Opinion
No. C6-98-1348.
Filed April 20, 1999.
Appeal from the District Court, Pennington County, File No. FX97149.
Kevin T. Duffy, (for appellant)
Michael L. Jorgenson, Charlson, Marben Jorgenson, P.A., (for respondent)
Considered and decided by Davies, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
This appeal is from a judgment and decree dissolving the marriage of appellant father Dean Holtan and respondent mother Cathleen Marie Holtan. We affirm.
FACTS
The parties were married on September 27, 1996. Their only child was born prematurely on November 16, 1996. Mother remained on maternity leave until March 5, 1997. She took the baby for medical checkups every other day for two weeks following his birth. Father took the child to the doctor one or two times. Mother changed diapers, bathed, groomed, dressed, and attended to the baby during the night. She taught father how to change diapers and bottle-feed the baby, but he never bathed the baby. Mother washed the clothes and cleaned the house. Father kept the house organized. Both parents bought groceries and clothes.
Mother breastfed the baby during the entire period before the parties separated. Father objected to mother's method and frequency of nursing, and the parties had numerous other disagreements regarding the child's care.
The couple separated on February 7, 1997. After dissolution proceedings began, father sought removal of the judge assigned to the case for bias, and another judge was assigned to the case.
At a hearing for temporary relief, the parties were granted temporary joint physical custody. Pursuant to the order, mother left the baby with father from 6:00 a.m. until the end of her workday. The baby slept until 8:30 or 9:00 a.m., and father relied on babysitters when he left for work around noon or 1:00 p.m.
Disputes over the baby's care continued after the separation. On August 8, 1997, mother finished work early and picked up the baby at father's house earlier than allowed by the temporary order. When father discovered this, he went to mother's house and physically attempted to take the child from her. The police were called. Mother petitioned for an order for protection, and father moved for a contempt order. The court found that both were in contempt of the temporary order and that father had committed domestic abuse. The court issued a restraining order prohibiting each party from entering the other's residence or contacting the other party, except for visitation purposes.
When the marriage was dissolved on September 3, 1997, custody, visitation, child support, and the division of property were reserved for later determination. The court appointed a guardian ad litem (GAL) to represent the child's interests.
Both parties called the GAL concerning problems they had with one another. In November 1997, mother complained to the GAL that father would not let her have the baby. Father then called the GAL, stating that he was a fair person and that he had called the police before mother did to "beat her to it." On January 1, 1998, mother requested permission to have the baby the next day, which was her day off. Father refused because the temporary order stated that she was entitled to have the baby only at the end of the day. Mother called the GAL, who told mother that she would have to follow the court-ordered schedule.
The GAL had no concerns about mother's parenting skills, because she was an experienced parent with a child from another marriage. The GAL did, however, have some concerns about father's parenting skills. She suggested that father contact Joyce Froschheiser at the Early Childhood Family Education (ECFE) program to have her visit his home. Froschheiser observed that father interacted with the child appropriately, in view of the child's age. In her initial report to the GAL, Froschheiser stated that she and father had selected four areas to work on: food and nutrition, normal growth and development, discipline, and developing a nurturing relationship. She stated that she had made several suggestions to father to improve his parenting skills, but he did not act on her suggestions until she reminded him, causing her to question his sincerity. Father asked Froschheiser to write a second report.
Father also contacted Margo Peterson, a county nurse, for a safety assessment of his home and an evaluation of the baby's development. She found that his home was adequate and the baby's development was normal. Neither Froschheiser nor Peterson could attribute the baby's well-adjusted emotional state to either parent or give an opinion as to which party was the better parent.
Dr. Elliot Grant performed psychological evaluations of both parties. He described mother as naive, defensive, conventional and conforming, with low tolerance for stress. He also concluded that she was a caring parent and that there was no significant risk that she would be abusive or neglectful.
Grant reported that father's psychological profile was consistent with a person who tends to be highly competitive, sees women as subservient, and is likely to be intolerant or insensitive in his interpersonal relationships. Grant found that father was generally motivated to act in the child's best interests but his inflexible, controlling personality dulled his sensitivity to others' needs and hampered his efforts at communication and cooperation. Grant also reported that father repeatedly requested modification of the assessment procedure, which made Grant and his staff feel pressured and manipulated. After Grant issued his report, father called the GAL and alleged that some statements were not true and that the test was unfair.
The trial on the reserved issues began on January 9, 1998. The GAL testified that the parties could not cooperate in raising the baby. She had spoken with Grant about the parties' disputes and numerous complaints to her. He told her that mother does not talk out problems and father is "set on being right and has a great deal of problem being flexible." Grant also told the GAL that he saw no method by which the parties could resolve their disputes other than by adhering to a court-ordered schedule. The GAL did not think that the situation would improve after the court's close supervision ceased. She also stated that there is a close bond between the baby and his half-brother, and it would be in the baby's best interests not to separate the children. She recommended that mother have sole physical custody, because mother was more cooperative than father. The trial was continued to February 18 and 25, 1998. During the continuance, the court appointed an attorney for the GAL.
At the end of the trial, the GAL's attorney called the GAL to the stand. She testified that, after listening to the testimony, she had not changed her opinion. The court then questioned her. She testified that father had called her after the first day of the trial in January. He told her that he knew confidential information concerning the mother of the GAL's adopted children, and she felt threatened. To prevent this information from coming into court, she had asked the court to remove her from the case. The court had refused, but directed her to write a report and send it to him. She did so, but did not send copies to the parties or their attorneys.
Following the GAL's testimony, the court permitted the attorneys to read the letter he received from the GAL. After reading the letter, father's counsel stated, "[T]he information contained in the letter is no surprise to me. Mr. Holtan advised me about this information." Father was then allowed to explain his actions.
The court granted mother sole legal and physical custody and ordered father to pay $873 in monthly child support; one-half of the child care costs; $108 per month for medical insurance for the child; one-half of the GAL fees; and the GAL's attorney fees. Father's visitation was reduced to alternating weekends and alternating holidays.
Father moved for a new trial, or, alternatively, for amended findings concerning visitation, his net income, and his child support obligation. He submitted financial information with his motion. The district court amended the findings relating to visitation. Father appealed from the initial judgment and decree.
DECISION I. Custody.
Appellate review of a custody determination is limited to whether 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).
Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.
A. Sole legal custody.
The district court should grant joint legal custody only when the parents can cooperate in parenting decisions. Wopata v. Wopata , 498 N.W.2d 478, 482 (Minn.App. 1993). A rebuttable presumption exists that joint legal custody is not in the child's best interests if domestic abuse has occurred. Minn. Stat. § 518.17, subd. 2 (1998). The district court concluded that it could not consider joint custody because "the testimony and the numerous incidents related by both parties, indicate that they are unable to cooperate or agree on any particular matter."
Father argues that the grant of sole legal custody to mother should be reversed because his testimony and affidavit show that there were hundreds of times when the parties exchanged the child without dispute. He also requests that this court disregard mother's reference to the finding of domestic abuse as the basis for a rebuttable presumption against joint legal custody.
Father's argument ignores the deference accorded the district court's credibility determinations. See Sefkow v. Sefkow , 427 N.W.2d 203, 210 (Minn. 1988) (appellate courts must defer to district court's credibility determinations); Minn.R.Civ.P. 52.01 (due regard shall be given to opportunity of district court to judge credibility of witnesses). In its memorandum, the court stated that father lacks credibility. The evidence supports the finding that the parties are unable to cooperate. Although the district court acknowledged the alleged incident of domestic abuse that occurred on August 8, 1997, it expressly discounted this incident as it related to domestic abuse but considered it as evidence of father's inflexibility; the custody determination was not based on the statutory presumption.
B. Sole physical custody.
When determining custody, the court must consider the best interests of the child in light of the factors set forth in Minn. Stat. 518.17, subd. 1. Nazar v. Nazar , 505 N.W.2d 628, 633 (Minn.App. 1993), review denied (Minn. Oct. 28, 1993). The district court concluded that ten factors favored neither party and three factors favored mother: (1) she was the primary caretaker; (2) she has much better mental health to raise the child; and (3) she has the capacity and disposition to give the child love, affection, and guidance and to continue educating and raising the child.
Father argues that the primary caretaker should be determined based upon the period between the temporary order and the first hearing on custody. We disagree. Under Pikula , the primary caretaker is determined at the time of the parties' separation. 374 N.W.2d at 714 n. 3. The Pikula analysis is used when the child is too young to express a preference and the separation date is reasonably close to the custody trial. Cf. Sefkow , 427 N.W.2d at 211-12 (stating Pikula analysis does not apply when child is old enough to express preference but has not done so, and four and one-half years had passed since the parties' separation). When determining the primary caretaker, the district court properly considered the period before the parties separated. The baby was too young to express a preference at the custody trial, and the trial began 11 months after the separation. The evidence supports the finding that mother was the primary caretaker.
Regarding the mental health factor, the court concluded that father loved the child but that he was "rigid and does not see anyone else's point of view." The court found that mother was "submissive and allows herself to be talked into doing things she does not wish to do." The court concluded:
Based upon the psychological assessments, the child rearing when the parties were together, and the fact that [father] very seldom answered a question directly and used manipulation in an attempt to make himself look good, the Court feels that [mother] has the better mental health to raise the child.
Father argues that the court ignored Grant's testimony that father had no criminal record, no evidence of violence or drug or alcohol use, and that he was genuinely motivated to act in the child's best interests. He contends that he provided reasonable explanations of his conduct and comments to Grant, but the court ignored these explanations, and instead relied on the Grant's report without testimony from Grant. Father also contends that the court ignored Grant's negative findings concerning mother and asserts that Grant advocated a 50-50 visitation schedule.
Father's argument again ignores the deference this court must accord the district court's credibility determinations. The district court did not find father's explanations credible. Further, if father thought that it was important that Grant testify, father could have called Grant as a witness. Moreover, Grant's report was only one factor considered by the court. Other testimony about father's behavior before and after the separation supports the court's decision that mother, even considering the weaknesses identified by Grant, has the better mental health to raise this child. Finally, Grant did not advocate a 50-50 visitation. He simply stated that that was what father advocated.
In addressing the factor concerning the capacity to love, guide, and continue educating the child, the court stated that, although father claimed that he reads to the child, father also claimed that he could not read "college words," and that he had to have someone read the questions in the psychological assessment to him.
Father contends that this statement is contrary to his testimony that he can read and Peterson's expert testimony that it is more important to communicate with, than to read to, a child. But the district court was not bound to accept father's testimony or Peterson's expert testimony, if other evidence outweighed it. Pikula , 374 N.W.2d at 710. The court did not simply conclude that father's claim that he reads to the child was not true because father also claimed that he was not able to read; the court concluded that father attempted to intimidate and manipulate the people who were assessing his parenting skills to prevent the court from receiving unflattering information about him. This conclusion is supported by the court's findings.
Father also argues that the court abused its discretion by ignoring the affidavits and testimony of others attesting to father's love for the baby. But when addressing the intimacy of the relationship between each parent and the child, the court concluded that both parties love the child and are concerned about the welfare of the child. The factor concerning the capacity to love, guide, and continue educating the child includes more than the parties' love for the child.
II. Child support.
Father argues that the district court's findings regarding his income were erroneous and that, as a result, his child support obligation was incorrectly calculated. He asserts that at trial, he mistakenly failed to present evidence of his home mortgage payment, his equipment purchase debt, and his monthly operating debt and that the denial of his motion for amended findings based on this evidence of his income was an abuse of discretion.
Father's motion for amended findings was based on evidence submitted after trial. The district court "may neither go outside the record, nor consider new evidence" when considering a motion for amended findings. Rathbun v. W.T. Grant Co. , 300 Minn. 223, 238, 219 N.W.2d 641, 651 (1974). The district court did not abuse its discretion by denying the motion for amended findings.
The district court's determination of child support was not clearly erroneous or an abuse of discretion. See Rutten v. Rutten , 347 N.W.2d 47, 50 (Minn. 1984) (district court's determination of child support must be clearly erroneous or against logic and facts on record before reviewing court will find abuse of discretion). Child support must be based on the obligor's net monthly income less allowable deductions. Minn. Stat. § 518.551, subd. 5(b) (1998). A home mortgage payment is not an allowable deduction when calculating net income for child support purposes. Id.
Father is self-employed. His 1994-1996 individual income tax returns and an estimate of his 1997 income prepared by his accountant were the only evidence of his income admitted at trial. Income from self-employment is equal to gross receipts minus ordinary and necessary expenses. Minn. Stat. § 518.551, subd. 5b(f) (1998). Ordinary and necessary expenses do not include accelerated depreciation expenses. Id.; see also Beltz v. Beltz , 466 N.W.2d 765, 767 (Minn.App. 1991) (directing district court to determine on remand whether claimed depreciation reflected true depreciation or depreciation for tax purposes only), review denied (Minn. Apr. 29 May 23, 1991). Father did not present proof of actual depreciation. After finding that father claimed accelerated depreciation each year and depreciated several personal vehicles, the district court disallowed half of the claimed depreciation amount. The decision to disallow half of the claimed depreciation was not clearly erroneous. See, e.g. , Taflin v. Taflin, 3 66 N.W.2d 315, 319 (Minn.App. 1985) (obligor cannot complain when inadequate documentation leads in part to court's refusal to modify child support order).
Father argues that the district court should have deducted his monthly operating debt payments and his equipment purchase debt payments from his gross income when determining his net income. Father's equipment replacement costs were recognized in the depreciation deduction. Permitting deductions for depreciation and for equipment replacement costs would recognize the same expense twice. Similarly, father's operating expenses were deducted from gross income when calculating his net business profit. Allowing a deduction for operating debt would recognize the same expenses twice.
III. Guardian ad litem.
Father argues that the GAL's ex parte communications with the court provide a sufficient basis for reversing the court's decision and removing the court and the GAL on remand.
Father claims that he should have received a copy of the GAL's letter to the court and should have been notified of her ex parte communication before the end of trial. But father has not shown that he was prejudiced by the lack of notice. See Waters v. Fiebelkorn , 216 Minn. 489, 495, 13 N.W.2d 461, 465 (1944) (party claiming error has burden of proof; error without prejudice not ground for reversal); see also Minn.R.Civ.P. 61 (harmless error to be ignored). The transcript demonstrates that father's attorney was not surprised by the information in the letter, and the district court gave father an opportunity to explain his actions. The fact that this opportunity came at the end of the hearing without prior notice was not prejudicial because father was aware of his actions.
Father also argues that the GAL was biased and improperly assumed the role of a mediator and visitation expeditor. He contends that by acting as a visitation expeditor, the GAL became an advocate for mother rather than a disinterested party representing the child's interests.
Minn. Stat. § 518.165, subd. 2a(5) (1998), provides that the GAL shall make written reports on a child's best interests, including recommendations and the facts upon which they are based. When the GAL was appointed, the court granted her authority to "investigate the custodial and visitational circumstances" of the minor child. Both parties called the GAL to report their disputes. The GAL related the disputes in her report, as she was directed to do.
Father's claim that the GAL was biased is not persuasive. His counsel examined the GAL extensively about her report and, in doing so, had an opportunity to show any alleged bias. The claim that she was not a disinterested witness goes to the weight, not the admissibility, of her testimony.
IV. Judicial bias.
On appeal, father claims for the first time that the district court's comments and its failure to disclose the ex parte communication with the GAL before the end of the trial demonstrate bias. Father's failure to object to errors occurring during trial that he alleges show judicial bias precludes review. See Davis v. Davis , 306 Minn. 536, 538, 235 N.W.2d 836, 838 (1975) (refusing to consider claim that procedural errors occurring before and during trial showed judicial bias when appellant did not attempt to secure judicial relief for alleged errors from district court). Furthermore, a correct result effectively demonstrates that alleged bias and unfairness, if it existed, did not result in legal injury to the party claiming bias. Peterson v. Knutson , 305 Minn. 53, 60, 233 N.W.2d 716, 720 (1975). Because father has not shown that the district court's rulings were an abuse of discretion, he has not shown a legal injury.