In re the Custody of: J. K. L. Peter Romero Lockhart, petitioner, Appellant,

This opinion will be unpublished and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
A17-1067

In re the Custody of: J. K. L.
Peter Romero Lockhart, petitioner,
Appellant,

vs.

Quintiny Luenelle Flakes,
Respondent.

Filed July 30, 2018
Affirmed in part, reversed in part, and remanded
Cleary, Chief Judge

Hennepin County District Court
File No. 27-FA-15-8114

Bridget R. Landry, Cordell & Cordell, P.C., Edina, Minnesota (for appellant)

Timothy D. Lees, Lees Family Law, Ltd., Edina, Minnesota (for respondent)

John Brad Kearns, Minneapolis, Minnesota (guardian ad litem)

Considered and decided by Jesson, Pres iding Judge; Cleary, Chief Judge; and
Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
In this child-related dispute, appellant-father argues that the district court: (1) made
findings regarding the child’s best interests that are not supported by the record, and should

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have adopted the guardian ad litem’s recommendations re garding parenting time;
(2) overstated fathe r’s child-support obligation by (a) overstating father’s income by
erroneously including father’s overtime inco me, and (b) failing to adequately consider
father’s nonjoint children; and (3) failed to credit father for his prior overpayment of child-
care support. We affirm in part, reverse in part, and remand.
FACTS
J.K.L. was born in 2013. J.K.L.’s parents, appellant-father and respondent-mother,
are not married. On November 23, 2015, fath er petitioned the district court to establish
custody and parenting time. Shortly thereaft er, mother moved with J.K.L. to Florida
without consulting father and without his consent. 1 Mother returned to Minnesota with
J.K.L. in January 2017.
A guardian ad litem was appointed in April 2016. Later that year, the guardian ad
litem produced reports which included conclusions and r ecommendations. The guardian
ad litem updated his reports after mother moved back to Minnesota.
The district court heard arguments in N ovember 2016 and February 2017 on the
issues of Monday overnight parenting time, Father’s Day overnight parenting time, to
whom to award child support, and the tax dependency exemption. In his reports, the
guardian ad litem recommended an equal parenting-time schedule, with mother and father

1 The exact timing of mother’s move in relation to father’s filing is unclear. The district
court noted that mother moved “after being served” with father’s pleadings. But the
guardian ad litem’s report indicates that mother had been planning to move prior to father’s
filing, and was served on the day mother had planned to and did move.

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alternating parenting time on Monday overnights. Parenting time and child support are the
only issues on appeal.
On May 11, 2017, the district court issued its findings of fact, conclusions of law,
and order for custody, parenting time, and child support. The district court: (1) granted
mother parenting time every Monday overnight; (2) modified father’s basic child-support
obligation from $506 to $737 per month; a nd (3) modified father’s child-care-support
obligation from $400 to $357 per month. Father appeals.
D E C I S I O N
District courts have “broad discretion to decide parenting-time questions,” and an
appellate court “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).
“On appeal, findings of fact are accepted unless they are clearly erroneous.” Id.
When determining whether findings are clearly erroneous, we view “the record in the light
most favorable to the [dis trict] court’s findings.” Vangsness v. Vangsness , 607 N.W.2d
468, 472 (Minn. App. 2000). “That the reco rd might support findi ngs other than those
made by the [district] court does not show that the court’s findings are defective.” Id. at
474. In order to successfully challenge a di strict court’s findings of fact, “the party
challenging the findings must show that desp ite viewing that evidence in the light most
favorable to the [district] court’s findings . . . , the record still requires the definite and firm
conviction that a mistake was made.” Id.

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Whether to modify child support is also w ithin the broad discretion of the district
court. Shearer v. Shearer, 891 N.W.2d 72, 77 (Minn. App. 2017). “A district court abuses
its discretion when it sets child support in a manner that is against logic and the facts on
record or it misapplies the law.” Id.
I. The district court did not err in its app lication of the best-interest factors or in
declining to adopt the guardian ad litem’s recommendations.

Father argues that the district court erred in its application of the best-interest factors
and by failing to adopt the guardian ad litem’s recommendations. Father contends that the
record does not support the district court’s best-interest-factor findings.
In considering a petition for parenting time between unmarried parents, a district
court “shall consider and evaluate all relevant factors in sec tion 518.17, subdivision 1, to
determine the best interests of the child.” Minn. Stat. § 257.025(a) (2016). Section 518.17
provides:
In evaluating the best interests of the child for purposes
of determining issues of custody and parenting time, the court
must consider and evaluate all relevant factors, including:
(1) a child’s physical, emotional, cultural, spiritual, and
other needs, and the effect of the proposed arrangements on the
child’s needs and development;
(2) any special medical, mental health, or educational
needs that the child may have that may require special
parenting arrangements or access to recommended services;
(3) the reasonable preference of the child, if the court
deems the child to be of sufficient ability, age, and maturity to
express an independent, reliable preference;
(4) whether domestic abuse, as defined in section
518B.01, has occurred in the parents’ or either parent’s
household or relati onship; the nature and context of the
domestic abuse; and the implications of the domestic abuse for
parenting and for the child’s safety, well-being, and
developmental needs;

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(5) any physical, mental, or chemical health issue of a
parent that affects the child’s safety or developmental needs;
(6) the history and nature of each parent’s participation
in providing care for the child;
(7) the willingness and ability of each parent to provide
ongoing care for the child; to meet the child’s ongoing
developmental, emotional, spiritual, and cultural needs; and to
maintain consistency and follow through with parenting time;
(8) the effect on the child’s well-being and development
of changes to home, school, and community;
(9) the effect of the proposed arrangements on the
ongoing relationships between the child and each parent,
siblings, and other significant persons in the child’s life;
(10) the benefit to the child in maximizing parenting
time with both parents and the detriment to the child in limiting
parenting time with either parent;
(11) except in cases in which domestic abuse as
described in clause (4) has oc curred, the disposition of each
parent to support the child’s relationship with the other parent
and to encourage and permit fr equent and continuing contact
between the child and the other parent; and
(12) the willingness and ability of parents to cooperate
in the rearing of their child; to maximize sharing information
and minimize exposure of the child to parental conflict; and to
utilize methods for resolving di sputes regard ing any major
decision concerning the life of the child.

Minn. Stat. § 518.17, subd. 1(a) (2016).
In applying the best-interest factors, a district court
must make detailed findings on ea ch of the factors . . . based
on the evidence presented and ex plain how each factor led to
its conclusions and to the determination of custody and
parenting time. The court may not use one factor to the
exclusion of all others, and the court shall consider that the
factors may be interrelated.

Minn. Stat. § 518.17, subd. 1(b)(1) (2016). The district court must additionally “consider
that it is in the best intere sts of the child to promote th e child’s healthy growth and

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development through safe, stable, nurturing relationships between a child and both
parents.” Id., subd. 1(b)(2) (2016).
Father challenges each best-interest factor that the district court concluded weighed
in mother’s favor regarding Monday overnights by arguing that the record does not support
the district court’s findings or conclusions. Father first challenges factor 1 by arguing that
the “district court adopted nearly verbatim [mother]’s proposed findings on this factor.”
As an initial matter, we note that
[a] district court’s verbatim adoption of a party’s proposed
findings and conclusions of law is not reversible error per se.
Adoption of a party’s proposed fi ndings by a district court is
generally an accepted practice. But if a court adopts a proposed
order, it raises the question of whether the court independently
evaluated the evidence.

Schallinger v. Schallinger , 699 N.W.2d 15, 23 (Minn. App. 2005) (citations omitted),
review denied (Minn. Sept. 28, 2005). Further, it is the complaining party’s duty to show
that the district court erred: “[O]n appeal error is never pr esumed. It must be made to
appear affirmatively before there can be reve rsal . . . [and] the burden of showing error
rests upon the one who relies upon it.” Waters v. Fiebelkorn , 216 Minn. 489, 495, 13
N.W.2d 461, 464-65 (1944); see Loth v. Loth , 227 Minn. 387, 392, 35 N.W.2d 542, 546
(1949) (quoting Waters in a family-law appeal); Luthen v. Luthen, 596 N.W.2d 278, 283
(Minn. App. 1999) (applying Loth in a family-law appeal).
More specifically, because we do not pres ume error by the district court, the
complaining party has the obligation to provide the appellate court with a record sufficient
to show any alleged error. See Noltimier v. Noltimier, 280 Minn. 28, 29, 157 N.W.2d 530,

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531 (1968) (dismissing appeal fo r an inadequate record, stating both that “[e]rror cannot
be presumed” and that the appellant has th e burden to provide an adequate record on
appeal). Here, the proposed findings of fact, which father contends the district court
adopted verbatim, are not in the record. See Minn. R. Civ. App. P. 110.01 (defining record
on appeal). Therefore, the record is insufficient for this court to conclude that the district
court erred.
The district court’s analysis of factor 1 spans over four pages, and the district court
ultimately found that while it did “not believe that an equal access parenting
schedule . . . will adversely affect the mino r child’s emotional st ability, an extended
schedule with his father may disrupt some of the stability that [J.K.L.] has established with
his mother.” The district court further found that awarding equal parenting time would
relegate mother “to weekend parenting time only” and she “would not be able to participate
in getting the child ready for school, returning home from school, working on the child’s
homework and preparing for the next school day.” It concluded that factor 1 weighed “in
favor of mother’s proposed parenting time sc hedule . . . so that both parents have an
opportunity to have weekday parenting time with the minor child.” The district court made
detailed findings and explained how the factor led to its conclusions. The district court’s
findings as to factor 1 are not clearly erroneous.
Next, father challenges factor 4 and argues that the district c ourt should not have
considered an alleged domestic incident that occurred over three years prior to J.K.L.’s
birth and for which the charges were subsequently dismissed. The district court mentioned
an incident noted by the guardian ad litem in volving father and the mother of father’s

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nonjoint daughter. It noted that the order for protection was voluntarily dismissed by the
complainant, and the related charges (felony domestic assault by strangulation and gross
misdemeanor interference with an emergency ca ll) were dismissed prior to J.K.L.’s birth
after father met his conditions for a continuanc e without prosecution. The district court
did “not believe that [father] or [mother] present[ed] a danger of domestic abuse to
[J.K.L.],” but nonetheless concluded that the incident was “highly concerning to the court.”
The district court did not use this fact or “to the exclusion of all others,” see Minn.
Stat. § 518.17, subd. 1(b)(1), but rather co ncluded that the seriousness of the alleged
domestic incident weighed in favor of moth er’s proposed schedule, even though the
charges were ultimately dismissed. This finding is not clearly erroneous.
Next, father challenges factor 6, arguing that mother necessarily had a larger role in
caring for J.K.L. due to her unilateral move to Florida which prevented father from seeing
J.K.L. for a period of time. The district cour t noted that father “has consistently made
efforts and requests to see the child” and concluded:
While [father] has been a consistent caregiver for the minor
child, the court finds that it is [mother] who has been the minor
child’s primary caregiver. . . . While some of this is due to
[mother]’s own actions in unilaterally enrolling the minor child
in full time daycare and then moving to Florida, it cannot be
denied that [mother] has been the minor child’s primary
caregiver for much of his life.

Again, the district court did not use this factor “to the exclusion of all others,” see
Minn. Stat. § 518.17, subd. 1(b) (1), but rather concluded that mother’s role as primary
caregiver outweighed fath er’s role as a consistent caregiv er. This finding is not clearly
erroneous.

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Father next challenges factor 8, arguing that the record is devoid of evidence
supporting the district court’s conclusion that an equal parenting-time schedule would
disrupt J.K.L.’s stability. The district court noted that “the minor child’s primary residence
has always been primarily with [mother].” The district court concluded that an equal
parenting-time schedule would not give mother “any school week parenting time. . . . This
would be disruptive to the minor child’s st ability, as he has consistently relied on his
mother as his primary caretaker.” The court’s conclusion that school-week parenting time
exclusively with father would disrupt J.K.L.’s stability when he had formerly spent school
weeks with mother is not clearly erroneous.
Father also challenges factor 9, argui ng that an equal parenting-time schedule
“would allow each parent and [J.K.L.]’s hal f-siblings to have e qual time with [him],
promoting and fostering those re lationships.” The district c ourt noted that father “has a
loving and strong support system” for J.K.L. But it concluded that J.K.L. “should be able
to experience before and after sc hool time with his mother and brother . . . just as he will
be able to do in his fathe r’s home on Tuesdays through Fr idays.” The district court
concluded that spending school nights with his mother and ha lf-brother was important to
J.K.L.’s relationship with them. This finding is not clearly erroneous.
Father next challenges factor 10, arguing that the district court’s parenting-time
schedule does not maximize J.K.L.’s time with father because mother’s weekend parenting
days are not interrupted by school. The distri ct court concluded that the equal parenting-
time schedule proposed by the guardian ad litem “could be detrimental to the child’s health
and well-being” because the guardian ad litem concluded that children J.K.L.’s age tend to

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do best with one primary home. It further concluded that the equal parenting-time schedule
would result in mother “not being adequately involved with [J.K.L.] ’s education.” The
court explained why maximizing parenting time with father and not allowing mother to be
adequately involved in J.K.L .’s schooling could be detrimen tal to his well-being. These
findings are not clearly erroneous.
After providing detailed findings on each of the 12 best-interest factors, the district
court found six factors weighed in favor of granting mother every Monday overnight, five
factors were neutral, and one factor weighed in favor of granting father every other Monday
overnight in accordance with the guardian ad litem’s recommendation. The district court
concluded that the best-interest factors demonstrated that awarding mother every Monday
overnight was in J.K.L.’s best interests. Th e district court’s findings and conclusions are
not erroneous or contrary to the statute.
A guardian ad litem must advocate for a child ’s best interests, and must “present
written reports on the child’s best interests that include conclusions and recommendations
and the facts upon which they are based.” Mi nn. Stat. § 518.165, subd. 2a(2), (5) (2016).
While a guardian ad litem must present reco mmendations, a district court is not required
to adopt those recommendations. Minn. Stat . § 518.17, subd. 1 (2016); Minn. Stat.
§ 257.025(a). Instead, Minn. Stat. § 518.17, subd. 1(b), provides gui delines for district
courts to follow in applying the best-interest factors.
Father does not provide any additional support for his argument. While the district
court could have adopted the guardian ad litem’s recommendation regarding Monday
overnights, it was not required to do so and it did not abuse its discretion by ordering against

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that recommendation. The district court did not abuse its discretion in awarding mother
every Monday overnight.
II. The district court improperly ap plied Minn. Stat. § 518A.29 (2016) in
calculating father’s income.

Father argues that the district court used the wrong statute to modify his child-
support obligation, and as a result included his overtime income that began after the filing
of the support petition. Mother concedes that the district court erred, but argues that the
mistake was harmless error. After conducting an analysis under Minn. Stat. § 518A.29(b),
the district court concluded that father’s overtime income should be included in his gross
monthly income for purposes of calculating child support.
“A court’s determination of income must be based in fact and will stand unless
clearly erroneous.” Newstrand v. Arend , 869 N.W.2d 681, 685 (Minn. App. 2015)
(quotation omitted), review denied (Minn. Dec. 15, 2015). Minn. Stat. § 518A.29 governs
the calculation of gross income for purposes of child support. In calculating income, a
district court cannot include overtime in come if several factors are met. Id. (b). But in
calculating income for purposes of modifying child support, a district court must use Minn.
Stat. § 518A.39, subd. 2 (2016). The factors governing the inclusion of overtime income
in gross income differ between sec tion 518A.29 and section 518A.39. Compare Minn.
Stat. § 518A.29(b)(2)(i) (excluding overtime that began after the filing of the petition for
parenting time and support), with Minn. Stat. § 518A.39, subd. 2(e)(2)(i) (excluding
overtime that began after the entry of the existing child-support order).

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Here, the district court applied section 518A.29 in finding that father’s overtime
income did not begin after th e filing of the November 2015 petition, and accordingly did
not perform the proper analysis under section 518A.39. The district court thus abused its
discretion in calculating father’s income. We remand for the proper calculation of father’s
gross income.
III. The district court improperly calcul ated father’s child-support obligation for
his nonjoint children.

Father next argues that the district court failed to include cost-of-living adjustments
when deducting obligations for his nonjoint children in calculating child support. Mother
concedes that the district court erred. In calculating father’s gross income, the district court
deducted $1,235 for father’s support obligations to his nonjoint children.
In calculating gross income for purposes of child support, “payments ordered by a
court for a nonjoint child . . . are deducted from other periodic payments received by a
party.” Minn. Stat. § 518A.29(g) (2016). Or ders establishing child support furthermore
must provide for biennial cost-of-living adju stments. Minn. Stat. § 518A.75, subd. 1(a)
(2016).
At the hearing, father introduced the child-support orders for his two nonjoint
children. Child support for father’s first nonjoint child was set at $461 per month in
October 2006 and the order provided for cost-o f-living adjustments according to the U.S.
Department of Labor, Bureau of Labor St atistics, Consumer Price Index for urban
consumers. Child support for father’s second nonjoint child was set at $774 per month in
August 2010 and the order similarly provided for cost-of-living adjustments according to

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the U.S. Department of Labor, Bureau of Labor Statistics, Consumer Price Index for urban
consumers. By the time of the support order for father’s second nonjoint child, his support
obligation for his first nonjoint child had incr eased to $472 per month. At the time the
district court filed the support order for J.K. L., father’s support ob ligations for his two
nonjoint children had increased to a total of $1,335 per month.
Because the district court deducted only $1,235, the original total amount of father’s
child-support obligation for his two nonjoint children, the district court erred. We remand
for the district court to prop erly calculate father’s adjust ed support obligations for his
nonjoint children.
IV. The district court did not err when it did not credit father for overpayment of
child-care support.

Finally, father argues that he is entitled to reimbursement for child-care support paid
in excess of actual child-care costs from N ovember 2014 throug h May 2017. Mother
argues that this issue was not properly before the district court. The district court modified
father’s child-care support obligation but did not reimburse him for overpayment prior to
the modification.
In modifying child support, a district c ourt must order child-care support based on
the actual child-care expenses. Minn. Stat. § 518A.39, subd. 7 (2016). Additionally, “[t]he
[district] court may provide that a decrease in the amount of the child care based on a
decrease in the actual child care expenses is effective as of the date the expense is
decreased.” Id.

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Even if the district court properly considered the child-care support reimbursement
issue, it had discretion to make father’s decreased child-care obligation effective as of the
date of decrease. See Minn. Stat. § 518A.39, subd. 7 (“[t]he court may provide . . .”
(emphasis added)). The district court’s deci sion not to do so was not an abuse of its
discretion.
Affirmed in part, reversed in part, and remanded.