In re the Marriage of: David Scott Pederson v. Elizabeth Joan Pederson

This opinion will be unpublished and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
A15-1845
In re the Marriage of:
David Scott Pederson, petitioner,
Respondent,
vs.
Elizabeth Joan Pederson,
Appellant.
Filed August 15, 2016
Affirmed in part, reversed in part, and remanded
Bjorkman, Judge
St. Louis County District Court
File No. 69DU-FA-14-123
David R. Oberstar, Fryberger, Buchanan, Smith & Frederick, P.A., Duluth, Minnesota (for
respondent)
Jacquelyn S. Lutz, Robichaud & Alcántara, P.A., Minneapolis, Minnesota (for appellant)
Considered and decided by Rodenberg, Presiding Judge; Peterson, Judge; and
Bjorkman, Judge.
UNPUBLISHED OPINION
BJORKMAN, Judge
In this marital-dissolution appeal, appellant argues that the district court: (1) abused
its discretion in making its custody determinations, (2) improperly divided the marital debt,
(3) denied appellant a fair trial, and (4) made a spousal-maintenance award not supported
by findings. We reverse and remand on the issue of spousal maintenance, but otherwise
affirm.
FACTS
Appellant Elizabeth Joan Pederson and respondent David Scott Pederson were
married in 1985. They have two adult children and two minor children. At the time of
trial, the minor children were 12 and 15 years old.
On January 22, 2014, father petitioned for dissolution. Mother requested an order
for protection (OFP) against father two weeks later. On February 11, the parties agreed to
an OFP without findings that abuse occurred. The district court issued a temporary order
granting both parties joint legal custody of the children, granting sole physical custody to
mother, appointing a guardian ad litem, and directing father to deposit his paychecks into
a joint checking account to cover household expenses.
On June 25, the district court appointed Bill Thompson as a parenting-time
evaluator. Four months later, Thompson issued a report recommending that the parties
share joint legal custody, mother have sole physical custody, and father have scheduled
parenting time on weekends and holidays.
On January 29, 2015, the district court granted mother’s request to continue the trial
from February 3 to May 11. The district court further ordered Thompson to file any
updated report at least 14 days prior to trial. On April 16, mother’s attorney—Jeremy M.
Hurd—moved the district court for leave to withdraw as counsel.1 The district court
1
Hurd was mother’s second attorney.
2
granted Hurd’s motion on April 20. Two days later, mother requested a trial continuance
to allow her to obtain new counsel. On April 28, mother obtained a new attorney. The
district court denied mother’s repeated request for a new trial date, citing the age of the
case (approximately 15 months), the fact that mother was on her third attorney, and the
prior continuance.
Thompson submitted an amended report five days before trial. His new
recommendations reflect father’s return to Duluth and a change in the children’s custody
preferences. The 15-year-old child wanted to spend time equally between the parents; the
12-year-old wanted to reside primarily with father. Thompson also noted that father
appeared “more willing to accommodate . . . mother than vice versa” and recommended
that the district court order joint legal and physical custody.
During trial, the minor children were interviewed in camera. The 15-year-old stated
that she preferred to spend equal time with each parent, but if mother did not agree with
that, she wanted to live with father. The 12-year-old also stated that she wanted to spend
equal time with each parent.
Thompson testified consistent with his reports. Mother objected to Thompson’s
amended report as untimely. The district court overruled the objection, stating that the late
submission did not prejudice mother because she was able to cross-examine Thompson.
Vocational expert Jeanne Krizan testified that although mother was unemployed,
her education and experience qualified her to immediately earn $20,000 to $25,000 per
year. And Krizan opined that mother’s annual income would likely increase to $28,000 to
$30,000 within three years.
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The dissolution judgment awards father sole physical custody of the minor children
subject to mother’s parenting time, and grants joint legal custody, with the exception that
father was given sole authority to decide where the children would attend school. The
district court awarded father the familial home subject to an equity distribution to mother’s
creditors. And the court ordered father to pay spousal maintenance of $1,000 per month
for a period of four years, and to carry medical and dental insurance for the minor children
and mother, with the mother’s coverage limited to the same four-year period.
Mother moved for a new trial or amended findings, challenging many of the district
court’s findings of fact, arguing that she was denied a fair trial, and requesting need-based
attorney fees. The district court partially granted mother’s attorney-fee request but
otherwise denied her motion. The district court amended the judgment to increase spousal
maintenance to $1,600 per month, with the additional $600 to cover the cost of mother’s
insurance. Mother appeals.
DECISION
I. The district court did not abuse its discretion in making its custody
determinations.
When determining child custody, a district court shall consider the best interests of
each child. Minn. Stat. § 518.17, subd. 3(a)(3) (2014). To determine a child’s best
interests, courts consider all relevant factors, including 13 delineated factors: (1) the
wishes of the parents; (2) the preference of the child; (3) the child’s primary caretaker;
(4) the intimacy of the relationship between each parent and child; (5) the interaction of the
child with members of the family or other individuals who may significantly affect the
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child’s best interests; (6) the child’s adjustment to home, school, and community; (7) the
length of time the child has lived in a satisfactory environment and the desirability of
maintaining continuity; (8) the permanence of the existing or proposed custodial home;
(9) the mental and physical health of all individuals involved; (10) the capacity and
disposition of the parties to give the child love, guidance, and continue raising the child in
the child’s culture and religion; (11) the child’s cultural background; (12) the effect on the
child of the actions of an abuser; and (13) except in cases involving domestic abuse, the
disposition of each parent to encourage and permit continuing contact with the other parent.
Minn. Stat. § 518.17, subd. 1(a) (2014).
“The court may not use one factor to the exclusion of all others.” Id. And “[t]he
court must make detailed findings on each of the factors and explain how the factors led to
its conclusions and to the determination of the best interests of the child.” Id. When joint
physical or legal custody is contemplated, four additional factors must be considered,
including: (1) the ability of the parents to cooperate; (2) the methods for resolving disputes
regarding major decisions concerning the child; (3) whether it would be detrimental to the
child if one parent had sole authority; and (4) whether domestic abuse has occurred
between the parents. Id., subd. 2(b) (2014).
We review custody determinations to see “whether the district court abused its
discretion by making findings unsupported by the evidence or by improperly applying the
law.” Zander v. Zander, 720 N.W.2d 360, 365-66 (Minn. App. 2006), review denied
(Minn. Nov. 14, 2006). The law “leaves scant if any room for an appellate court to question
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the [district] court’s balancing of best-interests considerations.” Vangsness v. Vangsness,
607 N.W.2d 468, 477 (Minn. App. 2000).
Mother argues that the district court misapplied the law because it failed to make
the required best-interests findings. See Minn. Stat. § 518.17 (2014). Mother also asserts
that the district court abused its discretion by giving father sole physical custody of the
minor children and sole authority to make education decisions. We address each issue in
turn.
Adequacy of Findings
The district court made extensive findings of fact in its dissolution judgment. And
the court noted its legal obligation to evaluate the statutory best-interests factors. But
mother contends that the district court erred because its detailed findings are not expressly
linked to each best-interests factor. We are not persuaded.
In Kremer v. Kremer, 827 N.W.2d 454, 458 (Minn. App. 2013), review denied
(Minn. Apr. 16, 2013), the father challenged the district court’s custody determination,
arguing that the district court failed to address all of the best-interests factors under Minn.
Stat. § 518.17, subd. 1(a). This court affirmed, concluding that although the district court
did not state how each finding of fact related to the factors, the findings were adequate
because they encompassed each factor. Kremer, 827 N.W.2d at 458. And the district court
specifically stated that it made its findings using the best-interests factors. Id.
Likewise, our careful review of the judgment demonstrates that the district court’s
findings of fact encompass all of the best-interests factors. The following findings of fact
correspond to the 13 factors set out in Minn. Stat. § 518.17, subd. 1(a). Each parent
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expressed a desire to have sole physical custody of the children (1). Each child stated that
they would like to share time equally between the parents (2). Both parents “essentially
co-parented their children” (3). Both parents have relationships with their children in
separate capacities (4). Mother restricts the children’s relationships with father, their adult
sister, their aunt, and their grandmother (5) (13). The children will stay in Duluth in the
familial home, and the only adjustment for schooling would be the potential decision to go
to public school rather than private school (6) (7) (8). The only instabilities in the home
environment flowed from mother’s significant debts and her “hoarding” behavior (7).2 The
children have been provided for by both parents and will maintain their living environment
by staying in the familial home (7) (8). Mother has “significant mental health issues that
remain unresolved” (9). Both parents would encourage each child’s cultural and religious
backgrounds (10) (11). No objective evidence supports mother’s abuse claims (12). And
Thompson believed that father would be “much more willing to accommodate the mother
than vice versa” (13).
Additionally, the district court made the following findings that correspond to the
joint-custody factors established in Minn. Stat. § 518.17, subd. 2(b). Mother has not
displayed the cooperation necessary to make a joint custody arrangement work (1).
Although methods for resolving disputes were not specifically discussed, mother’s lack of
2
Multiple trial exhibits show excessive clutter in the home, including significant amounts
of cosmetic products. One of the parties’ adult children testified that mother collected large
amounts of clothing, piles of toys, and other “supplies” and “utensils.” Father testified that
mother incurred approximately $120,000 of debt related to cosmetic products, which was
paid during the marriage.
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financial wherewithal impedes her ability to make decisions regarding the children’s
schooling (2). Mother cannot accommodate father or co-parent in a way that would allow
her to be the physical custodian of the children (1) (3). And there is no credible evidence
of domestic abuse (4).
These findings, which the record supports, demonstrate that the district court
considered all of the best-interests factors. And, as in Kremer, the district court stated that
its custody determinations were “[b]ased upon the statutory factors.” 827 N.W.2d at 458.
Because the district court made detailed findings that embrace all of the best-interests
factors, it did not “use one factor to the exclusion of all others.” Minn. Stat. § 518.17, subd.
1(a). Although mother disagrees with how the district court presented its findings, we
conclude that the district court did not misapply the law. Our analysis now turns to whether
the district court otherwise abused its discretion in making its custody determinations.
Legal Custody
“Joint legal custody is presumed to be in a child’s best interests.” Rosenfeld v.
Rosenfeld, 529 N.W.2d 724, 726 (Minn. App. 1995). “But joint legal custody should be
granted only where the parents can cooperatively deal with parenting decisions.” Id.
(quotation omitted). Mother argues that the district court abused its discretion when it
awarded the parties joint legal custody of the children, but gave father sole authority to
decide whether the children would attend public or private school. We disagree.
In Novak v. Novak, the parties who shared legal custody disagreed about whether
their child should be home schooled. 446 N.W.2d 422, 423 (Minn. App. 1989), review
denied (Minn. Dec. 1, 1989). The district court granted the father’s motion to enroll the
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child in a public school or in a private school similar to the one the child previously
attended. Id. We reversed and remanded because the district court based its decision on
the parent’s competing custodial rights rather than the child’s best interests. Id. at 424.
Unlike Novak, the district court based its determination on the children’s best
interests. The district court specifically found that because father is responsible for
education expenses, it is in the children’s best interests to authorize father to decide whether
to enroll them in private or public school. But mother challenges the district court’s finding
that she has a “complete lack of financial wherewithal,” contending that because financial
management is not an enumerated best-interests factor, the district court erred by
considering it. We are not persuaded. The statute requires the district court to consider
“all relevant factors.” Minn. Stat. § 518.17, subd. 1(a). And because the decision whether
to enroll the children in private or public school has significant financial implications, each
parent’s ability to manage finances is relevant. On this record, the district court did not
abuse its discretion in giving father sole authority to decide which school the children will
attend.
Physical Custody
Mother first asserts that the district court abused its discretion by awarding father
sole physical custody because it was contrary to Thompson’s recommendations. We
disagree. A district court may make a custody order that is contrary to a parenting-time
evaluator’s recommendation if the district court’s findings indicate a full consideration of
the children’s best interests. Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991);
see also Pikula v. Pikula, 374 N.W.2d 705, 712 (Minn. 1985) (stating that the district court
9
may disregard recommendations of a parenting-time evaluator if they are outweighed by
other evidence). Within its extensive findings, the district court noted that Thompson
recommended joint physical custody. But the district court found that this recommendation
was outweighed by other evidence that favored giving father sole physical custody. And
Thompson acknowledged that mother has not displayed the cooperation necessary to make
joint custody work.
Mother next argues that the district court failed to properly consider the children’s
preference for equally dividing their time between each parent. This argument misstates
the record. The district court, in fact, found that the children preferred an equal division of
time. But these preferences implicated only one of the statutory best-interests factors. See
Imdieke v. Imdieke, 411 N.W.2d 241, 242 (Minn. App. 1987) (stating that the preference
of a minor child is just one factor to consider and is not necessarily determinative of final
placement), review denied (Minn. Oct. 30, 1987). And, as previously noted, the district
court considered all of the required best-interests factors.
Finally, mother contends that the district court’s findings are flawed because they
omit all positive facts about her, and all negative facts about father. Again, the record
belies mother’s argument. In many findings of fact, the district court recognizes mother’s
significant contributions in raising and parenting the children. The children’s preference
to spend equal time with each parent—a positive factor for both mother and father—is also
noted. Mother provides no authority for her argument that a district court must make
findings on every positive or negative aspect of each parent to determine custody. The
district court is only required to address the best interests of the children. Minn. Stat.
10
§ 518.17, subd. 3(a)(3). Because the district court considered the statutory factors and its
findings are supported by the record, we conclude it did not abuse its discretion by
awarding sole physical custody to father.
II. The district court did not abuse its discretion in dividing the marital debt.
“Upon a dissolution of a marriage . . . the court shall make a just and equitable
division of the marital property of the parties without regard to marital misconduct, after
making findings regarding the division of the property.” Minn. Stat. § 518.58, subd. 1
(2014). The district court’s findings shall be based on all relevant factors including:
the length of the marriage, any prior marriage of a party, the
age, health, station, occupation, amount and sources of income,
vocational skills, employability, estate, liabilities, needs,
opportunity for future acquisition of capital assets, and income
of each party.
Minn. Stat. § 518.58, subd. 1. “The [district] court shall also consider the contribution of
each [party] in the acquisition, preservation, depreciation or appreciation in the amount or
value of the marital property, as well as the contribution of a spouse as a homemaker.” Id.
“An equitable division of marital property is not necessarily an equal division.” Crosby v.
Crosby, 587 N.W.2d 292, 297 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).
The district court has broad discretion in the division of marital property, including debt,
and we will affirm the decision if it has an acceptable basis in fact and principle. Antone
v. Antone, 645 N.W.2d 96, 100 (Minn. 2002).
Mother challenges the assignment of $64,288 in credit-card debt to her. The district
court assigned credit-card debt to the holder of each credit-card account. Mother does not
dispute that she held the credit-card accounts that were assigned to her, or that she incurred
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the associated debts. Instead, she argues that the district court improperly assigned credit-
card debts to her based on marital misconduct, specifically, failing to manage her finances
prudently. This argument is unavailing.
The district court expressly found that the credit-card debt mother incurred did not
benefit father or the children. This is a legitimate basis for assigning that debt to mother.
See Minn. Stat. § 518.58, subd. 1 (stating that the district court shall consider factors such
as a spouse’s contribution to the preservation of marital property when dividing the
property); Jones v. Jones, 402 N.W.2d 146, 149 (Minn. App. 1987) (upholding
apportionment of debt to husband that had “no ostensible relation to [wife]”). Simply
because mother’s accumulation of substantial debt after the parties’ separation (and while
father was under court order to pay household expenses) can also be characterized as
marital misconduct does not mean that the district court’s debt allocation was improper.
On this record, we discern no abuse of discretion.
III. Mother received a fair trial.
Mother argues that she was denied a fair trial because the district court denied her
continuance request and displayed bias against her. We are not persuaded.
Trial Continuance
A district court’s decision whether to continue a trial will not be reversed absent a
clear abuse of discretion. Jones, 402 N.W.2d at 149-50. “The test is whether a denial
prejudices the outcome of the trial.” Id. at 150. An attorney’s withdrawal does not create
a right to continue a trial. Minn. R. Gen. Pract. 105.
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Mother argues that the district court should have continued the trial because she had
just retained new counsel and Thompson’s amended report was untimely. We disagree.
First, mother retained experienced replacement counsel 13 days before trial. As the district
court noted, the case had been pending for approximately 15 months, mother was on her
third attorney, and the trial had already been continued once at mother’s request. And apart
from her bald assertion of “extreme” prejudice, mother fails to explain why her new
attorney was unable to prepare for trial.
Second, Thompson submitted his updated report five days before trial. While the
district court had ordered him to do so at least 14 days prior to trial, we discern no resulting
prejudice. The amended report was limited (three pages) and mother was able to cross-
examine Thompson at trial. And aside from generally stating that she was forced to present
her case unprepared, mother fails to describe how the outcome of the trial would have been
different if a continuance had been granted. See Toughill v. Toughill, 609 N.W.2d 634,
638 (Minn. App. 2000) (stating that party seeking relief on appeal must show prejudicial
error by the district court). On this record, we discern no abuse of the district court’s
discretion.
Judicial Bias
A judge shall perform all of his duties without bias or prejudice. Minn. Code Jud.
Conduct Rule 2.3(A). To require reversal, judicial bias must originate from an extrajudicial
source, In re Estate of Lange, 398 N.W.2d 569, 573 (Minn. App. 1986), or be pervasive,
which is conduct that is “so extreme as to display [a] clear inability to render fair
judgment.” Liteky v. United States, 510 U.S. 540, 551, 114 S. Ct. 1147, 1155 (1994). We
13
presume that judges approach cases with a neutral and objective disposition. State v.
Burrell, 743 N.W.2d 596, 603 (Minn. 2008). Mother raises the issue of judicial bias for
the first time on appeal. Although we generally do not consider issues that were not
presented to the district court, Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996), we do so
here in light of our limited remand.
Mother asserts that the district court displayed bias by (1) repeatedly noting her
mental instability and hoarding behavior, (2) deciding evidentiary issues in father’s favor,
and (3) making numerous findings of fact that favor father. We disagree. Contrary to
mother’s suggestion, the district court’s findings regarding her mental-health issues do not
reveal an inappropriate effort to diagnose her condition. Rather, they relate to the best-
interests factors relevant to the custody determinations. Minn. Stat. § 518.17, subds. 1, 2.
The contention that the district court’s evidentiary rulings and witness questioning
demonstrate judicial bias likewise fails. Adverse rulings alone are not a basis for imputing
bias to a judge. See Olson v. Olson, 392 N.W.2d 338, 341 (Minn. App. 1986). And the
record reflects that the district court asked only one of mother’s witnesses clarifying
questions about a potential violation of the existing OFP. Such questioning is well within
the discretion of the district court. See Sheeran v. Sheeran, 401 N.W.2d 111, 115 (Minn.
App. 1987) (“It is within the discretion of the [district] court to question a witness called
by a party.”). And without actual legal argument explaining how the district court abused
its discretion in its evidentiary rulings, we cannot conclude that the accumulation of these
evidentiary rulings constitutes judicial bias.
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Finally, mother’s argument that the district court’s findings reflect bias in favor of
father also lacks merit. At its core, this argument challenges the sufficiency of the
evidence. As such, the argument misses the mark for two reasons. First, the record
supports the challenged findings. For example, mother asserts that the record contradicts
the district court’s finding that she violated the order to pay household expenses from the
paycheck father was required to deposit into their joint checking account during the
pendency of the dissolution proceeding. She points to evidence that father withdrew
money from the checking account shortly after depositing his paychecks. But the district
court’s finding is supported by father’s testimony that he paid the bills because mother
failed to do so. Similarly, the challenged finding that mother is a hoarder is supported by
photographs taken of the family home and testimony provided by one of the parties’ adult
children. Second, even if these findings were clearly erroneous, it would not establish
judicial bias. See Peterson v. Knutson, 305 Minn. 53, 60, 233 N.W.2d 716, 720 (1975)
(stating that even a “fundamentally erroneous” district court ruling does not necessarily
show judicial bias).
We note that certain language in the dissolution judgment, including the
characterization of mother as a “train wreck,” is unnecessary and inappropriate. But such
language does not establish that the district court was biased. See Liteky, 510 U.S. at 555-
56, 114 S. Ct. at 1157 (stating that expressions of impatience, dissatisfaction, or anger do
not establish bias). In sum, there is no evidence of pervasive judicial bias in this case.
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IV. The district court did not make sufficient findings regarding spousal
maintenance.
Spousal maintenance may be awarded if a spouse demonstrates that she does not
have sufficient property to provide for her reasonable needs or cannot reasonably provide
adequate self-support. Minn. Stat. § 518.552, subd. 1 (2014); Robert v. Zygmunt, 652
N.W.2d 537, 544 (Minn. App. 2002), review denied (Minn. Dec. 30, 2002). Such awards
must be in an amount and duration that the district court deems just after considering:
(1) the ability of the recipient to provide for her needs independently, (2) the time to acquire
education or training to become self-supporting, (3) the standard of living during the
marriage, (4) the duration of the marriage and the depreciation of a homemaker’s skills or
experience, (5) earnings and opportunities forgone by the recipient, (6) the age and health
of the recipient, (7) the resources of the obligor, and (8) the contribution of both parties to
the preservation of marital property, and the contribution of a homemaker to the other
spouse’s employment. Minn. Stat. § 518.552, subd. 2 (2014). “[T]he district court is not
required to make specific findings on every statutory factor if the findings that were made
reflect that the district court adequately considered the relevant statutory factors.” Peterka
v. Peterka, 675 N.W.2d 353, 360 (Minn. App. 2004). We review a district court’s spousal-
maintenance award for an abuse of discretion. Dobrin v. Dobrin, 569 N.W.2d 199, 202
(Minn. 1997).
Mother correctly points out that the district court did not make findings regarding
her reasonable monthly expenses, the marital standard of living, and whether the spousal-
maintenance award will adequately provide for her reasonable needs. We recognize that
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the district court’s finding regarding father’s ability to pay spousal maintenance may be a
limiting factor. See Minn. Stat. § 518.552, subd. 2(g) (stating that an obligor’s ability to
meet his or her needs while also meeting the needs of the other spouse is relevant to a
spousal-maintenance award). But without findings regarding mother’s monthly expenses,
her reasonable needs, and the marital standard of living, we are unable to determine
whether the district court considered the relevant statutory factors. See Stich v. Stich, 435
N.W.2d 52, 53 (Minn. 1989) (reversing and remanding a maintenance award because it
lacked adequate supporting findings of fact); Cummings v. Cummings, 376 N.W.2d 726,
731 (Minn. App. 1985) (stating that without specific findings as to a recipient’s reasonable
expenses, “it is impossible to review whether [mother] meets the standards set forth in
[Minn. Stat. § 518.552].”). Accordingly, we remand for additional findings and for a
recalculation of spousal maintenance. We leave to the district court the decision whether
to reopen the record on remand.
Affirmed in part, reversed in part, and remanded.
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