In re the Custody of: J. J. O. Thomas Joshua Andrus v. Jennifer Jo Overson

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0095

In re the Custody of: J. J. O.
Thomas Joshua Andrus, petitioner,
Respondent,

vs.

Jennifer Jo Overson,
Appellant.

Filed January 11, 2016
Affirmed in part and remanded
Klaphake, Judge *

Pine County District Court
File No. 58-FA-08-225

Thomas J. Andrus, Eagan, Minnesota (pro se respondent)

Mary A. Pfeifer, Appelhof, Pfeifer & Hart, P.A., Oakdale, Minnesota (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Reyes, Judge; and

Klaphake, Judge.

UNPUBLISHED OPINION

KLAPHAKE, Judge

Appellant Jennifer Jo Overson challenges the order denying her motion to modify

parenting time, arguing that the district court (1) misinterpreted the “right of first refusal”

*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
for parenting time contained in the parenting-time schedule and (2) erred in not addressing

the child’s best interests in deciding whether to modify parenting time. We affirm the

district court’s interpretation of the right-of-first-refusal provision but remand for findings

on the child’s best interests.

DECISION

In February 2012, the district court issued an order awarding the parties joint legal

and joint physical custody of their child and incorporating the parties’ stipulated parenting-

time schedule, which granted each parent parenting time of their child for alternating one-

week periods. At that time, appellant, Jennifer Jo Overson, resided in Pine City, where the

child attends school, and respondent, Thomas Joshua Andrus, resided in nearby Rush City

with his mother. In July 2014, respondent moved from Rush City to Eagan, a distance of

72 miles. After respondent’s relocation, paternal grandmother cared for the child during

the school week when respondent had parenting time, and respondent cared for the child

on weekends.

In September 2014, appellant moved to modify respondent’s parenting time from

every other week to every other weekend. Appellant argued that parenting time should be

modified based on the child’s best interests because respondent “has failed to exercise his

parenting time 5 out of every 7 days since his move to Eagan in June 2014 and has left the

minor child with a third party during these times.” Appellant also argued that respondent’s

conduct violated the parenting schedule’s right-of-first-refusal provision. Following an

evidentiary hearing, the district court denied appellant’s motion.

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 Right of first refusal

The right-of-first-refusal provision of the parenting-time schedule states:

If either parent is unable to be present to care for the
child during his or her week, that parent shall offer to the other
party the right of first refusal to provide the child’s care.
However, this is not meant to include the time the child is cared
for by persons other than the parties because of either parent’s
employment or educational commitments.

The district court rejected appellant’s argument that respondent violated the right of

first refusal, stating:

The Court does not find [appellant’s] assertion to be
correct. First, the care given to the child by his paternal
grandmother is exactly what was contemplated by the February
2012 order when saying: “However, this is not meant to
include the time the child is cared for by persons other than the
parties because of either parent’s employment or educational
commitments.” This care is analogous to the care provided in
other cases when care is provided by a step-parent whose
spouse has employment requiring absence during the work
week such as being an over-the-road truck driver. Secondly, it
is disingenuous to not recognize that [respondent’s] mother,
the child’s paternal grandmother, with whom the child has
resided since infancy, has not previously provided care of the
child for extended periods.

Although the clause stating the exception to the right of first refusal could have been

more precisely worded, the district court is in the best position to interpret its own order.

See LaChapelle v. Mitten, 607 N.W.2d 151, 162 (Minn. App. 2000) (“We defer to a district

court’s interpretation of its own order.”), review denied (Minn. May 16, 2000). In light of

the unrestricted language of the exception and the fact that respondent relocated to Eagan

for better employment with a higher income, we cannot conclude that the district court

erred in determining that respondent did not violate the right of first refusal.

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 Child’s best interests

If modification would serve the best interests of the
child, the court shall modify . . . an order granting or denying
parenting time, if the modification would not change the
child’s primary residence. Appellate courts recognize that a
district court has broad discretion to decide parenting-time
questions, and will not reverse a parenting-time decision unless
the district court abused its discretion by misapplying the law
or by relying on findings of fact that are not supported by the
record.

Suleski v. Rupe, 855 N.W.2d 330, 334 (Minn. App. 2014).

To permit effective appellate review, the district court must make sufficiently

detailed findings to show its consideration of relevant factors. See Stich v. Stich, 435

N.W.2d 52, 53 (Minn. 1989) (stating, in a dispute over an award of spousal maintenance,

that “[e]ffective appellate review of the [district court’s] discretion is possible only when

the [district] court has issued sufficiently detailed findings of fact to demonstrate its

consideration of [all relevant factors]”); Wallin v. Wallin, 290 Minn. 261, 267, 187 N.W.2d

627, 631 (1971) (stating that, given the district court’s broad discretion in family cases, it

is particularly important that the basis for its decision be set forth with a high degree of

particularity).

Contrary to appellant’s assertion, the statute governing parenting-time modification

does not require the district court to make findings on the best-interests factors that are

contained in Minn. Stat. § 518.17, subd. 1(a) (2014), because those factors address custody

rather than parenting time. Newstrand v. Arend, 869 N.W.2d 681, 691 (Minn. App. 2015)

(citing Minn. Stat. § 518.175, subd. 5(a) (2014)), review denied (Minn. Dec. 15, 2015).

But the language of Minn. Stat. § 518.17, subd. 5(a), the statute governing parenting-time

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modification, requires consideration of the child’s best interests. See also Newstrand, 869

N.W.2d at 691 (noting, in case involving restriction of parenting time, that district court

made numerous findings relevant to child’s best interests). Because this district court made

no findings addressing the child’s best interests, we are unable to determine whether the

district court properly exercised its discretion in denying appellant’s motion. We,

therefore, remand for the district court to make additional findings explaining its decision.

The district court, at its discretion, may reopen the record for additional evidence on

remand. Because we are remanding, we do not reach the issues raised by appellant

regarding primary residence and restriction. See Suleski, 855 N.W.2d at 334-37

(addressing definitions of primary residence and restriction and requirements for change

of primary residence or restriction of parenting time).

Affirmed in part and remanded.

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