to be considered. Appellant does not challenge this
determination.
The pattern of conduct of the parent seeking relocation either to promote or thwart
the relationship of the child and the nonrelocating parent.
The district court determined that this factor favored respondent because appellant’s
allegations that respondent refused to exchange dates with him when he travelled and that
the move has interfered with the children’s relationship with his extended family did not
16
rise to the level of “thwarting” appellant’s relationship with the children. The district court
found that the parties maintained a schedule that was “very close to a 50/50 parenting time
split, even with the dates that [respondent] has covered for [appellant] while he is
traveling.” Appellant does not expressly challenge this determination, which is supported
by his admission that respondent has not tried to limit or discourage his relationship with
the children.
Whether relocation will enhance the quality of life for the parent seeking relocation
and the child.
The district court found that permitting the relocation to extend until 2019 would
have a significant impact on respondent’s health because she would be able to remain in
the clinical trial. The district court found respondent’s testimony that she would only be
able to continue the clinical treatment with the drug she currently receives if she remained
in California to be credible. The district court also found credible respondent’s testimony
that she would lose her job and her health insurance if she returned to Minnesota with the
children. The district court noted appellant’s testimony that he believed it would be
financially in the children’s best interests to return to Minnesota despite the fact that
respondent would be unemployed and uninsured. Appellant also admitted that it was
ultimately in the children’s best interests for respondent to complete the clinical trial and
get well. The district court concluded that this factor weighed in favor of respondent.
Appellant’s argument that the district court’s finding was based “almost entirely on”
the clinical trial is inaccurate because the district court clearly addressed the financial
impact respondent’s unemployment and lack of health insurance would have on the
17
children and on appellant, who would likely be required to pay child support upon the
parties’ return to Minnesota due to respondent’s unemployment.
The reasons the parents seek or oppose relocation.
The district court found that respondent wanted to remain in California to continue
participating in her clinical trial. The district court determined that appellant opposed the
relocation because the cost-of-living in Minnesota is significantly lower than California,
the children would have their own rooms in a house, his family is closer, and he wishes to
foster the Midwestern values of responsibility, honesty, integrity, and hard work in the
children. The district court determined that this factor favored respondent because her
health was more important than the higher cost of living, the children did not have very
close ties with appellant’s extended family, and good moral values can be fostered
regardless of location. Appellant does not specifically challenge any of these findings.
The effect on the safety and welfare of the child, or of the parent requesting to
relocate, of domestic abuse.
The district court found that this factor was inapplicable here, a determination
appellant does not challenge.
In a thorough and carefully analyzed order, the district court concluded that after
balancing the best-interest factors, respondent established that remaining in California until
the end of her clinical trial is in the children’s best interests. The district court’s findings
indicate thoughtful consideration of both parties’ arguments concerning this difficult
situation, and are supported by the evidence and the reasonable inferences drawn
18
therefrom. The district court did not err in granting respondent’s motion to remain in
California until the end of her clinical medical trial.
Affirmed.
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