                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0220

                             Jeffrey Philip Dawson, petitioner,
                                        Respondent,

                                            vs.

                                    Sara Rhea Taylor,
                                       Appellant,

                                    County of Dakota,
                                       Intervenor.

                                Filed September 15, 2014
                                        Affirmed
                                    Bjorkman, Judge


                               Dakota County District Court
                                File No. 19-F2-05-004017

Daniel T. Westerman, St. Paul, Minnesota (for respondent)

Sara Rhea Taylor, Lakeville, Minnesota (pro se appellant)

         Considered and decided by Bjorkman, Presiding Judge; Larkin, Judge; and Smith,

Judge.

                         UNPUBLISHED OPINION

BJORKMAN, Judge

         Appellant mother challenges the district court’s modification of parenting time,

arguing that the district court (1) erred by ordering a substantial modification without an
evidentiary hearing, (2) improperly excluded evidence, and (3) made numerous findings

not supported by the record. We affirm.

                                           FACTS

      Appellant Sara Taylor is the mother of S.D., born February 2002. Respondent

Jeffrey Dawson was adjudicated the father of S.D. in early 2005. Pursuant to the parties’

stipulation, the district court awarded the parties joint legal custody and mother sole

physical custody, with the following parenting-time schedule:

           Mon        Tues        Wed            Thurs    Fri       Sat        Sun

Week 1     Mother     Mother      Father         Mother   Father    Father     Mother

Week 2     Mother     Mother      Father         Father   Mother    Mother     Mother

Week 3     Mother     Mother      Father         Mother   Father    Father     Mother

Week 4     Mother     Mother      Father         Father   Mother    Mother     Mother


      On May 31, 2013, mother moved to modify this schedule. She initially requested

a school-year schedule in which she would have S.D. every Sunday through Thursday

overnight, and father would have S.D. two weekends in a row, then mother would have

her two weekends in a row. In response, father requested a year-round 5-2-2-5 schedule,

in which S.D. would spend Mondays and Tuesdays with mother, Wednesdays and

Thursdays with father, and the parties would alternate weekends (Friday through Sunday

overnights).   Mother subsequently amended her motion, requesting a school-year

schedule in which she would have S.D. every Monday through Thursday overnight and

father would have S.D. at his home for dinner on Wednesday evenings and overnights



                                             2
every Friday and half of all Saturdays and Sundays, with the addition of Wednesday and

every other Thursday overnights for the summer. She also suggested, as an alternative,

that the parties employ the 5-2-2-5 schedule during the summers. Neither party requested

an evidentiary hearing.

       The district court issued a written order incorporating father’s proposed 5-2-2-5

schedule. Mother moved for amended findings. The district court amended multiple

findings but declined to change the parenting-time schedule. Mother appeals.

                                     DECISION

       The district court has broad discretion in deciding parenting-time questions based

on the best interests of the child and will not be reversed absent an abuse of discretion.

Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995). “A district court abuses [its]

discretion by making findings unsupported by the evidence or improperly applying the

law.” Hagen v. Schirmers, 783 N.W.2d 212, 215 (Minn. App. 2010) (citing Pikula v.

Pikula, 374 N.W.2d 705, 710 (Minn. 1985)).

I.     The district court did not err by modifying parenting time without an
       evidentiary hearing.

       A district court may not “restrict” parenting time unless it finds, after a hearing,

that: “(1) parenting time is likely to endanger the child’s physical or emotional health or

impair the child’s emotional development; or (2) the parent has chronically and

unreasonably failed to comply with court-ordered parenting time.”             Minn. Stat.

§ 518.175, subd. 5 (2012).     But a reduction of parenting time is not necessarily a

restriction of parenting time. Anderson v. Archer, 510 N.W.2d 1, 4 (Minn. App. 1993).



                                            3
Insubstantial modifications or adjustments of parenting time do not require an evidentiary

hearing. Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001), review denied

(Minn. Oct. 24, 2001). We review de novo whether a change in parenting time amounts

to a restriction. Dahl v. Dahl, 765 N.W.2d 118, 123 (Minn. App. 2009). In doing so, we

consider the reasons for the change and the amount of the reduction. Id. at 124.

       The original order provided mother 64% parenting time and father 36% parenting

time, with a mid-week move every Wednesday and every other Thursday. Both parties

requested modification, but neither sought an evidentiary hearing or alleged either of the

conditions (child endangerment or chronic noncompliance with a parenting-time order)

that would justify restricting parenting time following a hearing. And while the parties

did not agree on all of the reasons for modification, they both asserted that a new

schedule should afford S.D. consistency and predictability. Mother sought to meet these

goals by eliminating father’s mid-week overnights, while father suggested an equalized

schedule that provided S.D. with more regular, longer stretches of time with each parent

but eliminated one of mother’s weekly overnights. The district court’s 5-2-2-5 parenting-

time schedule promotes consistency and predictability. It reduces mother’s parenting

time from 64% to 50%, but it does so by shifting only one overnight per week from

mother to father. And it provides both parents regular contact with S.D., with neither

parent being regularly separated from S.D. for more than five days. On this record, we

conclude that the reduction in mother’s parenting time is not a restriction and the district

court did not abuse its discretion by modifying parenting time without an evidentiary

hearing.


                                             4
II.    The district court did not abuse its discretion by excluding mediation
       evidence.

       We review a district court’s evidentiary rulings for abuse of discretion. Braith,

632 N.W.2d at 721. Evidence of conduct or statements made in settlement negotiations

is inadmissible to prove liability for, invalidity of, or value of a claim. Minn. R. Evid.

408. Such evidence may be admissible “for another purpose, such as proving bias or

prejudice of a witness, negativing a contention of undue delay, or proving an effort to

obstruct a criminal investigation or prosecution.” Id. But even evidence offered for a

proper purpose may be excluded if it is cumulative. Minn. R. Evid. 403.

       In support of her modification motion, mother submitted e-mails between the

parties and a mediator, text messages between the parties, and her affidavit testimony that

father agreed to, and later reneged on, a parenting-time schedule. The district court

excluded this evidence as “related to settlement attempts by the parties with a mediator.”

       Mother does not challenge the exclusion of the e-mails but argues that the district

court should have accepted her sworn statements and the text messages as evidence that

father acknowledges he contributed to S.D.’s academic problems and evidence of the

parties’ “difficulties in communication.” We discern no prejudicial error.

       The parties presented other evidence regarding S.D.’s academic standing,

including an e-mail from S.D.’s teacher to father and both parties’ testimony about S.D.’s

homework habits and academic progress. And the district court heard and expressly

credited mother’s testimony that the parties have difficulty communicating. The court

addressed that concern in its order by (1) establishing a parenting schedule that requires



                                             5
only “limited” direct communication between the parties; (2) requiring the parties to limit

their communication and avoid the use of disparaging language in the presence of the

child; and (3) authorizing the parties to use an online communication tool. On this

record, we conclude the district court did not abuse its discretion by excluding mother’s

statements and the text messages because they are cumulative.

III.   The district court did not commit prejudicial clear error in its factual
       findings.

       We defer to the district court’s factual findings and will overturn them only if they

are clearly erroneous. Ludwigson v. Ludwigson, 642 N.W.2d 441, 446 (Minn. App.

2002); see also Minn. R. Civ. P. 52.01 (stating that findings of fact shall not be set aside

unless “clearly erroneous”). Findings are clearly erroneous when, viewing the record in

the light most favorable to those findings, we are left with the “definite and firm

conviction that a mistake was made.” Vangsness v. Vangsness, 607 N.W.2d 468, 474

(Minn. App. 2000).      Flawed findings warrant reversal only if the error impairs the

parties’ substantial rights. See Minn. R. Civ. P. 61 (providing that this court “must

disregard any error” that “does not affect the substantial rights of the parties”).

       Mother argues that several of the district court’s findings lack support in the

record. We address each challenged finding in turn.

       Mother’s requested parenting-time schedule

       Mother argues that the district court clearly erred in finding that she “initially

requested” a school-year schedule in which she would have S.D. every Sunday through

Thursday, and in calculating the percentage of parenting time she requested.



                                              6
         In her initial motion, mother requested “Sunday through Thursday overnights”

(plus half of Friday and Saturday overnights), except for summer months when S.D.

would have three Sunday overnights per month with father.           As the district court

generously characterized it,1 this schedule afforded father only 21% parenting time

during the school year, no mid-week contact, and sometimes resulted in periods of 18

days with no contact between father and S.D.

         Mother’s amended motion requested “Mon-Thur at moms during school year,”

with Wednesday and every other Thursday overnight with father during the summer.

This schedule would afford father 29% parenting time2 during the 40 weeks of the school

year and 40% parenting time3 for the 12 weeks of the summer, for just over 31%

parenting time per year.      As an alternative, mother requested the Monday through

Thursday schedule during the school year and father’s proposed 5-2-2-5 schedule during

the summer. This schedule would give father approximately 33% parenting time per

year, but would limit father to 29% parenting time during the school year. The district

court clearly erred by finding that mother’s amended motion proposed a schedule that

would afford father only 28% parenting time per year.

         However, the error does not warrant reversal. See Minn. R. Civ. P. 61. First, 28%

is very close to father’s actual school-year parenting time (29%) mother requested in her

1
  To arrive at the 21% figure, the district court credited father with an overnight on the
three days when S.D. would be with him until only 5:00 p.m., for 9 overnights in a 42-
day cycle. With only 6 overnights, father would have only 14% parenting time.
2
    Twelve overnights in a 42-day cycle.
3
    Seventeen overnights in a 42-day cycle.

                                              7
amended motion. See Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985)

(declining to remand for an actual but de minimus error in child support). Second, and

more importantly, the error does not affect the parties’ substantial rights. The record

amply supports the district court’s ultimate finding that father’s proposed 5-2-2-5 year-

round schedule “would provide the consistency which [mother] is seeking” without

further increasing the disparity between the parties in amount and quality of parenting

time. Accordingly, we conclude that the mathematical error in the finding regarding

mother’s parenting-time request does not invalidate the district court’s determination that

father’s parenting-time request better supports S.D.’s best interests and both parents’

relationships with her.

       S.D.’s difficulties in school

       Mother urged the district court to order her requested parenting-time schedule

based, in part, on S.D.’s difficulties in school, which mother attributed to father being lax

about S.D.’s homework. The district court rejected this argument, citing an e-mail from

S.D.’s teacher to father stating that S.D. was “not having difficulties in school” and had

not exhibited a change in performance when she was with either parent. Mother argues

that the district court erred by giving more weight to the teacher’s e-mail than statements

from both parties that S.D. has struggled academically.

       Determining the appropriate weight to give to evidence is the province of the

district court; we will not reweigh the evidence. Sefkow v. Sefkow, 427 N.W.2d 203, 210

(Minn. 1988). Moreover, the district court did not affirmatively find that S.D. has not

struggled academically, as mother asserts. Rather, it found that S.D.’s “alleged academic


                                             8
and school-related issues do not provide a basis to restrict [father]’s time with [her] so

severely during the school year.”       The teacher’s statement that S.D.’s academic

performance was not affected by her time with father supports that finding, as does

mother’s acknowledgement that she “do[es] not blame [S.D.]’s academic problems on

her dad because I know that school will be a challenge for [her] no matter what.” The

district court did not clearly err in finding that academic concerns do not warrant

adoption of mother’s proposed parenting-time schedule.

      Impact of mother’s work schedule

      Mother next challenges the district court’s findings about the impact of her work

schedule on parenting time. The record indicates that mother previously worked night

shifts during the week but her schedule changed so she needed to work only one night

shift every third weekend.    Essentially, mother argues it is improper to give father

parenting time when she is available to parent and to assign her parenting time on

weekends when there is a possibility that she will have to work. We are not persuaded.

The district court acknowledged mother’s new work schedule and found that it warranted

a modification of parenting time.      But the court found that the most important

considerations are providing S.D. a consistent schedule and substantial time with both

parents, which the new parenting-time schedule promotes. That finding is not clearly

erroneous and supports the district court’s denial of mother’s request to limit father’s

parenting time to those times when she is unavailable.




                                            9
       S.D.’s preferences

       Mother takes issue with the district court’s finding that S.D.’s preferences as to

parenting time are not known. In its original order, the district court found that S.D.’s

“preferences . . . with respect to a modification of parenting time are not known as she

did not testify.” Mother did not challenge this finding, but the district court amended it to

remove reference to the absence of testimony from S.D.            The amended finding is

supported by the record; apart from the parties’ numerous statements about S.D.’s

preferences,4 there is no direct, reliable evidence of them.

       Agreement that modification is warranted

       Mother argues that the district court improperly relied on the parties’ agreement

that modification is warranted because they did not agree as to how parenting-time

should be modified, as required under Minn. Stat. § 518.1705, subd. 9 (2012). We

disagree. The district court did not construe the parties’ agreement as to the need for a

modification as an agreement to modify their 2005 parenting plan or otherwise apply

Minn. Stat. § 518.1705 (2012). Rather, the district court cited the parties’ agreement as

part of the reason why an evidentiary hearing was unnecessary under Minn. Stat.

§ 518.175, subd. 5. As we discussed above, that determination was well within its

discretion.




4
  For example, mother’s affidavit states “[S.D.] has expressed to me that she would prefer
to be at mom’s on school nights and spend more time at dad’s in the summer.”

                                             10
       The parties’ relationship with and history of caring for S.D.

       Mother asserts that the evidence does not support the district courts’ findings that

both parties have played an active role in caring for S.D., have spent substantial time with

her, and have a close relationship with her. Not only did mother fail to challenge these

findings in her request for amended findings, but she endorsed a finding that “[b]oth

parties have a close relationship to the minor child.” And both parties’ affidavits discuss

their relationship with S.D. The district court’s findings are not clearly erroneous.

       Parental mental or physical health issues

       Mother next takes aim at the district court’s finding that neither parent has mental

or physical health issues, asserting that father has particular issues “that have been

investigated.” She did not challenge this finding in her motion for amended findings.

Nor would such a challenge have been particularly fruitful, since the district court’s

finding is tantamount to an accurate finding that there is no evidence that either parent

has mental or physical health issues. And because neither party claimed health issues as

a basis for modifying parenting time, the finding could be omitted without impairing the

district court’s decision. See Minn. R. Civ. P. 61.

       Harassment restraining order

       Finally, mother challenges the district court’s finding that a harassment restraining

order (HRO) she obtained against father was based on conflict between the parties related

to mother’s attempts to change the parenting-time schedule to accommodate her work

schedule. She asserts that the HRO was principally based on father’s history of verbally

abusing her. But the HRO expired before the order that is the subject of this appeal, and


                                             11
mother has never pointed to father’s alleged behavior to reduce his parenting time. If

anything, the district court agreed with mother that the HRO reflects communication

difficulties between the parties, which it addressed in its order.

       Affirmed.




                                              12
