In re the Marriage of: Benjamin Thomas Miller, petitioner, Respondent,

This opinion is nonprecedential except as provided by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
A21-0721

In re the Marriage of:
Benjamin Thomas Miller, petitioner,
Respondent,

vs.

Tanya Lynn Wright-Miller, NKA, Tanya Lynn Wright,
Appellant.

Filed April 11, 2022
Affirmed in part and reversed in part
Ross, Judge

Douglas County District Court
File No. 21-FA-13-24

Michael Gaarder, PCG Law, St. Cloud, Minnesota (for respondent)

Carrie Loch, Law Office of Carrie Loch, PLLC, Robbinsdale, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Segal, Chief Judge; and Ross,
Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
The district court denied a father’s motion to modify child custody but granted his
motion to modify the parenting-time schedule, eliminating the mother’s summer midweek
parenting time and her weekend telephone call with the child. The district court also
ordered a custody and parenting-time evaluation. Addressing this appeal by mother, we
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affirm in part because the district court acted within its discretion when it modified the
parenting-time schedule, and we reverse in part because the district court lacked authority
to order the evaluation.
FACTS
Tanya Wright and Benjamin Miller divorced in 2014 having one child together, who
was nine years old at the time of the district court’s later custody decision now on review.
The 2014 judgment and decree dissolving the marriage assigned legal custody jointly and
physical custody solely to Wright. It also included a parenting-time schedule.
Parenting time has been a source of contention. The parties live in different cities—
Wright in Minneapolis and Miller in Alexandria. Miller’s parenting time occurs mostly in
the summer and Wright’s mostly during the school year. The parties have moved to modify
the original 2014 parenting-time schedule 14 times.
Miller most recently moved the district court to modify the latest custody order,
asking the district court to assign the parties joint physical custody and him sole legal
custody. He also moved the district court to establish a parenting-time schedule for summer
2021 consistent with guidance provided in the parenting consultant’s evaluation and to
eliminate a weekend telephone call between Wright and the child during Miller’s parenting
time. The district court denied Miller’s motion to modify custody but granted his requested
changes to the parenting-time schedule by eliminating Wright’s weekend telephone
contact, ordering a custody evaluation, and changing the summertime schedule.
Responding to Wright’s objection to a custody evaluation, the district court amended its
order to refer to it instead as a “parenting time evaluation” and instructed the evaluator to
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“compose a report that makes recommendations regarding parenting time” rather than a
report “addressing custody and parenting time.”
Wright appealed. Miller filed a letter with this court in which he asserted that he
would not be “seeking to enforce the District Court’s order directing the parties to
participate in the custody evaluation,” conced ed that the district court lacked authority to
order the evaluation, and maintained that this concession “renders that issue moot.”
DECISION
Wright challenges the district court’s parenting-time order, including its ordering
the parenting-time evaluation. We review a district court’s parenting-time decision for an
abuse of discretion. Matson v. Matson, 638 N.W.2d 462, 465 (Minn. App. 2002). The
district court abuses its discretion when it misapplies the law or relies on findings of fact
that are not supported by the record. Shearer v. Shearer, 891 N.W.2d 72, 75 (Minn. App.
2017). Wright contests the district court’s order in two ways. She argues first that the
district court lacked authority to order the evaluation. And she argues second that the
district court improperly modified parenting time. For the following reasons, we are
persuaded only by the first argument, but we first resolve Miller’s mootness assertion.
We reject Miller’s suggestion that, because he has now represented that he does not
intend to “seek[] to enforce the . . . order directing the parties to participate in the custody
evaluation,” Wright’s challenge to that part of the order is moot. It is true that an issue is
moot if circumstances change so that it no longer constitutes a justiciable controversy.
Kahn v. Griffin, 701 N.W.2d 815, 821 (Minn. 2005). But Miller has no capacity to nullify
the effect of the district court’s order and thereby eliminate the controversy by withholding
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his implied power to enforce it, because he has no such power. The district court enforces
its own orders. The district court’s evaluation order is self-effectuating and requires
compliance with no additional action by either party. Miller’s representation about his
intention not to enforce the order is therefore legally inconsequential and does not implicate
mootness. We turn to the merits.
Wright correctly argues that the district court lacked authority to order the
evaluation. The district court is authorized to “order an investigation and report concerning
custodial arrangements for the child” in “custody proceedings.” Minn. Stat. § 518.167,
subd. 1 (2020). But the district court here resolved any custody- proceeding issues that
might have called for this sort of investigation and report. A custody proceeding “includes
proceedings in which a custody determination is one of several issues.” Minn. Stat.
§ 518.003, subd. 3(g) (2020). And custody determination “means a court decision and court
orders and instructions providing for the custody of a child, including parenting time.”
Minn. Stat. § 518.003, subd. 3(f) (2020). Although the parties’ motions raised custody and
parenting-time issues requiring a decision, the district court’s finding that Miller failed to
make a prima facie case to modify custody resolved his modification motion, and its
decision resolving the parties’ dispute about the multiple parenting-time issues resolved
their competing parenting-time motions. Because the custody proceeding resolved all
custody and parenting issues, the district court no longer had any statutory authority to
order a custody or parenting-time evaluation.
The district court recognized its lack of statutory authority to order the evaluation
after it resolved the substantive issues presented in the custody proceeding, but it ordered
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the evaluation anyway, asserting, “the statute, however, does not preclude a party from
requesting the court order such an evaluation otherwise.” We hold that the district court
abused its discretion by assuming an inherent power that it lacks. A district court’s inherent
judicial authority empowers it to take actions that are: “(1) necessary (2) to achieve a
unique judicial function (3) without infringing on equally important legislative or
executive functions.” State v. Chauvin, 723 N.W.2d 20, 24 (Minn. 2006). We need n ot
address whether the evaluation met some unique judicial function because the district court
recognized that ordering the evaluation was unnecessary to resolve any existing legal issue.
It reasoned only that “a neutral survey of the current parenting time arrangement by a
professional may aid in providing a fuller picture of what is working and what is not
working between the parties.” And it opined that “the evaluator’s voice could aid all parties
in determining what is in the best interest of the child.” An evaluation that might help the
parties avoid engaging in some dispute that might develop later is not necessary to a judicial
function. The district court lacked the inherent authority to order the parties to participate
in it.
Wright also argues that the district court improperly modified the parenting-time
schedule by removing her summer midweek parenting time and by removing Miller’s duty
to facilitate weekend telephone contact between Wright and the child during Miller’s
parenting time. We believe that both decisions fall within the district court’s discretion.
We are not persuaded by Wright’s contention that we must reverse because the
district court made these decisions without having first explained why its previous orders
were factually or legally erroneous. The district court’s discretion to modify a previous
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parenting-time order does not impose any duty to first explain why the existing order is
flawed. The district court is bound to modify an extant parenting -time order when it finds
that “modification would serve the best interests of the child.” Minn. Stat. § 518.175,
subd. 5(b) (2020). The district court must make findings only on the best-interest factors
when determining whether to modify. Hansen v. Todnem, 908 N.W.2d 592, 599 (Minn.
2018). The district court here did make specific findings on the relevant best-interest
factors bearing on the two disputed decisions.
Wright does not dispute the district court’s best-interest analysis. The district court
removed Wright’s summer midweek parenting time because it found that it would disrupt
the child’s activities, burden Miller’s interaction with the child, reduce the number of
contentious interactions between the parties, and provide a better balance of time between
summer and the school year. And it eliminated Wright’s mandated weekend telephone
contact with the child in Miller’s care because the contact interfered with Miller’s parenting
time, aggravated friction between the parties, and was unnecessary in light of the child’s
ability to voluntarily initiate a call with Wright at any time. We need not discuss these
findings further because the record supports them and Wright does not challenge them.
Affirmed in part and reversed in part.