In re the Marriage of: Dodamwalage Dinesh Jayawardena, 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This opinion will be unpublished and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
A19-0390

In re the Marriage of:
Dodamwalage Dinesh Jayawardena, petitioner,
Appellant,

vs.

Mallikaarachchige Sathsarani Jayawardena,
Respondent.

Filed August 26, 2019
Affirmed in part, reversed in part, and remanded
Bjorkman, Judge

Hennepin County District Court
File No. 27-FA-17-4061

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

Tifanne E. E. Wolter, Henningson & Snoxell, Ltd., Maple Grove, Minnesota (for
respondent)

Considered and decided by Halbrooks, Presiding Judge; Bjorkman, 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
BJORKMAN, Judge
In this appeal from a dissolution judgment, appellant -father argues that the district
court abused its discretion by (1) conditioning the restoration of father’s parenting time on
both parties’ agreement that the children are ready for parenting time to resume ,
(2) awarding mother sole legal custody, and (3) awarding mother spousal maintenance and
child support based on erroneous budgetary findings . We affirm the district court’s
parenting-time and custody decisions. But because the district court’s findings understate
father’s expenses, we reverse the spousal -maintenance and child -support awards and
remand for reconsideration of those matters.
FACTS
Appellant Dodamwalage Jayawardena ( father) and respondent Mallikaarachchige
Jayawardena (mother) were married in January 2002. They had four children between
2004 and 2011. In late 2016, father hit mother across the face during an argument, and
mother obtained an order for protection agai nst him. The parties separated the following
June, and father petitioned for dissolution.
After a two-day trial in July 2018, the district court awarded mother sole legal and
physical custody, spousal maintenance, and child support. The district court did not award
father parenting time, noting that father voluntarily stopped seeing the children in late 2017
and the “children have been deeply emotionally affected by [his] actions and the history of
emotional abuse and controlling behavior that occurred before he left the home.” Instead,
the court ordered father to first participate in reunification therapy with the children . The

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court authorized father to receive parenting time when, “[b]ased on the information
available from the therapist, . . . the parties agree that the children’s comfort level is ready
for parenting time.” Father moved for a new trial or amendment of numerous factual
findings, which the district court denied. Father appeals.
D E C I S I O N
I. The district court did not abuse its disc retion by conditioning restoration of
father’s parenting time on both parties’ agreement that the children are ready.

“The district court has broad discretion in determining parenting-time issues and
will not be reversed absent an abuse of that discretion.” Dahl v. Dahl, 765 N.W.2d 118,
123 (Minn. App. 2009). A district court abuses its discretion if its findings are unsupported
by the evidence or if it misapplies the law. Id.
Father argues that the district court abused its discretion by denying him parenting
time until the parties agree that the children are ready.1 He contends this condition gives
mother “veto power” over his parenting time and he has “no prompt recourse” if mo ther
withholds her agreement. Both arguments are unavailing.
The district court empowered father to select the reunification therapist and made
“information available from the therapist” the focus of the determination whether “the
children’s comfort level is ready for parenting time.” We discern no factual or legal error
by the district court in requiring mother’s agreement. The district court wisely engaged
the children’s sole legal and physical custodian in making this critical determination, rather

1 We observe that father does not dispute, and the record supports, the finding that it is in
the children’s best interests for father and the children to participate in reunification therapy
to ensure they are comfortable with him before he resumes parenting time.

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than placing the decision solely in father’s or the therapist’s hands, or imposing an arbitrary
timeline regardless of the children’s readiness. And the district court expressly provided
father the recourse he claims to lack: if the parties have not agreed to r esume father’s
parenting time after six months of reunification therapy, father ma y “request a review
hearing.” The parenting-time order reflects an appropriate exercise of discretion to afford
father parenting time under conditions that serve the children’s best interests.
II. The district court did not abuse its discretion by awa rding mother sole legal
custody.

A district court has broad discretion in determining custody matters. Goldman v.
Greenwood, 748 N.W.2d 279, 282 (Minn. 2008) . 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. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996) .
When determining whether findings are clearly erroneous , we view the record in the light
most favorable to the district court’s findings and defer to the district court’s credibility
determinations. Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).
When evaluating what custody arrangement serves the children’s best interests, a
district court must consider “all relevant factors,” including, among 12 enumerated factors,
any history of domestic abuse. Minn. Stat. § 518.17, subd. 1(a)(4) (2018). If domestic
abuse has occurred between the parents, the court must “use a rebuttable presumption that
joint legal custody or joint physical custody is not in the best interests of the child [ren].”
Id., subd. 1(b)(9) (2018). “ In determining whether the presumption is rebutted, the court
shall consider the nature and context of the domestic abuse and the implications of the

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domestic abuse for parenting and for the child[ren]’s safety, well-being, and developmental
needs.” Id.
The district court analyzed all 12 statutory factors, noting the presumption against
joint legal custody because of the parties’ history of domestic abuse. And the court found
that there is ongoing discord between the parties, and between the children and father,
because of father’s history of physical violence and coercive and controlling behavior
toward mother. In light of these considerations, the district court found it unlikely that the
parties could “cooperatively navigate custodial matters without impasse or free of coercion
or intimidation.” Father does not argue that any of the custody findings are clearly
erroneous, and our review of the record reveals ample supporting evidence. That the record
might have supported the alternati ve findings that father urges —that the children do not
fear him and the parties could cooperate in co -parenting—does not undermine the district
court’s findings or its decision to award mother sole legal custody.
III. The district court abused its discretion in awarding mother child support and
spousal maintenance based on erroneous budgetary findings.

A district court has broad discretion in its decisions regarding child support and
spousal maintenance. Butt v. Schmidt, 747 N.W.2d 566, 574 (Minn. 2008) (child support);
Melius v. Melius , 765 N.W.2d 411, 414 (Minn. App. 2009) (spousal maintenance). We
will not disturb a district court’s factual findings regarding the parties’ income and
expenses unless they are clearly erroneous. Peterka v. Peterka, 675 N.W.2d 353, 357-58
(Minn. App. 2004).

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A. Income Findings
Father argues that the district court clearly erred by calculating mother’s income
based on her current position working 35 hours per week during the school year as a
childcare assistant. He contends that additional income should be attributed to her because
she is able to work “full time year -round.” We disagree. Mother testified that she is not
qualified for the employment father suggested she pursue, she is unable to work additional
hours in her current position, and summer work elsewhere is not feasible in light of the
children’s needs and the off -setting expense of childcare. We see no clear error by t he
district court in crediting mother’s testimony.
Father also asserts that the district court erred by including bonus pay in his income.
He acknowledges that b onus payments are properly included in a party’s income, even if
not guaranteed or uncertain as to amount, so long as they are a “dependable” form of
payment and expected to continue. Desrosier v. Desrosier, 551 N.W.2d 507, 509 (Minn.
App. 1996). But he insists that his receipt of a bonus for only one year makes the future
bonus payments too speculative to be included as income. We are not persuaded. Receipt
of b onus payments over m ultiple years amply demonstrate s the dependability of such
income. See id. at 508 (four years of bonus ranging from $7,000 to $17,000); cf. Haasken
v. Haasken, 396 N.W.2d 253, 261 (Minn. App. 1986) (affirming exclusion of bonus from
income because determination that payments ranging from $0 to $9,000 were not
“dependable” was “not clearly erroneous” (quotation omitted)). But nothing in the caselaw
precludes a finding of dependability based on one year’s receipt of a bonus where, as here,
the record establishes ongoing eligibility for and likely receipt of bonuses.

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Father was promoted to executive chef at Radisson Blu in late 2016. Upon that
promotion, he immediately became eligible to receive a bonus. The 2017 incentive plan
identifies the employees eligible to receive a bonus and sets out the timing (annual) and
amount (8%) of the bonus payments. As long as father retains his position as executive
chef, he will be eligible to receive a bonus. Father testified that the bonus depends on his
performance and that of the business. But he received the full amount of the bonus during
the only year of eligibility for which information was available at the time of trial. On this
record, t he district court did not clearly err by finding that the bonus, while “not
guaranteed,” is likely to “remain a regular and dependable form of periodic payment” and
including the bonus in father’s income.
B. Expense Findings
As to mother’s expenses, father claims error in the finding that her current mortgage
payment is reasonable because “she is eligible to refinance.” But the record reflects that
the parties had not been approved to refinance immediately because of financial
uncertainties related to the dissolution. We discern no error by the district court in
affording mother three years to refinance or sell the homestead.
Father also asserts error in the district court’s acceptance of mother’s claimed
expenses for home maintenance, utilities, transportation, and a personal allowance,
claiming they exceed the marital standard of living and are unreasonable. See Minn. Stat.
§ 518.552, subd. 1 (2018) ( requiring consideration of marital standard of living in
determining need for spousal maintenance). The district court duly considered the marital
standard of living , including crediting mother’s testimony that father withheld financial

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information from her, making it difficult for her to calculate her expenses, and that father
“unreasonably” restricted the family’s expenditures on groceries and utilities. The district
court also considered mother’s testimony about the actual expenses she and the children
have incurred since the separation and specific anticipated expenses to address deferred
home and vehicle maintenance. On this record , the district court did not clearly err by
finding mother’s claimed expenses to be reasonable.
Regarding his own expenses, father contends the district court clearly erred by
rejecting some of his claimed expenses . With respect to father’s claimed “reserve” for
potential uninsured medical expenses and attorney fees , we disagree. Father’s testimony
that “anything can happen” does not justify a “reserve” for uninsured medical expenses .
And the district court did not err by holding each party responsible for his or her own
attorney fees and excluding any such expenses from both parties’ budgets.
But father’s argument regarding his credit card debt has merit. At the time of the
dissolution trial, father had more than $30,000 in credit card debt, which the district court
allocated to him as nonmarital debt. Father claimed $1,716.19 in monthly expenses to pay
off this debt. The district court excluded this expense as duplicative of father’s claimed
expenses for groceries, clothing, eating out, travel, and gasoline. But that very reasoning
reveals the court’s error. Father’s prior expenditures on groceries, clothing, and so forth
(resulting in current debt) cannot duplicate future monthly expenses toward those items.
Father will continue to incur expenses toward those items, and will also continue to face
an obligation to pay off his credit card debt. The district court clearly erred by excluding
that expense from father’s budget. That error necessarily undermines the district court’s

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calculation of spousal maintenance and child support. We therefore reverse those awards
and remand for the district court to recalculate father’s budget and reevaluate spousal
maintenance and child support accordingly.
Affirmed in part, reversed in part, and remanded.