                          This opinion will be unpublished and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
                                     A16-0136

                                  In re the Marriage of:
                               Kylie Jo McCuen, petitioner,
                                        Appellant,

                                            vs.

                                 Joshua William McCuen,
                                       Respondent.

                                Filed November 21, 2016
                                        Affirmed
                                    Bjorkman, Judge


                               Nobles County District Court
                                 File No. 53-FA-14-210

William J. Wetering, Hedeen, Hughes & Wetering, Worthington, Minnesota (for
appellant)

Aaron M. Kinser, Ahlquist & Wiltrout, LLP, Worthington, Minnesota (for respondent)

       Considered and decided by Kirk, Presiding Judge; Schellhas, Judge; and

Bjorkman, Judge.

                         UNPUBLISHED OPINION

BJORKMAN, Judge

       Appellant-mother challenges an order modifying parenting time. Because the

district court did not abuse its discretion in modifying parenting time, we affirm.
                                            FACTS

         Appellant-mother Kylie Jo McCuen and respondent-father Joshua William

McCuen were married in September 2007. They have three children, born February

2009, December 2010, and August 2012. In 2014, the marriage was dissolved pursuant

to a marital termination agreement. The parties stipulated that they would share legal

custody of the children, mother would have sole physical custody, and father would have

parenting time on days he was not working. Father was subsequently promoted at work,

as a result of which he works fewer days.

         In September 2015, father moved to modify parenting time to reflect his new work

schedule. The proposed schedule increased father’s parenting time from approximately

33% to approximately 47%. Mother opposed the motion, arguing that father was, in

effect, seeking to modify custody. Mother also alleged father had not exercised his

existing parenting time and she questioned his parenting ability.1 The district court

concluded that father’s proposed parenting-time schedule would not change physical

custody or the children’s primary residence. Accordingly, the district court applied the

parenting-time modification statute, Minn. Stat. § 518.175 (2014). The district court

considered the twelve best-interests factors set out in Minn. Stat. § 518.17, subd. 1 (Supp.

2015), concluding that eight factors were neutral and four favored father’s motion.

Specifically, it found the “willingness and ability of each parent to provide ongoing care”

for the children, to meet their needs, and to maintain consistency; the effect on the

children’s ongoing familial relationships; the “benefit in maximizing parenting time with

1
    The district court considered 15 affidavits regarding parenting ability.

                                                2
both parents” without limiting either parent’s parenting time; and the potential reduction

in animosity between the parties weighed in favor of father’s proposed parenting-time

schedule.

       In addition to awarding father more parenting time to reflect his new work

schedule, the district court’s order corrects clerical errors in the original parenting-time

schedule and modifies holiday and vacation time to better accommodate both parties’

schedules. Mother appeals, only challenging the modifications based on father’s new

work schedule.

                                     DECISION

              The district court has broad discretion in determining
              parenting-time issues and will not be reversed absent an abuse
              of that discretion. A district court abuses its discretion if its
              findings are unsupported by the record or if it misapplies the
              law. A district court’s findings of fact underlying a parenting-
              time decision will be upheld unless they are clearly erroneous.

Dahl v. Dahl, 765 N.W.2d 118, 123 (Minn. App. 2009) (citations omitted). Mother

argues that (1) the district court applied the wrong legal standard because the amended

parenting-time schedule modifies physical custody and changes the children’s primary

residence and (2) certain of the district court’s findings of fact lack record support. We

address each argument in turn.

I.     The district court applied the proper legal standard.

       Mother contends the district court erred by failing to apply Minn. Stat. § 518.18

(2014). This statute, entitled “Modification of Order,” governs modification of custody

orders and the primary-residence provisions of parenting plans.            It only permits



                                             3
modification in limited circumstances, such as unwarranted interference with an existing

parenting plan, prior agreement of the parties to apply the best-interests standard in a

court-approved writing, agreement of the parties, child endangerment, and relocation by

the custodial parent in violation of a court order. Minn. Stat. § 518.18(d).

       Minn. Stat. § 518.175, entitled “Parenting Time,” provides that a parenting-time

order may be modified so long as the change “would serve the best interests of the child”

and would not change the child’s primary residence. Minn. Stat. § 518.175, subd. 5(a).

But the statute does not permit a district court to restrict parenting time unless the child

would be endangered or the parent subject to the reduction has “chronically and

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

§ 518.175, subd. 5(b). A modification that increases a party’s parenting time to between

45.1% and 54.9% does not restrict the other party’s parenting time. Id.

       Mother acknowledges that the increase in father’s parenting time to 47% does not

constitute a restriction on mother’s time.2 She also concedes that the issue “is not a math

problem,” but she argues that the order effectively awards father joint physical custody.

We disagree. This court rejected a similar argument in Geiger v. Geiger, where we

concluded that parenting time of nearly 50% did not give a father “de facto” joint

physical custody. 470 N.W.2d 704, 706 (Minn. App. 1991), review denied (Minn. Aug.


2
  Mother also contends the district court should have held an evidentiary hearing. The
district court must conduct such a hearing only if there is a substantial modification or
adjustment of parenting time, which “depends on whether parenting time was restricted.”
Matson v. Matson, 638 N.W.2d 462, 468 (Minn. App. 2002). Because the modification
to 47% parenting time in this matter is not a restriction, the change does not require an
evidentiary hearing.

                                             4
1, 1991). And in the context of distinguishing between joint and sole physical custody,

we are guided by the designation of the court or parties’ stipulation rather than the

amount of time each party actually spends with the child. See, e.g., Frauenshuh v. Giese,

599 N.W.2d 153, 156-57 (Minn. 1999) (following the parties’ stipulation and rejecting an

argument based on time spent with the child); Nolte v. Mehrens, 648 N.W.2d 727, 730

(Minn. App. 2002) (noting that “the label the parties place on their stipulated custodial

arrangement is binding”). In short, simply comparing the percentages of time spent with

each parent is not dispositive of the child’s custody status or primary residence.

       More recently, this court confirmed that we will not “infer [a] modification or

change” “absent an agreement by the parties or an indication by the district court that it

intended to modify physical custody or change the child’s primary residence.” Suleski v.

Rupe, 855 N.W.2d 330, 335-36 (Minn. App. 2014). In Suleski, the district court modified

the parenting-time schedule to increase Rupe’s parenting time in the summer months

from two nights and every other weekend to all weekdays. Id. at 333-34. Suleski

contended that this effectively changed the child’s primary residence in the summer, and

that the district court erred in doing so without conducting an evidentiary hearing and

following the procedures set out in Minn. Stat. § 518.18(d). Id. at 334-35. We rejected

these arguments for two reasons. First, we observed that the challenged order does not,

by its terms, modify custody or the child’s primary residence (defined as “the principal

dwelling or place where the child lives”). Id. at 335. Second, we determined that even

though Rupe’s parenting time had increased, Suleski retained the majority of the

parenting time over the course of a year. Id.


                                                5
       As in Suleski, father did not request and the district court did not order a change in

physical custody or the children’s primary residence. While the amended parenting-time

schedule significantly increases father’s parenting time, it is undisputed that mother

retains the majority—53%—of the parenting time. Because we conclude the district

court did not err by applying the more liberal parenting-time modification statute, we turn

our analysis to the court’s factual determinations.

II.    The district court’s findings of fact are not clearly erroneous.

       We will affirm the findings of fact underlying a district court’s parenting-time

decision unless they are clearly erroneous. Dahl, 765 N.W.2d at 123. We defer to a

district court’s determinations of credibility, Vangsness v. Vangsness, 607 N.W.2d 468,

472 (Minn. App. 2000), and “do not disturb ‘findings of fact based on conflicting

evidence . . . unless [the findings are] manifestly and palpably contrary to the evidence as

a whole.’” In re S.G., 828 N.W.2d 118, 127 (Minn. 2013) (quoting In re the Adoption of

C.H., 554 N.W.2d 737, 743 (Minn. 1996)).

       Mother argues that the district court clearly erred in finding that “the statutory

factor regarding the history and nature of each parent’s participation in providing care for

the children” is neutral. And she generally asserts that a number of the district court’s

twelve best-interests findings are conclusory because they are prefaced with the phrase

“There is nothing in the record that indicates . . . .” Mother contends that this “allowed

[father] to satisfy his burden not through affirmative evidence, but rather the absence of

evidence in the record.” We are not persuaded.




                                             6
       First, there is record evidence that supports a neutral finding regarding father’s

past participation with the children. The evidence on this point includes affidavits from

mother, mother’s mother, father, and father’s fiancé. The affidavits mother submitted

contend father was generally “inattentive and unavailable,” and did not provide care for

the children on the occasions when he refused to exercise his parenting time. In contrast,

father’s affidavits assert that he exercised parenting time whenever mother would allow it

and that he “has always been a loving, caring and involved father.” Mother specifically

argues that father did not exercise his existing parenting time because he did not have the

children overnight until “nearly 2015.” This argument ignores the undisputed fact that

the parties stipulated mother would remain in the family home and father could not

exercise overnight parenting time until he obtained “adequate housing.” The district

court weighed the affidavits of both parties before finding that father “has not refused

parenting time or failed to exercise parenting time since the parties divorced.” “We defer

to the district court’s credibility determinations as to conflicting affidavits.” Knapp v.

Knapp, 883 N.W.2d 833, 837 (Minn. App. 2016). On this record, we discern no clear

error in the district court’s finding regarding father’s past parenting.

       Second, mother’s general contention that eight of the district court’s best-interests

findings are inadequate has no support in the law or the record. A district court is not

required to make express best-interests findings when modifying parenting time.

Newstrand v. Arend, 869 N.W.2d 681, 691 (Minn. App. 2015) (stating that Minn. Stat.

§ 518.175, subd. 1 does not require findings on best-interests factors), review denied

(Minn. Dec. 15, 2015).       Rather, “[t]he parenting-time statute requires only that the


                                               7
[district] court ‘grant such parenting time . . . as will enable the child and the parent to

maintain a child to parent relationship that will be in the best interests of the child.’” Id.

(quoting Minn. Stat. § 518.175, subd.1(a)). Though not required to do so, the district

court considered each of the statutory best-interests factors in great detail to reach the

conclusion that father’s proposed amended parenting-time schedule would be in the

children’s best interests. Mother cites no legal authority for the proposition that a best-

interests finding is inadequate simply because it notes, in part, the absence of particular

evidence. As a practical matter, such a rule would not make sense. For example, the lack

of evidence that either parent would endanger a child should not weigh against a motion

to modify parenting time on other grounds.

       Because the district court applied the appropriate legal standard, and made

supported findings that father’s proposed modification would promote the children’s best

interests, we conclude that the district court did not abuse its discretion in modifying

parenting time.

       Affirmed.




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