In re the Marriage of:

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0796

In re the Marriage of:

Sharon Elizabeth Anderson, petitioner,
Respondent,

vs.

William Thomas Anderson,
Appellant,

and

County of Dakota, intervenor,
Respondent.

Filed August 28, 2017
Affirmed
Reilly, Judge

Dakota County District Court
File No. 19AV-FA-11-611

Sharon E. Anderson, Excelsior, Minnesota (pro se respondent)

William T. Anderson, Chanhassen, Minnesota (attorney pro se)

James C. Backstrom, Dakota County Attorney , Karen Linn Hinrichs Wangler, Assistant
County Attorney, West St. Paul, Minnesota (for respondent Dakota County)

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Considered and decided by Schellhas, Presiding Judge ; Reilly, Judge; and Smith,
John, Judge.*
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Self-represented appellant-father challenge s an order modifyi ng parenting time,
arguing that the district court erred by rest ricting his parenting time without adequately
considering (1) the custodial preference of the children and (2) the rebuttable presumption
that each parent is entitled to at least 25% of the parenting time. We affirm.
FACTS
Self-represented appellant-father Willia m Thomas Anderson and self-represented
respondent-mother Sharon Elizabeth Anderson married in 1994 in Tennessee. The highly
contentious nature of the parties’ separati on and divorce has resulted in numerous court
appearances before the district court.
Father and mother have five children toge ther, two of whom have reached the age
of majority. The other three are now respectively 16, 14, and 9 years of age. Because the
parties could not agree on physical and legal custody of the minor children at the time they
filed for dissolution, the district court appointed a guardian ad litem to advise the court on
permanent custody and parenting time. The guardian ad litem interv iewed each of the
parties’ five children and concluded that, with the exception of the parties’ oldest child,
who had a strained relationship with father, th e children wished to spend equal time with

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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both parents. The guardian ad litem prepared a report recommending the parties have joint
legal custody of the parties’ four youngest child ren, but that mother receive sole physical
custody, subject to father’s parenting time. In 2012, the district court entered the judgment
and decree of dissolution, whic h adopted the recommendations of the guardian ad litem.
The district court awarded father parenti ng time with the four youngest children every
Wednesday from 6:00 p.m. to 9:00 p.m., and every other weekend from Friday after school
until Monday morning before school. Father’s parenting time during the summer months
was expanded to six days every two weeks.
In February 2013, mother moved to modify parenting time and legal custody based
on father’s “willful[] refus[al] to communicate or cooperate in education, healthcare, and
other child rearing issues” and isolation of the children during his parenting time. In July
2013, the district court issued an order in which the court concluded that mother “has made
a prima facie showing of endangerment/impairme nt sufficient to warra nt an evidentiary
hearing on her motion for change of custody” and reserved mother’s motion, pending an
evidentiary hearing.
The district court appointed a guardian ad litem to represent the best interests of the
children at the evidentiary hear ing and to advise the court with respect to custody and
parenting time. After interviewing the children, the guardian ad litem prepared a report in
which she determined that the children “lov e and care for their parents and benefit from
each of their parent’s love and attention,” bu t cautioned that “it w ould be detrimental to
give either parent the sole decision making au thority for these children” because “history
would indicate that these decisions would be made to win, rather than do what is best for

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the children.” For these reasons, the guard ian ad litem recommended that the parties
continue to share joint legal custody, and th at father’s parenting time on Wednesday be
expanded to include an overnight stay. After the evidentiary hearing, the district court
adopted the recommendations of the guardian ad litem, noting that the parties “have
demonstrated a profound inability to cooperate in the raising of [their] children,” and that
“[o]rdinarily, this would provid e a basis to consider granti ng one parent sole custody.”
After considering the best interest factors established in Minnesota Statutes section 518.17
(2016) and the guardian ad litem report, the court concl uded that “joint legal custody
continues to be in the children’s best interests,” and expanded father’s weekday parenting
time to include overnight stays.
The parties’ highly contentio us relationship, however, did not improve with each
additional modification to parenting time. Mother later requested by motion that the court
find father in contempt for various violations of court orders. Father opposed the motion,
and by way of response requested limitations on communication between the parties,
appointment of a guardian ad litem, modifi cation of the parentin g schedule to minimize
contact between the parties, and additional pare nting time with the pa rties’ second oldest
child, at the discretion of th e child. The district court denied father’s request for
appointment of a guardian ad litem, noting that the prior tw o appointments satisfied the
issues raised in father’s motion and that appointment of a guard ian ad litem would not
resolve the “primary difficulty for the children,” which the court explained is “the incessant
parental conflict.” Because the court determined that a “prima facie case for endangerment
has been made such that an evidentiary hearing on the issue of legal custody is warranted,”

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the court reserved the issues of modification of legal custody and parenting time, pending
an additional evidentiary hearing.
After the evidentiary hearing, the district court granted mother’s request for sole
legal custody and modification of parenting time. Because the Minnesota Legislature
amended the best interest factors in 2015, th e district court applied the new factors and
determined that modification of child cust ody and parenting time was appropriate. The
court noted that the “steady, high conflict between these parents unfortunately impacts each
of these factors.” Specifically, the court found that the best interest factors favor an award
of sole legal custody to mother, that mother rebutted the presumption in favor of joint legal
custody, and that father’s parenting time shou ld be limited because father tends to isolate
the children from other individuals during his parenting time. The district court limited
father’s parenting time to every first, sec ond, and fourth weekend of the month, from
Saturday at 5:00 p.m. until Sunday at 6:00 p.m.
Father filed a motion for amended findings , conclusions, and order. On March 21,
2016, the district court filed an amended or der in which it granted various portions of
father’s motion for amended findings, but denied father’s motion for amended conclusions
of law with regard to custody and parenting time.
Father appeals.

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D E C I S I O N
I. The district court did not abuse its discretion by granting sole legal custody
of the parties’ minor children to mo ther without the appointment of a
guardian ad litem or testimony from the minor children.

A district court has broad discretion to provide for the custody of children. Rutten
v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984); In re Best Interest of M.R.P.-C., 794 N.W.2d
373, 378 (Minn. App. 2011). Appellate review of custody-modification determinations “is
limited to whether the district court abused its discretion by making findings unsupported
by the evidence or by improperly applying the law.” Goldman v. Greenwood, 748 N.W.2d
279, 281-82 (Minn. 2008) (quotations omitted). Appellate courts review a district court’s
factual findings for clear error and defer to a district court’s opportunity to evaluate witness
credibility. Id. at 284. “Findings of fact are clearly erroneous where an appellate court is
left with the definite and firm convic tion that a mistake has been made.” Id. (quotation
omitted).
An endangerment-based motion to modify custody requires the moving party to
show that (1) there ha s been a change of the circumstan ces of the children or custodian,
(2) modification is necessary to serve the children’s best interest, (3) the children’s present
environment endangers their physical health, emotional health, or emotional development,
and (4) the benefits of the modification out weigh the detriments with respect to the
children. Minn. Stat. § 518.18(d)(iv) (2016) (establishing these requirements); Goldman,
748 N.W.2d at 284 (articulating the elements of a prima facie case for endangerment-based
motion to modify custody). If the moving party alleges facts in her affidavit that, if true,
are sufficient to support a modification of custody, the court must hold an evidentiary

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hearing to determine the tr uth of the allegations. Taflin v. Taflin , 366 N.W.2d 315, 320
(Minn. App. 1985). At the evidentiary hearing, the moving party must show all four factors
to obtain an actual modification of custody. Id.
The first factor, a change in circumstance s, must be significant and must have
occurred after the original custody order; it may not be a continuati on of conditions that
existed prior to the original order. Spanier v. Spanier, 852 N.W.2d 284, 288 (Minn. App.
2014). The second factor, the best interests of the child, is determined according to the
factors set forth in Mi nn. Stat. § 518.17. Geibe v. Geibe , 571 N.W.2d 774, 778 (Minn.
App. 1997). The third factor, endangerment, requires a showing of a “significant degree
of danger” to the children’s emo tional or physical development. Id. (quotation omitted).
The fourth factor, the balance of harms, may be implicit in one of the other three factors.
See Eckman v. Eckman, 410 N.W.2d 385, 389 (Minn. App. 1987) (upholding modification
where explicit findings on fourth factor not made).
Father argues that the district court e rred by not considering the preferences of the
children. “A child’s preference has been found relevant to three of the four modification
factors.” Geibe, 571 N.W.2d at 778. A reasonable preference of a child who is deemed to
be of sufficient age, ability, and maturity to express an independent, reliable preference is
also one of the statutory factors for the cour t to weigh in determining the child’s best
interests. Minn. Stat. § 518.17, subd. 1(a)(3).
The district court made detailed findings concerning the children’s preferences. At
the evidentiary hearing on July 8, father testified that the minor children are “upset [by] the
current parenting agreement.” Father also testified at the September 3 evidentiary hearing

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that one child expressed a preference to stay at his residence. In its order, the district court
noted that father testified the children generally wanted to spend more time with him, but
found that “this factor does not clearly favor either party” as “no evidence regarding the
maturity of the children was offered in support of [father’s] assertion.”
Father nevertheless suggests that “[h]ad a guardian ad litem been appointed, the best
interest factors would likely have resulted in the exact same denial of mother’s [custody-
modification] motion.” In this case, the di strict court appointed a guardian ad litem to
assess the preferences of the children on two prior occasions . In all proceedings where
custody or parenting time with a minor child is at issue, and wher e there is no reason to
believe that the child is a victim of domestic abuse or neglect, the district court may appoint
a guardian ad litem to advise the court. Minn. Stat. § 518.165, subd. 1 (2016).
Accordingly, the decision to appoint a guardian ad litem is discretionary when there is no
allegation of abuse or neglect. Id. Given the district court’s familiarity with the parties
and prior appointments of a guardian ad litem, the denial of father’s request to appoint a
third guardian ad litem was not an abuse of the district court’s discretion.
II. The district court did not abuse its discretion by restricting father’s
parenting time.

Father also argues that the district court wrongfully restricted his parenting time,
misapplied the endangerment standard, and abused its discretion by awarding him less than
25% of the parenting time without considering the statutory presumption. A district court
may modify an order granting or denying pa renting time when modification would serve
the best interests of the child. Minn. Stat. § 518.175, subd. 5(a) (2016). Modification of

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custody or parenting time requires the district court to use the procedures established in
Minn. Stat. § 518.18(d). Because appellate courts recognize that a district court has broad
discretion to decide ques tions of parenting time, Olson v. Olson , 534 N.W.2d 547, 550
(Minn. 1995), appellate courts will not reverse a parenting-time decision unless the district
court abused its discretion by misapplying the law or by making findings unsupported by
the record, Dahl v. Dahl, 765 N.W.2d 118, 123 (Minn. App. 2009).
To determine whether the change to father’s parenting time constitutes a restriction
or a modification, this court must consider the amount of the reduction as well as the
reasons for the adjustment. Dahl, 765 N.W.2d at 124. The district court reduced father’s
parenting time by more than 50% or about 7 weeks per year. On this record, this disparity
is substantial and constitutes a restriction of parenting time, regardless of the reason for the
restriction; it is therefore governed by Minn. Stat. § 518.175, subd. 5.
A court may not restrict parenting time unless “(1) parenting time is likely to
endanger the child’s physical or emotional health or impair the child’s emotional
development; or (2) the parent has chronica lly and unreasonably fa iled to comply with
court-ordered parenting time.” Minn. Stat. § 518.175, subd. 5(c). Although this court has
previously cautioned that “the concept of endangerment is unusually imprecise,” this court
clarified that “the legislature likely intended to demand a showing of a significant degree
of danger.” Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991). Conduct that is likely
to endanger a child’s physical or emotiona l health, or emotional development, may
constitute endangerment. Minn. Stat. § 518.175, subd. 5. Wh en a district court makes a
finding of endangerment pursuant to section 518. 175, subdivision 1(b), the district court

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shall restrict or deny parenting time as the circumstances warrant. See Minn. Stat.
§ 518.175, subd. 1(b) (2016) (“If the court finds . . . that pare nting time . . . is likely to
endanger the child’s physical or emotional health or impair the child’s emotional
development, the court shall restrict parenti ng time with that parent as to time, place,
duration, or supervision a nd may deny parenting time entirely, as the circumstances
warrant.”).
Here, the district court found that “the children’s present environment endangers
their emotional development.” The court noted that “fathe r has shown a willingness to
isolate the children from all other individuals, including the mother, when it suits him” and
explained its endangerment finding, stating:
the children are [not] better off isolated from their friends and
family whenever it is the father’s turn to spend time with them.
To the contrary, given their ages, the children are also in need
of contact with extended fam ily members, friends, coaches,
and other mentors to help ensu re their continued emotional,
cultural, and spiritual growth and health.
. . .
[The] Court is inclined to limit parenting time for the father due
to the relative isolation his parenting time requires. The
father’s parenting time appears to be more about the father and
his right to impose his parenting theories upon the children
than about the children and thei r best interests. Under these
circumstances, and in light of the parental conflict, the
children’s time with their father should be limited.

Accordingly, the district court limited father’s parenting time to every first, second, and
fourth Saturday from 5:00 p. m. until Sunday at 6:00 p.m., which the parties estimate is
11% of the parenting time.

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“[T]here is a rebuttable presumption that a parent is entitled to receive at least 25%
of the parenting time for the child.” Minn. Stat. § 518.175, subd. 1(g). And district courts
generally must demonstrate an awareness and application of the statutory presumption
when a party appropriately raises the issue a nd the district court awards less than 25% of
the parenting time. Dahl, 765 N.W.2d at 123-24; see In re Custody of M.J.H., ____ N.W.2d
____ (Minn. App. July 3, 2017) (noting th at the presumption wo uld lack purpose if
appellate courts could supply fi ndings, after the fact, to c onclude the presumption would
have been overcome, had the presumption been considered). While we acknowledge that
father appropriately raised the issue, and the district court did not address the presumption,
we determine that under the specific facts of this case, given the district court’s finding of
endangerment and the overwhelming support for that finding on this re cord, the district
court’s failure to consider the statutory pr esumption was, at mo st, harmless error. See
Minn. R. Civ. P. 61 (requiring harmless error to be ignored); see also Grein v. Grein, 364
N.W.2d 383, 387 (Minn. 1985) (declining to remand the case to the district court when it
is clear that the district court would undoubte dly make findings that satisfy the statutory
language and reach the same result); see also Minn. Stat. § 518.175, subd. 1(b) (“If the
court finds . . . that parenting time . . . is likely to endanger the child’s physical or emotional
health or impair the child’s emotional development, the court shall restrict parenting time
. . . and may deny parenting time entirely, as the circumstances warrant.”).
Lastly, father contends that the district court’s factual findings with respect to his
proposed parenting-time schedule are clearly erroneous. Father contends that his proposed
schedule would “eliminate the interaction between the parties during custody exchanges.”

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The district court declined to accept father’s proposal a nd instead accepted mother’s
proposal after determining that father’s sc hedule “would necessitate approximately nine
exchanges per month, four of which would be in the middle of the school week,” while
mother’s proposal would result in only “six exchanges per month, none of which would be
in the middle of the school week, year round.”
Father proposed the following:
[Father] shall have paren ting time on every Wednesday
immediately after school until Thursday morning at which time
[father] shall cause th e children to attend school at its normal
start time; [father] shall have parenting time every other
weekend from Friday afternoon immediately after school until
Monday morning at which tim e [father] shall cause the
children to attend school at its normal start time.

A plain reading of father’s proposal indicat es that the proposal would result in zero
exchanges between the parties per month duri ng the school year and approximately eight
exchanges between the parties per month duri ng the summer. But we conclude that any
error that resulted from the district court’s e rroneous interpretation of father’s proposal
does not warrant remand. On th is particular record, given th e district court’s familiarity
with the parties due to the highly contentious nature of the parties’ separation and divorce,
we are unconvinced that remand will change the result already reached by the district court.
See Grein , 364 N.W.2d at 387 (dec lining to remand and, instead, affirming a custody
decision reached by the district court without explanatory findings of fact when it is clear
from the record that on remand the district court would make the same findings and reach
the same conclusion); see also Minn. R. Civ. P. 61 (“The court at every stage of the

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proceeding must disregard any error or defect in the proceeding which does not affect the
substantial rights of the parties.”).
Affirmed.