In re the Marriage of:

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1091

In re the Marriage of:

Katherine Ella Hoene, petitioner,
Respondent,

vs.

Matthew Arnold Kramar,
Appellant.

Filed June 21, 2021
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-FA-19-1683

Shane C. Perry, Perry & Perry, PLLP, Minneapolis, Minnesota (for respondent)

Erika N. Donner, Remington & Associate, P.A., Bloomington, Minnesota (for appellant)

Considered and decided by Smith, Tr acy M., Presiding Judge; Ross, Judge; and
Rodenberg, Judge.

NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this marital-dissolutio n appeal, appellant Matthew Arnold Kramar (father)
challenges the district court’s award of sole legal and sole physical custody of the parties’

 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.
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children to respondent Katherine Ella Hoene (mother) and the district court’s determination
of parenting time for father. As part of his argument, father contends that the district court
clearly erred by finding that he engaged in domestic abuse against mother. Because the
record supports the district court’s findings and because the district court’s custody and
parenting-plan determinations were within its discretion, we affirm.
FACTS
The parties were married in 2007. Their twin sons were born in 2009. In November
2018, the parties separated an d mother petitioned the distri ct court for an order for
protection (OFP) on behalf of herself and th e children. An emergency ex parte OFP was
granted for mother but denied for the children. The following month, the parties stipulated
to a no-contact order and mother’s petition for an OFP was dismissed without a finding of
domestic abuse.
In February 2019, mother initiated this dissolution action. After the parties resolved
many issues in the di ssolution proceeding, th e district court held a bench trial on the
disputed issues of custody, parenting time, and child support. Mother sought sole legal and
sole physical custody of the children with limited parenting time for father. Father sought
joint legal and joint physical custody of the children with equal parenting time.
At trial, mother testified that father had a history of comm itting domestic abuse
against her and the children. She testified th at father has anger-m anagement issues and
would have regular outbursts towards mother and the children, causing mother to fear for
the safety of herself and the children. She testified to a specific incident on November 20,
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2018, that prompted the parties’ separation a nd her petition for an OFP. Father disputed
that he ever engaged in domestic abuse.
Both of the children have special needs, a nd both were seeing a therapist. At trial,
the therapist testified that, when other people are around, the children enjoy spending time
with father, and she stated that she does not have concerns about them spending time with
father. The therapist testified that both parents are meeting the children’s emotional needs.
Mother testified that father’s visits with the children since their separation went well.
The district court determined that domestic abuse had occurred between the parties
but stated that, based on the evidence, it co uld not determine that domestic abuse had
occurred against the children. The district court found that father failed to rebut the
presumption in cases involving domestic abus e between the parents that joint custody is
not in the children’s best interests. The district court awarded sole legal and sole physical
custody to mother with parenting time for father on alternating weekends and Wednesdays.
Father appeals.
DECISION
When a district court is deciding a cu stody dispute, the court’s “paramount
commitment” is to a ch ild’s best interests. Olson v. Olson, 534 N.W.2d 547, 549 (Minn.
1995). In determining a child’s best interests, a district court must “consider and evaluate
all relevant factors,” including 12 statutory factors. Minn. Stat. § 518.17, subd. 1(a)(1)-(12)
(2020). One of those factors involves whethe r domestic abuse has occurred in the
household. Id., subd. 1(a)(4). The court must provide “detailed findings” on each of the
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statutory best-interests factor s and explain how each “led to its conclusions and to the
determination of custody and parenting time.” Id., subd. 1(b)(1) (2020).
We review a district court’s determina tions regarding custody and parenting time
for an abuse of discretion. See Matson v. Matson, 638 N.W.2d 462, 465 (Minn. App. 2002).
When the issue turns on the district court’s findings of fact, we review its findings for clear
error, “giving deference to the district court’s opportunity to evaluate witness credibility”
and reversing only if we are left “with the de finite and firm conviction that a mistake has
been made.” Goldman v. Greenwood, 748 N.W.2d 279, 284 (Mi nn. 2008) (citations and
quotations omitted). We review the record in the light most favorable to the district court’s
findings and will not reconcile conflicting evidence or decide issues of witness credibility
because those issues “ar e exclusively the provin ce of the factfinder.” Pechovnik v.
Pechovnik, 765 N.W.2d 94, 99 (Minn. App. 2009) (quotation omitted).
Father makes three arguments challengi ng the district court’s custody and
parenting-time determinations. First, he asserts that the district court clearly erred when it
found that father committed domestic abuse. Second, he contends that, even if the finding
of domestic abuse was not erroneous, the dist rict court clearly erred when it found that
father had failed to overcome the presumption against joint legal or joint physical custody
and abused its discretion in its award of custody. Third, he argues that the district court
abused its discretion in setting father’s parenting time. We address each argument in turn.
I. The domestic-abuse finding is supported by the record.
Father argues that the district court cl early erred by finding that domestic abuse
occurred between the parties. “Domestic abuse” includes, as relevant here, “the infliction
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of fear of imminent physical harm, bodily injury, or assault” against a family or household
member. Minn. Stat. § 518B.01, subd. 2(a)(2) (2 020). “Present intent to inflict fear of
imminent physical harm, bodily injury, or a ssault can be inferred from the totality of the
circumstances, including a histor y of past abusive behavior.” Pechovnik, 765 N.W.2d at
99. If domestic abuse has occurred between the parents, there is a rebuttable presumption
that joint legal or joint physical custody is not in the child’s best interests. Minn. Stat.
§ 518.17, subd. 1(b)(9) (2020).
The district court found that, on November 20, 2018, father acted in “an intimidating
manner” towards mother and that, given father’s history of intimidating behavior towards
mother, mother was in reasonable fear of imminent physical harm. Based on these findings,
the district court found that domestic abuse occurred between father and mother.
Father argues the district court’s finding of domestic abuse was clearly erroneous
because he never physically abused mother, he never threatened her, and the totality of
mother’s reaction to the November 20 incident shows that she was not reasonably fearful
of imminent physical harm.
We conclude that the record supports the district court’s findings. First, the statute
does not require that some act of physical a buse occur in order to meet the definition of
domestic abuse. On the contrary, we have held that an overt physical act is unnecessary to
establish domestic abuse under the statutory language. Hall v. Hall, 408 N.W.2d 626, 629
(Minn. App. 1987), review denied (Minn. Aug. 19, 1987).
Second, the evidence of fa ther’s words and conduct on November 20, 2018, are
sufficient to establish that he caused mother to reasonably fear imminent physical harm.
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Mother testified that, on that day, the par ties argued about how to respond to reports
regarding one child’s behavioral issues at school. According to mother, father began loudly
calling her derogatory names. Mo ther went upstairs to the pa rties’ bedroom to get away
from father. When she heard father coming up the stairs, she tried to hold the door shut to
keep him out of the room. Father pushed his way inside, and mother moved to the far side
of the bed and sat down. Fath er followed and stood over he r, a couple of inches away,
“screaming” at her. Father raised his fist, and she “was afraid he wa s going to hit [her].”
Father then “brought his fist down on the end table so hard that part of it broke off.” In his
testimony, father did not deny that he yelled at mother, th at he followed her into the
bedroom, or that he slammed his fist on a ta ble. Although father did not physically harm
mother, the parties’ testimonies provide ample support for the district court’s finding that
father’s words and conduct caused mother to reasonably fear imminent physical harm. The
record thus supports the district court’s finding that domestic abuse occurred.1

1 Father asserts that the district court abused its discretion because it failed to consider
“social research” on domestic violence and cust ody or parenting plans, citing to two law
review articles on the topic. Father did not introduce any research on domestic violence as
evidence in the district court, and he makes this argument for the first time on appeal. We
will not consider arguments made for the first time on appeal. See Thiele v. Stich , 425
N.W.2d 580, 582 (Minn. 1988); Aljubailah on behalf of A. M. J. v. James , 903 N.W.2d
638, 643 (Minn. App. 2017) (applying Thiele in affirming a district court’s grant of an
OFP).
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II. The district court did not abuse its discretion by awarding sole legal and sole
physical custody to mother.
Father argues that, even if the domestic-abuse finding was not clearly erroneous, the
district court abused its discretion by awar ding sole legal and sole physical custody to
mother.
First, father contends that the district court legally erred by interpreting section
518.17 to create a presumption against both jo int legal and joint physical custody when
domestic abuse has occurred. We review questions of statutory interpretation de novo. See
Cocchiarella v. Driggs , 884 N.W.2d 621, 624 (Minn. 2016). The goal of statutory
interpretation is to “ascertain and effectuate the intention of the legislature.” Minn. Stat.
§ 645.16 (2020). “When the language of a statute is plain and unambiguous, it is assumed
to manifest legislative intent and must be given effect.” Burkstrand v. Burkstrand , 632
N.W.2d 206, 210 (Minn. 2001).
Section 518.17 provides as follows with respect to cu stody when domestic abuse
has occurred:
[T]he court shall use a rebuttabl e presumption that joint legal
custody or joint physical custody is not in the best interests of
the child if domestic abuse, as defined in section 518B.01, has
occurred between the parents. In determining whether the
presumption is rebutted, the court shall consider the nature and
context of the domestic abuse and the implications of the
domestic abuse for parenting a nd for the child’s safety, well-
being, and developmental needs.

Minn. Stat. § 518.17, subd. 1(b)(9).
Father contends that, based on the plain language of the stat ute, the presumption
may be applied to either joint legal or joint physical custody, but not to both. We are not
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persuaded. First, the statute does not include a phrase such as “but not both,” and we do
not supply language that the legislature omits. See State v. Caldwell, 803 N.W.2d 373, 382
(Minn. 2011). Second, as to the language that is present in the statute, the only reasonable
reading of that language in co ntext is that the presumption ap plies if legal custody is at
issue and it applies if physical custody is at issue; there is no reason to believe that the
legislature meant the presumption to apply to only one type of cust ody should both legal
and physical custody be disputed. See Thornton v. Bosquez, 933 N.W.2d 781, 791 (Minn.
2019) (interpreting the plain language of subdivision 1(b)(9) to “express[] a preference for
sole legal and physical custody when domestic abuse has occurred” (emphasis added)). In
other words, the statute is written with the understanding that there is not always a dispute
as to both legal and physical custody, so the “or” allo ws the district court to apply the
presumption depending on the nature of the di spute. Under a plain-language review of a
statute, the term “or” may be read as conjunctive when context requires. Amaral v. Saint
Cloud Hosp., 598 N.W.2d 379, 385 (Minn. 1999). We conclude that, based on the statute’s
plain language in context, the rebuttable pres umption applies to both legal and physical
custody.
Second, father argues that the district c ourt clearly erred by determining that he did
not overcome the presumption and abused its discretion by awarding sole legal and sole
physical custody to mother. He focuses on the district court’s findings regarding seven of
the statutory best-interests factors: (1) th e effect of the proposed arrangement on the
children’s physical and emotional needs; (2) the children’s special medical, mental health,
or educational needs; (3) whether domestic abuse has occurred; (4) the ability of father to
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provide ongoing care; (5) the benefit to th e children of maximizing parenting time with
father; (6) each party’s ability to support the children’s relationship with the other parent;
and (7) each party’s ability to cooperate with the other pare nt in the rearing of their
children. See Minn. Stat. § 518.17, subd. 1(a)(1)-(2), (4), (7), (10)-(12).
Based on our careful review of the record , although the eviden ce was conflicting,
the district court’s findings have evidentiary support. We need not rehearse in detail
husband’s arguments concerning each factor or recite the evidence that contradicts his
arguments. See Wilson v. Moline , 47 N.W.2d 865, 870 (Minn. 1951) (stating that the
function of an appellate court “does not requir e [it] to discuss and review in detail the
evidence for the purpose of demonstrating that it supports the trial c ourt’s findings,” and
that an appellate court’s “duty is performed wh en [it] consider[s] all the evidence . . . and
determine[s] that it reasonably supports the findings”); Cook v. Arimitsu, 907 N.W.2d 233,
240 n.3 (Minn. App. 2018) (applying this aspect of Wilson in a family law appeal), review
denied (Minn. Apr. 17, 2018); Peterka v. Peterka, 675 N.W.2d 353, 357-58 (Minn. App.
2004) (same). Moreover, we will not reweigh or rebalance the statutory best-interests
factors. In re Welfare of C.F.N., 923 N.W.2d 325, 334 (Minn. App. 2018) (“[T]here is scant
if any room for this court to question a di strict court’s balancing of best-interests
considerations.” (quotation omitted)), review denied (Minn. Mar. 19, 2019).
Because we conclude that the district court’s findings under the best-interests factors
have evidentiary support, we determine that the district court did not clearly err by finding
that father failed to rebut the presumption against joint legal and joint physical custody due
to domestic abuse or by awarding sole legal and sole physical custody to mother.
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III. The district court did not abuse its discretion in determining parenting time.

Finally, father argues that the district c ourt abused its discre tion by not awarding
equal parenting time. The distri ct court rejected father’s re quest for equal parenting time
and rejected mother’s request for parenting time of only alternating Friday and Saturday
overnights. Instead, the district court awar ded father parenting time on alternating
weekends from Friday afternoon until Monday morning and every other Wednesday night,
plus holidays and two one-week vacations per year.
The district court did not abuse its di scretion. Father complains that the
determination of scheduling time departs from the temporary parenting-time arrangements
that had been in place during the proceedings. He argues that the departure is not justified,
since even mother acknow ledged that visits with the ch ildren have gone well. But, in
determining the ultimate parenting-time schedule, the district court appropriately took into
account the trial evidence to make factual findings regarding, and to weigh, the statutory
best-interests factors. See Minn. Stat. § 518.17, subd. 1(a). The district court determined
that, based on the evidence, a schedule for father that favored extended weekend parenting
time over weekday parenting time was in the ch ildren’s best interests. It reasoned that
extended weekend time for father would afford the children time with both parents while
minimizing the children’s potent ial exposure to father’s a nger, which could be triggered
by weekday stress regarding the children’s ho mework and school issues. The district
court’s parenting-time determination is supported by the record and falls within the district
court’s broad discretion.
Affirmed.