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STATE OF MINNESOTA IN COURT OF APPEALS A08-0190 In re the Marriage of: Kristine Anne Schisel, petitioner, Appellant, vs. Daniel Todd Schisel, Respondent. Filed March 10, 2009 Affirmed in part, reversed in part, and remanded Shumaker, Judge Blue Earth County District Court File No. 07-FA-06-3017

Julia Ketcham Corbett, Kevin A. Velasquez, Blethen, Gage & Krause, PLLP, 127 South Second Street, P.O. Box 3049, Mankato, MN 56002-3049 (for appellant) Ryan B. Magnus, Stacey R. Edwards Jones, Zack, Jones & Magnus, 300 St. Andrews Drive, #110, Mankato, MN 56001 (for respondent)

Considered and decided by Stauber, Presiding Judge; Kalitowski, Judge; and Shumaker, Judge. SYLLABUS 1. The district court has the authority to restrict the in-state geographical

residence of minor children in a marriage dissolution, provided that a restriction is necessary to serve the children's best interests.

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The conclusion that minor children have become ingrained in a particular

community of residence is not alone sufficient to justify a restriction of their residence to that community. 3. In calculating a child-support obligation of a self-employed parent, the

district court must consider business expense deductions and must apply the FICA/selfemployment tax deduction rate. 4. In calculating child-support adjustments under the Hortis/Valento formula,

the court must determine actual rather than hypothetical parenting time. OPINION SHUMAKER, Judge Appellant-mother, as joint physical custodian and primary caretaker of the parties' minor children, challenges the district court's restriction of the children's residence to the Mankato area, arguing that the court lacks any authority to impose an in-state residence restriction on minor children and that, in any event, such restriction is not in the children's best interests. She also challenges the court's award of a parcel of unimproved real estate to respondent; the court's calculation of her income for child-support purposes; and its failure to properly apply the Hortis/Valento adjustment. We affirm in part, reverse in part, and remand. FACTS The parties to this appeal dissolved their marriage after 11 years. They and their two children--ages 6 and 8 at the time of the dissolution proceeding--lived in Mankato.

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They resolved many issues through stipulation, including an award of joint legal and physical custody of the children. Unresolved issues were tried to the district court. Of those, appellant-mother challenges on appeal the court's imposition of an in-state geographical restriction on the children's residence; the court's calculation of child support; and the court's award to respondent-father of a parcel of unimproved real estate located on the same block as appellant's homestead. ISSUES 1. Does the district court have the authority to impose an in-state geographical

restriction on the residence of minor children whose physical custody is awarded jointly to the parents? 2. Was the district court's determination that an in-state geographical

restriction on minor children's residence is in their best interests principally because they have become ingrained in the community a sufficient basis for such restriction? 3. Did the district court err in calculating a self-employed joint physical

custodian's income for child support by failing to consider her business expense deductions, failing to apply the FICA/self-employment tax deduction rate, and failing to make the Hortis/Valento adjustment based on actual parenting time shared by the parties? 4. Did the district court abuse its discretion by awarding to respondent an

unimproved parcel of real estate adjacent to appellant's homestead despite the court's determination that separation was necessary for purposes of privacy?

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ANALYSIS I. In its findings of fact, the district court noted that appellant "has been adamant throughout these proceedings that she be allowed to move the children's primary residence to Lakeville, MN." The court found that such a move would "benefit

only . . . the [appellant] and [be a] detriment to the Respondent and children and [would not be] in the children's best interest." The court also found "that there has been a clear showing that maintaining the residence of the children in Mankato, MN is in their best interests." The court then awarded joint legal and physical custody to the parties and ordered that the "children's primary residence shall be with [appellant] in Mankato." Appellant challenges both the district court's authority to restrict the children's primary in-state residence and the court's findings and conclusion that such a restriction is in the children's best interests. Appellant argues that although there is statutory and caselaw authority for the district court's imposition of conditions and restrictions on a child's residence when a custodial parent desires to relocate outside Minnesota, there is no comparable authority when a parent, who is awarded the primary residence, desires to relocate within Minnesota. She further argues that "where an in-state relocation [is] requested at the time of an initial custody determination . . . a geographical restriction is contrary to law and impermissible, and requires reversal," and cites Sefkow v. Sefkow, 372 N.W.2d 37 (Minn. App. 1985), remanded on other grounds, 374 N.W.2d 733 (Minn. 1985), as controlling authority. She also cites as authority for this proposition Imdieke v. Imdieke, 411 N.W.2d 4

241 (Minn. App. 1987), review denied (Minn. Oct. 30, 1987), which cites Auge v. Auge, 334 N.W.2d 393 (Minn. 1983), superseded by statute, Minn. Stat.

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