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In re Marriage of Himley

Court of Appeals of Minnesota

August 26, 2013

In re the Marriage of: Laura Sue Himley, n/k/a Laura Sue Boero, petitioner, Appellant,
Ryan Thomas Himley, Respondent.


Sherburne County District Court File No. 71-FA-12-422

David M. Cox, Myles A. Schneider & Associates, Ltd., Elk River, Minnesota (for appellant)

J. Lee Novelli, Novelli Law Office, P.A., Minneapolis, Minnesota (for respondent)

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


Appellant challenges the district court's order concerning which school the parties' minor child should attend and its corresponding order modifying the parties' parenting-time schedule. Appellant challenges the orders on the grounds that the district court: (1) abused its discretion in ordering that the child attend school in Edina; (2) erred in failing to apply an endangerment standard to respondent's motion or hold an evidentiary hearing; and (3) demonstrated improper bias against appellant. Because the district court applied the correct legal standards, properly considered the child's best interests in ordering the school change and in modifying the parenting-time schedule, and did not show improper bias, we affirm.


Appellant Laura Sue Himley, now known as Laura Sue Boero, and respondent Ryan Thomas Himley are the parents of one minor child, P.H., currently age eight. After the parties separated in 2007, appellant moved to New Ulm with P.H. to live with her parents. The parties' marriage was dissolved in Brown County in early 2009 and the district court issued an order concerning custody, parenting time, child support, and financial issues related to P.H.'s care.

Appellant and respondent agreed to share joint legal custody of P.H., but each sought sole physical custody. After analyzing the statutory best-interest factors, the district court awarded them joint physical custody. The district court noted the parties' "terrible relationship with one another" and their inability to cooperate or agree on parenting issues. Despite these shortcomings, the district court found that appellant and respondent were both good parents, P.H. had a good relationship with both parents, and it would be in his best interests for the parties to share physical custody. Concerning parenting time, the district court ordered that P.H. reside with appellant in New Ulm during the school year and with respondent (who lives in Edina) during the summer months, with each parent alternating weekends and holidays.

In June 2012, appellant and her new husband moved to Elk River to be closer to his job in Anoka. After moving, appellant accepted a teaching position in Monticello. Appellant did not inform respondent that she was moving out of New Ulm with P.H. and she took steps to enroll P.H. in school in Elk River without respondent's knowledge or consent.

After learning of appellant's move, respondent filed a motion in Sherburne County District Court[1] to require P.H. to attend school in the Edina School District and to modify the parenting-time schedule such that P.H. would primarily live with respondent during the school year. Respondent alleged that appellant only moved to Elk River to limit his contact with P.H., "choosing a home farther north than even her husband's job in Anoka." Respondent argued that attending school in Edina was in P.H.'s best interests, asserting that Edina schools are academically and athletically superior to those in Elk River and that P.H. already knew other children in Edina. He also emphasized P.H.'s close relationship with respondent's nine-year-old stepdaughter and the fact that P.H. would not have to attend daycare in Edina because respondent's work schedule allowed him to be home with the children before and after school.

Appellant opposed the motion and brought her own motion asking permission to enroll P.H. in school in Elk River. She also argued that respondent was actually seeking a change in custody or to restrict her parenting time, and thus must show that P.H. was endangered in her custody.

The district court held a hearing on the school issue but did not take any arguments from counsel or evidence from the parties outside of their written affidavits. The district court granted respondent's motion and ordered that P.H. attend school in Edina. The district court found that P.H. would receive a satisfactory education in either Edina or Elk River, but concluded that attending school in Edina would serve P.H.'s best interests because, among other reasons, he had existing relationships with other children in Edina, he would not need before- or after-school care, and he could further his relationship with his stepsister. The district court directed the parties to seek agreement on a new parenting-time schedule in light ...

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