Kemp v. Kemp

1

In re the Marriage of: Amy Joy Kemp, petitioner, Respondent, v. Michael Edward Kemp, Appellant.

No. A22-0195

Court of Appeals of Minnesota

April 10, 2023

This opinion is nonprecedential except as provided by Minn. R Civ. App. P. 136.01, subd. 1(c).

Washington County District Court File No. 82-FA-18-5256

Sharon R. Markowitz, Sharon S. Beck, Stinson, LLP, Minneapolis Minnesota (for respondent)

Michael P. Boulette, Laura E. Kvasnicka, Taft Stettinius &Hollister LLP, Minneapolis, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Segal, Chief Judge; and Worke, Judge.

WORKE Judge

In this appeal from a marital dissolution judgment and decree, appellant-father challenges the designation of respondent-mother's residence in Springfield, Illinois, as that of the parties' joint child. Father also challenges the parenting-time schedule set by the district court. Additionally, he claims that the district court granted the parenting consultant authority beyond the scope of the parties' general agreement to appoint a parenting consultant. Finally, father challenges his obligation to pay "back child support" and claims that the district court erroneously treated it as an arrearage when setting the payment schedule for it.

We reverse the district court's order for father to pay child support accruing before the child's birth. We also reverse the payment schedule for "back child support." We remand for the district court to properly determine when father's child-support obligation began accruing and to set a payment amount for any retroactive child support owed by father. We affirm as to all other issues.

FACTS

Appellant-father Michael Edward Kemp and respondent-mother Amy Joy Kemp are the parents of one child, born in May 2018. The parties learned of mother's pregnancy in September 2017. At the time, they jointly resided at father's apartment in St Paul, Minnesota. But the same week that they learned of mother's pregnancy, mother received and accepted a job offer with an Illinois employer. In October 2017, mother relocated for work to Springfield, Illinois.

The parties were married in March 2018. Mother began maternity leave soon before the child's birth in Springfield. In June 2018, mother and the child relocated to St. Paul to reside with father at his residence during maternity leave. But mother and the child moved out less than three weeks later. They continued residing elsewhere in Minnesota for several months. In November 2018, mother returned with the child to reside in Springfield for work.

Mother filed for marital dissolution in Minnesota the same month. Father moved for mother and the child to temporarily reside in Minnesota with all parenting time occurring there pending the proceeding's outcome. Mother moved for the child to temporarily reside with her in Illinois pending the proceeding's outcome. The district court granted mother's motion in January 2019. Throughout the dissolution proceeding, father generally exercised parenting time every other Thursday through Monday, alternating between doing so in Illinois and Minnesota.

The district court held a bench trial beginning in November 2020. Both parties sought sole legal and sole physical custody. Mother sought for the child to reside with her in Springfield, Illinois, whereas father sought for mother to relocate with the child to reside in Minnesota.

In its December 2021 judgment and decree, the district court granted the parties joint legal custody of the child but granted sole physical custody to mother and designated the child's residence with mother in Springfield, Illinois. The district court established a schedule giving father monthly parenting time of "two non-consecutive weekends, Friday afternoon to Monday morning, in Springfield" for five months of the year. For the remaining months, the parenting-time schedule requires mother to bring the child to Minnesota "for one week . . . of parenting time with" father. The schedule will "remain in place until" the child's fifth birthday (May 31, 2023), unless the parties agree to a different schedule "with or without the assistance of [a] [p]arenting [c]onsultant," which the district court ordered the parties to appoint pursuant to their on-the-record agreement that a parenting consultant is necessary. The district court also ordered father to pay mother $19,131 in back child support that began accruing on "April 1, 2018." The court called this support obligation both "back child support" and an "arrearage," ordering that it "be collected at the statutory rate of 20% of the total arrearage" per month.

This appeal followed. Days later, the district court filed supplemental findings of fact and an order evaluating the evidence presented at trial and the child's best interests under Minn. Stat. § 518.17, subd. 1(a) (2022).^[1] This court accepted jurisdiction to review the supplemental findings of fact and order as part of the December 2021 judgment and decree.

DECISION

Father alleges several errors regarding the district court's residence decision and the parenting-time schedule. Father also claims that the district court granted the parentingconsultant authority beyond the parties' general agreement to appoint a parenting consultant. Finally, father challenges his obligation to pay "back child support" and, alternatively, argues that the district court wrongly treated it as an "arrearage" when setting the payment schedule for it. We address these contentions in turn.

Residence and parenting time

District courts have "broad discretion" to determine "issues of custody and residence." Schisel v Schisel, 762 N.W.2d 265, 270 (Minn.App. 2009). District courts also have "broad discretion in determining parenting-time issues." Shearer v. Shearer, 891 N.W.2d 72, 75 (Minn.App. 2017). This court will not reverse on these issues unless the district court abused its discretion. Id.; Schisel, 762 N.W.2d at 270.

"A district court abuses its discretion by making findings of fact that are unsupported by the evidence, misapplying the law, or delivering a [discretionary] decision that is against logic and the facts on record." Woolsey v. Woolsey, 975 N.W.2d 502, 506 (Minn. 2022) (quotation omitted); cf. Eustathiades v. Bowman, 695 N.W.2d 395, 397 (Minn.App. 2005) (stating that "[w]hether to modify [child] support is discretionary with the district court" and is reviewed under the "logic and the facts on record" standard). Factual findings are reviewed for clear error. Minn. R. Civ. P. 52.01. Factual findings are not clearly erroneous if reasonable evidence supports them. In re Civ. Commitment of Kenney, 963 N.W.2d 214, 221-22 (Minn. 2021); Bayer v. Bayer, 979 N.W.2d 507, 513 (Minn.App. 2022) (citing Kenney in a family-law appeal); Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn.App. 2000) (discussing clear-error standard). Application of law to the facts is reviewed de novo. In re Welfare of the Child. of M.A.H., 839 N.W.2d 730, 746 (Minn.App. 2013).

Sufficiency of best-interests findings regarding residence

Father contends that the district court made insufficiently detailed best-interests findings and insufficiently explained how its findings affected its residence decision. "In evaluating the best interests of the child for purposes of determining issues of custody and parenting time, the [district] court must consider and evaluate all relevant factors, including" 12 factors set forth by statute. Minn. Stat. § 518.17, subd. 1(a). "The court must make detailed findings on each of the factors . . . and explain how each factor led to its conclusions and to the determination of custody and parenting time." Id., subd. 1(b)(1) (2022). The purposes of these findings are to "(1) assure consideration of the statutory factors . . .; (2) facilitate appellate review . . .; and (3) satisfy the parties that" the district court "carefully and fairly considered" its decision. Rosenfeld v. Rosenfeld, 249 N.W.2d 168, 171 (Minn. 1976).

Father asserts that the district court's best-interests findings do not sufficiently "reflect the impact" of residing in Springfield, Illinois. Father also asserts that the district court did not sufficiently "draw [a] nexus" between its findings and its residence decision. Father is correct that a child's "residence"-which includes the geographic "place" where the child lives-is part of the "custody" decision and must serve the child's best interests. See Minn. Stat. §§ 518.003, subd. 3(c) (defining "[p]hysical custody and residence" as "the routine daily care and control and the residence of the child"), .17, subd. 3(a)(2), (3) (requiring district court "in a dissolution . . . proceeding" to determine "physical custody and residence" by considering child's best interests) (2022); Schisel, 762 N.W.2d at 269-70 (noting that reading "'residence' to include 'place' is borne out by the custody definitions"). "A proposed change of residence bears directly on several of the bestinterests factors in section 518.17." LaChapelle v. Mitten, 607 N.W.2d 151, 162 (Minn.App. 2000), rev. denied (Minn. May 16, 2000) (concluding that district court did not abuse discretion by granting parent physical custody conditioned on residing in Minnesota after granting parent temporary permission to move with child out of state "for employment reasons").

The district court here found itself in what it considered "the nearly impossible position of . . . craft[ing] a custody and parenting[-]time schedule that will work for this family." Despite this, the district court made more than adequate best-interests findings, explaining in well-reasoned detail how those findings supported its residence decision. Regarding the child's physical, emotional, and other needs, the...