 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Serino v. Serino6/27/2000
David Francis Serino appeals from a judgment dissolving his marriage to respondent Sherri Marie Serino and the denial of his motion for amended findings or a new trial. He challenges a number of the trial court's decisions, including its (1) grant of sole physical custody of the parties' son to respondent instead of jointly to both parties; (2) setting of his child support obligation; (3) characterization of the appreciation of his non-marital 401(k) plan as marital property; and (4) award to respondent of a 401(k) interest in certain property purchased in Afton during the marriage.
Because the trial court improperly concluded that the parties had agreed to a set amount of child support , we reverse and remand for recalculation of that obligation. Because the trial court erred by identifying the appreciation of appellant's 401(k) as marital property, we reverse that determination. With respect to the other issues, we affirm because the trial court did not abuse its discretion or otherwise misapply the law.
DECISION
1. Trial courts have broad discretion to determine custody of the parties' children. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). This court 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. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). When determining whether joint physical custody is in a child's best interests, the trial court must consider whether the parties have the ability to cooperate. Minn. Stat. ยง 518.17, subd. 2(a) (1998).
In this case, the trial court found that the parties did not have the ability to cooperate and awarded respondent sole physical custody. The evidence supports the court's decision. Although the parties have been able to follow the established parenting plan, the court services officer reported that the parties continue to require the assistance of a neutral third party. In addition, respondent testified that she often acquiesces to appellant's demands, but that she rarely interferes with appellant's parenting decisions. She further testified that, although she has made compromises on the visitation schedule, appellant is not willing to do so. Her testimony is confirmed by other evidence in the record and is not effectively refuted by appellant. Under these circumstances, we cannot conclude that the trial court abused its discretion by awarding respondent sole physical custody and in continuing the current liberal visitation schedule.
2. The trial court refused to amend its decision to set appellant's child support obligation at $650 per month, which represents a downward deviation, and found that the parties had agreed to that amount. Appellant claims that no agreement existed between the parties and argues that the court should have deviated even further downward; respondent admits that there was no agreement.
Because the evidence fails to establish any agreement on the part of the parties on the amount of child support , the trial court's findings on this issue are clearly erroneous and must be reversed. See Rutten, 347 N.W.2d at 50-51 (Minn. 1984) (appellate court will reverse child support decision only if clearly erroneous). On remand, the trial court is directed either to apply the child support guidelines or, if appropriate, to calculate child support according to recent case law from this court. See Rumney v. Rumney, N.W.2d ___, (Minn. App. June 6, 2000) (where parents do not share joint physical custody, Hortis/Valento formula is guidelines application only when physical custody is nearly equally shared).
Appellant also raises two issues
Page 1 2 3 Minnesota Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|