In re the Marriage of:

This opinion is nonprecedential except as provided by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
A24-0272

In re the Marriage of:

Emily Clare Hahn, petitioner,
Appellant,

vs.

David Andrew Jungwirth,
Respondent.

Filed November 12, 2024
Affirmed
Johnson, Judge

Polk County District Court
File No. 60-FA-22-752

Jacey Johnston, Johnston Family Law, Grand Forks, North Dakota (for appellant)

Jennifer E. Jensen, ABST Law, P.C., Fargo, North Dakota (for respondent)

Considered and decided by Bentley, Presiding Judge; Johnson, Judge; and Bratvold,
Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
In this post-dissolution matter, the district court modified a parenting-time order by
giving each parent an equal amount of parenting time, in alternating weeks, on a year-
around basis. One parent argues that the modification of parenting time is a de facto change
of the child’s primary residence, which would require a showing of endangerment. We
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conclude that the district court did not err by ruling that the modification is not a de facto
change of primary residence and, thus, did not err by applying a best-interests standard
instead of an endangerment standard. We also conclude that the district court did not
clearly err in its finding concerning the fourth best-interests factor. Therefore, we affirm.
FACTS
Emily Clare Hahn and David Andrew Jungwirth were married in 2012. Their only
joint child, a boy, was born two years later, in May 2014. During the parties’ marriage,
they resided in the city of Stephen, in Marshall County.
In September 2016, Hahn petitioned for the dissolution of the marriage. Shortly
thereafter, she moved to a home in Grand Forks, North Dakota, that is approximately 50
miles from Stephen. In October 2018, the district court filed a judgment and decree in
which it ordered joint legal custody and joint physical custody of the child. Because Hahn
lived a considerable distance from Jungwirth, the district court found that it was in the
child’s best interests for Hahn to have the majority of parenting time during the school year
and for Jungwirth to have the majority of parenting time during the summer months.
Jungwirth requested reconsideration by asking the district court to provide for an
alternative parenting-time schedule in the event that he were to move closer to Hahn’s
home. In December 2018, the district court granted Jungwirth’s motion and filed an
amended decree, which provides, in pertinent part,
If [Jungwirth] were to move within approximately 20 miles of
the child’s residence in Grand Forks, North Dakota, the Court
would consider the move a significant change in circumstances
that would allow the Court to revisit the parties’ parenting time
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to determine if an increase in [Jungwirth’s] parenting time
would be in the child’s best interests.

In November 2019, Jungwirth relocated to a home in East Grand Forks, Minnesota,
that is approximately 20 miles from Hahn’ s home in Grand Forks, North Dakota. In
February 2020, Jungwirth moved to modify the parenting- time schedule in the manner
contemplated by the December 2018 amended decree. Hahn opposed the motion on the
ground that the requested modification would change the child’s primary residence.
The district court resolved Jungwirth’s motion in two orders. First, in September
2020, the district court determined that the best-interests standard applies to Jungwirth’s
motion because the motion does not seek a de facto change in physical custody or primary
residence. Second, after an evidentiary hearing in May 2022, the district court filed an
order in September 2022 in which it determined that equal parenting time would be in the
child’s best interests, granted Jungwirth’s motion for a modification, and ordered equal
amounts of parenting time on alternative weeks, both during the school year and during the
summertime.
Hahn appealed. She argued, among other things, that Jungwirth’s motion sought
relief that would be a de facto change in custody and primary residence such that the district
court erred by applying a best-interests standard to the motion instead of an endangerment
standard. This court concluded that the district court erred in its September 2020 order, in
determining whether father’s motion sought a de facto change in custody, by not
considering the totality of the circumstances, including certain factors identified in caselaw.
Hahn v. Jungwirth, No. A22-1616, 2023 WL 4553453, * 2 (Minn. App. July 11, 2023)
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(order opinion). Accordingly, we reversed and remanded to the district court for
reconsideration. Id. at *3.
In January 2024, the district court reconsidered the matter by analyzing the factors
identified in caselaw. The district court again determined that Jungwirth’s motion does not
seek a de facto change in custody or primary residence. The district court reiterated that
the best-interests standard applies and that equal parenting time on a year-around basis is
in the child’s best interests. Hahn again appeals.
DECISION
I. Applicable Standard
Hahn first argues that the district court erred by determining that Jungwirth’s motion
to modify parenting time does not seek a de facto change in primary residence.
Jungwirth’s motion is based on a statute providing that if a motion to modify
parenting time “would serve the best interests of the child, the court shall modify . . . an
order granting or denying parenting time, if the modification would not change the child’s
primary residence.” Minn. Stat. § 518.175, subd. 5(b) (2022) (emphasis added). Hahn
contends that Jungwirth’s motion sought more than just a change in the parties’ allocations
of parenting time. Hahn contends that Jungwirth’s motion sought a de facto change in the
child’s primary residence and that, as a consequence, Jungwirth was required to prove that
the “child’s present environment endangers the child’s physical or emotional health or
impairs the child’s emotional development and the harm likely to be caused by a change
of environment is outweighed by the advantage of a change to the child.” See Minn. Stat.
§ 518.18(d)(iv) (2022).
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In our prior opinion, which is the law of the case, see Interstate Power Co., Inc. v.
Nobles Cnty. Bd. of Comm’rs, 617 N.W.2d 566, 582 (Minn. 2000) ; Sigurdson v. Isanti
Cnty., 448 N.W.2d 62, 66 (Minn. 1989), we stated:
When determining whether a motion to modify
parenting time is a de facto modification to physical custody,
and therefore requires an application of the standard to modify
custody rather than parenting time, “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.” Christensen v.
Healey, 913 N.W.2d 437, 443 (Minn. 2018) (emphasis added).
“The factors considered may include [1] the apportionment of
parenting time, [2] the child’s age, [3] the child’s school
schedule, and [4] the distance between the parties’ homes, but
these factors are not exhaustive.” Id.

Hahn, 2023 WL 4553453, at *2 (alterations added). We also identified the applicable
standard of review:
We review de novo whether the district court applied
the correct legal standard—that is, the standard for
modification of parenting time in Minn. Stat. § 518.175,
subd. 5(b), or for modification of physical custody in Minn.
Stat. § 518.18(d)(iv). Bayer v. Bayer, 979 N.W.2d 507, 512
(Minn. App. 2022) (citing Christensen, 913 N.W.2d at 440).
We review the district court’s application of the Christensen
factors and its “ultimate determination of whether a proposed
change constitutes a de facto modification of physical custody”
for an abuse of discretion. Id. The district court abuses its
discretion if it misapplies the law, makes findings unsupported
by the evidence, or delivers a decision that is against logic and
the facts on record. Id. (citing Bender v. Bernhard, 971
N.W.2d 257, 262 (Minn. 2022); Woolsey v. Woolsey, 975
N.W.2d 502, 506 (Minn. 2022)).

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Id. Because Hahn’s appeal concerns the district court’s application of the Christensen
factors, we apply an abuse-of-discretion standard of review . See Bayer, 979 N.W.2d at
512.
On remand, the district court expressly considered the four factors identified in
Christensen: (1) the apportionment of parenting time, (2) the child’s age, (3) the child’s
school schedule, and (4) the distance between the parties’ homes. See Christensen, 913
N.W.2d at 443. First, the district court stated that the prior orders apportioned one-third of
annual parenting time to Jungwirth and that his motion sought to increase his parenting
time to one-half. Second, the district court noted that the child was five years old and in
his first year of school when Jungwirth filed his motion and that the child had not spent a
significant period of time in the school. Third, the district court stated that Jungwirth’s
motion was not seeking to change the child’s school or the school schedule. And fourth,
the district court stated that Hahn and Jungwirth are now living in the same community so
that there are no obstacles to “the child’ s ability to develop friendships, socialize with
classmates outside of school, and participate in extracurricular school activities.” After
considering the four Christensen factors, the district court reiterated that the child’s primary
residence will remain with Hahn during the school year and will remain with Jungwirth
during the summertime.
Hahn contends that the district court erred in analyzing the first Christensen factor
on the ground that the district court made a significant change to the apportionment of
parenting time awarded to each party. Her contention is based on the general premise that
a reduction of parenting time from two-thirds to one-half necessarily implies a change in a
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child’s primary residence during the school year. But Hahn has not cited any caselaw
supporting that premise. Furthermore, supreme court caselaw strongly suggests that
Hahn’s premise is incorrect. In Christensen, the supreme court considered whether a
parent’s motion to increase parenting time to 50 percent necessarily would modify the other
parent’s award of sole physical custody. 913 N.W.2d at 440. The supreme court endorsed
this court’s view that “‘merely increasing Christensen’s parenting time to 50 [percent],
without more, would not modify the award to Healey of sole physical custody.’” Id. at 442
(quoting In re Custody of M.J.H., 899 N.W.2d 573, 577 (Minn. App. 2017), rev’d sub nom.,
Christensen v. Healey, 913 N.W.2d 437 (Minn. 2018)). The supreme court reasoned that
such a bright-line rule would be inconsistent with the flexible nature of the definition of
sole physical custody. Id. at 442-43. Because the term “primary residence” is not defined
by statute, see id. at 440, unlike the various forms of “custody,” which are defined by
statute, see Minn. Stat. § 518.003, subd. 3 (2022), there is even less reason to believe that
a modification of parenting time resulting in an equal division necessarily would change a
child’s primary residence. Accordingly, Hahn has not demonstrated that the district court
abused its discretion in analyzing the first Christensen factor.
Hahn also contends that the district court erred in its analysis of the second, third,
and fourth Christensen factors. With respect to the second Christensen factor, she asserts
that the child is now nine years old. But Hahn does not explain the difference, for purposes
of a change in primary residence, between five years old (the child’s age when Jungwirth
filed his motion), eight years old (the child’s age at the time of the district court’s
September 2022 decision), and ten years old (the child’s present age). With respect to the
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third Christensen factor, Hahn asserts that the child will have a different routine before and
after school for half of the weeks of the school year. But the third Christensen factor is
concerned with a child’s “school schedule,” not the child’s schedule while at home. With
respect to the fourth Christensen factor, Hahn states that, because the child’s school is very
close to her home but approximately 16 miles from Jungwirth’s home, the child will have
a longer drive to and from school for half of the school year. That assertion suggests that
the child will spend more after-school time at Hahn’s home than at Jungwirth’s home,
which is consistent with the district court’s determination that Hahn’s home remains the
child’s primary residence during the school year. In any event, Hahn does not challenge
the district court’s reasoning that the proposed change in parenting time would allow the
child “to develop friendships, socialize with classmates outside of school, and participate
in extracurricular school activities.” Accordingly, Hahn has not demonstrated that the
district court abused its discretion in analyzing the second, third, and fourth Christensen
factors.
Hahn further contends that the district court erred by not considering factors in
addition to the four non-exhaustive Christensen factors. See Christensen, 913 N.W.2d at
443; Hahn, 2023 WL 4553453, at *2. Hahn contends that the district court erred by not
considering the change in the child’s home environment during the school year, the fact
that the child has a sensory disorder that would benefit from a consistent routine, the
parties’ inability to make joint decisions, the high-conflict relationship between the parties,
and the resulting reduction in Jungwirth’s monthly child-support obligation. Most of these
considerations are irrelevant to the identification of the child’s primary residence. They
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are more relevant to a best-interests analysis. Accordingly, the district court did not abuse
its discretion by not considering factors other than the four Christensen factors.
The district court expressly considered the four Christensen factors and determined
that Jungwirth’s motion to modify parenting time did not seek a de facto change in the
child’s primary residence. The district court did not abuse its discretion in making that
determination.
II. Best-Interests Analysis
Hahn also argues that the district court erred in its analysis of the fourth best-
interests factor, which asks whether domestic abuse has occurred in the parties’
relationship, in their joint household, or in either party’s household. See Minn. Stat.
§ 518.17, subd. 1(a)(4) (2022). A clear-error standard of review applies to a district court’s
findings concerning the best-interests factors. Thornton v. Bosquez, 933 N.W.2d 781, 790,
794 (Minn. 2019); Hansen v. Todnem, 908 N.W.2d 592, 599 (Minn. 2018).
Hahn’s primary contention is that the district court erred by not recognizing that a
finding of domestic abuse previously had been made and by not accounting for that finding
when balancing the best-interests factors. But the district court included two pages of
discussion of the fourth best-interests factor in its order granting Jungwirth’s motion. The
district court noted that, in the 2018 decree, a different district court judge found that
“[e]ach party appears to have inflicted domestic abuse upon the other.” The prior judge
nonetheless awarded the parties joint legal custody and joint physical custody in 2018. In
discussing the fourth best-interests factor, t he district court also noted that Jungwirth
testified that there was no domestic abuse in the parties’ joint household or in his
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household, and the district court further noted that Hahn did not testify to the contrary. The
district court found that, between the time of the 2018 decree and the 2022 evidentiary
hearing, “no domestic abuse has taken place between the parties. ” Consequently, the
district court found that the fourth factor “does not apply.” Our review of the record
indicates that the district court accurately described the parties’ testimony. In light of
Jungwirth’s testimony, the district court’s finding that no domestic abuse has occurred
since the 2018 decree is not clearly erroneous. See In re Civil Commitment of Kenney, 963
N.W.2d 214, 221 (Minn. 2021) (quotation omitted) (stating that findings are clearly
erroneous if “manifestly contrary to the weight of the evidence or not reasonably supported
by the evidence as a whole”).
Hahn’s secondary contention is that the district court erred by not crediting and
relying on the testimony of two expert witnesses whom she called at the May 2022
evidentiary hearing. The first expert was qualified to testify about domestic violence. That
expert testified on direct examination that Hahn was a victim of domestic violence. But on
cross-examination, the expert conceded that her opinion was based solely on information
provided by Hahn, that she had not reviewed other materials filed with the district court,
that she had not spoken to Jungwirth, and that her opinion could change if she were to
review additional information. The second expert was qualified as a mental -health
counselor to testify about the impact of domestic abuse on Hahn. That expert testified on
direct examination that Hahn meets the criteria for post-traumatic stress disorder (PTSD)
but that he was unable to complete a diagnostic assessment. On cross-examination, he
conceded that his opinion was based solely on a limited amount of information provided
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by Hahn, that he had provided therapy to Hahn for only a short period of time, and that he
had not spoken to Jungwirth.
The district court discussed the evidence provided by these two experts in detail.
The district court noted that Hahn did not testify about domestic abuse. The district court
also noted that Hahn previously had objected to the disclosure of her mental-health records,
which prevented Jungwirth from discovering such records, but that Hahn changed her
position on the relevance of her mental-health records when she presented expert evidence.
Given the circumstances, the district court gave the experts’ testimony “little weight” and
found that there was a lack of evidence of domestic abuse. The weight given to expert
testimony “is ultimately the province of the fact-finder.” In re Welfare of Children of J.B.,
698 N.W.2d 160, 168 (Minn. App. 2005). In this circumstance, the district court did not
clearly err by not crediting and relying on the testimony of Hahn’s expert witnesses.
Thus, the district court did not err in its finding concerning the fourth best-interests
factor.
In sum, the district court did not err in its application of the Christensen factors or
in its analysis of the fourth best-interests factor. Therefore, the district court did not err by
granting Jungwirth’s motion to modify parenting time.
Affirmed.