Opinion
No. C8-02-756.
Filed January 14, 2003.
Appeal from the District Court, Polk County, File No. F188164.
Mary E. Seaworth, Howe Seaworth, (for respondent)
Jeffrey S. Remick, Odland, Fitzgerald, Reynolds, Remick Widseth, PLLP, (for appellant)
Patricia Dillabough, (guardian ad litem)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant father challenges the district court's denial of his motion for sole legal and physical custody of the parties' children, arguing that the district court abused its discretion by improperly applying the law and by making findings unsupported by the evidence. Because we conclude that there was no abuse of discretion, we affirm.
FACTS
Appellant father David James Strommen and respondent mother Theresa Ann Kawlewski are the parents of two teenage children. Kawlewski has had sole physical and legal custody of the children since 1988. Strommen has had liberal parenting time, and Kawlewski has never restricted the amount of time that Strommen spends with the children.
At the time this appeal was filed, respondent had remarried and had changed her last name to Preblich. She has since divorced and is known again as Theresa Ann Kawlewski.
In October 2001, approximately one month after he received notice of Kawlewski's motion to increase his child-support obligation, Strommen moved for a modification of custody that would grant him sole physical and legal custody of the children.
The children enjoy participating in sports and outdoor activities, including hunting and fishing with Strommen. Before 2000, Kawlewski objected to the children's participation in competitive sports because of her concerns about the "win * * * no matter what" attitude and the risk of injury. She has since allowed the children to participate in sports, and they have been active in a golf league since 2000.
Kawlewski is a Jehovah's Witness and has raised the children in her faith. The children spend approximately five hours per week involved in religious activities. Strommen does not currently practice any religious faith.
In conversation with Strommen and in a joint affidavit submitted to the district court, the children expressed a preference to live with Strommen, but they have never stated such a preference to Kawlewski. The children's preference is apparently based on their desire to participate in outdoor activities and on Strommen's support of the children's participation in competitive sports; the children also expressed a lack of interest in the Jehovah's Witness faith.
The children repeated their preference to live with Strommen to a guardian ad litem, who interviewed the children on four separate occasions. Each time, they told her they wanted to live with Strommen, though they both said they wanted to see Kawlewski every day. The guardian ad litem recommended granting physical custody to Strommen.
Following an evidentiary hearing, the district court denied Strommen's motion to modify custody, and this appeal follows.
DECISION I.
Strommen argues that the district court abused its discretion by failing to consider the appropriate statutory criteria, and the effect of the children's custodial preference on those criteria, when the court denied Strommen's motion to modify custody. Modification of a child-custody order requires a finding that "a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child." Minn. Stat. § 518.18(d) (2002). Modification is appropriate when a child's present environment
endangers the child's physical or emotional health or impairs the child's emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.
Id. § 518.18(d)(iv). Factors relevant to determining the "best interests of the child" include the child's reasonable custodial preference. Id. § 518.17, subd. 1(2) (2002). A district court has broad discretion to provide for the custody of the parties' children. Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989). Appellate court review of a custody determination is limited to whether the district court abused its discretion by improperly applying the law or by making findings unsupported by the evidence. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996). Findings of fact will not be set aside unless clearly erroneous. Minn.R.Civ.P. 52.01. A finding is "clearly erroneous" if
the reviewing court is "left with the definite and firm conviction that a mistake has been made." When determining whether findings are clearly erroneous, the appellate court views the record in the light most favorable to the trial court's findings.
Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn.App. 2000) (quoting Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted)) (citation omitted).
Children's Custodial Preference
Strommen argues that the district court "dismissed" the children's custodial preference and failed to make findings on this best-interests factor. But the district court's findings discuss the children's preference at length. The court noted that the children stated their preference in their joint affidavit and in interviews with the guardian ad litem. The court also noted, however, that the children never discussed such a preference with Kawlewksi and that Strommen first expressed a desire for custody, and communicated the children's preference to Kawlewski, shortly after receiving notice of Kawlewski's motion for an increase in Strommen's child-support obligation. The court also found that the children stated the desire to see Kawlewski every day. Consequently, the district court concluded that the children's professed desire for a change in custody was "largely instigated by [Strommen] as the result of his vocalized objections to [Kawlewski]'s * * * request that he pay additional child support." Cf. Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 691 (Minn.App. 1989) (stating child's custodial preference should be given weight to the extent it bears on child's well being "when the court is convinced that [the preference] is not the product of manipulation by the non-custodial parent"), review denied (Minn. June 21, 1989); Steinke v. Steinke, 428 N.W.2d 579, 583 (Minn.App. 1988) (noting child's "clearly expressed preference" and the district court's failure to give reasons for discrediting the child's testimony).
The district court's findings regarding the children's custodial preference are supported by the evidence and are not, therefore, clearly erroneous.
Change in Circumstances
Strommen argues that the children's preference to live with him is a change in circumstances that supports his motion to modify custody. A child's preference to modify custody can constitute a change in circumstances. See Eckman v. Eckman, 410 N.W.2d 385, 388-89 (Minn.App. 1987). Here, the district court acknowledged such a change in circumstances in its findings. But a change in circumstances alone is insufficient to justify granting Strommen's motion. See Minn. Stat. §§ 518.18(d) (requiring a showing that modification is necessary to serve the best interests of the child), .18(d)(iv) (requiring a showing of endangerment and a balancing of harm and advantage).
Best Interests
Strommen argues that the district court failed to consider several relevant statutory factors and further failed to explain how its findings led to its conclusions regarding the best interests of the children. When determining the "best interests of the child," the district court considers all relevant factors, including those listed in Minn. Stat. § 518.17, subd. 1 (2002). The court must
make detailed findings on each of the factors and explain how the factors led to its conclusions and to the determination of the best interests of the child.
Id. Strommen argues that the district court failed to consider the wishes of the parents; the children's preference; the interaction and interrelationship of the children with their parents; the mental and physical health of the parents and the children; and the capacity and disposition of the parties to give the children love, affection, and guidance and to continue educating and raising the children in their religion. See id.
But the district court did make findings on all but one of these factors. Regarding the wishes of the parents, it found that Strommen moved the court for a modification of custody and that Kawlewski opposed any modification. As discussed earlier, the district court considered the children's stated custodial preference but provided reasons for discrediting it. Regarding the interaction and interrelationship of the children and parents, the district court found that (1) Kawlewski is the parent with whom the children feel most comfortable discussing "intimate problems," (2) Kawlewski and Strommen have a liberal parenting-time arrangement, (3) the children participate in outdoor activities with Strommen, (4) the children have lived with Kawlewski since birth, and (5) the children have not lived with Strommen and have not been integrated into his household. While there are no findings as to the mental and physical health of the parties, Strommen fails to allege any health issues that affect the children's best interests. Finally, the district court made findings as to the capacity and disposition of the parties for love and affection and raising the children in their religion by finding that (1) Strommen conceded that Kawlewski was a good mother and had taught the children "good values," (2) Kawlewski continued to raise the children in her religion while Strommen had sought to undermine her efforts through criticism of her faith, and (3) Strommen had never taken the children to church.
Endangerment
Strommen argues that the present custodial arrangement emotionally endangers the children because they prefer to live with him. "The choice of an older teenage child is an overwhelming consideration" in deciding whether endangerment exists. Ross v. Ross, 477 N.W.2d 753, 756 (Minn.App. 1991). Such a preference, however, is "not determinative * * * and is only one of the factors to be considered * * * ." Johnson v. Johnson, 424 N.W.2d 85, 88 (Minn.App. 1988). Regarding endangerment, the legislature "likely intended to demand a showing of a significant degree of danger." Ross, 477 N.W.2d at 756.
Here, the district court, after consideration of the children's custodial preference, found that their continued physical and emotional health was not endangered and that remaining in Kawlewski's custody would not likely impair the children's emotional development. Strommen cites only the children's custodial preference as the basis for a finding of endangerment, and the district court provided a sufficient basis for discrediting the preference. The court's finding that no endangerment exists, therefore, is not clearly erroneous.
Balancing Harm and Advantage
Strommen argues that the advantages to the children of a change in custody will outweigh any harm that results from the change. But the district court found that there was no advantage to the children to be gained by a change of custody and that such a change risked harming the children's close relationship with Kawlewski and their continued religious upbringing. The court found that the children will continue to have liberal parenting time with Strommen so that they can take part in outdoor activities with him. The court noted that, because of the "extensive weekend activities" that the children enjoy with Strommen, a change in residence would deprive Kawlewski of much of the contact she currently has with the children. The district court made findings that balanced the harm likely to be caused by a change of custody with any advantages that would result, and Strommen fails to show that these findings are clearly erroneous.
When it denied Strommen's motion to modify custody, the district court considered the appropriate statutory criteria and the court's findings of fact are not clearly erroneous. The district court did not, therefore, improperly apply the law or make findings unsupported by the evidence.
II.
Strommen next argues that the district court abused its discretion by not granting his request that the court interview the children regarding their custodial preference. A district court may interview a child to ascertain the child's reasonable custodial preference. Minn. Stat. § 518.166 (2002). The district court's decision whether to interview the children is entirely discretionary, and an interview is not the only way to determine a child's preference. Madgett v. Madgett, 360 N.W.2d 411, 413 (Minn.App. 1985).
As evidence of the children's custodial preference, the district court had before it Strommen's affidavit and testimony, Kawlewski's affidavit and testimony, the report and testimony of the guardian ad litem, and the children's joint affidavit. The court apparently decided that this evidence was sufficient to allow it to determine the children's preference. Strommen fails to allege any basis for finding that this decision was an abuse of the court's discretion. The district court, therefore, did not abuse its discretion by not granting Strommen's request to interview the children.
III.
Finally, Strommen argues that the district court abused its discretion by not accepting the guardian ad litem's recommendation in the court's custody order. In contested custody proceedings, the district court "may order an investigation and report concerning custodial arrangements for the child." Minn. Stat. § 518.167, subd. 1 (2002). A district court may in its discretion refuse to accept a study's recommendation for custody. See Roehrdanz v. Roehrdanz, 410 N.W.2d 359, 362 (Minn.App. 1987), review denied (Minn. Oct. 28, 1987). A refusal to accept the study's recommendation requires that the district court either (1) express its reasons for rejecting the recommendation or (2) make detailed findings that examine the same factors that the study examined. See Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn.App. 1991).
While Strommen argues that the district court was required to explain why it did not accept the guardian ad litem's recommendation, the district court was free not to accept the recommendation if the court examined the same factors that the guardian ad litem's study examined, and the district court did this. The guardian ad litem's report and testimony discussed the children's stated preference to live with Strommen. The district court acknowledged the guardian ad litem's findings but determined that it was significant that the children had not previously expressed such a preference. The guardian ad litem's report stated that there was no "workable communication" between the parents, but the district court found that there was a liberal parenting-time arrangement, a finding supported by the evidence in the record, including the guardian ad litem's own testimony. The guardian ad litem's report stated that the children felt that they suffered "emotion[al] and mental abuse" because of Kawlewski's religious practices. The district court found, however, that the children had willingly participated in Kawlewski's religious practices and that religious activities did not consume an unreasonable amount of the children's time. While the guardian ad litem's report also linked the children's feelings of emotional and mental abuse to Kawlewski's objections to the children's participation in competitive sports, the district court found that Kawlewski, after resolving her legitimate concerns, had agreed to allow the children to participate in competitive sports.
Because the district court made detailed findings on each of the factors examined by the guardian ad litem, and because each finding is supported by the evidence, the district court did not abuse its discretion by failing to adopt the guardian ad litem's findings and recommendation.