In re the Marriage of: Thomas Gordon Burnett, 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This opinion will be unpublished and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
A17-1107

In re the Marriage of:
Thomas Gordon Burnett, petitioner,
Appellant,

vs.

Daniela Estefania Burnett Torres Parra,
Respondent.

Filed February 12, 2018
Affirmed
Jesson, Judge

Wabasha County District Court
File No. 79-FA-16-843

Andrew Laufers, Cordell & Cordell, P.C., Edina, Minnesota (for appellant)

Karen E. England, England Law Office, Ltd., Lake City, Minnesota (for respondent)

Considered and decided by Florey, Presiding Judge; Connolly, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Respondent Daniela Parra is originally from Chile but married appellant Thomas
Burnett and moved to Minnesota where they had a child. The marriage did not last and
respondent petitioned for dissolution. Respondent wished to return home to Chile with the
child, but appellant did not approve of the child living outside the country. To resolve this
2
dispute, the couple took the issue of child custody to trial where the district court awarded
international joint custody. Under the court’s order, the child would attend school in Chile
with respondent for most of the year and spend breaks i n Minnesota with appellant.
Appellant appealed, arguing that the district court abused its discretion by not considering
how international law might impact the court’s custody decision and because the court, in
a too-general order, awarded him less than 25% parenting time. We affirm.
FACTS
Respondent Daniela Estefania Burnett Torres Parra was a foreign-exchange student
from Chile when she met ap pellant, Thomas Gordon Burnett , in Wabasha. After
respondent-mother returned home to Chile, father—who lived in Minnesota—would travel
to her home country to see her. The couple began dating and mother eventually moved to
Minnesota. They married in July 201 0, and about a year an d a half later, they had a son
who holds dual citizenship in the United States and Chile.
Mother and father made their home in Minnesota but continued to make trips back
to Chile to visit mother’s family. To help maintain the child’s roots in his Chilean heritage,
the couple raised the child bilingually in English and Spanish and cultivated an immersion
of the cultures of both Chile and the United States.
But the marriage was tumultuous, including an incident of domestic abuse by father
against mother in front of the child. This incident led to father being charged with domestic
assault, which was eventually reduced to disorderly conduct. Father pleaded guilty to the
reduced charge. Mother petitioned for dissolution of the marriage in September 2016, and
the couple worked out the terms of the dissolution except for one: the custody arrangement
3
for the child. Mother wished to return to Chile and make her permanent home there with
her family, but father opposed the child being taken to Chile for any reason.
After a two-day trial, the district court issued an order awarding mother and father
joint legal and physical custody. The order allowed the child to attend school in Chile with
mother and spend his breaks and school vacations with father in Minnesota . Father took
issue with multiple findings of fact in the court’s order and petitioned the court to amend
its findings. The district court held a hearing on father’s petition and issued an amended
order just a few days later, but the overall terms of the parenting-time schedule remained
substantially the same. Father appeals.
D E C I S I O N
Father asks us to reverse the district court’s parenting-time determination allowing
the child to attend school in Chile and spend breaks and vacations back in Minnesota.
Generally, a district court has broad discretion in deciding parenting -time questions and
will not be reversed absent an abuse of discretion. Olson v. Olson, 534 N.W.2d 547, 550
(Minn. 1995). A district court abuses its discretion in parenting-time cases by misapplying
the law or relying on facts that are not supported by the record. Shearer v. Shearer, 891
N.W.2d 72, 75 (Minn. App. 2017). A district court’s findings of fact that are used to
support a parenting-time decision will be upheld unless they are clearly erroneous. Griffin
v. Van Griffin, 267 N.W.2d 733, 735 (Minn. 1978).
Father argues that there are two main areas where the district court abused its
discretion. First, father argues the court abused its discretion when it failed to consider
how international law might affect future custody disputes . S econd, father contends the
4
parenting-time award is insufficient because it fails to acknowledge that father has less than
25% parenting time with the child and, relatedly, that it is too generalized. We discuss
each argument below.
The district court adequately considered how international law would affect the
parenting-time arrangement.

Father’s main argument is that the district court did not give enough consideration
to how its decision allowing the child to live part -time in Chile could be impacted by an
international treaty called the Hague Convention on the Civil Aspects of International
Child Abduction (Hague Convention). The Hague Convention was adopted in 1980 as a
way to discourage interna tional forum shopping in child custody 1 cases. Navani v.
Shahani, 496 F.3d 1121, 1128 (10th Cir. 2007). The treaty is designed to prevent a parent
who is upset with a custody decision in one country from fleeing with a child to another
country to re-litigate the custody arrangement in a more favorable forum. Id.
Although the Hague Convention is certainly entwined with international custody
disputes, it explicitly does not concern itself with re -litigating these disputes. Its purpose
is to maintain the status quo by requiring each signatory country to return a wro ngfully
removed child back to the child’s country of “habitual residence” where the dispute can be
settled in the proper court. Karkkainen v. Kovalchuk , 445 F.3d 280, 287 (3d Cir. 2006).
This term “habitual residence” is not defined, but the treaty’s acc ompanying report

1 Father’s argument is specifically aimed at the court’s parenting-time decision rather than
the overall custody arrangement. See Minn. Stat. § 518.003, subd. 3 (2016) (outlining the
different aspects of custody, including parenting time). But the Hague Convention doe s
not draw much of a distinction between parenting time and custody, preferring the umbrella
term “custody” for the most part.
5
describes it as a “well-established concept in the Hague Conference, which regards it as a
question of pure fact, differing in that respect from domicile.” Elisa Perez -Vera,
Explanatory Report, ¶ 66, in 3 Hague Conference on Private Inter national Law, Acts and
Documents of the Fourteenth Session, Child Abduction 426 (1982). 2 Federal courts have
struggled to settle on a definition of habitual residence, but the Ninth Circuit’s standard in
Mozes v. Mozes emerged as a rough guideline in subsequent cases. 239 F.3d 1067 (9th Cir.
2001). The essence of the Ninth Circuit’s definition is that habitual residence generally
hinges on the intention of the parents and child about where they plan to permanently live.
Id. at 1075-76.
Father argues that the district court’s decision allowing the child to attend school in
Chile will transform Chile into the child’s habitual residence under the Hague Convention.
This decision was an abuse of the district court’s discretion, father argues, because any
future custody or parenting-time issues would be settled not by a Minnesota court, but by
a Chilean court—a judicial system with which father is unfamiliar. We reject the argument
for two reasons. First, it is unclear if Chile would actually become the child’s habitual
residence under the Hague Convention. There is certainly a reasonable argument to this
effect, but this is a determination that should be made by the correct forum if, and when,
the time comes. For now, speculating about what the child’s habitual residence might be

2 This accompanying report was made by Elisa Perez-Vera, the official Hague Conference
Reporter. Her report is recognized as the “official history and commentary on the
Convention and is a source of background on the meaning of the provision s of the
Convention availa ble to all States becom ing parties to it.” Hague International Child
Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10,494, 10,503 (March 26,
1986).
6
under the Hague Convention is too hypothetical and abstract to use as a basis for
overturning the district court’s decision. See Leiendecker v. Asian Women United of Minn.,
731 N.W.2d 836, 841 (Minn. App. 2007) (explaining that claims which are premature are
not ripe for adjudication), review denied (Minn. Aug. 7, 2007).
The second reason we reject father’ s argument that the district court ignored the
implications inherent in the Hague Convention is because the record convinces us that the
district court did consider these implications. For example, the district court clearly heeded
the advice of father’s expert witness and included in its order an obligation that mother pay
a custody bond before taking the child to Chile.3 The district court also adopted the expert’s
recommendation that the parties obtain a mirroring order 4 in Chile that would mimic its
own findings and determinations to help ensure compliance between the two countries.5

3 Father’s expert explained that a custody bond in this context is a type of bond purchased
by one parent before taking the child outside the country. If that parent decides not to
return the child, the proceeds from the bond would flow to the other parent to help offset
that parent’s litigation costs in attempting to return the child.
4 Father’s expert also explained that a mirroring order is when one parent registers an
existing court order from one country with another country’s courts who then issue their
own order “mirroring” the original order. For example, in this case, mother would take the
district court’s custody order and register it with Chile. Then the appropriate Chilean court
would issue its own order duplicating—or mirroring—the district court’s order. This way,
the district court’s order and intentions would have full leg al effect in the Chilean judicial
system.
5 Mother also makes an argument on appeal that the district court abused its discretion by
ordering her to pay a custody bond before taking the child outside of the country. But
mother acknowledges that she did not file a notice of related appeal on this point as required
by Minnesota Rule of Civil Appellate Procedure 106 (2016), and we conclude the issue is
not properly before us. See Arndt v. Am. Family Ins. Co. , 394 N.W. 2d 791, 793 (Minn.
1986) (stating that a respondent is barred from raising issues on appeal that are not included
in a notice of related appeal).
7
Far from ignoring the complexities raised by the specter of the Hague Convention,
the district court went to great lengths to recognize and then address those complexities .
In fact, when father argued to the district court that it did not adequately consider his expert
witness’s testimony about the possible ramifications of the Hague Convention, the district
court responded that it “considered it very muc h.” Although the parenting-time decision
was not the outcome father wanted, the district court weighed and considered the
implications of the Hague Convention and the credible testimony of father’s expert. And
in our review of the district court’s decision, we give wide deference to those credibility
assessments. Sefkow v. Sefko w, 427 N.W.2d 203, 210 (Minn. 1998). In reaching its
decision to allow the child to attend school in Chile, the district court did not misapply the
law nor did it rely on facts unsupported by the record, either of which would have resulted
in a parenting-time decision that would have been an abuse of the district court’s discretion.
Shearer, 891 N.W.2d at 75. For these reasons, we conclude that the district court properly
exercised its discretion.6

6 Father also makes two brief arguments (1) that the district court did not adequately
consider how this arrangement would impact the child’s relationship with his step-sister
and (2) did not adequately conside r the nature of father’s domestic abuse against mother.
But these arguments do not change our conclusion. Nothing in the record suggests that the
child had the type of relationship with his step-sister that would be so negatively affected
by attending school in Chile. And the requirement for courts to consider the nature of
domestic abuse is for the benefit of the victim of the abuse, not the abuser. See Minn. Stat.
§ 518.17, subd. 1(b)(9) (2016) (creating a rebutta ble presumption that a domestic abuser
should not have joint custody of a child and courts should consider the nature of the
domestic abuse only to rebut that presumption). We are not aware of any support in
caselaw or otherwise that conforms with father’s use of this statutory shield as a sword.
8
The district court gave sufficient reasons to justify father’s parenting time and sufficient
details to implement its order. As a result, the district court did not abuse its discretion.

Father’s second argument is two-fold but interrelated; he argues that the district
court abused its discretion when it awarded him less than 25% parenting time with the child
and by not providing sufficient details to implement its custody order. Both arguments rest
on the abuse-of-discretion standard. We examine each challenge in turn.
Minnesota Statutes section 518.175, subdivision 1(g) (2016), contains a rebuttable
presumption that a parent is entitled to receive “a minimum of 25 percent of the parenting
time for the child” in a joint-custody decision. We analyzed the 25% presumption in Hagen
v. Schirmers, 783 N.W.2d 212, 217-19 (Minn. App. 2010). There, we decided that district
courts must “demonstrate an awareness and application of the 25% presumption when the
issue is appropriately raised and the court awards less than 25% parenting time.” Id. at 217
(citing Dahl v. Dahl, 765 N.W.2d 118 , 124 (Minn. App. 2009)). We also concluded that
the 25% line is a “legislatively imposed benchmark” and would be “stripped of its purpose
if appellate courts could, after the fact, calculate parenting time in a light most favorable to
the decision and supply findings” not clearly laid out in the record which would meet that
25% mark. Id. at 218. In other words, the burden is on the district court to outline how its
parenting time decision meets the 25% minimum, or else rebut this presumed minimum by
clearly explaining why it cannot be met.
Originally, the district court’s parenting -time decision in this case was a short
paragraph that allowed the child to attend school in Chile with mother from March to
December and then spend time with father in Minnesota during January and February.
9
After father’s motion to amend, which is the first time father raised the 25% presumption,
the district court expanded this parenting-time decision to include two additional weeks
with father during the Chilean school year’s winter break, which would be in the summer
in the northern hemisphere.
If we assume that the child spends the entire months of January and February, plus
two weeks in the summer , with father in Minnesota, then this would fall below the 25%
mark.7 But we are convinced the district court adequately justified its reasons for sliding
below this line. The court wrote in its amended order that it “considered an arrangement
under which the child would spend part of the school year in Minnesota and part of it in
Chile” but determined that this type of arrangement was “not practical” because “the
Chilean school year runs from March to December while the Minnesota school calendar
runs from September to June.” The court concluded that , given the distance between the
United States and Chile, it would be impractical to set a holiday schedule and that parenting
time “must of necessity be scheduled in few er, but longer, blocks of time than would be
the case if the parties lived closer.” The court justified this decision by saying that its
intention was “for both parents to have liberal time to spend with the child while providing
the child with the opportunity to continue to experience both cultures and enjoy extensive
time with both sides of the family.”

7 Mother disputes this calculation but because we conclude tha t the district court
demonstrated an awareness of the benchmark and justified why father’s parenting time fell
below the 25% limit, we do not need to decide whose arithmetic is correct.
10
These statements demonstrate a thoughtful approach to the unique problem this case
presented for the district court: attempt to strike a balance in a parenting-time arrangement
between countries in different hemispheres that was in the best interests of the child, that
allowed the child to attend only one school, that continued to foster the child’s immersion
in both cultures and families , and that maximized the amount of time mother and father
could each spend with the child. This was a challenging needle to thread, but the district
court’s decision adroitly navigated the delicate path . The court acknowledged that it
considered alternative arrangements that could have been more equitable for father, but it
deemed them impractical in lieu of keeping the child consistently in one school throughout
the academic year and in light of the great distance separating the United States from Chile.
The district court sufficiently justified its reasons for rebutting the 25% presumption and
did not abuse its discretion.
Similar reasoning applies to father’s argument that the district court did not provide
sufficient details for implementing its custody decision. Father singles out the supposed
lack of clarity when it comes to outlining specific dates and exact times when custody
exchanges should occur and who shoulder s the costs of transportation. He stresses that it
was unrealistic for the district court to assume the parties could work out these matters on
their own.
But the record shows that the parties have demonstrated their willingness to work
out complex details on their own. As noted in the introduction to the district court’s order,
both mother and father negotiated nearly all the terms of their marriage dissolution before
their custody trial . Adding to this , the parties appear to have negotiated reasonable
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parenting-time arrangements in Minnesota on their own. The district court took notice of
the parties’ past collaboration and relied on it in multiple findings of fact. Granted,
mother’s move to Chile adds a layer of complication to the arrangement, but the district
court acted reasonably in relying on the parties’ previous cooperation and assuming that
would continue into the future. Given the exceptional circumstances of this international-
custody arrangement, nailing down a meticulous parenting-time schedule to father’s
exacting standards was unrealistic. Th is situation demanded more play in the joints than
there might be in a typical custody order, and we defer to the district court’s discretion in
building in that flexibility. For these reasons, we conclude that the district court did not
abuse its discretion by not setting a more specific parenting-time schedule.
Father summarizes his overall argument by likening the district court’s custody
decision to a careless student’s math homework—reaching an answer without showing the
proper work. But court orders are not calculus. We do not require rigorous mathematical
precision when considering facts, weighing evidence, considering the law, and then making
informed decisions. If anything, the district court impressively rose to the occasion when
faced with this complicated nex us of interjurisdictional child -custody arrangements and
international treaty obligations. The court considered how the Hague Convention might
affect its custody determinations and took reasonable steps to address those concerns. The
court justified its reasons for granting father less than 25% parenting time in its amended
findings and order. And the court’s order w as specific enough in its decision to meet the
demands of the unique circumstances of the case. We affirm its decision.
Affirmed.