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No love lost in pre-Valentine's Day appeals

By

Published in Minnesota Lawyer.

As Minnesotans and the rest of the nation celebrate Valentine’s Day, with the day of hearts on Sunday, Feb. 14, romance is in the air.

But relationships that once were amorous, can turn adversarial. This reality was reflected in a half-dozen rulings by the Minnesota Court of Appeals shortly before Valentine’s Day.

The sextet of cases dealt with marital and family-like relationships that went from romantic to recriminations. The lawsuits covered a wide gamut of disputes, including some unconventional ones, between litigants who most assuredly are not spending Valentine’s Day together this year.

Parenting pair

In a pair of cases involved disputes over parenting time, the appellate court partially affirmed the lower court decisions, while remanding both of them for further consideration.

A clause in a parenting time schedule entered into in Pine County District Court concerning the right of first refusal was properly construed by the trial court in denying a mother’s request to modify the relocating father’s alternating week schedule in Andrus v. Overson, 2016 Minn. App. LEXIS 31 (Minn. App. Jan. 11 2016)(unpublished). The schedule allowed either of the parties to take the other’s parenting time if the other is “unable to be present during their attending week unless child care is provided by others due to either party’s employment or educational opportunities.” The mother, who lived in Rush City, sought to restrict the father’s time under that clause when he moved 72 miles away to Eagan for a better, higher paying job while the child stayed with his mother in Pine City, close to the mother’s home in Rush City.

The trial court’s ruling that the mother was not entitled to exercise the right-of-refusal was affirmed because of the “unrestrictive language” of the exception concerning substitute child care “by others,” in this case, the father’s mother. Although the clause “could have been more precisely worded, the trial court judge interpreted it properly in these circumstances. But the case was remanded to consider the child’s best interests, which the lower court failed to address.

The determination by the Douglas County District Court regarding valuation of various properties owned by spouses in a dissolution proceeding and its division between them was proper, but a refusal to allow greater parenting time to the husband was not in Nelson v. Nelson, 2015 Minn. App. LEXIS 1168 (Minn. App. Dec. 21, 2015)(unpublished). The limitation on the father’s parenting time with the three minor children to one weekend a month and alternating holidays constituted an “abuse of discretion” because the trial judge failed to consider the relevant statutory presumption that contemplates at least 25 percent parenting time for each of the parents under Minn. Stat. §518.175(g).

The lower court erred because “it did not explicitly consider the rebuttable statutory presumption” of a minimum of 25% parenting time for each party, warranting remand to undertake the appropriate statutory assessment.

Felony factors

Felonies were factors in a pair of family-related cases.

A father’s conviction of third-degree criminal sexual conduct was an appropriate consideration in terminating his parental rights, along with those of the mother of the child to their three young children by the Washington County District Court in In re Welfare of Minor Children of B.B., 2015 Minn. App. LEXIS 1181 (Minn. App. Dec. 21, 2015)(unpublished).

The trial court’s determination that “reasonable efforts” had failed to correct the neglectful conditions that led to the children being put in out-of-home placement was correct. Neither of the parents substantially complied with the case plan that had been reasonably developed by the court and the reasonable efforts by the county to reunite the family.

An additional consideration warranting termination was the father’s criminal sex conviction, which required him to register as a predatory offender. His conviction constituted “a statutory bright line that he has crossed” under the parental termination law, Minn. Stat. §260C.301, et seq. That conviction and other considerations were properly taken into account by the trial judge in assessing “each best interest factor” under the statute.

Granting sole physical custody of three minor children to their father by the Wabasha County District Court was upheld on grounds in part, that the mother’s live-in boyfriend had been convicted of felony invasion of privacy of his minor stepdaughter in Newman v. Newman, 2016 Minn. App. LEXIS 1184 (Minn. App. Dec. 21, 2015)(unpublished).

The findings made by the trial judge concerning the mother’s live-in boyfriend properly expressed “deep concern” about the safety of the children in the presence of the boyfriend. His prior conviction does “directly impact the physical and emotional safety” of the children if they are in her custody.

Mistakes made

Mistakes that were made in a pair of other proceedings were addressed by the appellate court in two other appeals.

A marriage that was probably a mistake and lasted for only three months before the parties separated and were then divorced three months later, warranted a determination by the Sherburne County District Court that the husband reimburse the wife more than $6,000 for his share of the wedding expenses in Trupe v. Sohns, 2016 Minn. App. LEXIS 6 (Minn. App. Jan. 4, 2016)(unpublished). That determination in the marital dissolution proceeding did not constitute an abuse of discretion in light of the unique circumstances in the case. Those factors included the “unusually short duration of the marriage,” coupled with the wife’s reasonable understanding that her husband would use his savings to purchase a house in exchange for her paying $13,000 of the wedding expenses, while he paid only $4,000, and the balance of $12,000 coming from a gift by the wife’s parents. The trial judge properly ordered “equitable relief” to equalize the wedding costs paid by the parties to the short-lived union.

The Olmsted County District Court made a mistake in changing the last name of a child of parties to conform to that of the mother and her current husband. In In re Application of Long2016 Minn. App. LEXIS 11 (Minn. App. Jan. 4, 2016)(unpublished), the trial court allowed a child’s surname to be changed from that of his father to that of the m other and her new husband two months after their marriage on grounds that it was in the child’s best interest to do so.

The decision was reversed because the lower court failed to exercise the required “great caution” in allowing a name change over the objection of the other parent. In allowing the name change, the judge failed to consider whether there was “clear and compelling” evidence that the change was necessary in order to serve the “substantial welfare” of the child, as required in a name change proceeding under Minn. Stat. § 259.11.

Additionally, the timing of the name change requirement was problematic because no effort to change the name occurred 1½ years earlier when custody was litigated or even before then when the unmarried father had been accused of child pornography offenses. Therefore, the trial court was directed on remand to “order that the child’s surname be returned” that of her natural father.

This sextet of cases provides an opportune reminder on Valentine’s Day that, when romance fades, cupid’s arrow is oft-directed at the courthouse.

PERSPECTIVES POINTERS

Factors for name change of child

  • Child’s preference.
  • Effect of change on child’s relation with each parent.
  • Length of time child has had current name.
  • Community respect associated with present name and proposed change.
  • Harassment or embarrassment that might occur.