Opinion
No. C8-97-725.
Filed October 14, 1997.
Appeal from the District Court, Anoka County, File No. F3-94-6431.
John C. Sanders, (for Respondent).
Timothy S. Choal, (for Appellant).
Considered and decided by Norton, Presiding Judge, Schumacher, Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant challenges the trial court's determination of custody, child support, arrearages, and marital property division. Respondent requests sanctions, costs and reasonable attorney fees. The trial court did not abuse its discretion in granting custody, dividing the parties' marital debt, or ordering child support. Because the trial court made no findings regarding its denial of an offset in mother's child support arrearages obligation, this issue is remanded for further evaluation of the propriety of such an offset. Respondent is granted a portion of the costs incurred in producing his appendix. We affirm in part, reverse in part, and remand.
FACTS
Appellant Pauline Michelle Carroll (mother) and respondent Robert Charles Carroll (father) were married on December 4, 1982. They have two children born to their marriage: Holly, born August 19, 1982, and Heather, born July 22, 1985. The parties separated in approximately May 1992.
At trial, both parties testified and called witnesses to testify regarding their parenting abilities and custodial concerns. Additionally, the Anoka County custody evaluator testified regarding her recommendation that father be awarded sole legal and physical custody. Following the trial, the court conducted an in-camera interview of the parties' two children. Subsequently, the court issued findings of fact, conclusions of law, order for judgment, and judgment and decree dissolving the parties' marriage. The court granted father sole legal and physical custody of the parties' two children; ordered mother to pay child support in the amount of $473 per month; and divided the parties' marital property and debt. Mother moved for amended findings or, alternatively, a new trial. The court denied the motions.
DECISION 1. Custody
Mother argues that the trial court abused its discretion in granting father sole legal and physical custody of the parties' two children. A trial court has broad discretion to provide for the custody of the parties' children. Rutten v. Rutten , 347 N.W.2d 47, 50 (Minn. 1984). An appellate court may not reverse a custody determination unless the trial 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). Where the evidence supports the trial court's conclusions, the appellate court must affirm, even if the evidence supports other conclusions as well. See Sefkow v. Sefkow , 427 N.W.2d 203, 211 (Minn. 1988) (affirming primary caretaker determination even though evidence would also have supported finding in favor of other parent).
A trial court's custody determination must be based on the best interests of the children. Minn. Stat. § 518.17, subd. 1 (1996). Mother contends that the trial court did not properly apply the best interests factors to the facts of this case. Specifically, mother alleges that evidence before the court demonstrated that she, not father, should be granted sole legal and physical custody. Mother correctly observes that the trial court heard evidence reflecting deficiencies in father's parenting ability and favorable evidence regarding her parenting ability. It is, however, the proper role of the trial court to weigh conflicting testimony, determine credibility, and reach a decision. Sefkow , 427 N.W.2d at 210. We must defer to the trial court's ability to weigh this evidence and apply it to the best interest factors. Id.
Mother also submits that the trial court abused its discretion by granting father sole legal and physical custody because the record does not support the trial court's finding that mother's political beliefs may cause the children future instability. We disagree. Mary Rekuski, the Anoka County custody evaluator, testified that she asked mother if she would go to jail to vindicate her political beliefs. Mother told Rekuski, "She would have to consider the length of the sentence if she was put in that position." Moreover, Rekuski reports that mother said she did not believe her imprisonment would affect her parenting unless it was for "several years." At trial, mother testified that she continues to hold her views regarding the U.S. income tax system, but her beliefs had "subsided." This evidence in the record supports the trial court's finding that mother's politics may cause instability for her children.
Finally, mother claims that the record does not support the trial court's finding that Holly was not mature enough to make an informed and well-thought-out custodial choice. We disagree. Rekuski's custody evaluation stated:
Holly is also not exhibiting the maturity necessary for someone her age to make an informed and well thought out custodial choice.
In addition, at trial, Rekuski testified that Holly is currently in the unfortunate position of being in the middle of her parents' conflict. The trial court also conducted a thorough in-camera interview of Holly, from which it could have concluded she lacked the requisite maturity to make a custodial choice.
Because the trial court properly applied the best interests factors and made findings supported by the record, it did not abuse its discretion in granting father sole legal and physical custody.
2. Offset or discharge of mother's obligation for child support
In July 1994, the court issued an order for temporary relief granting father temporary sole physical and legal custody of the parties' two children and ordering mother to pay $576 per month in child support. At this time, Holly and Heather went to live with their father. In September 1995, Holly moved out of her father's residence after a dispute and moved in with mother. Mother then filed a motion to amend the temporary order to provide her with sole temporary physical custody of Holly and to suspend her child support obligation. The court denied mother's motion, stating that the motion was "premature." The court observed, "[Father] indicated to the Court that he did not wish to pressure Holly to return to his home at present, suggesting that the time she is currently spending at [mother's] residence be viewed as extended visitation."
During the dissolution trial, mother asked the trial court to offset her child support arrearages obligation under the temporary order due to the fact that Holly had been living with her for the past 151/2 months. Mother contended that the court should have considered this time as a split custody situation. The court denied mother's request and provided that arrearages would survive entry of the decree. An appellate court defers to the trial court's broad discretion to set child support and shall not reverse unless the decision was clearly erroneous. Rutten , 347 N.W.2d at 50-51.
A dissolution trial court may find a child support obligation satisfied when the obligor provides a home, care, and support for the minor children of the parties. Karypis v. Karypis , 458 N.W.2d 129, 131 (Minn.App. 1990), review denied (Minn. Sept. 14, 1990). Following this court's decision in Karypis , the legislature amended the statute regarding child support to provide:
The court may conclude that an obligor has satisfied a child support obligation by providing a home, care, and support for the child while the child is living with the obligor, if the court finds that the child was integrated into the family of the obligor with the consent of the obligee and child support payments were not assigned to the public agency under section 256.74.
Minn. Stat. § 518.57, subd. 3 (1996).
The record shows that Holly lived with her mother for 151/2 months with father's consent. In father's affidavit regarding mother's motion for a suspension of her child support obligation, father stated that he willingly loaded Holly's things into his car and drove her to her mother's residence. Father stated that he realized Holly needed to live with her mother at that time. Under these circumstances and section 518.57, subdivision 3, the trial court had the discretion to grant mother's request for an offset in her child support obligation. Because the trial court made no findings on this issue, it is difficult to determine whether the court abused its discretion in denying the offset. Consequently, we remand this issue to the trial court for further findings regarding the propriety of an offset of child support arrearages.
3. Division of marital debt
Mother alleges that the trial court abused its discretion in dividing the parties' marital debt because it used the parties' current debt balances rather than the debt balances at the time father filed the motion for temporary relief in 1992. Father contends that mother is precluded from raising this argument on appeal because she failed to raise it below. See Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988) (party may not raise on appeal issue not litigated below). We agree.
Even assuming this argument were properly on appeal, however, mother still is without relief. With the exception of exhibit 11, which father had provided, the trial court found that mother had not provided any other credible evidence regarding the debt balances. On this record, the trial court did not abuse its broad discretion in relying on the debt balances that father submitted, because mother failed to provide the court with any evidence regarding the credit balances at an alternate date.
4. Mother's child support obligation under the temporary order
In its temporary order, the court ordered mother to pay $576 in child support per month. Mother alleges this obligation must be reversed because it was not supported by a finding of her income. Generally, temporary orders for support and custody are not appealable. Hennepin County v. Griffin , 429 N.W.2d 283, 284 (Minn.App. 1988); see Minn.R.Civ.App.P. 103.03 (allowing appeal only from certain final orders). Even if this order were properly before this court, however, it appears that a sufficient finding of mother's income supports the child support order.
Minn. Stat. § 518.131 (1996) governs temporary orders in marital dissolution proceedings and provides that the child support guidelines shall direct the court when issuing a temporary support order. Id. , subd. 7. Minn. Stat. § 518.551, subd. 5b (1996), provides that the "parties shall timely serve and file documentation of earnings and income." That section further provides that, if a parent, under the jurisdiction of the court, does not appear at a hearing, the court shall set income for that parent based on "credible evidence before the court," including "testimony of the other parent concerning recent earnings and income levels." Id. , subd. 5b(c). Mother submitted no documentation of her income or earnings. On this record, the trial court did not abuse its discretion in determining temporary child support based on the evidence father submitted regarding mother's income.
5. Sanctions
Father contends that mother should be sanctioned and he should be awarded costs because mother failed to provide an appendix to her brief as required by Minn.R.Civ.App.P. 130.01. Minn.R.Civ.App.P. 130.02 provides, "If the respondent determines that the appendix filed by the appellant omits any items specified in Rule 130.01, only those omitted items may be included in an appendix to the respondent's brief."
Father's appendix is 95 pages long and is properly indexed and paginated. It appears that everything produced in father's appendix is relevant, except for the motion to quash summons or dismiss by special appearance, and the order for mediation. These two documents constitute 16 pages of father's appendix. The remainder of the appendix is relevant and necessary to evaluate this case on appeal. Father is awarded costs for this portion of his appendix.
Father also alleges that this court should impose sanctions against mother because she omitted the statement of the case, failed to make references to the record in her factual statement, and failed to include the proper standard of review. We disagree. Although not in ideal form, mother's brief did include the information provided by a statement of the case and standards of review. Mother's failure to cite to the record is excusable because the trial court forbade the attorneys from viewing the trial transcript.
6. Attorney fees
Father contends he is entitled to reasonable attorney fees under Minn. Stat. § 549.21, subd. 2 (1996). He alleges mother failed to cite legal authority to support her appellate arguments. "An award of attorney fees on appeal rests within the discretion of this court." Case v. Case , 516 N.W.2d 570, 574 (Minn.App. 1994).
Contrary to father's argument, mother has a credible argument regarding the trial court's refusal to offset her obligation for child support arrearages. Therefore, father is not entitled to attorney fees under Minn. Stat. § 549.21, subd. 2.