STATE OF MINNESOTA DISTRICT COURT
FOURTH JUDICIAL DISTRICT
COUNTY OF HENNEPIN FAMILY COURT DIVISION
In Re the Marriage of:
Belia Jimenez Lorente,Petitioner,
Axel Johansson,Respondent
FINDINGS OF FACT,
CONCLUSIONS OF LAW,
ORDER FOR JUDGMENT AND
JUDGMENT AND DECREE
File No. DC 218 153
The above matter was scheduled for Trial before the Honourable David
M. Duffy, Judge of Family Court, at the Hennepin County Government Center,
in the City of Minneapolis, County of Hennepin and State of Minnesota,
on February 20, 1997. Linda L. Wold, Esq., appeared for and on behalf of
Petitioner. Respondent failed to appear.
Respondent had notice that this matter was set for trial on this date.
On February 18, 1997, Respondent filed a document labeled "Respondent's
Statement" with this Court, wherein he commences with this
statement: "I will not be able to attend any-trial on February 20, 1997.
I fear for my safety under the jurisdiction of a court system that according
to my opinion only serve (sic) the purpose of supporting petitioners (sic)
devotion to ruin the relation (sic) between a father and his children.
" Thereafter, Respondent relates his account of the dissolution process,
inferring therein that whenever he received a positive decision from the
Court, he had reason to hope that the Court was dispensing justice and
that wherever he had suffered in this legal process, the Court was a co-conspirator
in his unjust misery.
In essence it is Respondent position that he has the evidence necessary
to prevail at trial but since he was dissatisfied with relief granted during
the pendency of this action, he would decline to appear and present that
proof. The Court has read Respondent's statement and considered it in granting
and reserving relief as set forth herein. The matter proceeded as by default,
pursuant to Order dated January 15, 1997, wherein Respondent was advised
that failure to appear for trial on February 20, 1997, would result in
a default hearing. After hearing all of the evidence adduced, being fully
advised in the premises and upon all of the files and records herein, the
Court makes the following:
FINDINGS OF FACT
I
The true and correct name of Petitioner is Belia Jimenez Lorente. She
has at all times been known by this name. She resides at 15706 - 105th
Avenue North, Maple Grove, MN 55369. Her Social Security number is 045-86-9324.
Petitioner was born on January. 17, 1962 and is thirty-five (35) years
of age.
II
The true and correct name of Respondent is Axel Ture Johansson. He resides
at Rudolf Jonassons Vag 17 - #7, S-24136, Eslov, Sweden. His Social Security
number is 04486-6294. Respondent was born on September 2, 1953 and is forty-three
(43) years of age.
III
The parties were married on June 1, 1985, in City of Madrid, Spain, and
ever since that time have been and now are husband and wife.
IV.
Petitioner and the minor children of the marriage have resided in this
state for, not less than 180 days (six consecutive months) immediately
preceding the commencement of this proceeding, and resided in this county
at the conunencement of this proceeding.
V.
The parties are the parents of three minor children born of this marriage:
Alexander J. Johansson, born in Spain on December 30, 1985, age 11;
Stefan A. Johansson, born in Spain on January 5, 1988, age 9; and
Rebecca Johansson, born in Texas on January 27, 1992, age 5.
Petitioner is not now pregnant.
VI.
This Court has jurisdiction to decide custody of the children pursuant
to Minn.: Stat § 518A.03,subd. 1(a), because Minnesota is the home
state of the children. -The, United States is the country of the children
's habitual residence. Alexander, now age 1 1, has lived ,.in the United:
States since age 5; Stefan, now age 9, has lived, in United- States since
age 2 ; and Rebecca, now age 5, has lived in the United States all her
life.
VIL.
There is no separate proceeding for dissolution, legal separation, or custody
pending in any court in this State or elsewhere.
VIII
There has been an irretrievable breakdown of the marriage relationship
within the meaning of Minn. Stat. §518.06. The parties have been separated
since February 28, 1995.
IX.
Neither party is, nor at any time relevant to this proceeding has been,
a member of any branch of the United States Armed Forces, and neither party
is entitled to any relief under the Soldiers' and Sailors' Civil Relief
Act of 1940, as amended.
X.
A custody evaluation was completed by Family Court Services on April 15,
1996 by Gary Shackleford, M.A.,Family Court Officer. The Court admitted
the report into evidence on its own motion. A chemical dependency evaluation
was also completed by Family Court Services on March 18, 1996 by Steven
T. Johnson, CCDP, and the Court admitted the report into evidence on its
own motion.
XI.
Each of the parties has requested sole legal and physical custody of the
minor children. The children desire to have a relationship with both of
their parents. In particular, Alexander has expressed a desire to visit
his father in Sweden in the summer. It is appropriate that at such tiine
as it is clear that Respondent will not abduct the children, thereby depriving
them of the relationship that they enjoy with their mother, Respondent
should have extended visitation with the minor children. Because the Respondent
has expressed his intention to disobey Court orders that are not consistent
with his personal sense of justice, the Court cannot order such visitation
at this time.
XII
Petitioner has been the primary caretaker of the children. Respondent,
while he reside in the United States, worked long hours to support the
family. Respondent, as well as providing financially for his children,
spent substantial tiine caring for them when he was available and on the
weekends.
XIII
Both parent have healthy relationships with the children. The children
have a strong bond with each parent. Each party his distinct activities
enjoyed with the children.
XIV.
The children are well adjusted to home, school, and community. They have
important friendships at school and in the neighbourhood. All three children
are doing well in school and are receiving good grades. Rebecca just "graduated
" from pre-school this past January. Alexander plays the cello and Stefan
wants to play the violin. The children have friends at school and in the
neighbourhood as well as friends from other -communities. in Minnesota
where they lived before residing in the Plymouth-Maple Grove area. "Sleep
overs with their friends occur on a regular basis.
XV
At the tirne of the Court Services study, the parties had lived with the
children for three years in their Plymouth homestead. While the homestead
has been a casualty of dissolution-related finances, Petitioner has maintained
a relatively stable home for the minor children. She and the children have
resided in substantially the same community for the past four years and
it is Petitioner's desire and intention to continue to provide this continuity
for the children.
XVI
Respondent described a stable environment for the children if he were given
custody and returned with them to Sweden. Due to the geographical limitations
of Court Services, there is no firsthand observation in the report. Due
to Respondent's failure to appear at trial, there is no persuasive evidence
in the record to support a finding of such stability. Petitioner has no
family in Minnesota, but has developed a network of friends who desire
to support her in raising the children. Petitioner testified that
the children have three "adoptive grandmothers".
XVII
At the time of the Court Services study, Respondent expressed concern that
Petitioner, if granted custody would not be able to stay in the United
States as was her intention. Nothing in the record supports this concern.
On the other hand, it is clear that Respondent's employment has resulted
in his having experienced life in various geographical areas in this country
and around the world. Petitioner is in a better position to offer the children
continuity as a family unit and, although not within the marital homestead,
Petitioner has afforded the children as much continuity as possible, given
the reality of the divorce and of her finances.
XVIII
The Court Services study found both parties to be in good physical and
mental health. In essence, it was clear that Court Services custody recommendations
were the result of the dilemma of choosing between two fine parents. Based
on the testimony and the demeanour of Petitioner as she testified in this
hearing, it is clear that Petitioner has good metal health and is capable
of quality parenting of the children.
XIX.
By comparison, Respondent has failed to provide a single cent of support
for the minor children, since he has left the jurisdiction and power and
control of the Court. Wilful failure to support the children evinces a
failure to recognise his children's needs in deference to his own. On January
15, 1997, Respondent appeared before this Court via telephone. The Court
had sought to accommodate Respondent by allowing him to make his pro se
appearance by telephone. The communication was difficult as a result of
the long distance communication. The issues before the Court were Respondent
s failure to provide support for his children and his failure to comply
with discovery so as to allow Petitioner to prepare for trial. Rather than
providing the court with meaningful reasons for his failure to comply,
Respondent expressed his disdain for the Court and as a consequence was
held in contempt. Respondent's document labeled "Respondent's Statement"
evinces a complete misunderstanding of the Court's role in the dissolution;
the court sits as a third party to look out for the parties and especially
to look out for the best interest of the minor children. Respondent mistakenly
perceives a system where he does not prevail on each and every issue as
one that conspires against him. The minimal acquaintance the Court has
with Respondent would not support a finding that his mental health is good.
XX
Both parents have the capacity and disposition to give the children love
affection and guidance. It appears from the Court Services report that
Respondent's temper has caused him to punish the boys in a ways that may
be inappropriate. There is also evidence that Petitioner has used physical
punishment of questionable appropriateness. Petitioner testified that in
recent months she has modified her method of disciplining the children
from physical punishment to the withholding of privileges; it is clear
to the Court that Petitioner aims to improve her parenting skills. In spite
of isolated transgressions it is clear that both parents express love and
are capable of providing guidance.
XXI.
The parents have dissimilar cultural backgrounds and each have a great
deal to offer the children in 'this respect. Petitioner testified that
she and the children have been attending a Presbyterian Church for the
past year and it is her intention to join and participate in that church.
Through her marriage with Respondent, Petitioner has gained some knowledge
of Swedish traditions. It is Petitioner's intention to raise the children
to be familiar with cultural features from Sweden, Spain, and the United
States. Petitioner speaks fluent Spanish, Swedish, and English and will
encourage and instruct the children in these languages.
XXII
Although there are allegations on both sides, there is no convincing evidence
that either party was abusive toward the other. Given the level of hostility
in this matter, it is appropriate that a mutual restraining order issue.
XXIII
The animosity between the parties, demonstrated by their total lack of
co-operation in parenting, make joint legal custody out of the question.
The distance between the parties' residence as well as there lack of co-operation
dictate against joint physical custody. Both parties are fit and proper
parents to have custody of the minor children. Considering all of the evidence,
it is in the best interest of the minor children that Petitioner be granted
both legal and physical custody of the minor children.
XXIV.
Given Respondent's expressed disdain for this Court, it is clear that it
is possible that Respondent would kidnap the children, thereby depriving
them of their relationship with Petitioner. Until such time as Respondent
has appeared before the Court and provided adequate assurance that he will
not abduct the children, the Court will order that his visitation shall
be supervised and within the United States.
XXV
Petitioner is employed at P. H. Brink and earns $ 2,179.67per month net.
Petitioner's reasonable monthly living expenses for herself and the minor
children; are approximately $2,945.00.
XXVI
Respondent has the capacity to contribute to the support of the minor children.
He is employed at Tetra Pak Data Systems AB in Lund, Sweden (with a subsidiary
doing business in Minneapolis, Minnesota) and earns $2229.24 (in United
States dollars) net per month Respondent's reasonable and necessary expenses
are not a part of the record, due to his failure to appear. Respondent
was ordered to pay $780.23 per month for child support on June 4, 1996.
This was a reduction in support based on Respondent's reduced income. Respondent
has wilfully failed to support his children.
XXVII.
It is essential that the children have a relationship with their father
and once the emotional climate has stabilised, Respondent should have substantial
visitation with his children. At that time a downward departure from the
support guidelines will likely be appropriate in order that Respondent
meet his visitation expenses.
XXVIII
Petitioner's work and education-related childcare costs total $480.00 per
month. A proportional allocation of these expenses should be reserved.
XXIX
Respondent maintains individual group medical and dental insurance coverage
through his employment with Tetra Pak Data Systems AB in Lund, Sweden which
only covers at present the Respondent. The Petitioner is covered by individual
insurance through her employer. Until very recently, the children were
covered by the Respondent 's insurance through a COBRA provision. There
are no unreimbursed medical expenses at this time.
XXX
Petitioner was not employed at the time of the commencement of this action.
Since then she has made substantial progress toward rehabilitation. It
is not, however, clear at this time that she is capable of self-support.
It is appropriate to reserve spousal maintenance from Respondent to Petitioner.
Respondent is capable of self-support and does not require spousal support
from Petitioner.
XXXI
Petitioner owes $17,000 for a Stafford Loan for her education. Responsibility
for this debt should be reserved.
XXXII
During the pendency of this proceeding and while Respondent was meeting
his legal and financial obligations, Respondent overpaid his obligations
by $672.09; he is entitled to repayment of or credit for this sum to be
reflected in the equitable division of the parties property.
XXXIII
The parties own household goods, furniture, and other personal property,
which has been divided. Both parties have asserted claims to non-marital
property. No division of this property can be effected absent an evidentiary
hearing or agreement of the parties. The parties should continue to be
restrained from disposing of personal property, especially any property
in the party's possession to which the other party has asserted a non-marital
claim.
XXXIV
Petitioner and Respondent are the joint owners of a 1990 Honda Civic automobile.
Petitioner, by prior Order in this matter, was awarded the parties' 1992
Volvo Turbo automobile. The Honda Civic will be awarded to Respondent.
XXXV
The parties do not own any real estate.
XXXVI
Respondent has an interest in three (3) pension plans through his place
of employment, and the present value thereof is unknown. Some portion of
these assets is marital and the remainder is non-marital. No division can
be made absent an evidentiary hearing or the agreement of the parties.
XXXVII
Petitioner is in need of an award of attorney's fees and costs from Respondent.
Respondent's failure to appear and his failure to cooperate in discovery
has unnecessarily prolonged this action.
Based on the foregoing, the Court makes the following:
CONCLUSIONS OF LAW
1. Dissolution. The bonds of matrimony existing between
the parties are dissolved.
2. Jurisdiction Over Custody. Minnesota has the jurisdiction
to make an initial child custody determination since it is the home state
of the three minor children pursuant to Minn. Stat. § 518A.03
3. Custody and Visitation. Petitioner is granted the permanent
sole legal and physical custody of the minor children of the marriage,
namely-
Alexander J. Johansson, born December 30, 1985, age 12;
Stefan A. Johansson, born January 5, 1988, age 9; and
Rebecca Johansson, born January 27, 1992, age 5.
Respondent is granted the right of supervised visitation in the United
States at the Department of Court Services with a Court Services worker
present at all times, until the Court is assured that kidnaping or other
violations of the law will not occur.
4. Child Support. Commencing April 1, 1997, as and for child
support, Respondent shall pay to Petitioner, the sum of $780.23 per month.
Child support shall continue until the occurrence of the first of these
events: each of the children attains the age of 18 and is no longer attending
secondary school, attains the age of 20 if still attending secondary school,
is otherwise emancipated, or further order of the Court. Any existing child
support arrearages will not merge with the Judgment and Decree herein.
Respondent's present employer, or any subsequent employer, trustee or
other payor of funds, shall withhold from Respondent's income, regardless
of source, the sum of $780.23 per month to be paid in the same intervals
as the Respondent's pay periods to be forwarded to the Hennepin County
Support and Collections Services, A-9 Government Center, 300 South Sixth
Street, Minneapolis, MN 55487. The Respondent is on notice that if the
Respondent's income is substantially reduced, it is his responsibility
to serve and file a motion to reduce or suspend the child support.
Respondent's obligation to reimburse Petitioner for a portion of the
health insurance and childcare expense that she incurs on behalf of the
children is reserved. Any payment ordered may be retroactive to April 1,
1997.
5. Direct Payment in the Absence of Withholding. At anytime
during which automatic withholding of child support from Respondent's income
is not occurring, Respondent is ordered to pay child support in the amount
ordered directly to Hennepin County Support and Collections.
6. Health Insurance for the Minor Children. Petitioner shall
maintain in full force and effect, for the benefit of the parties minor
children, the group medical, hospitalization and dental coverage currently
in effect. From tiine to time the parties shall evaluate and compare
the insurance coverage available to them and determine which coverage is
in the best interest of the children. Commencing April 1, 1997, the parties
shall share equally in all unreimbursed medical expense, including but
not limited to copa l yments, orthodontia, and eye glasses.
7 . THE ATTACHED APPENDIX A IS INCORPORATED AND MADE A PART OF THIS
JUDGMENT AND DECREE. Appendix A contains provisions regarding Payments
to Public Agency, Minnesota Statutes § 518.55 1, subdivision
1; Depriving Another of Custodial or Parental Rights--A Felony, Minnesota
Statutes § 609.26; Rules of Support, Maintenance, Visitation; Parental
Rights from Minnesota Statutes § 518.17, subdivision 3; Wage and Income
Deduction of Support and Maintenance, Minnesota Statutes § 518.611
and 518.613; Change of Address or Residence; Cost of
Living Increase of Support and Maintenance pursuant to Minnesota Statutes
518.641;Judgments for Unpaid Support pursuant to Minnesota Statutes §
548.091; Judgments for Unpaid Maintenance pursuant to Minnesota Statutes
§ 548.091;Medical Insurance and Expenses pursuant to Minnesota Statutes
§ 548.171; Capital Gain on Sale of Principal Residence pursuant to
§121 of the Internal Revenue Service Code; Visitation Expeditor Process
pursuant to Minnesota Statutes § 518.175 1; Visitation Remedies pursuant
to Minnesota Statutes § 518.175, subd. 6.
8. Spousal Maintenance. Spousal maintenance, payable by Respondent
to Petitioner, is reserved. Temporary and permanent spousal maintenance
is denied to Respondent and none is awarded.
8. Debt. Each party is ordered to be solely responsible for her
or his separately incurred debts incurred, since the date of the parties'
separation and is to hold the other party harmless from any responsibility
for said debts. The allocation of marital debt is reserved.
9. Personal Property. The parties will retain temporary possession
of the household goods, furniture, and other personal property of the parties
in their possession at the date of the default final hearing. Division
of those assets is reserved. The parties are restrained from selling or
disposing of any personal property to which the other party has asserted
a non-marital claim.
10. Automobiles. Petitioner is awarded all right title and interest,
free and clear of any claim by Respondent, in the Volvo automobile. Respondent
is awarded all right title and interest, free and clear of any clahn by
Petitioner, to the Honda automobile.
11. Pension Plans. Division of Respondent's pension and profit
sharing plans is reserved. The Court will retain jurisdiction until there
has been a determination as to an equitable division and an appropriate
Qualified Domestic Relations Order is prepared. Respondent is restrained
from encumbering or receiving any distribution from of his pension and
profit sharing plans, until further order of the Court.
12. Attorney's Fees. Respondent shall pay $3,000.00 as and for
Petitioner's attorney's fees, costs and disbursements herein. Said payment
shall be directly to Petitioner's attorney and is due within thirty (30)
days of entry of the Judgment and Decree herein. Except as ordered herein
and by prior Order of this Court, the parties shall be responsible for
their costs and fees incurred in this matter. No previously ordered attorney's
fees due under any previous Order in this matter shall merge with this
Judgement and Decree.
13. Restraining Order. Both parties are restrained from harassing,
vilifying, mistreating, molesting, disturbing the peace, or restraining
the liberty of the other party or the children of the parties.
14. Discharge of Counsel. Ninety-one (91) days after the entry of the
final Judgement and Decree, Linda L. Wold, Esq., shall cease to be attorney
of record for Petitioner.
15. Undisclosed Assets. In the event that there exists previously undisclosed
material assets, the Court retains jurisdiction to make an equitable division
thereof.
16. Documents of Conveyance. Both parties shall execute whatever documents
are necessary to effectuate the purpose of the Marital Termination Agreement
and the Judgment and Decree of this Court. In the event of failure of either
party to execute such documents., the Judgment and Decree shall serve to
convey the property as ordered.
17. Service. Service by Petitioner's attorney and upon Respondent of
a conformed copy of the Findings of Fact, Conclusions of Law, Order for
Judgement and Judgement and Decree in this matter by mail, shall constitute
proper service
ORDER FOR JUDGMENT
LET JUDGMENT BE ENTERED ACCORDINGLY
Dated:3/26/97
BY THE COURT:
David M. Duffy
Judge of District Court
Family Court Division
I certify that the above Conclusions of Law constitute the Judgment
and Decree of the Court.
BY THE COURT:
DISTRICT COURT ADMINISTRATOR