Okay, okay. So I’ve been procrastinating covering Suleski vs. Rupe for a few weeks now. But in my defense, I’ve been struggling with the best angle of approach, and a dearth of other cases out of the Court of Appeals has given me plenty of time. But I can delay no longer, so here it goes.
For several years now Minnesota law has permitted Courts to modify an existing parenting time schedule solely based on best-interests considerations (a relatively low bar) so long as they don’t “modify a child’s primary residence.” The catch was, nobody knew what “primary residence” meant. Was it where the child spent the majority of overnights? Was it the same as physical custody? Was it where the child was registered to attend school? No one knew. And, as I discussed in a recent article for Bench & Bar of Minnesota, this problem became even more intractable as other barriers to parenting time modifications fell away.
The facts here are fairly straight-forward. Husband and Wife divorced in 2008 and agreed to share custody of their eight-year old daughter, with Wife having sole physical custody subject to Husband’s parenting time two evenings per week and every other weekend (with more weeknight time in the summers). At the time of the divorce, both parties lived relatively close to one another. But four years later, Wife remarried and moved 75 miles away making the parenting time schedule impracticable. Wife then moved to modify Husband’s parenting time: ending his weekday parenting time during the school year and expanding to an alternating week schedule during the summers. Husband offered his own proposal under which the child would live primarily with him during the summers and primarily with Wife during the school year–with the other parent receiving parenting time every other weekend. The trial court accepted Husband’s schedule, but took the extra step of awarding Husband virtually all the holiday parenting time.
Wife appealed arguing that the trial court’s decision constituted a modification of physical custody (which had been awarded to her) a change in the child’s primary residence, and a restriction of her parenting time, all of which would have required Husband to demonstrate that their daughter was endangered in Wife’s care. See Minn. Stat. § 518.18 (regarding custody modifications) and § 518.175, subd. 5 (regarding parenting time restrictions and changes in primary residence).
Parenting Time Restrictions, Custody Modifications, and Changes in Primary Residence
Judge Hooten, writing for the Court, was unpersuaded, and affirmed the district court (with the exception of a remand for additional findings on the holiday schedule).
Lumping together Wife’s arguments on primary residence and physical custody, the Court of Appeals granted a fair bit of deference to the district court’s interpretation of its own actions (that is, what the court thought it was doing):
[T]he district court did not address [a change in custody or primary residence] or any of the considerations that would ordinarily accompany a modification of custody or a change of the child’s primary residence. The district court left father’s child support obligation intact, and made none of the findings that would be required for mother to pay child support to father—and allow father to suspend his child support payments to mother—during the summer.
[A]bsent 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 by granting father summer parenting time, we will not infer such modification or change.
Or, put another way: if the Court didn’t mean to modify custody, it probably didn’t.
But beyond this interpretive sleight of hand, the Court of Appeals offered a more full-throated rejection of Wife’s argument that the modifications of a summer schedule, by itself, was enough to constitute a change in custody (or primary residence) warranting a heightened modification standard. (See Minn. Stat. § 518.18 and Minn. Stat. § 518.175, subd. 5).
The Court concluded, that because Wife retained the majority of the parenting time “during the course of the year,” Husband could not be said to have received “sole custody” or “primary residence” for some shorter period, simply because the child spent the majority of the summer with him. In other words, changes in parenting time don’t modify custody or primary residence so long as the custodial parent retains “the majority of parenting time during the course of a year.” Even parenting time changes that give a non-custodial parent most of the parenting time for several months seem not to meet the threshold for a “true” custody or residence modification.
Wife’s argument that the change restricted her parenting time was similarly unsuccessful. (For some background on parenting time modifications versus restrictions and the different legal standards, you can read my older post on the topic here).
Citing Dahl v. Dahl, the Court of Appeals applied a two-pronged test for whether a change in parenting time is a “restriction”: 1) the reason for the change, and 2) the amount of the reduction. Wife lost on both prongs. As to the reason, the Court held that “because of the difficulties [Wife’s] move created for [Husband’s] exercise of this statutory presumptive minimum amount of parenting time [25%], the district court was well within its discretion to modify parenting time in a manner that both allowed father to maintain his relationship with his daughter and accommodate his work schedule.” See also Anderson v. Archer, 510 N.W.2d 1 (Minn. Ct. App. 1993); Brevik v. Brevik, A12-2242 (Minn. App. Oct. 7, 2013).
Oh, and on amount, the Court of Appeals found the difference amounted to about an 8 overnight swing–7% of the time–which was not significant enough to constitute a restriction.
The only point on which the Court of Appeals remanded was the district court’s award of almost all of the holidays to Husband:
Because the district court’s modification order apportions parenting time on holidays and other special days in a manner different from the generally applicable parenting schedule, it implicitly recognizes that holidays and other special days are distinct from the rest of the parenting schedule…At a minimum, a parenting schedule that grants one parent—here, [Husband]—all Thanksgiving, Christmas, and New Year’s Day holidays, as well as all spring, winter, and fall breaks from school, requires findings of fact explaining why that division of these holidays and special days is in the child’s best interests. Because those findings are missing here, we reverse the portion of the district court’s order involving holidays and other special days and remand to the district court for it to reconsider the apportionment of parenting time on those holidays and special days, and to make findings of fact explaining whatever parenting schedule it sets for those days.
Man’s Search for Meaning (or How I Learned to Stop Worrying and Just Look Things Up in the Dictionary)
So, a very practical outcome from the Court on issues which (quite literally) require a Solomonic level of discernment.
But coming full circle, what troubles me about this opinion isn’t the outcome–it’s the reasoning on an issue that is, so far, addressed no where else in Minnesota’s published case law: a definition of “primary residence.” As with other recent cases from our appellate courts, statutory interpretation seems to have become almost a mechanical exercise rather than a consideration of the interests and equities that are the life-blood of family law. Think here of Spanier v. Spanier (which I wrote about here), or the Supreme Court’s decisions State v. Nelson (here). Instead of considering the importance of ensuring stability in primary residence or engaging with the phrase’s legislative history, the Court reverts to the American Heritage Dictionary for the “common” meaning of the words:
“‘[R]esidence’ is defined in the dictionary to mean the ‘place in which one lives; a dwelling,’” citing The American Heritage Dictionary of the English Language 1535 (3d ed. 1992), and noted that “its common meaning refers to ‘place’ or ‘geography.’” The word “primary” is defined as “[f]irst or highest in rank or importance; principal.” The American Heritage Dictionary of the English Language, 1398–99 (5th ed. 2011). Based upon this common meaning and usage, a child’s “primary residence” is the principal dwelling or place where the child lives.
(For alternative approaches, see Judge Chutich’s dissent in Himley v. Himley or the Court’s comparison in Blair v. Blair of the use of the term “primary residence” in custody and parenting time modification statutes.)
While the reference library is a convenient tool for making difficult decisions appear neutral, it also provides parties (or even parents bargaining in the shadow of the law) relatively little guidance on the true meaning of the term. Most of us might have guessed that “primary residence” was roughly synonymous with “principal dwelling.” What we didn’t know (and many of us wondered), was exactly what makes one parent’s home a child’s “principal dwelling” when it isn’t specified in an existing court order. Can it be established by default (seemingly, yes)? Is it strictly related to the number of overnights and percentages of parenting time? If so, how many? Does it relate to the district in which the child attends school? What about the place the child feels more at home (a child’s psychological primary residence)? How much more time must a child spend in one parent’s home to make it the “principal dwelling?” These, and many more, are the questions to which we still have no answers.
So, for now, we’ll all keep on guessing in the hopes that, in the next case, the Court provides more insight. ‘Til then, we have the American Heritage Dictionary.