In re the Marriage of: Kristina Marie Russell, 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This opinion is nonprecedential except as provided by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
A22-0390

In re the Marriage of: Kristina Marie Russell, petitioner,
Respondent,

vs.

Holt Leif Russell, Appellant.

Filed August 7, 2023
Affirmed in part as modified, reversed in part, and remanded
Johnson, Judge

Ramsey County District Court
File No. 62-FA-18-2026

Jeffrey M. Markowitz, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis,
Minnesota (for respondent)

Holt Leif Russell, St. Paul, Minnesota (pro se appellant)

Considered and decided by Gaïtas, Presiding Judge; Johnson, Judge; and Larson,
Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
Kristina Marie Russell (now known as Kristina Mariani) and Holt Leif Russell were
married for approximately five years before their marriage was dissolved. They have one
joint child. This appeal is focused primarily on the issues of parenting time and child
support. We conclude that the district court did not err by ordering a parenting-time
schedule that limits Holt’s parenting time to less than what he requested. We also conclude
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that the district court did not err by not deviating downward from the presumptive child-
support obligation. But we conclude that the district court erred by assigning responsibility
for certain debts to Holt, and we correct that error by modifying the judgment and decree
to reflect the proper amount. We further conclude that the district court erred by not
making the findings of fact that are necessary for a ruling on Kristina’s request for need-
based attorney fees. Therefore, we affirm in part as modified, reverse in part, and remand
to the district court for further proceedings on Kristina’s request for need-based attorney
fees.
FACTS
Holt and Kristina were married in October 2016. At that time, they lived together
in a house in Eagan. Shortly after they were married, Holt moved out of the Eagan house
and moved into his mother’s house in St. Paul. In October 2017, Kristina gave birth to a
child prematurely while she was visiting relatives in Wisconsin. Holt went to Wisconsin
and stayed with Kristina for a week after the child’s birth and then returned to Minnesota.
Kristina remained in Wisconsin for two months, during which time Holt visited
occasionally. When Kristina returned to Minnesota, the parties rented an apartment in St.
Paul that was two blocks from Holt’s mother’s house. The parties stayed together in the
apartment for only a few days before Holt moved back to his mother’s house. The parties
never lived together thereafter.
In August 2018, Kristina petitioned for dissolution of the marriage. Shortly
thereafter, the parties agreed to an informal parenting-time schedule under which Holt had
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the child on two weekday evenings and from Saturday morning to Sunday afternoon of
each week.
The dissolution matter was tried on two days in May 2021. Kristina called six
witnesses; Holt called five. In August 2021, the district court enter ed its judgment and
decree along with a memorandum of law. The district court awarded the parties joint legal
custody and awarded Kristina sole physical custody. The district court ordered a parenting-
time schedule that initially provided Holt with overnight parenting time that alternated on
a weekly basis between Thursday to Friday a nd Friday to Sunday, with an expansion in
September 2022 to overnight parenting time from Thursday to Sunday of each week. The
district court also stated that, in 2025 or thereafter, Holt could “request up to 164 overnights
per year, if such an expansion of parenting time is in the best interests of the child.” The
district court also ordered that, effective July 1, 2021, Holt pay Kristina basic child support
and child-care support. In addition, the district court denied Kristina’s request for need-
based attorney fees. The judgment and decree includes numerous other provisions that are
not at issue on appeal.
In September 2021, Holt filed a motion for amended findings or a new trial . In
November 2021, the district court denied Holt’s motion except that, pursuant to an
agreement between the parties, the district court referred the issue of child support to a
child support magistrate (CSM) for reconsideration of certain issues and a recalculation of
the amount of child support. The parties submitted documentary evidence, and the CSM
conducted an evidentiary hearing, at which both parties testified. In February 2022, the
CSM filed an order providing that, effective January 1, 2022, Holt must pay Kristina basic
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child support of $953 per month and child-care support of $858 per month, for a total of
$1,811 per month.
Holt filed a notice of appeal, and Kristina filed a notice of related appeal.
DECISION
I. Parenting Time
Holt first argues that the district court erred by ordering a parenting-time schedule
that provides him with less parenting time than he requested.
In dissolving a marriage, a district court shall determine the parties’ parenting time
by evaluating all factors that are relevant to the best interests of the parties’ child, including
12 factors identified by statute. Minn. Stat. § 518.17, subd. 1(a) (2022); Hansen v. Todnem,
908 N.W.2d 592, 596 (Minn. 2018). In considering the statutory best-interests factors, a
district court “must make detailed findings on each of the factors . . . based on the evidence
presented and explain how each factor led to its conclusions and to the determination of
custody and parenting time.” Minn. Stat. § 518.17, subd. 1(b)(1). In doing so, the district
court “may not use one factor to the exclusion of all others, and the court shall consider
that the factors may be interrelated.” Id. This court’s review of a district court’s best-
interests findings “is limited to whether the district court abused its discretion by making
findings unsupported by the evidence or by improperly applying the law.” Hansen, 908
N.W.2d at 596 (quotation omitted).
A. Best-Interests Analysis
Holt argues that the district court erred in three of its findings on best-interest s
factors and in its ultimate determination to award him less parenting time than he sought.
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1. First and Sixth Best-Interests Factors
Holt first contends that the district court erred in analyzing the first and sixth best-
interests factors by finding that, before and at the time of trial, Kristina had been the child’s
primary caregiver.
The first best-interests factor requires a district court to consider “a child’s physical,
emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements
on the child’s needs and development.” Minn. Stat. § 518.17, subd. 1(a)(1). In analyzing
that factor, the district court found that Kristina “has been the primary person to meet the
child’s physical, emotional, cultural, spiritual, and other needs, and she has largely been
successful.” The sixth best-interests factor requires a district court to consider “the history
and nature of each parent’s participation in providing care for the child.” Id., subd. 1(a)(6).
In analyzing that factor, the district court reiterated that Kristina was the child’s primary
caregiver.
Holt contends that the district court erred by finding that Kristina has been the
child’s primary caregiver. He cites his own testimony that he was significantly involved
in the child’s life because he attended medical appointments, did video calls with the child
three days a week, and consistently exercised his right to in-person parenting time.
The record supports the district court’s finding that Kristina was the child’s primary
caregiver. The court-appointed custody evaluator reported that Holt “did not participate a
great deal in the day-to -day care of [the child], or, in fact, spend much time with him or
obviously try to do so, until [Kristina] secured an attorney and began the divorce process.”
Kristina’s trial testimony and exhibits also show that Holt was not significantly involved
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in parenting the child until after Kristina petitioned for dissolution. The custody evaluator
also opined that Holt was not as “present” as he should have been during the year after the
child’s birth. At trial, the custody evaluator testified that the fact of the parties’ separate
residences—which was attributed to Holt’s decision to move out of the parties’ apartment
into his mother’s house shortly after the child’s birth— contributed to Holt’s lack of
involvement in the child’s life.
Thus, the district court did not err by finding that, before and at the time of trial,
Kristina was the child’s primary caregiver.
2. Seventh Best-Interests Factor
Holt next contends that the district court erred in analyzing the seventh best-interests
factor by relying on evidence of his relationship with his non -joint child, who lives in
Washington state.
The seventh best-interests factor requires a district court to consider “the willingness
and ability of each parent to provide ongoing care for the child; to meet the child’s ongoing
developmental, emotional, spiritual, and cultural needs; and to maintain consistency and
follow through with parenting time.” Id., subd. 1(a)(7). The district court recited and
credited evidence that Holt has not demonstrated a commitment to meeting the needs of an
older, non-joint child. The district court referred to the custody evaluator’s determination
that “Holt has essentially stopped being in touch with [his non-joint child] . . . since this
custody dispute began.” The district court reasoned that Holt’s distant relationship with
his non-joint child “weigh[s] in favor” of awarding sole physical custody of the child to
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Kristina. The district court did not expressly state that Holt’s parenting of his non-joint
child affected the district court’s determination of a parenting-time schedule.
The record supports the district court’s analysis. The custody evaluator reported
that, based on a telephone call with the non-joint child’s mother, Holt spoke with his non-
joint child only two or three times per year in 2019 and 2020 and had not seen his non-joint
child in person since early 2019. Holt contends that he was unable to travel to and from
Washington during those periods because of dissolution proceedings in Minnesota and the
expenses associated with the proceedings. The record shows that Holt sought and accepted
employment in Minnesota shortly after his non-joint child’s birth. The record also shows
that Holt did not often attempt to contact his non-joint child by telephone or video call,
which could presumably have been accomplished without significant expense. Holt also
has not demonstrated that the district court’s consideration of this issue affected the
determination of the parenting-time schedule.
Thus, the district court did not err by relying on evidence of Holt’s relationship with
his non-joint child.
3. Ninth Best-Interests Factor
Holt further contends that the district court erred in analyzing the ninth best-interests
factor by ordering a parenting-time schedule that gives him less parenting time than he
requested and that provides for multi-day gaps in his parenting time.
The ninth best-interests factor requires a district court to consider “the effect of the
proposed arrangements on the ongoing relationships between the child and each parent,
siblings, and other significant persons in the child’s life.” Id., subd. 1(a)(9). Holt requested
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a parenting-time schedule that gave the parties equal parenting time. Kristina requested a
schedule that gave Holt parenting time every other weekend and one weekday per week.
The district court adopted a parenting-time schedule that is more similar to Kristina’s
proposal. In discussing the ninth best-interests factor, the district court reasoned that the
limited but phased parenting-time schedule would be a “less dramatic change” than the
schedule proposed by Holt and that it would be “more beneficial for the child to have
minimal transitions and minimal opportunities for the parties to have conflict.”
As an initial matter, the parenting-time schedule ordered by the district court allows
Holt to have the child for 35 percent of overnights per year, which is more than the 14
percent that was provided by the parties’ informal agreement and more than the statutory
minimum. See Minn. Stat. § 518.175, subd. 1(g) (2022). The district court’s focus on
minimizing the number of parenting exchanges between Holt and Kristina is justified by
the evidentiary record, which shows that exchanges between the parties often were a source
of conflict. Kristina’s testimony and several trial exhibits support the district court’s
statement that parenting-time hand-offs were contentious.
Thus, the district court did not err by ordering a parenting-time schedule that gives
Holt less parenting time than he requested.
4. Ultimate Determination
Holt contends that the district court improperly weighed the testimony and evidence
presented at trial and erred by not ordering that each parent have equal parenting time.
Holt asserts that his witnesses testified credibly about his attentiveness and
engagement as a parent, the child’s affinity for him, and his genuine love for the child. He
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argues that, based on his evidence, the district court should have awarded him equal
parenting time. But the custody evaluator and Kristina presented other views of Holt’s
parenting, which showed that Holt became involved in parenting the child only after
Kristina initiated dissolution proceedings. The district court carefully considered the
testimony of all witnesses and placed particular weight on the custody evaluator’s
testimony. We afford broad discretion to the district court in making a parenting-time
determination, especially when the evidence is conflicting. See Hansen, 908 N.W.2d at
596-97. Nothing in the record indicates that the district court abused that discretion.
Thus, the district court did not err in its award of parenting time.
B. First Right of Refusal
Holt also argues that the district court erred by not ordering that each parent has a
right to parenting time in lieu of the other parent’s use of childcare or a babysitter, which
he calls “a first right of refusal.”
Holt did not make this specific request in his proposed order. He requested language
that would have provided merely that a parent who has “other obligations” during his or
her parenting time “shall welcome the other parent to provide assistance.” The district
court did not adopt Holt’s proposed language. In his motion for amended findings, Holt
asked the district court “to provide for the parties to be able to provide childcare while the
other parent is working.” In its order denying the motion, the district court acknowledged
the request but did not grant it.
On appeal, Holt contends that the district court erred on the ground that he has a
right to parenting time whenever Kristina is unable to care for the child. He cites several
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appellate opinions for the proposition that a district court must presume that parental care,
rather than third-party care, is in a child’s best interests. The opinions cited by Holt are
distinguishable because each concerns a custody dispute between a parent and a non-parent
relative.1 Holt has not cited any caselaw for the proposition that, in a dispute between two
parents, one parent is entitled to parenting time whenever the other parent is unable to care
for a joint child, and we are unaware of any such authority.
Thus, the district court did not err by not ordering that each parent should have a
right to parenting time in lieu of the other parent’s use of childcare or a babysitter.
II. Child Support
Holt also argues that the district court erred by not deviating downward from the
presumptive amount of child support.
A district court may deviate from the presumptive child-support obligation “to
encourage prompt and regular payments of child support and to prevent either parent or the
joint children from living in poverty.” Minn. Stat. § 518A.43, subd. 1 (2022). Specifically,
a district court “must take into consideration” certain statutory factors “in setting or
modifying child support or in determining whether to deviate upward or downward from
the presumptive child support obligation.” Id.; Haefele v. Haefele, 837 N.W.2d 703, 708
(Minn. 2013).

1See, e.g., Wallin v. Wallin, 187 N.W.2d 627, 630-31 (Minn. 1971) (grandparents);
State ex rel. Merritt v. Eldred, 29 N.W.2d 479, 480-81 (Minn. 1947) (stepfather); State ex
rel. Fossen v. Hitman, 205 N.W. 267, 267-68 (Minn. 1925) (aunt and uncle).
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In the proposed judgment and decree that Holt submitted after trial, he made a brief
reference to a downward deviation but did not request a deviation of a specific amount.
Rather, Holt proposed a basic child-support obligation that was the same as the ch ild-
support obligation generated by the statutory formula, which tends to imply that a deviation
does not apply. In the judgment and decree, the district court ordered a basic child-support
obligation that matched the child-support obligation generated by the district court’s
calculation, without mentioning the issue of deviation. Holt did not include the deviation
issue in his motion for amended findings.
On appeal, Holt does not argue that the district court erred by not expressly
considering a deviation. He also does not argue that any particular statutory deviation
factor applies. He simply contends that his child-support obligation is excessive in
combination with his child-support obligation to the mother of his non-joint child, his
interest in traveling to Washington state to visit his non-joint child, and his interest in
allowing his two children to visit with each other. Holt’s argument is diminished by the
custody evaluator’s observation that Holt has seldom spoken with his non-joint child in
recent years and has not visited his non-joint child in person since early 2019. Given the
manner in which the issue was presented, Holt has not demonstrated that the district court
abused its discretion by ordering a basic child-support obligation that does not deviate from
the presumptive child-support obligation for the period of July 1, 2021, to December 31,
2021. We note that Holt does not argue that the CSM erred by not deviating from the
presumptive child-support obligation for the period beginning January 1, 2022. The
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absence of such an argument is consistent with the fact that Holt did not present it to the
CSM.
Thus, the district court did not err by not deviating downward from the presumptive
child-support obligation for the period of July 1, 2021, to December 31, 2021.
III. Allocation of Debts
Holt next contends that the district court erred by holding him responsible for certain
debts and ordering him to reimburse Kristina for her payment of the debts before the
dissolution.
As an initial matter, we note the parties’ agreement that the district court erred in
paragraph 13 of its conclusions of law on the ground that it is duplicative of paragraph 14.
The parties also agree that paragraph 13 should be stricken. We adopt the parties’
agreement and their suggested remedy of modifying the judgment and decree by striking
paragraph 13 of the conclusions of law. See Minn. R. Civ. App. P. 103.04; Sprangers v.
Interactive Techs., Inc., 394 N.W.2d 498, 505 (Minn. App. 1986), rev. denied (Minn. Nov.
19, 1986).
Holt’s remaining argument is his challenge to paragraph 14 of the district court’s
conclusions of law, which provides:
Each party is responsible for their own debts and debts
in their own name. Except there is $10,641 in medical debt
related to the Child, [Holt] is responsible for $7,874. If [Holt]
proffers a receipt or other documentation showing payment
related to a specific debt or disbursement from an HSA related
to this debt, then the amount owed will be reduced by the
amount paid by [Holt].

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Holt contends that his prior payment of the medical debts at issue is proved by
exhibit 46, a detailed spreadsheet he prepared that itemizes 88 medical expenses and the
parties’ payments of those expenses. Specifically, he contends that exhibit 46 shows that
he has made payments totaling $8,722.29, which is more than the amount for which the
district court held him responsible.
Kristina contends in response that she disputed the facts stated in exhibit 46 and that
the district court did not accept exhibit 46 as adequate proof of Holt’s payments of the
debts. But Kristina did not dispute all of the payments reflected in exhibit 46. She
presented evidence (an affidavit introduced as exhibit 115) that Holt owes her a lesser
amount, only $1,525.23, for her payments of debts related to the child’s medical expenses.
Kristina’s trial testimony is consistent with that exhibit. Accordingly, the evidentiary
record supports a finding that Holt owes Kristina no more than $1,525.23 for her payments
of debts.
Kristina is correct that the district court did not accept exhibit 46 as adequate proof
of Holt’s payments of debts. The district court required Holt to prove his payment of each
debt by submitting “a receipt or other documentation.” In his motion for amended findings,
Holt did not refer to or submit any receipts or underlying documentation of his payments
of debts. Rather, he merely referred to exhibit 46, which the district court already had
determined was inadequate proof. Holt’s failure to submit the type of evidence described
in the last sentence of paragraph 14 prevents him from qualifying for a reduction in the
amount of his obligation to reimburse Kristina for her payments of debts.
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Thus, the district court erred in paragraph 13 of its conclusions of law. We correct
that error by modifying the judgment and decree by striking paragraph 13. The district
court also erred in paragraph 14 of its conclusions of law by providing that Holt is
responsible for $7,874 .00 of the parties’ debts. We correct that error by modifying
paragraph 14 to provide that Holt is responsible for $1,525.23 of the parties’ debts.
Because Holt did not submit receipts or other documentation of his payments of the
disputed amounts, the district court did not err by not reducing the amount owed.
IV. Attorney Fees
For her cross-appeal, Kristina argues that the district court erred by not making
findings of fact before ruling on her request for need-based attorney fees.
In a dissolution proceeding, the district court “shall award attorney fees, costs, and
disbursements in an amount necessary to enable a party to carry on or contest the
proceeding” if it finds:
(1) that the fees are necessary for the good faith
assertion of the party’ s rights in the proceeding and will not
contribute unnecessarily to the length and expense of the
proceeding;

(2) that the party from whom fees, costs, and
disbursements are sought has the means to pay them; and

(3) that the party to whom fees, costs, and
disbursements are awarded does not have the means to pay
them.

Minn. Stat. § 518.14, subd. 1 (2022 ). If a party seeks need- based attorney fees, a district
court must make specific findings on each of the statutory requirements. Richards v.
Richards, 472 N.W.2d 162, 166 (Minn. App. 1991). “Conclusory findings on the statutory
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factors do not adequately support a fee award.” Geske v. Marcolina, 624 N.W.2d 813, 817
(Minn. App. 2001).
In this case, the judgment and decree states as follows: “The request for . . . fees is
denied. Each party is responsible for their own attorney fees.” Kristina argues that the
district court erred by not making specific findings concerning the statutory requirements
applicable to need-based attorney fees. She is correct. The district court did not make any
findings concerning the statutory requirements.
We are mindful that the absence of specific findings may not be fatal to an award of
attorney fees if the district court “was familiar with the history of the case” and “had access
to the parties’ financial records” and the necessary findings may be reasonably implied.
See Gully v. Gully, 599 N.W.2d 814, 825-26 (Minn. 1999). But the district court in Gully
made some findings on some of the statutory requirements, which allowed the supreme
court to imply the missing findings. See id. at 820, 826. In this case, however, the district
court made no specific findings whatsoever, and we are unable to draw the inferences that
would be necessary to imply the missing findings.
Kristina requests that this court provide appellate relief by modifying the judgment
and decree to order Holt to pay her attorney fees in the amount of $20,000. We decline the
invitation to resolve the motion in that manner. Kristina’s request for attorney fees should
be decided in the first instance by the district court, which is more familiar with the facts
and circumstances of the case and better equipped to make findings of fact.
Thus, the district court erred by not making findings of fact before ruling on
Kristina’s request for need-based attorney fees. Therefore, we remand the matter to the
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district court for the necessary fact -finding and reconsideration of Kristina’s request for
attorney fees. We leave to the district court’s discretion the question of whether to reopen
the record.
Affirmed in part as modified, reversed in part, and remanded.