                       This opinion will be unpublished and
                       may not be cited except as provided by
                       Minn. Stat. § 480A.08, subd. 3 (2014).

                            STATE OF MINNESOTA
                            IN COURT OF APPEALS
                                  A15-0141

                In re the Marriage of: Jaime Dawn Starren, petitioner,
                                      Appellant,

                                         vs.

                               Jason Charles Starren,
                                    Respondent.

                             Filed October 5, 2015
                      Affirmed in part and reversed in part
                                  Reyes, Judge
                      Concurring specially, Chutich, Judge

                          Pennington County District Court
                                File No. 57FA12339

Michael M. Mattocks, Charlson & Jorgenson, P.A., Thief River Falls, Minnesota (for
appellant)

Stephanie J.S. Harbott, Fitzgerald, Reynolds & Harbott, PLLP, Crookston, Minnesota
(for respondent)


      Considered and decided by Connolly, Presiding Judge; Chutich, Judge; and

Reyes, Judge.
                        UNPUBLISHED OPINION

REYES, Judge

       Appellant Jaime Starren challenges the district court’s (1) denial of her motion to

modify her children’s primary residence and (2) granting of respondent Jason Starren’s

motion to impose a locale restriction. We affirm in part and reverse in part.

                                         FACTS

       Appellant and respondent were married in August 2002 in Thief River Falls and

have two children, J.N.S. and B.W.S. The parties separated, and, following a two-day

court trial, a dissolution judgment and decree was entered on December 26, 2013. The

decree allowed for joint legal custody of the two minor children but awarded sole

physical custody to appellant. The decree also granted respondent the following

parenting time: alternating extended weekends during the nine-month school year

(September through May) from 5:00 p.m. on Wednesday to 8:00 a.m. on Monday; the

first two full weeks of each month during the three-month summer vacation (June

through August); and alternating holidays, including every Father’s Day weekend.

Neither party appealed the original judgment and decree.

       On August 7, 2014, appellant filed a motion asking the district court to

“[m]odify[] the parenting time schedule of the parties.” Appellant had begun dating

Mathew Schad, and the two wanted to move from Thief River Falls to Grand Rapids,

Minnesota. In her first affidavit accompanying the motion, appellant explained that she

wanted to move to Grand Rapids because she had family and friends living in the area,

including cousins and half-brothers. Schad’s family lived in the area as well, and the two


                                             2
were planning on purchasing a country home there. Appellant proposed that the

parenting-time schedule be modified to account for the increased distance from Grand

Rapids to Thief River Falls. Appellant suggested that the original alternating weekend

schedule of Wednesday to Monday mornings be adjusted to a more traditional Friday-to-

Sunday schedule. To make up for the reduction in respondent’s parenting time, appellant

proposed that respondent “be given additional parenting time during the kids’ time off

from school, holidays, and long weekends, etc.”

       On August 15, 2014, respondent filed a countermotion requesting that appellant’s

motion be denied in its entirety and that the district court “restrict [appellant] from

moving the children’s residence outside of the Thief River Falls School District.”

       On August 21, 2014, appellant filed a second affidavit in support of her motion to

modify parenting time. In it, appellant provided a more specific proposal, suggesting that

respondent be given the first three weeks in June, the first three weeks in July, and the

first two weeks in August. Appellant also suggested that respondent be given the long

MEA weekend, other non-holiday long weekends that corresponded with his usual

parenting time, and that “[w]inter break should be mainly his,” subject to alternating time

on Christmas Day.

       The district court held a motion hearing on August 21, 2014. In its extensive order

following the hearing, the district court employed a number of different legal standards in

analyzing the parties’ motions. With respect to appellant’s request, the district court

determined that the proposed parenting-time modifications were substantial enough to be

considered a “restriction” on respondent’s parenting time. And, as such, the district court


                                              3
reasoned that appellant’s modification could only be warranted if appellant could

demonstrate that the children were endangered in respondent’s care or that respondent

had chronically and unreasonably failed to comply with the court-ordered parenting time.

The district court found that because there was no evidence of endangerment, and no

evidence of a failure by appellant to comply with court-ordered parenting time,

appellant’s motion should be denied.

       In addition to employing the “endangerment” standard mentioned above, the

district court also analyzed appellant’s proposed modifications under the lower “best

interests” standard. After assessing 17 relevant factors, the district court decided that the

only factor supporting appellant’s request was her own desire to modify the parenting-

time schedule. The district court stated that “[e]ven when considered under this less

stringent standard . . . the court finds and concludes that [appellant’s] motion should be

denied.”

       The district court further concluded that appellant’s motion should be denied

because she failed to show a “substantial change in circumstances.” The district court

noted that appellant’s affidavits mention how she had previously thought of relocating to

Grand Rapids. The district court reasoned that because she previously thought of moving

to Grand Rapids and because she is currently thinking about moving to Grand Rapids,

there has been no change in circumstances, which provides further support for the motion

being denied.

       With respect to respondent’s request for a locale restriction, the district court made

two conclusions of law. First, it recognized that while the original dissolution decree


                                              4
established legal and physical custody for the children, it failed to designate their

“residence.” The district court determined that under Minn. R. Civ. P. 60.01, it could

“correct” the mistake of the original dissolution decree and include a provision

establishing Thief River Falls as the children’s residence. Second, the district court

concluded that under Schisel v. Schisel, it had authority to impose an in-state locale

restriction. 762 N.W.2d 265, 270 (Minn. App. 2009). The district court determined that

it was “necessary to protect the minor children’s best interests through a residency

restriction” and ordered that the original judgment and decree be modified to include a

provision stating:

              The minor children’s residence shall not be moved from the
              city of Thief River Falls unless: (A) [appellant] and
              [respondent], in a written stipulation, agree to a modification
              of the minor children’s residence; or, (B) the court, after
              finding that a change has occurred in the circumstances of the
              minor children or the parties and that modification is
              necessary to serve the best interests of the minor children,
              orders a modification of the minor children’s residence.

       In sum, the district court denied appellant’s request to modify parenting time and

granted respondent’s request to impose a locale restriction limiting the children’s

residence to Thief River Falls. This appeal followed.

                                      DECISION

       Although the parties proffered a number of arguments in their briefs and at the oral

arguments to this court, there are only two pertinent issues on appeal: (1) whether the

district court abused its discretion when it denied appellant’s motion and (2) whether the




                                              5
district court abused its discretion when it granted respondent’s motion to impose a locale

restriction. Each is addressed below.

I.     The district court did not abuse its discretion when it denied appellant’s
       motion.

       The district court has broad discretion in determining parenting-time issues and

will not be reversed absent an abuse of that discretion. Olson v. Olson, 534 N.W.2d 547,

550 (Minn. 1995). A district court abuses its discretion if its findings are unsupported by

the record or if it misapplies the law. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn.

1985). A district court’s findings of fact underlying a parenting-time decision will be

upheld unless they are clearly erroneous. Griffin v. Van Griffin, 267 N.W.2d 733, 735

(Minn. 1978). However, identifying the legal standard applicable to a motion to modify

parenting time is a question of law that is subject to de novo review. Dahl v. Dahl, 765

N.W.2d 118, 123 (Minn. App. 2009).

       In a dissolution or separation proceeding, a district court is required to issue an

order regarding the “physical custody and residence” of the parties’ minor children.

Minn. Stat. § 518.17, subd. 3(a)(2) (2014) (emphasis added). Here, despite the fact that

this provision was in place when the district court entered its December 26, 2013

judgment dissolving the parties’ marriage, see Minn. Stat. § 518.17, subd. 3(a)(2) (2012),

that judgment failed to make an explicit finding regarding the children’s residence. We

conclude, however, that the December 26, 2013 judgment contains an implicit finding

that the residence of the children was Thief River Falls. See Pechovnik v. Pechovnik, 765

N.W.2d 94, 99 (Minn. App. 2009) (recognizing that a district court made an implicit



                                              6
finding regarding the respondent’s credibility when it ruled in her favor despite

conflicting testimony).

       “Residence” is defined as “the place where a party has established a permanent

home from which the party has no present intention of moving.” Minn. Stat. § 518.003,

subd. 9 (2014). Prior to the original dissolution hearing, appellant submitted an affidavit

in which she stated: “I do not believe that either [respondent], nor I, intend to leave the

immediate area. We both will live in the same community, and the children will attend

the same school, as they have in the past.” By her own admission, appellant had no

intention of leaving her home in Thief River Falls. Accordingly, the district court found

that “[n]either party expressed any desire to take the children from the Thief River Falls

community.” The December 26, 2013 judgment further discussed the numerous

connections between the children and Thief River Falls, including a network of family

members helping with caretaking duties, relationships built from attending St. Bernard’s

Catholic School, and a multitude of extracurricular and community activities in which the

children participate. All of these relationships and activities were based in Thief River

Falls, and no other city was ever mentioned until appellant brought her current motion.

We therefore conclude that the December 26, 2013 judgement and decree implicitly

included a finding that the children’s residence was Thief River Falls.1


1
  We note that in its November 25, 2014 order, the district court determined that under
Minn. R. Civ. P. 60.01, it could correct its previous December 26, 2013 judgment to
include a provision establishing Thief River Falls as the children’s residence. Because
we agree that the December 26, 2013 judgment established the children’s residence as
Thief River Falls, we need not consider the propriety of the district court’s use of Minn.
R. Civ. P. 60.01. See Katz v. Katz, 408 N.W.2d 835, 839 (Minn. 1987) (stating that a

                                              7
       We next turn to appellant’s motion to modify parenting time, which is ordinarily

analyzed under Minn. Stat. § 518.175, subd. 5 (2014). But section 518.175, subdivision

5(a) states that “[i]f modification 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.” Id., subd. 5(a) (emphasis added). Here, even

though appellant’s motion asks the district court to “[m]odify[] the parenting time

schedule,” it also seeks to change the children’s primary residence from Thief River Falls

to Grand Rapids. Therefore, section 518.175, subdivision 5, does not require

modification of parenting time based on the child’s best interests. Instead, appellant’s

motion is properly classified as a motion to modify the children’s primary residence,

which is instead analyzed under Minn. Stat. § 518.18 (2014). See Suleski v. Rupe, 855

N.W.2d 330, 334-35 (Minn. App. 2014) (“A modification of custody or a change of the

child’s primary residence requires that the district court utilize the procedures set forth in

Minn. Stat. § 518.18(d) and associated caselaw.” (emphasis added)).2

       Under section 518.18(a), “no motion to modify a custody order . . . may be made

earlier than one year after the date of the entry of a decree of dissolution.” Minn.

Stat. § 518.18(a). This time limit does not apply if the district court “finds that there is

persistent and willful denial or interference with parenting time, or has reason to believe


district court’s decision will not be reversed if we reach the same result on different
grounds).
2
  We acknowledge that this court’s Suleski opinion was filed after the parties’ motions to
the district court in this case and before the district court’s order resolving those motions,
and therefore, that counsel did not have the benefit of that opinion when those motions
were filed.

                                               8
that the child’s present environment may endanger the child’s physical or emotional

health or impair the child’s emotional development.” Minn. Stat. § 518.18(c). As

previously stated, the parties’ dissolution judgment and decree was entered on December

26, 2013. Appellant’s motion was brought on August 7, 2014, within the one-year period

prohibited by section 518.18(a). The motion did not allege, and the district court did not

find, denial or interference with parenting time or that the children were endangered by

their present environment. Appellant’s motion was thus barred by Minn. Stat.

§ 518.18(a).3 That the district court reached the same result using different reasoning is

not grounds for reversal. See Katz, 408 N.W.2d at 839. The district court’s denial of

appellant’s motion is hereby affirmed.

II.    The district court abused its discretion when it granted respondent’s motion
       to impose a locale restriction.

       Respondent’s request to impose a locale restriction preventing the children from

being moved outside of Thief River Falls is properly interpreted as a motion to modify

custody. See Goldman v. Greenwood, 748 N.W.2d 279, 283 (Minn. 2008) (reasoning

that modifying a locale restriction falls “within the ambit” of the custody modification

statute); Schisel, 762 N.W.2d at 269 (granting district courts the authority to impose in-

state locale restrictions after analyzing section 518.17, subdivision 3, which governs

custody orders). Appellate review of custody determinations is governed by the abuse of

discretion standard. Pikula, 374 N.W.2d at 710. A district court abuses its discretion if



3
  Because appellant’s motion is barred on timeliness limitations, we make no comment as
to its merits.

                                             9
its findings are unsupported by the record or if it misapplies the law. Dahl, 765 N.W.2d

at 123.

          Because respondent’s motion asked the district court to modify custody, it is

appropriately analyzed under section 518.18. Therefore, just as was the case with

appellant’s motion above, the one-year limitation in section 518.18(a) applies. See Minn.

Stat. § 518.18(a). Because respondent’s motion was filed on August 15, 2014—within

one year of the December 26, 2013 judgment—the only way it could be granted is if the

district court “finds that there is persistent and willful denial or interference with

parenting time, or has reason to believe that the child’s present environment may

endanger the child’s physical or emotional health or impair the child’s emotional

development.” Minn. Stat. § 518.18(c). And just as was the case with appellant,

respondent made no allegation of interference with parenting time or that the children are

endangered by their current environment. Therefore, respondent’s motion to impose a

locale restriction should have been similarly denied under the time limitations of section

518.18(a). The district court’s order to the contrary, which grant respondent’s request for

a locale restriction, is hereby reversed.

          Lastly, we recognize that the time limit outlined in section 518.18(a) ended on

December 26, 2014. Now that the time limit has passed, nothing in this opinion should

be construed to limit a party from filing a new motion to impose a locale restriction or to

modify custody or parenting time. As described above, a motion to modify custody or to




                                               10
impose a locale restriction would be analyzed under section 518.18(d).4 When faced with

such a motion, a district court employs the three-step analysis outlined in Boland v.

Murtha, 800 N.W.2d 179, 183 (Minn. App. 2011).

       Affirmed in part and reversed in part.




4
  We note that in analyzing appellant’s motion, the district court stated that section
518.18(d) “requires that there be a ‘substantial change in circumstances’ for a parenting-
time modification.” (Emphasis added.) This statement is erroneous for three reasons.
First, the “substantial” language quoted by the district court does not appear anywhere in
section 518.18 and every reference to a “change” in circumstances is unaccompanied by
an adjective. See Minn. Stat. § 518.18(d)(i), (iv). Second, as explained above,
appellant’s motion was not properly classified as a motion to modify parenting time but
rather a motion to modify the children’s primary residence. Third, motions to modify
parenting time are analyzed under section 518.175, subdivision 5.

                                            11
CHUTICH, Judge (concurring)

       I agree with the majority that Jason Starren’s motion to impose a locale restriction

is properly interpreted as a motion to modify a custody order under section 518.18(d),

and that the district court abused its discretion when it granted this motion. I believe that

the majority erred, however, in also analyzing Jaime Starren’s motion to modify

parenting time under this same section, which employs a heightened standard for a

custody order modification, instead of applying the less stringent best-interests analysis

available under section 518.175, subd. 5.

       Notably, neither party argued that the heightened standard of section 518.18(d)

applied to this motion to modify parenting time. To find that the requested modification

impermissibly changed “the child’s primary residence” under section 518.175, subd. 5,

the majority essentially imposed a de facto locale restriction of Thief River Falls that, all

parties agree, did not exist in the original decree.

       Moreover, the meaning of “primary residence,” considering the use of “residence”

in sections 518.175, subd. 5, 518.18(d), 518.17, subd. 3(a)(2), and 518.003, does not

seem to have been definitively resolved by caselaw to date. See Goldman v. Greenwood,

748 N.W.2d 279, 282–84 (Minn. 2008) (discussing the applicability of section 518.18(d)

to a motion to remove a pre-existing locale restriction from a custody order); Suleski v.

Rupe, 855 N.W.2d 330, 334–36 (Minn. App. 2014) (defining “primary residence” as the

“principal dwelling or place where the child lives” but declining to apply section 518.18

to a district court order modifying parenting time after a mother with sole physical

custody moved); Schisel v. Schisel, 762 N.W.2d 265, 269–70 (Minn. App. 2009)


                                             CS-1
(interpreting the phrase “physical custody and residence” under section 518.17, subd.

3(a)(2) to hold that a district court may restrict the in-state residence of a minor child

upon a showing that the restriction is necessary to serve the child’s best interests). See

also Skelly Oil Co. v. Comm’r of Taxation, 269 Minn. 351, 371, 131 N.W.2d 632, 645

(1964) (stating that “the language used in an opinion must be read in the light of the

issues presented” (quotation omitted)); Chapman v. Dorsey, 230 Minn. 279, 288, 41

N.W.2d 438, 443 (1950) (stating that supreme court decisions implicating an issue that

was not raised and addressed are not precedential authority regarding that issue).

       Finally, it seems incongruous to interpret the relevant statutes in such a way that

the heightened standard for modification of a custody order would apply to assess a

motion to modify parenting time when a parent with sole physical custody is moving

within Minnesota while a less stringent best-interests analysis governs the request of a

parent with whom the child resides to move the child to another state. See Minn.

Stat. § 518.175, subd. 3(b) (providing eight best-interests factors for analysis of a parent’s

request to move a child’s residence to another state).             Accordingly, under the

circumstances of this case, I believe that the best-interests analysis available under

518.175, subd. 5 applies to the motion to modify parenting time.

       Here, the district court actually applied a best-interests analysis under section

518.175, subd. 5, among several other analyses, and found that the proposed modification

of parenting time would not serve the best interests of the children. Given the broad

discretion that must be accorded a district court in determining parenting time, I would

affirm this decision and therefore concur in the result reached by the majority.


                                            CS-2
