IN MATTER OF THE CHILD OF J.A.F

UNPUBLISHED OPINION

GORDON W. SHUMAKER, Judge

Appellant father argues that the district court erred in granting respondent grandparents joint physical custody of his child. Appellant father also disputes the district court's child support order, as well as its denial of his request that grandparents pay his attorney fees. We affirm in part, reverse in part, and remand.

FACTS

Unmarried respondent Jacinta Forsman gave birth to A.M. on October 30, 1989. The district court adjudged appellant James Roush to be A.M.'s father in October 1991, awarded sole legal and physical custody of A.M. to Forsman, and granted Roush visitation rights. Roush began visiting A.M. soon after the paternity adjudication.

After she pleaded guilty to a misdemeanor charge of malicious punishment of a child, Forsman voluntarily placed A.M. in the custody of her parents, intervenors Dallas and Judy Forsman. The intervenors returned A.M. to Forsman in March 1993, and in April 1993, Forsman moved with A.M. and her other children from Cannon Falls to Red Wing. Forsman did not tell Roush of the move and Roush lost contact with A.M. until October 1995, when he learned of her whereabouts. He then resumed consistent visitation with A.M.

In August 1999, Goodhue County filed a CHIPS petition and the district court ordered placement of A.M. with Goodhue County Social Services. That agency in turn placed A.M. with Dallas and Judy Forsman.

Roush then moved for modification of A.M.'s custody, seeking both legal and physical custody. Dallas and Judy Forsman moved to intervene and for an award of A.M.'s legal and physical custody to them. The district court granted temporary custody of A.M. to Roush and granted Dallas and Judy Forsman permission to intervene in the matter. The court limited the intervenors' role to presenting evidence on the issues of Roush's fitness for custody and whether a change of custody to Roush would endanger A.M.'s health or welfare. The court also ordered that Dallas and Judy Forsman be permitted to seek custody of A.M. only if neither Jacinta Forsman nor James Roush was found to be fit to have physical custody.

After an evidentiary hearing before a different judge, the court found Roush to be fit for custody of A.M. but granted joint physical custody of A.M. to Roush and Dallas and Judy Forsman, and sole legal custody to Roush. The court also ordered Roush and Jacinta Forsman each to pay to Dallas and Judy Forsman 50% of A.M.'s child support.

Roush moved for amended findings and conclusions or, in the alternative, a new hearing. Dallas and Judy Forsman opposed the motion and moved to dismiss it for untimeliness. The district court denied both motions. Roush appeals, and the intervenors seek review of the denial of their motion to dismiss.

DECISION 1. Modification of Custody

In response to the intervenors' motion to intervene, the district court ordered an evidentiary hearing and provided that

[the evidentiary hearing] shall deal only with custody as between the natural parents of the child. If at that hearing, it is found that neither parent is fit under Minnesota law to have physical custody of the minor child, the intervenors shall have the right to seek custody of the child * * * .

When the intervenors requested a modification of that order, the district court issued a clarification:

The intervenors shall be permitted to participate in the evidentiary hearing ordered in Paragraph 3 of the December 28, 1999 order in so far as it relates to whether [appellant] is a fit parent or whether the child's health or welfare would be endangered if custody is modified and [appellant] becomes the custodial parent.

Roush argues that the judge who conducted the evidentiary hearing erred by ignoring the two prior orders regarding the intervenors' limited role in the proceedings. This court also has a limited role in reviewing custody modification cases, and we will not reverse a custody determination unless the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. Frauenshuh v. Giese, 599 N.W.2d 153, 156 (Minn. 1999).

After the evidentiary hearing, the district court found that Roush had met his burden of showing that continued custody with Jacinta Forsman would physically and emotionally endanger A.M. and would impair A.M.'s emotional development. Then, despite the two prior orders limiting the intervenors' role to that of testing the fitness of Roush and Jacinta Forsman, the court concluded that it would be in A.M.'s best interests if Roush and the intevenors shared A.M.'s physical custody. The court relied on Wallin v. Wallin, 290 Minn. 261, 187 N.W.2d 627 (1971), and other cases dealing with circumstances under which custody of a child may be granted to a third party rather than a natural parent.

It is settled in Minnesota that

a [parent] is entitled to the custody of [his or her] children unless it clearly appears that [he or she] is unfit or has abandoned [his or her] right to custody, or unless there are some extraordinary circumstances which would require that [he or she] be deprived of custody.

Id. at 264, 187 N.W.2d at 629. A broader exception to the natural-parent preference is triggered when "it has been established that such custody otherwise would not be in the best welfare and interest of the child." Durkin v. Hinich, 442 N.W.2d 148, 153 (Minn. 1989) (quoting Wallin, 290 Minn. at 266, 187 N.W.2d at 630). However, even considering the "guiding principle" of the best interests of the child, it is the "indisputable reality that in order to deprive a parent of custody, grave reasons must be shown" before placement may be made with a third party. Mize v. Kendall, 621 N.W.2d 804, 808 (Minn.App. 2001) (citations omitted), review denied (Minn. Mar. 27, 2001). Here, the district court found that Roush "appears to have been somewhat apathetic about his parenting relationship * * *," and the court discussed instances in which Roush may have inappropriately parented, such as taking A.M. to a scary movie before learning the contents of the movie, and the period of time during which Roush lost contact of A.M. However, the district court also discussed instances in which the intervenors' parenting may have been inappropriate, such as allowing Jacinta Forsman to have "de facto" custody of A.M. when they, rather than the courts, determine that she is fit to parent; informing the child of the intimate details of the custody proceedings; and bringing her to the evidentiary hearing.

The district court also mentions an instance in which Roush took A.M. on a motorcycle ride, but it is questionable as to whether this would constitute inappropriate conduct. The intervenors (and the court) classify the ride as a "bar hopping" motorcycle event. Roush argued that A.M. wore a helmet the entire time he rode with her, and that he stayed with her the entire ride and never entered any bars. The intervenors produced no evidence, nor did they make any arguments, that Roush engaged in any unsafe activity with A.M.

In view of the entire record, there is no evidence that would give rise to "grave and weighty reasons" prompting us to find that granting sole custody to Roush is improper. Furthermore, whether it is objectively in the "best interests and welfare" of A.M. to be placed with the intervenors was not fully considered in this case, because there was no investigation made of the intervenors respecting their suitability for custody.

Finally, Roush was not given notice and an opportunity to prepare to litigate the issue of the intervenors' fitness for custody. Because of the two orders that existed as the evidentiary hearing began, he was entitled to rely on the belief that he would be required to litigate only the issues of his own fitness and that of Jacinta Forsman.

Because the record does not support an award of joint physical custody of A.M. to Dallas and Judy Forsman, we reverse that determination. Our decision does not preclude the intervenors from moving for visitation with A.M.

2. Child Support

Child support is "an award * * * for the care, support and education of any child * * * of the parties to the proceeding[.]" Minn. Stat. § 518.54, subd. 4(1) (2000). Because we have granted appellant sole legal and physical custody of A.M., grandparents are no longer entitled to child support payments. Thus, we reverse the district court's order mandating appellant, as well as respondent mother, to pay child support to grandparents. We remand this case to the district court for a readjustment of respondent mother's child support obligation to appellant.

3. Attorney Fees

Appellant argues that the district court erred in failing to award attorney fees in this matter. Awards of attorney fees and costs are discretionary with the district court, Whalen v. Whalen, 594 N.W.2d 277, 281-282 (Minn.App. 1999), and an abuse of discretion standard is applied to the district court's decision on sanctions. Cole v. Star Tribune, 581 N.W.2d 364, 370 (Minn.App. 1998).

A district court may award attorney fees under Minn. Stat. § 549.211 (2000); however, specific procedures must first be followed. The party must first file "[a] motion for sanctions under this section * * * separately from other motions or requests and describe the specific conduct alleged to violate subdivision 2." Minn. Stat. § 549.211, subd. 4. In this instance, appellant moved for attorney fees under this statute in his motion for amended findings, or a new trial. There is no separate motion anywhere in the record for an award of attorney fees in accordance with Minn. Stat. § 549.211. Thus, appellant did not follow the proper procedure required for an award of attorney fees under this statute. Issues not properly raised and addressed below are not reviewable on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988), and the district court did not err in failing to award attorney fees. However, it should also be noted that the district court never entered an order specifically addressing this issue, so there has been no final order regarding the issue of attorney fees. On remand the court may, in its discretion, allow appellant to file the appropriate motion.

4. Timeliness of motion for amended findings/new trial

Respondent argues that the district court lacked jurisdiction to consider appellant's motion for amended findings or a new trial because it was untimely under Minn.R.Civ.P. 59.03; thus, appellant should pay respondent the attorney fees expended in arguing this motion. Appellant concedes that the motion was heard beyond the 30-day period; however, he argues that this was solely because of the judge's unavailability to hear the motion.

Minn.R.Civ.P. 59.03 states that the motion [for a new trial] shall be heard within 30 days after such general verdict or notice of filing, unless the time for hearing be extended by the court within the 30 day period for good cause shown.

Thus, the plain language of the statute shows that a hearing on the motion may be extended beyond the 30-day period for good cause, as long as the request for an extension is made within the 30-day period. See also U.S. Leasing Corp. v. Biba Info. Processing Serv., Inc., 489 N.W.2d 231 (Minn. 1992) (holding that a motion for JNOV or new trial was properly dismissed when no extension was sought or obtained within the 30-day time period); Woodrow v. Tobler, 269 N.W.2d 910, 914 (Minn. 1978) (finding that the unavailability of the trial judge at the time of the motion hearing constitutes "good cause" for an extension); Celis v. State Farm Mut. Auto. Ins. Co., 580 N.W.2d 64, 65 (Minn.App. 1998) (unlike the 15-day jurisdictional time limit for service and filing of the motion, the hearing date is not absolute and may be extended; however, the extension must be made within the 30-day time period).

In this case, the following conversation was had on the record:

THE COURT: I received a motion from [grandparent's counsel] here on behalf of the [grandparents]. The motion is entitled Motion to Dismiss due to Timeliness.

* * * *

[APPELLANT'S ATTORNEY]: Your honor, I just want to put some comments on the record as to the motion for untimeliness. I think that the court is aware that any motion for amended findings or motion for new trial have to be made before the presiding judge at the original trial. Your honor, in attempting to schedule this, Goodhue County informed me that you only hear cases on certain days, and so I had to fit into your schedule. They told me it was only going to be scheduled for a Wednesday, the first Wednesday —

THE COURT: Who told you that?

[APPELLANT'S ATTORNEY]: The clerk's office.

THE COURT: Okay. I am not questioning your veracity. I am just curious.

[APPELLANT'S ATTORNEY]: They told me you would only hear a motion on Wednesdays. The first Wednesday available would not have given opposing counsel the 14 days * * * necessary to respond and which are required by the rules. That is the reason why we had to schedule it for this Wednesday, which was the next available Wednesday.

* * * *

So basically, my only response is that I did not schedule the hearing date. The court scheduled the hearing date based on your schedule not mine.

In its order entered on October 27, 2000, the district court found that

* * * the motion was brought within the specified time frame, but the matter was not heard within the requisite time period due to court scheduling issues. The parties should not be punished for court administration issues.

Counsel made clear at the hearing that she tried to schedule the motion for hearing within the 30-day hearing period, but it was not possible to do so. Furthermore, the court specifically found that the hearing date was due to the court's scheduling issues. Thus, the district court retained jurisdiction to hear the motion.

In the alternative, respondent argues that appellant was required to get an order from the court extending the time period. However, the rule does not require an order. Furthermore, the court in Woodrow, 269 N.W.2d at 914, found that although a written order extending the time for hearing a new trial motion is certainly preferable to the "administrative continuance" procedure, it is not required. Thus, the hearing on the motion was timely, the court retained jurisdiction to hear respondent's motion, and the district court did not err in denying respondent's motion for attorney fees.

Affirmed in part, reversed in part, and remanded.