In re the Custody of: C. W. P.; William James Peck, 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This opinion is nonprecedential except as provided by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
A21-0927

In re the Custody of: C. W. P.;
William James Peck, petitioner,
Respondent,

vs.
Jodie Sue Simonette,
Appellant,

and
County of Nicollet,
Intervenor.

Filed April 4, 2022
Affirmed
Cleary, Judge*

Nicollet County District Court
File No. 52-FA-08-874

Alyssa Nelson, Blethen, Gage & Krause, PLLP, Mankato, Minnesota, (for respondent)

Jodi S. Exsted, Savage, Minnesota, (for appellant)

Considered and decided by Slieter, Presiding Judge; Connolly, Judge; and Cleary,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
CLEARY, Judge
Appellant-mother argues the district court (1) erred in determining the legal standard
applicable to deciding which parent makes educational decisions for a minor child;
(2) clearly erred in determining the minor child’s preferences; and (3) abused its discretion
in awarding respondent-father conduct-based attorney fees. Because the district court
applied the correct legal standard, properly construed the minor child’s best interests, and
made sufficient findings to support the attorney-fee award, we affirm.
FACTS
Appellant Jodi Simonette (mother) and respondent William Peck (father) are parents
to C.W.P. (son), currently age 16. The parties never married and ended their relationship
in 2009. Shortly thereafter, the district court order awarded joint legal custody to mother
and father and sole physical custody to mother. Father was granted parenting time on
alternate weekends. Mother resided in the St. Peter area while father lived in Le Sueur,
until mother and son moved to St. Paul for mother to attend college. Son then enrolled at
Highland Catholic School in St. Paul for fourth grade. While mother lived in St. Paul, the
parents independently resolved issues of parenting time by agreeing son would live with
father during summer break.
After mother graduated from college in 2019, she and son returned to the St. Peter
area. Son continued his eighth-grade year at Highland Catholic School, commuting to St.
Paul with mother. Highland Catholic School only offers schooling through eighth grade.
Mother and father disagreed about son’s best schooling option after eighth grade. Mother
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planned to enroll son at Cretin- Derham Hall (CDH) in St. Paul. Father believed it was in
son’s best interest to attend Le Sueur-Henderson High School. Father moved for the district
court to order that son attend Le Sueur- Henderson High School and to increase father’s
parenting time. Mother filed a counter motion asking the district court to deny father’s
motion and order son to attend CDH, a modification of the parenting-time schedule, and
father to pay $1,000 in attorney fees. On July 24, 2020, the district court ordered an
evidentiary hearing to be held on the best-interest factors and for son to enroll at Le Sueur-
Henderson temporarily. The district court reserved the issues of parenting time and attorney
fees.
Mother moved the district court to reconsider its July order. In August 2020, mother
sent son to orientation at CDH. On August 28, father filed an emergency motion after
learning mother enrolled son at CDH. Father requested a change to the parenting-time
schedule “to ensure compliance with the temporary order.” The district court granted
father’s motion and changed the temporary parenting-time schedule so “[mother] shall
have parenting time every other Friday from 5 p.m. until Sunday at 5 p.m. and [father] shall
have all other parenting time.” Mother moved the district court to vacate the order changing
the parenting-time schedule and order son to start school at CDH. After a hearing on
September 3, the district court denied mother’s motion for reconsideration of the July order
and modified the August order to allow son to choose where he spent Thursday nights if
Le Sueur-Henderson had online-learning the next day.
In November 2020, the district court held an evidentiary hearing to determine son’s
best interests regarding which school he should attend. After making detailed findings, the
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district court ordered on January 15, 2021, that son attend Le Sueur-Henderson and
“mother shall have parenting time with [son] during the school year on alternating
weekends” and “father shall have [son] the rest of the time during the school year, except
that the mother may have additional time during MEA break and the Christmas break.”
Son was ordered to spend the summer with mother except for alternating weekends to be
spent with father. Mother was also ordered to pay father $1,459.50 for conduct -based
attorney fees.
On March 11, 2021, mother moved to amend the January order. Mother argued the
district court “used the incorrect legal standard of [b]est [i]nterests to consider the parenting
time motion instead of endangerment for a de facto modification of custody.” Mother also
challenged the factual findings supporting the school placement and award of attorney fees.
The matter came before the district court.
On May 24, 2021, the district court issued an order denying mother’s motion for a
new trial and that son attend school at CDH. The district court amended its May order to
grant mother’s motion for $1,000 in attorney fees from July 2020. The district court denied
mother’s other amendment because “mother’s motion is basically a motion for
reconsideration” and because the district court “disagree[d] with the mother’s assertation
that the Court applied the incorrect legal standard.”
Mother appeals.

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DECISION
I. Mother waived her argument that father’s motion was a modification when she
failed to raise it before her motion for amended findings.

Generally, “litigants are bound [on appeal] by the theory or theories, however
erroneous or improvident, upon which the action was actually tried below.” Annis v. Annis,
84 N.W.2d 256, 263 (Minn. 1957). An appellate court generally will not consider matters
not argued to and considered by the district court. Thiele v. Stich, 425 N.W.2d 580, 582
(Minn. 1988). An issue is raised “too late” if it is raised for the first time in a motion for
amended findings. Allen v. Cent. Motors, Inc., 283 N.W. 490, 492 (Minn. 1939). A party
may also not raise an issue for the first time in a motion for a new trial. Ellingson v.
Burlington N. R.R., 412 N.W.2d 401, 405 (Minn. App. 1987), rev. denied (Minn. Nov. 13,
1987).
Father contends mother waived her argument that his motion for a change in
parenting time and for son to be enrolled was a “de facto modification of custody and/or
change in primary residence subject to the endangerment standard.” Mother submitted her
closing argument after the evidentiary hearing stating that the “correct standard” is the
endangerment standard, but “Mother believes that [father’s] motion that the minor child
attend [Le Sueur- Henderson] should still be denied under the much lower best interests
standard.” Father notes that mother did not argue the endangerment standard applies
because father’s motion was a modification, but because mother was the “custodial parent”
and had “the authority to determine” son’s education under Minn. Stat § 518.176 (2020).
We agree with father.
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In mother’s motion for amended findings, she argues for the first time that father’s
motion was a “de facto modification of custody per Minn. Stat. § 518.18.” While mother
preserved the issue of applying the endangerment standard to the issue of determining son’s
education, she waived the issue of whether father’s motion was a “de facto modification”
because she raised it for the first time in a motion for amended findings. See Allen, 283
N.W. at 492.
II. The district court applied the correct legal standard.

“Determining the legal standard applicable to a change in parenting time is a
question of law and is subject to de novo review.” Dahl v. Dahl, 765 N.W.2d 118, 123
(Minn. App. 2009); see Shearer v. Shearer, 891 N.W.2d 72, 76 (Minn. App. 2017). Minn.
Stat. § 518.17, subd. 1(a) (2020) requires the district court to make findings on the child’s
best interests when “determining issues of custody and parenting time.”
Mother argued at the evidentiary hearing that she had the authority to make
decisions about son’s education absent endangerment findings because son resided with
her pursuant to Minn. Stat. § 518.176 (“[T]he parent with whom the child resides may
determine the child’s upbringing, including education . . . unless the court after hearing
finds, . . . the child’s physical or emotional health is likely to be endangered”). Father
argued that because mother and father shared joint legal custody both parents have equal
say in educational issues in accordance with Minn. Stat. § 518.003, subd. 3(b) (2020)
(“‘Joint legal custody’ means that both parents have equal rights and responsibilities,
including the right to participate in major decisions determining the child’s upbringing,
including education”). Father also argued a best-interests finding would be determinative.
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The district court rejected mother’s argument in favor of father’s citing Novak v. Novak,
446 N.W.2d 422, 424-25 (Minn. App. 1989), rev. denied (Minn. Dec. 1, 1989).
In Novak, this cour t clarified the statutory scheme by holding that though
“[e]ducational decisions are specifically mentioned in both provisions . . . the specific
enactment on joint legal custody supersedes the earlier provisions on powers of a physical
custodian.” Id. (citing Minn. Stat. § 645.26, subd. 4 (1988) (stating the latest of
irreconcilable provision prevails)). Here, mother’s argument that Minn. Stat. § 518.176
allows her to make educational decisions for son based on physical custody ignores the
Novak holding. As such, the district court correctly determined a best-interests analysis
was proper.
III. The district court correctly considered the evidence of son’s preference.

A district court’s findings of fact, on which a parenting-time decision is based, will
be upheld unless they are clearly erroneous. Griffin v. Van Griffin, 267 N.W.2d 733, 735
(Minn. 1978).
Mother argues the district court clearly erred in determining “the only evidence
regarding [son’s] preference is the father’s claim that [son] expressed to him a desire to
stop commuting to school in St. Paul.” At the evidentiary hearing, mother testified “[son]
wanted to be with his friends” at Highland Catholic and he asked when she would move
him back to St. Paul. Mother also cites testimony about son’s friends at Highland Catholic.
Father argues son’s question about when he and mother would move back to St. Paul
supports the district court’s finding that son did not want to commute.
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Mother and father provided testimony supporting the district court’s finding that son
preferred not to commute for school. While mother also provided testimony that “[son]
wanted to be with his friends,” the district court also found son “made friends at Le Sueur-
Henderson.” “When evidence relevant to a factual issue consists of conflicting testimony,
the district court’s decision is necessarily based on a determination of witness credibility,
which we accord great deference on appeal.” Alam v. Chowdhury, 764 N.W.2d 86, 89
(Minn. App. 2009). Here, the evidence provided is not necessarily even in conflict. Indeed,
both parents agree it is not in son’s best interest to commute daily from the St. Peter area
to St. Paul for school— the factual determination reached by the district court. Because the
district court relied on the available evidence in determining son did not want to commute
to St. Paul for school, the district court’s finding was not clearly erroneous.
IV. The district court did not abuse its discretion in awarding conduct-based
attorney fees.

We review an award of conduct-based attorney fees for an abuse of discretion.
Brodsky v. Brodsky, 733 N.W.2d 471, 476 (Minn. App. 2007). Minn. Stat. § 518.14 (2020)
governs awards of attorney fees in family-law cases. “Nothing in [section 518.14] . . .
precludes the court from awarding, in its discretion, additional fees, costs, and
disbursements against a party who unreasonably contributes to the length or expense of the
proceeding.” Minn. Stat. § 518.14, subd. 1. The party moving for attorney fees has the
burden to show that the conduct of the other party warrants an award. Baertsch v. Baertsch,
886 N.W.2d 235, 238 (Minn. App. 2016). The district court must make findings that
explain the basis for an award of conduct-based attorney fees. Brodsky, 733 N.W.2d at 477.
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Mother argues the district court failed to make sufficient factual findings to support
an award of conduct-based attorney fees. Mother contends son’s enrollment at Le Sueur-
Henderson was dependent on the outcome of the evidentiary hearing, as stated in the
temporary order from July 2020; mother, therefore, needed to preserve son’s enrollment at
CDH if the district court ruled in her favor after the evidentiary hearing.
The district court found husband paid $1,595 in fees resulting from filing an
emergency motion after mother enrolled son at CDH and he attended orientation. The
district court also found “There was no need to maintain a slot for [son at CDH] because
the Court had ordered that [son] be enrolled at Le Sueur-Henderson pending the outcome
of the evidentiary hearing.” We defer to the district court’s credibility determinations in
reconciling conflicting evidence. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).
The district court’s findings, that husband incurred fees as a result of mother’s
unreasonable conduct in enrolling son at CDH and having son attend orientation despite
the district court’s directive, support the district court’s award of conduct-based attorney
fees. The district court did not abuse its discretion in awarding conduct-based attorney fees.
Affirmed.