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Bertrand v. Krenz

Court of Appeals of Minnesota

July 22, 2013

Jennifer Ann Bertrand, Appellant,
v.
Jeffrey Robert Krenz, Respondent

UNPUBLISHED OPINION

Blue Earth County District Court File No. 07F403050135 Stoneburner, Judge

Jon G. Sarff, Sarff Law Office, Mankato, Minnesota (for appellant)

Jason Kohlmeyer, Tony Larson, Rosengren Kohlmeyer Law Office, Chtd., Mankato, Minnesota (for respondent)

Considered and decided by Hudson, Presiding Judge; Schellhas, Judge; and Stoneburner, Judge.

OPINION

STONEBURNER, Judge

In this challenge to the district court's order denying appellant-mother's motion for an order permitting her to move the parties' nine-year-old son out of the state, mother asserts that the district court abused its discretion in making numerous findings and conclusions of law and abused its discretion in denying her motion for amended findings of fact or a new hearing. Because (1) none of the challenged findings are clearly erroneous; (2) the record supports the district court's conclusion that mother failed to establish that moving out of the state is in the child's best interests; and (3) mother failed to establish that she is entitled to a new hearing, we affirm the denial of mother's motion for leave to move out of state with the child. Because mother did not properly raise, in the district court, the issue of amending the custody order to incorporate the parties' agreement on sharing medical expenses, the issue is waived.

FACTS

Appellant Jennifer Ann Bertrand (mother) and respondent Jeffrey Robert Krenz (father) are the parents of D.M.K-B. (child), born October 14, 2002, in Mankato. Mother and father have never been married to each other and have never lived together with child. They share legal custody of child, and mother has sole physical custody, subject to father's parenting time. The parties lived in Mankato until mother and child moved to Sartell in 2006. Father then moved to Sartell, and the parties have continued to live in Sartell.

Mother married in May 2012. Her husband had recently taken a job in Illinois, and he moved to nearby Dunlap, IL. Mother brought a motion for an order to allow her to move to Illinois with child and to modify father's parenting time to accommodate the move. Mother's proposed parenting-time schedule modifies the current holiday schedule by eliminating father's week-day overnight and alternate weekend parenting time, but giving father extended parenting time in the summer. Father opposed mother's motion, and the district court referee conducted an evidentiary hearing.[1]

At the hearing, mother asserted that her proposed parenting-time schedule gives father "almost the same number of days" as he receives under the current parenting-time schedule. But the district court concluded that mother's proposal reduces father's overnights from approximately 106 overnights per year to 42 overnights per year and "reduces the time [f]ather could spend with his son by more than half. . . . [to] below the statutory 25% presumption of parenting time under Minnesota Statute [§] 518.175(1)(e)." The district court stated that mother's proposed restriction on father's parenting time "requires a finding of endangerment or noncompliance with court orders, " and found that mother "has not met her burden of proving any justifiable reason for departing from the presumption for [father's] 25% parenting time." The district court then made extensive findings on each of the statutorily required factors contained in Minn. Stat. § 518.175, subd. 3. The district court concluded that mother failed to meet her burden of proving that child's removal to Illinois is in his best interests and that mother's proposed parenting schedule "interferes with father's parenting time, does not meet the 25% presumptive parenting time and is not in the best interests of [child]." The district court denied mother's motion to move out of state with child.

Mother moved for amended findings of fact and conclusions of law or a new trial. In her motion, mother sought to amend nine findings, delete two findings, and add one new finding. Some of the proposed amendments relied on new evidence, and another proposed amendment concerned an issue that was not properly presented at the hearing. The district court denied mother's motion, concluding that mother's new evidence could have been presented at trial and that, while "[a] motion to amend findings of fact is appropriate to have the trial court correct errors that it has made[, i]t is not intended to permit a wholesale re-trial of the case." The district court also concluded that mother had failed to identify any errors that would justify amended findings or a new trial. This appeal follows.

DECISION

I. Standard of review, burden of proof

Our review of a removal decision "is 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 where an appellate court is left with the definite and firm conviction that a mistake has been made."[2] Id. (quotations and citations omitted). "When determining whether findings are clearly erroneous, the appellate court views the record in the light most favorable to the [district] court's findings." Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn.App. 2000). The burden is on the party challenging the findings to make such a showing. Id. at 474. In determining whether to permit a parent to move a child's residence to another state over the objection of the other parent, the district court must base the decision on the best interests of the child and must assess eight non-exclusive factors set out in Minn. Stat. § 518.175, subd. 3(b).[3]

"The function of the court of appeals is limited to identifying errors and then correcting them." Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (citations omitted). "It is not within the province of [appellate courts] to determine issues of fact on appeal." Kucera v. Kucera, 275 Minn. 252, 254, 146 N.W.2d 181, 183 (1966).

II. Statutory factors for moving out of the state

The factors that the district court must consider in determining the ...


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