In re the Marriage of: Cory Michael Bayer, petitioner, Respondent,

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1663

In re the Marriage of:
Cory Michael Bayer, petitioner,
Respondent,

vs.

Alissa Lea Bayer, n/k/a Alissa Lea Peterson,
Appellant.

Filed September 6, 2022
Affirmed
Segal, Chief Judge
Concurring specially, Rodenberg, Judge*

Pope County District Court
File No. 61-FA-14-495

Michael P. Boulette, O. Joseph Balthazor, Jr., Taft Stettinius & Hollister, LLP,
Minneapolis, Minnesota; and

Charles M. Good, Pemberton Law, P.L.L.P., Alexandria, Minnesota (for respondent)

Kay Nord Hunt, Michelle K. Kuhl, Lommen Abdo, P.A., Minneapolis, Minnesota; and

Kathleen M. Newman, DeWitt, LLP, Minneapolis, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Segal, Chief Judge; and
Rodenberg, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
SYLLABUS
We review for abuse of discretion a district court’s determination that a proposed
modification of parenting time constitutes a de facto change of custody. Under this
standard, if the district court’s findings of fact are supported by the evidence, appellate
review is limited to assessing whether the district court misapplied the law, or the decision
is against logic and the facts on record.
OPINION
SEGAL, Chief Judge
Appellant-mother challenges the district court’s order denying her motion to enforce
a neutral custody evaluator’s parenting-time recommendations. She argues that the district
court erred when it determined that the recommended changes would amount to a de facto
modification of physical custody. We affirm.
FACTS
Appellant-mother Alissa Lea Bayer, now known as Alissa Lea Peterson, and
respondent-father Cory Michael Bayer married in March 2002 and have four children
together. The marriage was dissolved by a stipulated judgment and decree in January 2015.
As provided in their stipulation, the parties were awarded joint legal and joint physical
custody of the children. The plan provided for a 2 -2-3 parenting-time schedule, meaning
that each parent would have two weekdays every week and alternating three-day weekends
with their children. This schedule was later changed to alternating weeks in order to reduce
the number of exchanges.
3
Parenting issues arose, including father’s concern that the children were becoming
distant and withdrawn from him. Father alleged that the children’s behavior was the result
of parental alienation caused by mother. Mother alleged that father was emotionally and
physically abusive toward the children. The parties, as relevant here, eventually entered
into a stipulation for the appointment of a neutral evaluator. The district court approved
the stipulation and incorporated it into an order issued in August 2020 (the stipulated
order).
In the stipulated order, the neutral evaluator was tasked, among other things, with
addressing what parenting-time schedule would be in the best interests of the children and
recommending treatment or intervention for the parents and children. The stipulated order
required the parties to “follow the recommendations and decisions made by [the neutral
evaluator] with respect to parenting time, t reatments, and/or interventions.” It also
expressly prohibited the neutral evaluator from making “decisions or recommendations
regarding a change to legal or physical custody.”
The neutral evaluator provided a written summary of her recommendations to the
parties in June 2021. Among other things, she recommended that the parties share legal
and physical custody of the children and that the parents and children participate in therapy.
Additionally, she recommended a reduction in father’s parenting time to “every other
weekend, from after school on Friday until Tuesday morning” and, if there was no school,
father’s parenting time would start at 9:00 a.m. on Fridays.
Father objected to the recommendations and requested a comprehensive report of
the neutral evaluator’s findings. In her updated report, the neutral evaluator added a
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recommendation that, “[e]ventually, Father should be able to schedule one on one time
with one of the children, from after school until 7:30 p.m., during mother’s extended
parenting time,” but provided that “Mother needs to agree to the time, prior to the visit.”
Father continued to object to the change and mother then sought enforcement of the
neutral evaluator’s recommendations. In an order issued in November 2021, the district
court granted enforcement of the neutral evaluator’s therapy-related recommendations but
denied enforcement of the parenting-time recommendations. The denial was based on the
district court’s determination that the neutral evaluator’s parenting-time recommendations
would result in a de facto modification of physical custody and that this exceeded the
neutral evaluator’s authority under the stipulated order. The district court noted in the order
that mother had not filed a motion to modify custody and allowed that the denial was
“without prejudice for Mother to bring a motion to modify custody as allowed by law.”
Mother appeals.
ISSUES
I. What standard of review applies to a district court’s determination that an
adjustment in parenting time results in a de facto modification of physical custody?

II. Did the district court abuse its discretion in determining that the proposed changes
to the parenting-time schedule would constitute a de facto modification of physical
custody?

ANALYSIS
This appeal requires us to review the district court’s determination that the neutral
evaluator’s recommendations on parenting time constitute an improper de facto
modification of physical custody. The order appointing the neutral evaluator granted the
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evaluator the authority to make recommendations on parenting time, but it excluded “the
authority to make decisions or recommendations regarding a change to legal or physical
custody.”
The requisite legal standard for modification of an existing parenting-time order
differs materially from the standard required for modification of physical custody. When
a parent moves to modify parenting time, the district court must grant the motion if the
“modification would serve the best interests of the child” and “would not change the child’s
primary residence.” Minn. Stat. § 518.175, subd. 5(b) (2020). Before a district court can
grant a motion to modify physical custody, the district court must find (1) “that a change
has occurred in the circumstances of the child or the parties,” (2) “that the modification is
necessary to serve the best interests of the child,” and (3) that one of five bases listed in the
statute has been established.1 Minn. Stat. § 518.18(d) (2020).
The supreme court has repeatedly explained that whether a proposed change
modifies parenting time or amounts to a de facto change in physical custody is to be
determined by assessing the impact of the change, not its label. See, e.g., Ayers v. Ayers,
508 N.W.2d 515, 520 (Minn. 1993) (concluding that mother’s motion to modify parenting
time was a request to modify physical custody because, although the proposed modification

1 Of the five, the endangerment basis is the one applicable here. That basis requires the
district court to find that “the child’s present environment endangers the child’s physical
or emotional health or impairs the child’s emotional development and [that] the harm likely
to be caused by a change of environment is outweighed by the advantage of a change to
the child.” Minn. Stat. § 518.18(d)(iv) (2020).
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would “leav[e] intact the ‘joint legal and joint physical’ denomination of the arrangement,”
the modification would give the father “virtually no custody during the school year”).
The supreme court addressed this issue most recently in Christensen v. Healey,
where it considered whether a parent’s motion to expand parenting time amounted to a
de facto motion to change physical custody. 913 N.W.2d 437, 438 -39 (Minn. 2018). In
that case, mother had been awarded sole physical custody of the parties’ joint child, subject
to father’s parenting time, which included every other weekend during the school year and
alternating weeks in the summer. Id. Father’s motion sought to increase his parenting time
to every other week throughout the year, so that father’s parenting time would be equal to
mother’s. Id. The district court denied the motion on the grounds that it was, in essence,
a motion for a change of physical custody and father had not satisfied the requisite legal
standard to justify a modification of physical custody. Id.
In Christensen, the supreme court held that a totality-of-the-circumstances test
should be applied to evaluate “whether a motion to modify parenting time is a de facto
motion to modify physical custody.” Id. at 443. The court stated that the relevant factors
to be “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.
While the supreme court observed in Christensen that “merely increasing [father’s]
parenting time to 50 percent, without more, would not modify the award to [mother] of
sole physical custody,” the court noted that the district court’s analysis included
consideration of other factors, such as “the child’s age, school, and the distance between
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the parties’ homes.” Id. at 442-43 (quotation omitted). The supreme court held that “the
district court’s order contains sufficient findings” to support the district court’s
determination that father’s “motion is a substantial change that would modify the parties’
custody arrangement.” Id. The supreme court concluded that father’s motion thus
constituted a de facto motion to modify physical custody, even though it was brought as a
motion to modify parenting time. Id.
Before turning to an analysis of the district court’s determination in this case, we
must first identify the proper standard of review.
I.

The parties disagree on the applicable standard of review. Mother contends that this
court should apply a de novo standard of review and that we should conduct an independent
review of the Christensen factors. We note that mother cites Dahl v. Dahl, 765 N.W.2d
118 (Minn. App. 2009), to support her contention. Dahl , however, preceded Christensen
and thus was decided without the benefit of the totality-of-the-circumstances test
articulated in Christensen.2
Father frames the issue differently, arguing that this case involves a custody decision
that is reviewed for abuse of discretion. He cites Thornton v. Bosquez, 933 N.W.2d 781,
794 (Minn. 2019); Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985); and Rutten v.

2 Mother also maintains, correctly, that we apply a de novo standard of review when asked
to interpret a stipulation or order. See Wolf v. Oestreich, 956 N.W.2d 248, 253 (Minn. App.
2021), rev. denied (Minn. May 18, 2021). But we are not being asked to do that here.
Mother and father agree that the stipulated order permitted the neutral evaluator to
recommend modifications to parenting time, but not physical custody.
8
Rutten, 347 N.W.2d 47, 50 (Minn. 1984 ), in support of that approach. We are not
persuaded. Those cases arose in the context of appeals from initial custody determinations
and not from determinations of whether a particular adjustment of parenting time amounts
to a de facto modification of custody.
The supreme court made clear in Christensen that the question of whether the
district court applied the correct legal standard—the standard for modification of parenting
time or for modification of physical custody—is a question of law subject to de novo
review. 913 N.W.2d at 440. The opinion did not, however, expressly articulate the
standard for appellate review of the district court’s application of the Christensen factors—
in other words, the standard to apply to the district court’s ultimate determination of
whether a proposed change constitutes a de facto modification of physical custody. But
our reading of Christensen convinces us that the supreme court applied an abuse-of -
discretion standard.
In affirming the district court’s conclusion in Christensen that the proposed change
would constitute a de facto modification of physical custody, the supreme court did not
engage in its own weighing of the relevant circumstances. Instead, the supreme court
simply stated that the district court considered a variety of factors and that the district
court’s findings supported the district court’s conclusion. Id. at 443. This analysis is
consistent with an abuse-of-discretion standard of review. Under that standard, if the
findings of fact are supported by the evidence, appellate review of the district court’s
application of the Christensen factors is limited to determining whether the district court
“misappl[ied] the law, or deliver[ed ] a decision that is against logic and the facts on
9
record.” Bender v. Bernhard, 971 N.W.2d 257, 262 (Minn. 2022) (quotation omitted); see
also Woolsey v. Woolsey, 975 N.W.2d 502, 506 (Minn. 2022). Accordingly, we read
Christensen as having applied an abuse-of-discretion standard when it reviewed the district
court’s ultimate determination of whether a proposed adjustment to parenting time
constitutes a de facto change in physical custody.3 And it is the standard we will apply
here.
II.
With this standard in mind, we review the district court’s determination that the
parenting-time recommendations constitute a de facto modification of physical custody.
Here, mother does not claim error in the district court’s findings of fact. Mother argues,
instead, that the district court misapplied the law by placing too much emphasis on the
change in the apportionment of parenting time. Mother relies on caselaw, such as
Christensen, that rejects rigid application of “a bright-line rule based solely on the time
spent with the child.” Christensen, 913 N.W.2d at 443 (noting that “[s]uch a mathematical
rule conflicts with the governing principle that a district court has broad discretion in
determining custody and parenting time matters”).
In this case, the district court began its analysis with the significant reduction in
father’s parenting time that would result from the neutral evaluator’s recommendation s.
The district court noted that the neutral evaluator’s recommendations would reduce father’s

3 Regardless of whether Christensen requires the application of an abuse-of-discretion
standard to appellate review of this issue, we are persuaded that it is the correct standard
for the reasons so ably articulated in the concurrence.
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parenting time from the 50/50 split that had been in place since the marriage dissolution in
2015, to “approximately 29/71 parenting time, with Friday to Tuesday every other
weekend.” But the district court’s analysis did not end there. The district court went on to
address other considerations.
For example, the district court commented that father currently “assists the children
with school every other week, every day, and is involved in this important aspect of the
children’s lives,” and that with the proposed change, he would “have almost no interaction
with the children on school days.” The district court also commented on the range in the
children’s ages from 11 to 17. The district court observed that the “younger children, in
particular, may be more impacted by the significant change in parenting time” and that the
proposed change in schedule would mean that mother would “have a substantially more
important role with respect to [the younger children’s] daily routine and care as they grow.”
See id. (noting that age and school schedule are relevant factors for consideration). The
district court also considered two other factors identified in Christensen—which schools
the children attended and the proximity of the parents’ homes to each other—and
concluded that neither would be impacted by the proposed schedule change.
The district court thus applied the totality-of -the-circumstances test articulated in
Christensen and the district court’s conclusion is neither against logic nor the facts on
record.
Mother makes two additional arguments. First, mother claims that the district
court’s decision is inconsistent with the parties’ stipulation that they would “ follow the
recommendations and decisions made by [the neutral evaluator] with respect to parenting
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time.” This argument, however, misses the mark. The issue is not whether the parties
should be held to their stipulation, but whether the neutral evaluator’s recommendations
concerned only parenting time or veered into a modification of physical custody—an action
prohibited by the stipulated order.
Second, mother argues that the district court failed to factor in the neutral
evaluator’s recommendation that “[e]ventually, Father should be able to schedule one on
one time with one of the children, from after school until 7:30 p.m.” and that the schedule
change is thus not as dramatic as it might otherwise appear. We reject this argument
because it essentially asks us to reweigh the evidence, which is inconsistent with an abuse-
of-discretion standard of review. In re Civ. Commitment of Kenney, 963 N.W.2d 214, 221-
22 (Minn. 2021). We also note that mother’s argument ignores the proviso in the
recommendation that “[m]other needs to agree to the [after-school] time, prior to the visit.”
This, along with the fact that the recommendation employs qualifiers such as “[e]ventually”
and “should be able to,” signifies that having after-school time with the children would be
no more than a future possibility for father.
On this record, we discern no abuse of discretion by the district court. 4
DECISION
Because we discern no abuse of discretion by the district court in its determination
that the recommendations of the neutral evaluator would constitute a de facto modification

4 Finally, it bears noting that the district court provided in its order that the denial of
mother’s motion was without prejudice and that mother could “bring a motion to modify
custody as allowed by law.” Thus, mother can still seek a modification of physical custody
if the statutory requirements for modification are satisfied.
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of physical custody and, because the neutral evaluator was specifically prohibited from
recommending a change to physical custody in the stipulated order appointing the
evaluator, the district court did not err in denying mother’s motion to enforce the neutral
evaluator’s parenting-time recommendations.
Affirmed.

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RODENBERG, Judge (concurring specially)
While I concur with the majority, I am not convinced that Christensen v. Healey,
913 N.W.2d 437 (Minn. 2018), established the standard of review that the majority posits.
Nevertheless, I agree that the standard of review the majority adopts is undoubtedly the
proper standard of review to apply to a district court’s determination that a particular
adjustment to parenting time amounts to a de facto custody modification.
The Minnesota Supreme Court’s analysis in Christensen arose in a similar but not
identical context to this case. There, the parents had joint legal custody of a child, and the
mother had physical custody with father having parenting time during the school year every
other weekend and the parents having alternating weeks during the summer.
1 Christensen,
913 N.W.2d at 439. Father moved to increase his school-year parenting time to an
alternating-week schedule, based on allegations that the child was not doing well in school,
was arriving to school inadequately clothed, and “lacked stability” in mother’s home. Id.
The district court denied father’s motion, concluding that the endangerment standard under
Minn. Stat. § 518.18(d)(iv) (2016) applied because father’s proposed modification would
result in a modification of physical custody. This court reversed, reasoning that “an award
of equal or nearly equal parenting time would not necessarily be an award of joint physical
custody.” Id. (quotation omitted). The supreme court granted review on the question of
whether the endangerment standard “applies to a parent’s motion to increase parenting time
to 50 percent when prior orders grant sole physical custody and the child’s primary

1 The parties had several different parenting-time arrangements over time, but the every -
other-weekend-with-father arrangement was in effect at the time of father’s motion.

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residence to the non-moving parent.” Id. at 440. The supreme court reversed this court,
holding that
when determining whether a motion to modify parenting time
is a de facto 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 the parties’ custody arrangement.

Id. at 443. The supreme court—as had we —rejected the argument that every physical
custodian must have a majority of the parenting time, id. at 442, and it identifi ed a non-
exhaustive list of factors properly to be employed in such a case, id. at 442-43.
As the majority correctly notes, the Christensen opinion did not “expressly
articulate the standard for appellate review.” There is language in the Christensen opinion
suggesting that the supreme court may have employed a de novo standard of review. The
supreme court stated: “Considering the child’s age, school schedule, and the distance
between the two parties’ homes, we conclude that [father’s] proposed modification is
substantial enough to change [mother’s] routine daily care and control of the child.” Id.
at 442 (emphasis added) (quotation omitted).
Here, the parties agree that the Christensen factors are applicable. The precise
question for decision is whether we should review the district court’s treatment of the
Christensen factors for clear error and abuse of discretion or de novo. I do not read
Christensen as having resolved that precise question.
Regardless of whether Christensen established the standard of review applicable
here, the facts of this case highlight the superior position that district courts occupy to

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consider and weigh the Christensen factors to determine whether a particular modification
of a parenting-time arrangement amounts to a change in physical custody. The parties to
this appeal have been acrimoniously disputing custody and parenting time for several years,
and have attacked and parried concerning alleged marital infidelity, domestic abuse, and
parental alienation in the process. They have made multiple unsuccessful attempts to
employ evaluators and therapists (for both the parties and the children) in attempts to
resolve the disputed issues. The children eventually wrote letters of protest to a parenting
consultant concerning one proposal to resolve the ongoing custody and parenting-time
issues. At one point, the children were whisked off to a rented home in Minneapolis and a
resolution was proposed that included a drastic change to the parenting-time schedule ,
including that mother have no contact whatsoever with the children for 30 days. This
case—and all of these issues—were repeatedly before the district court.
When mother moved the district court to adopt the neutral evaluator’s
recommendations in a court order, the district court was faced with a complex situation
that required consideration of the parties’ entire acrimonious history to determine whether
the parenting-time recommendations amounted to a modification of the parties’ physical
custody arrangement.
I agree that applying the abuse-of-discretion standard to the district court’s
determination is at least consistent with Christensen, which did not expressly identify a
standard of review. See State v. Curtis, 921 N.W.2d 342, 346 (Minn. 2018) (“The court of
appeals is bound by supreme court precedent . . . .”). I emphasize that it is also consistent

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with the underlying principle that appellate courts sh ould practice restraint and avoid
substituting their judgment for that of the better-positioned district court.
When making custody determinations in the first instance, for example, the district
court must consider relevant statutory factors to evaluate the best interests of the child and
“explain how each factor led to its conclusions and to the determination of custody and
parenting time.” Minn. Stat. § 518.17, subd. 1(a)-(b) (2020) ; see also Minn. Stat.
§ 518.003, subd. 3(f) (2020) (defining “custody determination” to include decisions
concerning parenting time). On appeal, we review a district court’s findings of fact on the
best-interests factors for clear error, Hansen v. Todnem, 908 N.W.2d 592, 599 (Minn.
2018), and the court’s balancing of those factors for an abuse of discretion, Thornton v.
Bosquez, 933 N.W.2d 781, 794 (Minn. 2019). And we have recognized that there is “scant
if any room for an appellate court to question the [district] court’s balancing of best -
interests considerations.” Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App.
2000).
Because the district court has broad discretion in making custody determinations,
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.” Goldman v. Greenwood,
748 N.W.2d 279, 281- 82 (Minn. 2008) (quotation omitted). The concept that the district
court’s findings on the statutory factors are reviewed for clear error while its ultimate
conclusions are reviewed for an abuse of discretion is not limited to custody disputes;
rather, it is an approach that is generally applied when a district court must consider and
weigh various factors to arrive at a legally significant conclusion. See In re Welfare of

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Child. of J.R.B., 805 N.W.2d 895, 900-01, 900 n.4 (Minn. App. 2011) (identifying
numerous examples of this idea), rev. denied (Minn. Jan. 6, 2012).
Other examples abound. In determining whether the probative value of a prior
conviction as impeachment evidence outweighs its prejudicial effect, a district court must
consider and weigh the factors enumerated in State v. Jones, 271 N.W.2d 534, 537- 38
(Minn. 1978). Appellate courts review the district court’s balancing of the Jones factors
for abuse of discretion. State v. Hill, 801 N.W.2d 646, 651 (Minn. 2011); see also State v.
Hochstein, 623 N.W.2d 617, 625 (Minn. App. 2001) (recognizing that the district court is
in a “unique position” to assess and weigh the Jones factors and “must be accorded broad
discretion”), rev. granted (Minn. Apr. 25, 2001) and ord. granting rev. vacated (Minn. July
24, 2001). In probation-revocation cases, while appellate co urts review de novo whether
the district court made the necessary findings on the Austin factors, the district court’s
ultimate determination to revoke probation is subject to an abuse-of-discretion standard of
review. State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005) (applying the factors
established in State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980)). In extended-juvenile-
jurisdiction cases, we review the district court’s findings on the six statutory factors set
forth in Minn. Stat. § 260B.125, subd. 4 (2020), for clear error and appellate courts review
the district court’s weighing of those factors for abuse of discretion. See, e.g., In re Welfare
of J.H., 844 N.W.2d 28, 34-35 (Minn. 2014). We similarly review a district court’s
weighing of the eight factors set forth in the Uniform Child Custody Jurisdiction and
Enforcement Act to determine the appropriate forum when dual jurisdiction exists for an
abuse of discretion. Levinson v. Levinson, 389 N.W.2d 761, 762 (Minn. App. 1986); see

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also Minn. Stat. § 518D.207(b) (2020) (articulating factors courts must consider in order
to determine “whether it is appropriate for a court of another state to exercise jurisdiction”).
And, when reviewing a district court’s decision concerning the reinstatement and discharge
of a forfeited bail bond, appellate courts review a district court’s findings on the Shetsky
factors for abuse of discretion. State v. Askland, 784 N.W.2d 60, 62 (Minn. 2010) (applying
the factors established in Shetsky v. Hennepin County (In re Shetsky ), 60 N.W.2d 40, 46
(Minn. 1953)).
By analogy to the aforementioned situations where district courts are required to
consider and weigh various factors to reach a decision, I am confident that, even if
Christensen did not establish the standard of review that the majority posits, it is the proper
standard of review for appellate courts to apply to a district court’s determination
concerning whether an adjustment to parenting time amounts to a de facto custody
modification.
Christensen identified the factors that a district court should consider in determining
whether a proposed alteration of parenting time amounts to a custody change. And
application of those factors is a uniquely factual determination that must be resolved on a
case-by-case basis. That is what district courts do, and we should not revisit that
determination on a de novo basis. Appellate courts are poorly situated to conduct such an
assessment on appeal. The majority adopts the proper standard of review for the reasons
discussed.