APPEARANCES:
LINDA L. WOLD, Esq., appeared for and on behalf of Petitioner. Petitioner appeared personally.
RONALD D. OUSKY, Esq., appeared for and on behalf of Respondent. Respondent appeared personally.

THE COURT FINDS:

1. The parties were married on June 1, 1985. The parties have three minor children: Alexander, born December 30, 1985; Stefan, born January 5, 1988; and Rebecca, born January 27, 1992.

2. Petitioner was born January 1, 1962. Her Social Security Number is 045-86-9324.

3. Respondent was born September 2, 1953. His Social Security Number is 044-86-6294.

4. Petitioner is a natural citizen of Spain. Respondent is a natural citizen of Sweden. Alexander and Stefan were born in Spain. Rebecca was born in the United States.

5. Respondent works for a Sweden-based corporation, the Tetra Laval Group of Companies. He has worked for that company for approximately 23 years and has had to travel extensively. He married Respondent while he was on assignment in Spain from 1982 to 1988. From 1988 to 1990, the parties lived in Sweden. In 1990, the parties came to the United States on Respondent's work assignment. They lived in Connecticut for approximately a year, Texas approximately a year, and then took up residence in Minnesota in 1992 and have resided here since then.

6. Respondent's current assignment in the United States is due to terminate soon. He has informed the Court that if he is granted custody of the children, his employer has granted him permission to stay in the United States until the end of the current school year; at that time, his plans would be to return to Sweden with the children. If the Respondent is not granted custody, he will apparently have to return to Sweden very soon. Petitioner's plans are to continue living in Minnesota with the children.

7. Respondent currently has a gross monthly income of approximately $8,190.00, resulting in a net monthly income of approximately of $5,685.00. He claims that when he has to return to Sweden, his gross monthly income will be reduced to approximately $3,000.00,with an approximate net monthly income of $2,000.00. Petitioner claims that Respondent's income when he returns to Sweden will not be effectively reduced because he will be receiving housing, medical and other subsidies.

8. Child care expenses for the child Rebecca, now age 4, are $250. 00 per month. These expenses are necessarily incurred because Petitioner is attending school. There are no child care expenses for the other two children. The Court has not ordered Respondent to contribute to the day care expenses, however, because such expenses are already included in Petitioner's budget.

9. Petitioner is currently not employed. She worked prior to the marriage as a secretary and as a nurse's aid. Since the marriage, she has been primarily a homemaker. She has also worked for a few months as a language tutor. She is currently attending Augsburg College, expecting to obtain an undergraduate degree in sociology in May, 1997, and to then go on to graduate study with an expected completion date of June, 1999. She is currently on a scholarship and has tuition expenses of approximately $1,930.00 per semester and book expenses of aproximateiv $300.00 per semester.

10. The parties have been unable to reach agreement over custody and visitation of the children. A custody and visitation evaluation has already been commenced. Petitioner is seeking sole legal and sole physical custody of the three children. Respondent is asking for joint legal custody and sole physical custody of the children.

11. The parties continue to reside together in the family homestead with the children, but state that this is no longer possible. The parties did attempt a joint custody arrangement for a period of approximately six weeks while a domestic abuse proceeding was pending. Under that arrangement, the children remained in the house and the parents took turns staying in the house. That arrangement ended when the domestic abuse action was dismissed on January 25, 1996.

12. The Court is unaware what the children's preferences are regarding which parent they would like to stay with. Each parent has claimed that the children state they would like to be with him or her.

13. Petitioner has been the primary caretaker of the children throughout the marriage. Respondent has cooperated in caring for the children, but due to his work schedule his role has necessarily been less than that of Petitioner. Each of the parents has the capacity to love and care for their children.

14. Petitioner claims that she should be cranted sole legal and sole physical. custody of the children and Respondent's visitation with them should be supervised because of Respondent's physical abuse of her and physical and/or emotional abuse of the children. Petitioner initiated a domestic abuse action on November 20, 1995 (File No. DA 217 858). After a hearing on January 18, 1996, the Honorable Catherine L. Anderson, Judge of District Court, Family Court Division, issued an Order on January 25, 1996, dismissing Petitioner's Petition. In that Order Judge Anderson found as follows: "There is nothing in the Petition nor was there any evidence elicited at trial that would suggest or tend to prove in any way that Petitioner or her children were physically harmed or that they were threatened in such a way as to be in fear of imminent physical harm, injury or assault." In her moving papers filed in support of her motion for temporary relief, Petitioner repeats the same allegations as were contained in the Petition for an Order for Protection. This Court specifically finds that those allegations have been ruled upon by Judge Anderson, and this Court will not, on the basis of affidavits, reconsider the issues presented to Judge Anderson.

15. Petitioner also claims that she should be granted sole legal and sole physical custody, and that any visitation with the children by Respondent should be supervised, because Respondent presents a threat of taking the children to Sweden. Respondent acknowledges that he wishes the children to live with him in Sweden; however, there has been no showing that there is a "strong probability" that Respondent would abduct the children and take them to Sweden. AI-Zouhavli v. AI-Zouhayli, 486 N.W. 2d, 10 (Minn. App. 1992). The Court believes that an order prohibiting Respondent from removing the children from the State of Minnesota or this country without further order of the Court or Petitioner's permission, along with an order prohibiting Respondent from unilaterally seeking a passport for the children, sufficiently guard against any possibility of abduction.

16. Respondent has alleged that Petitioner has psychological and emotional problems which would prevent her from taking care of the children properly. Petitioner acknowledges a suicide attempt in 1988. However, there appear to be no issues at the present time which would be significant enough to negatively impact her ability to care for the children.

17. Considering all the circumstances of the parties, and all the factors set forth in Minn. Stat. 518.17, subd. 1, the Court finds that the best interests of the children will be served by granting the parties temporary joint legal custody of the children, with temporary physical custody being granted to Petitioner, and Respondent having reasonable and liberal visitation with the children. This custodial arrangement will be reviewed, if necessary, upon completion of the custody and visitation evaluation now being done by the Department of Court Services.

18. Petitioner claims monthly living expenses for her and the children of $3,242.00. This includes $1,456. 00 for PITI on the family homestead, and $386. 00 for college tuition and $55.00 for textbooks. Respondent claims monthly living expenses of $2,736.00 including the same $1,456.00 PITI on the family homestead.

19. Respondent's child support obligation, based upon the guidelines for a net income of $5,685.00 per month, would be a total of $1,863.75 per month for the three children.

20. Petitioner has also requested an award of temporary spousal maintenance. This is a ten-year marriage, during the course of which Petitioner has chosen to be a homemaker and to take care of the children. Petitioner has made at least five moves, involving three different countries, because of her husband's employment. Petitioner is now seeking a college degree to better be able to support herself. Petitioner is capable of doing clerical or translating work, but this cannot be expected to be more than minimal part-time because of her homemaking and educational responsibilities. Therefore, the Court believes that Petitioner is entitled to an award of temporary spousal maintenance. The Court finds that an award to Petitioner of $1,500.00per month would enable her to meet the expenses for herself and the children, while at the same time Respondent would be able to meet his own expenses.

21. This Court realizes that the finances of the parties could change when and if Respondent returns to Sweden. However, this Court must base its decision on the current financial status of the parties and cannot base its decision on speculation of what might be if some contingent event happens.

22. In his moving papers, Respondent challenged the jurisdiction of the Court to decide custody of the children. At the hearing, counsel for Respondent conceded that the Court had custody pursuant to Minn. Stat. 518A.03, subd. 1(a), because Minnesota is the home state of the children, but asked that the Court decline to exercise its jurisdiction and allow Respondent to return to Sweden with the children and initiate dissolution proceedings there. The Court finds that the proceedings herein have been lawfully commenced and that there is no just reason why this Court should decline to exercise jurisdiction.

23. Petitioner has requested attomey's fees of $2,000.00. Said fees are reasonable. Respondent can clearly pay said attorney's fees. The awarding of attorney's fees will not unreasonably prolong litigation and are necessary for the proper representation of the Petitioner.

IT IS ORDERED:

1. That Respondent's motion for a determination that the Court should not exercise jurisdiction over custody of the children is denied.

2. The parties are granted the temporary joint legal custody of the children. Petitioner is granted the temporary physical custody of the children, subject to liberal and reasonable visitation by Respondent. This visitation will include alternating weekends from 6:00 p.m. on Friday until 8:00 p.m. on Sunday, and one evening  per week from 4:00 p.m. until 8:00p.m. The Department of Court Services shall, during the course of its custody and visitation evaluation, have the authority to recomend a different or a more specific visitation schedule. The Department of Court Services may also, if deemed appropriate, recomend appointment of a Guardian ad Litem for the children.

3. Petitioner's motion for supervised visitation is denied.

4. Each of the parties is prohibited from removing the minor children from the State of Minnesota or from the United States except upon Court Order or with the consent of the other party.

5. Each of the parties is prohibited from making application for United States passports for the three minor children without a Court Order or the written consent of the other party.

6. Respondent shall pay to Petitioner $1,863.75 per month as and for temporary support of the child(ren), payable commencing March 1, 1996.

7. Respondent shall pay Petitioner $1,500.00 per month commencing March 1, 1996, as temporary spousal maintenance.

8. Said child support and spousal maintenance payments as ordered herein shall be deducted by the Obligor's present employer, or any subsequent employer, or other payor of funds, from Obligor's income, regardless of source, and forwarded to Hennepin County Support & Collections Services, Room A-9,300 South Sixth Street, Milmeapolis, MN 55487. Until the automatic income withholding ordered herein is implemented, the Obligor shall be responsible to make the payments ordered herein directly to the Hennepin County Support and Collections Services, A-9 Government Center, 300 South Sixth Street, Minneapolis, MN 55487.

9. Both parties shall continue to maintain all policies of accident, health, medical hospitalization, dental, life, disability, auto and homeowners' insurance currently in effect with no changes in coverage, beneficiaries, or named dependents pending the outcome of this proceeding. "Medical" includes dental, eye care, psychological services.

10. Both parties are restrained from transferring, encumbering, concealing or disposing of property except in the usual course of business or for the necessities of life, except as to any future earned income, except as the parties with their attorneys may mutually agree in writing. Each party is accountable to the Court for all such transfers, encumbrances, dispositions and expenditures made after the date of this order.

11. Both parties are restrained ,From harassing, vitrifying, mistreating, inolestiiig, disturbing, the peace, or restraining the liberty of the other party or the children of the parties. Violation of any portion of this paragraph shall be a misdemeanor punishable by imprisonment up to 90 days or $700 fine or both.

12. Unless otherwise incorporated in the body of this document, the attached Appendix A is incorporated by reference.

13. The issues of Respondent's contribution to child care expenses and piano lessons for the children are reserved.

14. That Petitioner is awarded the temporary use and possession of the homestead of the parties and shall be responsible for the payment of the PITI, utilities and maintenance thereon, commencing March 1, 1996.

15. Respondent may remove from the parties' homestead, at a time agreeable to both parties, a reasonable portion of household goods and furnishings to permit hin to set up separate housekeeping, including his clothing and personal belongings.

16. Petitioner is awarded the temporary use and possession of the 1992 Volvo automobile of the parties. Respondent is awarded the temporary and exclusive use and possession of the 1990 Honda Civic automobile of the parties. Each party shall be responsible for maintaining insurance on the vehicle in their possession.

17. Respondent shall maintain the group medical and dental insurance through his employer that covers Petitioner and the minor children. The parties shall be equally responsible for any uninsured expenses or co-payments.

18. Respondent shall notify Petitioner as soon as possible what insurance, if any, will be available upon his return to Sweden. If continuing coverage is not available through his employer, the parties shall obtain insurance for the three children and the parties shall split the cost of the insurance equally.

19. That ruling on division of the parties' assets, including but not limited to pension or profit sharing plans, is reserved.

20. That neither party shall incur any debts or obligation in the name of the other party. Each party is responsible for his or her own debts incurred since the commencement of this proceeding.

21. That Respondent shall pay to Petitioner the sum of $2,000.00 as and for temporary attomey's fees and costs incident to this proceeding.

22. That the Clerk of this Court shall mail one copy of this Order to counsel for the parties, and Hennepin County Court Services, which shall be good and proper service for all purposes.

Dated: Feb 28, 1996

THE FOREGOING FACTS WERE FOUND BY ME
AFTER DUE HEARING AND THE FOREGOING
ORDER THEREON IS RECOMMENDED.
Referee Patrick C. Meade rt
Family Court Division

FINDINGS OF FACT AND ORDERAPPROVED AS OF DATE HEARD.
ORIGINAL SIGNED'
Judge Howard
Judge of District Court