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In re Custody of W.N.M.

Court of Appeals of Minnesota

August 19, 2013

In Re the Custody of W. N. M.,
v.
Janet Ruth Jacobs, Respondent. Peter Edward Marxen, petitioner, Appellant,

UNPUBLISHED OPINION

Scott County District Court File No. 70-FA-11-3676

John T. Burns, Jr., Burns Law Office, Burnsville, Minnesota (for appellant)

Julie K. Seymour, Seymour Family Law, Lakeville, Minnesota (for respondent/cross-appellant)

Considered and decided by Rodenberg, Presiding Judge; Connolly, Judge; and Chutich, Judge.

CHUTICH, Judge

On appeal in this custody dispute, appellant-father, Peter Edward Marxen, argues that the district court should not have appointed a parenting consultant with powers to which the parties did not agree. By notice of related appeal, cross-appellant-mother, Janet Ruth Jacobs, contends that the district court erred by denying her motion to modify the custody order, which gives Marxen the final decision-making authority to determine education-related issues for the parties' minor child. We conclude that the district court did not err by denying Jacobs's motion to modify the custody order but did err by ordering that the parenting consultant has the power to decide school-attendance issues. Consequently, we affirm as modified.

FACTS

Appellant Marxen and respondent Jacobs are the parents of a minor child, W.N.M. Marxen was adjudicated the parent of W.N.M. and subsequently commenced a proceeding for custody and parenting time. The parties reached an agreement to share joint legal and physical custody and a partial agreement concerning parenting time. Remaining issues were submitted to the court for determination, including a dispute over the parties' authority to make educational and medical decisions for their child. A guardian ad litem, Sandy LaRoy, was appointed to make recommendations regarding custody and parenting time.

The district court entered a custody order, which awarded the parties joint legal custody, and provided that, "[s]hould the parties be unable to agree on schooling issues, [Marxen] shall be the decision maker in that regard. If the parties are unable to agree on medical issues, [Jacobs] shall be the decision maker in that regard." Both parties brought motions to amend the custody order, or in the alternative, requested a new trial. Jacobs's motion to amend was based in part on her request that LaRoy be reappointed so that she could clarify her recommendations on W.N.M.'s schooling.

The district court held a hearing and issued an amended custody order. As part of the amended order, the district court explained that, due to a submission extension, LaRoy had been discharged before the record closed and had not submitted a letter clarifying her position regarding the best school for the minor child. The district court concluded that the circumstances did not justify reopening the record because, "LaRoy's recommendation[] regarding the school issue is not material evidence because the Custody Order already gives [Marxen] the final decision-making authority on education issues concerning the minor child." Therefore, the district court denied Jacobs's motion for an amended custody order.

Following the entry of the amended custody order, both parties brought motions seeking further amendment. Before the hearing, the parties agreed to appoint Joan Miller as a parenting consultant. At the hearing, the parties informed the district court of their decision to use a parenting consultant and stated that they would work together to develop language for an order regarding the authority to be given to the parenting consultant. The district court requested that the parties submit proposed orders regarding the parenting consultant.

Jacobs submitted a proposed order to appoint a parenting consultant that Marxen alleges contained a provision allowing the parenting consultant to "decide school attendance issues."[1] Marxen's counsel then sent a letter to the court, objecting to the proposed order: "we must strike provisions 9 and 10 on page 3, which authorize the [parenting consultant] to decide issues related to 'school attendance' and 'appropriate school placement.'" Marxen attached a proposed order along with his letter.

The district court issued an order to appoint a parenting consultant and an amended custody order, denying Jacobs's motion to change the educational decision-maker designation from Marxen to Jacobs. The parenting-consultant order issued by the court gave the ...


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