In re the Marriage of: Nicole Marie Edwards, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-2142

In re the Marriage of:
Nicole Marie Edwards, petitioner,
Appellant,

vs.

Christopher Michael Edwards,
Respondent.

Filed September 23, 2019
Reversed and remanded
Klaphake, Judge*

Dakota County District Court
File No. 19HA-FA-14-257

John T. Burns, Jr., Burns Law Office, Burnsville, Minnesota (for appellant)

Kay Nord Hunt, Lommen Abdo, P.A., Minneapolis, Minnesota (for respondent)

Considered and decided by Worke, Presiding Judge; Hooten, Judge; and Klaphake,
Judge.

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

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U N P U B L I S H E D O P I N I O N
KLAPHAKE, Judge
Appellant-mother Nicole Marie Edwards challenges the district court’s award of
additional parenting time to respondent-father Christopher Michael Edwards, arguing that
the increase in parenting time constitutes a de facto custody modification and therefore
Minn. Stat. § 518.18(d)(iv) (2018) applies to the motion. Because we agree that the
increase in parenting time was a de facto custody modification, we reverse and remand.
D E C I S I O N
A district court has broad discretion when deciding parenting-time matters. Hansen
v. Todnem , 908 N.W.2d 592, 596 (Minn. 2018). On appeal, our review is “limited to
whether the district court abused its discretion by making findings unsupported by the
evidence or by improperly applying the law .” Id. (quotation omitted). We review the
district court’s factual findings for clear error. Id. at 599.
Mother argues that father’s request to modify parenting time and the resulting order
modifying parenting time amounted to a de facto modification of custody. Motions to
modify custody and motions to modify parenting time are subject to different standards.
When considering a motion to modify custody, the district court generally applies the
“endangerment standard ,” set forth in Mi nn. Stat. § 518.18(d)(iv) , whereas motions to
modify parenting time under Minn. Stat. § 518.175, subd. 5 (b) (2018), require only an
analysis of the best interests of the child. In re Custody of M.J.H. , 913 N.W.2d 437, 440
(Minn. 2018). The determination of the applicable standard presents a question of law,
which we review de novo. Id.

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Mother and father were married in September 2006 and divorced in August 2014.
The parties have one minor child, B.E., born in September 2009. At the time of dissolution,
the parties agreed to a marital -termination agreement that awarded mother sole physical
custody of the child subject to father’s parenting time. Father was awarded parenting time
every Thursday from 5:00 p.m. until Friday at 8:00 a.m., and every other weekend from
Friday at 5:00 p.m. until Sunday at 5:00 p.m., for a total of four overnights every two-week
period. In February 2018, father moved to modify the parenting-time schedule. Following
a hearing, the district court granted the motion and ordered that father would continue to
have parenting time every Thursday overnight and every other weeke nd and ordered that
he would have additional parenting time on the Monday following mother’s parenting-time
weekend from Monday after school until Tuesday at 6:00 p.m.
The district court schedule d a review hearing for August 24, 2018. Prior to the
hearing, father again moved to modify his parenting time. Following the review hearing,
the district court granted the motion. The district court ordered that father would have
parenting time every Monday and Tuesday overnight, that mother would have parenting
time every Wednesday and Thursday overnight, and that the parties would alternate
weekend parenting time from Friday after school to Monday morning school drop off. As
a result, each parent received seven overnights per two-week period. Mother moved for
amended findings, arguing that the order effectuated a de facto change in custody and
therefore the district court should have applied the “endangerment standard” that applies
to motions to modify custody under Minn. Stat. § 518.18(d)(iv). The district court denied

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the motion after determining that the new parenting -time schedule did not result in a de
facto change in custody.
Mother appeals the district court ’s determination that the new parenting -time
schedule did not result in a de facto change in custody. Father argues that this issue was
not properly preserved for appeal because mother did not raise it until her motion for
amended findings. Generally, we will not review issues that were not presented to and
considered by the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). And
an issue that was first raised in a motion for amended findings may be considered raised
“too late.” Allen v. Cent. Motors, Inc., 283 N.W.2d 490, 492 (Minn. 1939). But here, the
district court considered and ruled on the issue. And throughout the proceedings mother
argued that a substantial increase in parenting time would significantly disrupt B.E.’s daily
schedule because it would lead to more time commuting between the parties homes for
school and ex tracurricular activities, which are relevant factors when considering if a
motion to modify parenting time would result in a de facto custody modification. See
M.J.H., 913 N.W.2d at 443. Accordingly, the issue was presented to and addressed by the
district court, and we may therefore review the issue.
In M.J.H., the supreme court addressed the issue of when a motion to increase
parenting time constitutes a de facto motion to mo dify custody. Id. at 440. The district
court found that father’s request was a de facto motion to modify physical custody and that
it would change the child’s primary residence , but this court reversed that determination
on appeal. Id. at 439, 443. The supreme court granted review and reversed this court’s

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decision after determining that father’s motion was a de facto motion to modify physical
custody because his “proposed modification is substantial.” Id. at 442.
The supreme court held that:
[W]hen determining whether a motion to modify parenting
time is a de f acto motion to modify physical custody for
purposes of deciding whether the endangerment standard
applies, a court should consider the totality of the
circumstances to determine whether the proposed modification
is a substantial change that would modify th e parties’ custody
arrangement. The factors considered may include the
apportionment of parenting time, the child’s age, the child’s
school schedule, and the distance between the parties’ homes,
but these factors are not exhaustive.

Id. at 443.

The parties’ marital-termination agreement awarded father parenting time every
Thursday overnight and every other weekend, for a total of four overnights every two-week
period. The first order to modify parenting time awarded him one additional overnight,
and the second order awarded him two additional overnights. As a result, following the
district court’s second order , father and mother had equal parenting time consisting of
seven overnights per two-week period. Father argues that this court should only c ompare
the increase between the two 2018 orders because mother did not appeal the first order and,
therefore, it became the last permanent and final order setting parenting time. Dahl v. Dahl,
765 N.W.2d 118, 123 (Minn. App. 2009). We disagree. The district court’s order does not
specify if the order is temporary or final, but the order scheduled a review hearing. Father
moved to again modify parenting time prior to the review hearing, and the district court
heard arguments on the motion at the review h earing. Accordingly, the district court

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considered the second motion to modify parenting time as part of its scheduled review of
the first order and again amended the parenting -time schedule. Because the district court
scheduled a review hearing of the f irst order and considered the second motion as part of
that review, the first order was not the last permanent and final order. We therefore
compare the change between the parenting -time schedule establish ed following the
dissolution of marriage with the second order increasing father’s parenting time.
The district court determined that , based on the totality of the circumstances , the
increase in father’s parenting time did not constitute a change in custody. The parties have
joint legal custody, but mother was awarded sole physical custody. “Physical custody and
residence” is defined as “the routine daily care and control and the residence of the child.”
Minn. Stat. § 518.003, subd. 3(c) (2018). Mother argues that the increase in parenting time
functionally changed the physical custody of B.E. to joint physical custody. We agree.
“Joint physical custody” is defined to mean “that the routine daily care and control and the
residence of the child is structured between the parties.” Minn. Stat. § 518.003, subd. 3(d)
(2018). Following the district court’s order, parenting time was divided equally between
the parties. While an equal division of parenting time does not, per se, result in custody
being treated as joint physical custody, it is a relevant factor to consider. M.J.H., 913
N.W.2d at 443.
Moreover, as mother notes, the change resulted in father having significantly mor e
parenting time during the school week than he was initially awarded following the
dissolution of marriage. Under the initial parenting -time schedule, father only had
overnights prior to a school day twice per two-week period; under the new schedule he has

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five. This will have a substantial impact on mother’s daily care and control of B.E. during
the school week. See Id. at 442 (noting that a proposed change was substantial when it
changed mother’s “daily care and control of the child from nearly every school day to half
of all school days”). Father lives thirty minutes away from B.E.’s school, and mother
indicated that B.E. often goes back and forth between school and father’s home at least
twice when he has an after -school a ctivity. Because the new s chedule significantly
restructured the parenting-time schedule during the school week, B.E. will have to spend
significantly more time traveling between father’s home and his school during the school
week. Finally, we note that the district court’s order addressing whether the proposed
parenting-time schedule was a de facto custody modification incorrectly states that the new
schedule only resulted in father being awarded a “single additional overnight.” As
discussed above, father was granted three additional overnights.
On this record, we conclude that the increase in father’s parenting time was a de
facto custody modification. Father was awarded substantially more parenting time, and
the new schedule significantly impacted mother’s “routine daily care and control” of the
child, particularly during the school week. Because the motion was a de facto motion to
modify custody, the “endangerment standard” set forth in Minn. Stat. § 518.18(d)(iv)
applies to the motion. Id. at 441. We therefore reverse and remand for further proceedings.
Reversed and remanded.