In re the Marriage of: Paul Jerome Wittrock, petitioner, Appellant,

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This opinion is nonprecedential except as provided by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
A22-0639

In re the Marriage of: Paul Jerome Wittrock, petitioner,
Appellant,

vs.

Shelley Sue Wittrock,
Respondent.

Filed January 30, 2023
Affirmed
Reyes, Judge

Benton County District Court
File No. 05-FA-20-476

Kristi D. Stanislawski, Jovanovich, Dege & Athmann, P.A., St. Cloud, Minnesota (for
appellant)

Jessica Mikkelson, Heller & Thyen, P.A., St. Cloud, Minnesota (for respondent)

Considered and decided by Slieter, Presiding Judge; Reyes, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
REYES, Judge
In this parenting- time dispute, father argues that the district court (1) erred by
determining that he failed to rebut the presumption against sole legal custody and sole
physical custody; (2) abused its discretion by awarding wife sole legal and sole physical
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custody; and (3) abused its discretion by not maximizing parenting time for both parents.
We affirm.
FACTS
Appellant-father Paul Jerome Wittrock and respo ndent-mother Shell ey Sue
Wittrock were married in 2014 and share one minor child, born in February 2012. During
their marriage, father became verbally and physically abusive towards mother. On
February 1, 2020, father was charged with two counts of misde meanor domestic assault
against mother, and the district court issued a domestic abuse no-contact order (DANCO)
against father. The charges were later dismissed. Following that incident, father petitioned
for dissolution of marriage. Both parties cross-moved for temporary relief on custody and
parenting-time issues.
The district court heard both motions and issued an order on September 01, 2020,
awarding mother temporary sole legal and sole physical custody of child. The district court
also awarded father parenting time. After the district court issued the temporary order,
mother delivered father a note informing him that she intended to move to North Dakota
with child for an employment opportunity and to be closer to family support. Later that
month, mother moved to North Dakota with child.
Father moved for temporary relief seeking a return of child to Minnesota and
modification of custody and parenting time. The district court denied father’s motion but
ordered that father’s parenting time immediately resume and be unsupervised. During this
time, the parties agreed to dissolve the ir marriage and allocate their assets and debts. The
district court signed their s tipulated judgment and decree which reserved p arenting time
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and custody issues for trial. After the stipulation, father moved to modify the parenting-
time schedule again on June 2, 2021. The district court granted father’s motion and ordered
that for summer, father have two weeks on of parenting time and one week off with
exchanges taking place on Sunday at 4:00 p.m.
At trial, the district court addressed permanent custody and parenting time . Father
testified that he wa nted to have child move back to Minnesota and reside primarily with
him during the school year. Conversely, mother requested sole legal and sole physical
custody of child and wanted the parenting time to remain the same. After trial, the district
court issued a judgment and d ecree awarding mother sole legal and sole physical custody
of child. It awarded father parenting time with child every other weekend from Friday at
6:00 p.m. through Sunday at 4:00 p.m., with child residing with mother during the week
and every other weekend. This appeal follows.
DECISION
I. The district court did not clearly err by finding that domestic abuse occurred
or err by determining that father did not reb ut the presumption against joint
legal and joint physical custody.

Father argues that the district court erred as a matter of law by determining that he
failed to rebut the presumption against sole legal and sole physical custody. Father’s
argument is misguided. “Because this issue requires an interpretation of law, our review
is de novo.” Thornton v. Bosquez, 933 N.W.2d 781, 790 (Minn. 2019) .
A district court must consider two presumptions in joint-custody cases:
The court shall use a rebuttable presumption that upon request
of either or both parties, joint legal custody is in the best
interests of the child. However, the court shall use a rebuttable
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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.01,1 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 and for
the child’s safety, well-being, and developmental needs .

Minn. Stat. § 518.17, subd. 1(b)(9) (2022) (emphasis added). The statute does not impose
a presumption for or against a specific custodian, but only creates a rebuttable presumption
against joint custody when domestic abuse has occurred . Bosquez , 933 N.W.2d at 791.
Moreover, “[u]nless the presumption has been rebutted, the subdivision’s plain language
expresses a preference for sole legal and physical custody .” Id. “The presumption focuses
on the child’s needs and a custodial arrangement that is beneficial to the child, and not on
particular caregivers.” Id.
Here, the district court did not determine that father failed to rebut the presumption
against sole legal an d sole physical custody. Instead, the district court engaged in a two -
part analysis by (1) finding that domestic violence occurred and (2) then determining that
father did not rebut the presumption against joint legal and joint physical custody. At trial,
the district court heard testimony from both parties on the incident that led to father’s
criminal charges of domestic assault. Father did not dispute that the incident occurred but
minimized the incident and claimed that it was a mutual altercation. He also emphasized

1 Domestic abuse is defined in that section to mean the following acts , “if committed
against a family or household member by a family or household member: (1) physical
harm, bodily injury, or assault; (2) the infliction of fear of imminent physical harm, bodily
injury, or assault; or (3) terroristic threats . . . ; criminal sexual conduct . . . ; or interference
with an emergency call.” Minn. Stat. § 518B.01, subd. 2(a) (2022).
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that the charges were dismissed. Meanwhile, mother claimed that father physically and
verbally abused her during their years together. She testified that on the day of the incident:
“He reached out to me and - - well, almost put me through some double doors throwing me
through, and then he came after me in the living room and grabbed my neck and threw me
across the room.” Both parties agree that on the day of the incident, child was present in
the house and once the parti es began arguing, child’s brother took her downstairs. The
district court also heard testimony from father’s sister about a fight between father and his
stepson who was 18 years old at the time. The argument began over rent and escalated
when stepson came at father . Father struck him and bloodied stepson’s head. The district
court found mother’s testimony on domestic abuse more credible than father’s testimony
and determined that domestic abuse occurred. We defer to the district court’s credibility
determinations. Anh Phuong Le v. Holter , 838 N.W.2d 797, 802 (Minn. App. 2013) , rev.
denied (Minn. Dec. 31, 2013).
Based on this finding, the district court applied “a rebuttable presumption that joint
legal custody and joint physical custody was not in the best interests of the child .” Minn.
Stat. § 518.17, subd. 1(b)(9). The district court also considered whether that presumption
had been rebutted through the testimony and evidence provided at trial. It heard testimony
from mother that father violated the DANCO by driving past her house several times.
Mother also testified that, because of father’s history of domestic abuse against her, she
did not feel comfortable talking to father and did not believe that they could effectively
communicate to co -parent child. Based on the testimony and evidence presented, we
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conclude that the district court d id not err by determining that father did not rebut the
presumption against joint legal and physical custody.
II. The district court did not abuse its discretion by awarding mother sole legal
custody and sole physical custody.

Father argues that the district court abused its discretion by determining that child’s
best-interests factors favored mother having sole legal and sole physical custody. We are
not convinced. We review a district court’s balanc ing of the best -interests factors for an
abuse of discretion. Bosquez, 933 N.W.2d at 794. “An abuse of discretion occurs when
the district court resolves the matter in a manner that is against logic and the facts on [the]
record.” O’Donnell v. O’Donnell, 678 N.W.2d 471, 474 (Minn. App. 2004) (quoting
Rutten v. Rutten , 347 N.W.2d 47, 50 (Minn. 1984) . Moreover, a “ district court ’s
observations of the parties’ demeanor, sincerity, and credibility are integral to its balancing
of the best -interests consider ations, and we give great deference to its custody award. ”
Bosquez, 933 N.W.2d at 796.
A district court must consider the best interests of the child and make a custody
award that serves those interests. Minn. Stat. § 518.17, subd. 1 ( 2022); Olson v. Olson,
534 N.W.2d 547, 549 (Minn. 1995). A child’s best interests is the court’s “paramount
commitment.” Olson, 534 N.W.2d at 549. In considering the child’s best interests, a
district court must consider “all relevant factors,” including 12 factors prescribed by
statute:
(1) a child’s physical, emotional, cultural, spiritual,
and other needs, and the effect of the proposed arrangements
on the child’s needs and development;

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(2) any special medical, mental health, or
educational needs that the chil d may have that may require
special parenting arrangements or access to recommended
services;

(3) the reasonable preference of the child, if the
court deems the child to be of sufficient ability, age, and
maturity to express an independent, reliable pref erence;

(4) whether domestic abuse, as defined in section
518B.01, has occurred in the parents ’ or either parent ’s
household or relationship; the nature and context of the
domestic abuse; and the implications of the domestic abuse for
parenting and for the child ’s safety, well -being, and
developmental needs;

(5) any physical, mental, or chemical health issue of
a parent that affects the child’s safety or developmental needs;

(6) the history and nature of each parent ’s
participation in providing c are for the child;

(7) 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;

(8) the effect on the child ’s well- being and
development of changes to home, school, and community;

(9) 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;

(10) the benefit to the child in maximizing parenting
time with both parents and the detriment to the child in limiting
parenting time with either parent;

(11) except in cases in which domestic abuse as
described in clause (4) has occurred, the disposition of each
parent to support the child ’s relationship with the other parent
and to encourage and permi t frequent and continuing contact
between the child and the other parent; and
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(12) the willingness and ability of parents to
cooperate in the rearing of their child; to maximize sharing
information and minimize exposure of the child to parental
conflict; and to utilize methods for resolving disputes
regarding any major decision concerning the life of the child.

Minn. Stat. § 518.17, subd. 1(a)(1)-(12)(2022).
A district court must make detailed findings on each of the statutory best-interests
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)
(2022). In doing so, the district court “may not use one factor to the exclusion of all others,
and the [district] court shall consider that the factors may be interrelated.” Id
Father argues that, in analyzing six of the statutory factors , the district court gave
undue weight to the current living arrangements with father in Minnesota and mother in
North Dakota. In its analysis of the best-interests factors, the district court determined that
eight factors favored mother’s proposed custody and parenting time plan and four factors
were neutral. Ultimately, the district court determined that it is in child’s best interests to
award mother sole legal and sole physical custody. We will address each of those six
factors in turn.
First factor: child’s physical, emotional, cultural, spiritual, and other needs .
Father argues that this factor should be neutral because the district court found that
both parties can meet the needs of child. The district court found that , while father can
meet child’s physical, emotional, and other needs during his parenting time, mother has
been meeting all of child’s needs since moving to North Dakota in September 2020. As a
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result, the district court determined that this factor favors “maintaining the current custody
arrangement.”
Second factor: special medical, mental health, or education needs of the child.
Father argues that there was no evidence at trial to suggest one school was better
than the other, and child has friends in both states. The record shows that child has special
needs and requires an i ndividualized educational plan (IEP). Child had an IEP in
Minnesota and continues to have one in North Dakota. The district court heard testimony
from mother that she meets regularly with the IEP team and that child is doing well. Child’s
reading and writing skills have improved from 40% accuracy to 93% , and she no longer
needs a math IEP. Child has also been excelling in her social skills and has star ted
counseling. The district court ultimately found that child has been thriving academically
and socially in North Dakota. It also found that continued counseling would be in child’s
best interests. As a result, it determined that this factor favors maintaining the current
custody and parenting time schedule. The record supports the district court’s analysis of
this factor.
Sixth factor: history and nature of each parent’s participation in providing care for
the child.

Father contends that both parties have a history of providing care and being involved
in child’s life. Based on the record, the district court agreed as well. The district court
considered father’s history of providing care for child and noted that before the parties’
separation, father was with child often and would help child with her homework. It also
considered father’s testimony that mother did most of the cooking and handled school
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issues. Mother testified that she provided for child’s daily routine and basic needs. “While
both parties have a history of being involved in providing care for the minor child, the
[district] court [found] that [mother] has consistently taken on more of the primary care
duties for [] child.” It therefore determined that this factor favored mother. The district
court’s determination is supported by the record.
Eighth factor: effect on the child’s well-being and development of changes to home,
school, and community.

Father argues that this factor only favors mother because child lives in North
Dakota. Mother testified that , over the past year and a half, child has settled into her new
community and school in North Dakota. Child’s academic performance has improved
significantly through her IEP plan, and she has started therapy. She has also made new
friends and sees them regularly. Finally, child has strong connections with her extended
family who live nearby. The district court found that mother’s proposed custody
arrangement and parenting -time schedule minimizes changes to child’s school and
community and helps child maintain a routine. The record strongly supports the district
court’s determination that this factor favors child residing with mother during the school
year.
Ninth factor: effect on ongoing relationships between child and each parent,
siblings, and other significant persons in child’s life.

Father argues that this factor should be neutral but does not identify any error of law
or clear error in a factual finding committed by the district court and instead notes that child
has significant connections to both parent s and extended family on both sides. At trial,
father testified that child is close to his side of the family and that child’s paternal
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grandmother used to care for child. Child also has half -siblings that reside in Minnesota
and father testified that child could see them more often if she resided primarily with him.
Mother testified that child has strong connections with her half -brothers and one of the
brothers still resides with mother. Child also gets to see her maternal grandparents often
and they live nearby to provide support. The district found that, under the current custody
and parenting-time schedule, child has been able to maintain contact with both sides of her
extended family and continues to live with her half -sibling. As a result, the district court
determined that this factor favors mother . The record supports the district court’s analysis
of this factor.
Tenth factor: benefit to child in maximizing parenting time with both parents and
the detriment to child in limiting parenting time with either parent.

Father argues that this factor should be neutral but does not identify any legal or
factual error committed by the district court. For this factor, the district court recognized
that the geographical distance between the parties made an alternating weekday parenting-
time schedule during the school year impractical. The district court therefore found that,
based on the se unique circumstances, the current schedule effectively maximizes both
parties’ parenting time with child. The record supports the district court’s analysis of this
factor.
Twelfth factor: willingness and ability of parents to cooperate in the rearing of their
child.

Father argues that the district court abused its discretion by determining that this
factor favored mother. The district court heard testimony from mother that , based on the
parties’ relationship history, she was not comfortable speaking with father directly to make
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joint decisions. But she expressed a willingness to use Our Family Wizard to communicat e
about child. Father acknowledged that the parties had not talked for some time because of
the DANCO in place but testified to his willingness to communicate with mother, including
using Our Family Wizard. He also believed that the parties could effectively communicate
and make co -parenting decis ions. The district court ultimately found that it is “highly
unlikely” that the parties could effectively cooperate in caring for child , let alone resolve
disputes over important decisions about child. Its determination that this factor favors
mother is supported by the record.
In sum, given the ample evidence that supports the district court’s custody- award
determination, w e conclude that the district court did not abuse its discretion by awarding
mother sole legal custody and sole physical custody of child.
III. The district court maximized the parenting-time schedule for both parents and
did not abuse its discretion.

Father argues that the district court abused its discretion by awarding him only 32%
parenting time and not maximizing child’s parenting time with father. We are not
persuaded.
“The district court has broad discretion in determining parenting- time issues and
will not be reversed absent an abuse of discretion.” Shearer v. Shearer, 891 N.W.2d 72,
75 (Minn. App. 2017); Olson 534 N.W.2d at 550. “Reversible abuses of discretion include
misapplying the law or relying on findings of fact that are not supported by the record.”
Shearer, 891 N.W.2d at 75.
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Here, the district court maximized father’s parenting -time schedule with child. As
mentioned above, for the school year, the district court awarded father parenting time with
child every other weekend. I t also ordered father’s summer parenting time to continue
which allow s father even more time with child over the summer. Finally, for holiday
breaks, the district court awarded father sole parenting time for both spring break and fall
break. It also split the holidays evenly between the parties and ensured that father had
Father’s Day with child . The district court consider ed the geographical distance and
maximized father’s parenting time as much as the schedule allowed. We discern no abuse
of discretion by the district court.
Affirmed.