Opinion
No. C3-95-2720.
Filed July 16, 1996.
Appeal from the District Court, Mower County, File No. F3941213.
John G. Westrick, Kari L. Clark, Westrick McDowall-Nix, P.L.L.P., (for Appellant).
Scott Richardson, Richardson Law Firm, (for Respondent).
Considered and decided by Davies, Presiding Judge, Harten, Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994).
UNPUBLISHED OPINION
Appellant mother Shawn Elise Sollie challenges the trial court's award of sole physical custody of the parties' two children to respondent father Stephen Paul Sollie. We affirm.
FACTS
The parties married in 1987 and moved to Austin in 1990 with their two daughters. The children have lived with father since August 1994, when mother moved to Woodbury to live with her boyfriend, Paul Stevenson. Shortly thereafter, father developed a relationship with Kathy Jackson, who has two daughters of her own, and the couple began to combine their two families and share caretaking responsibilities. In November 1994, the trial court adopted a stipulation whereby the parties agreed to joint legal custody of their children and agreed that father would have temporary physical custody for the following six months and mother would have liberal visitation.
In May 1995, both parties sought physical custody of the children. Before the custody hearing, Kathy Pack, the court-ordered evaluator, submitted a custody study, and recommended that mother receive sole physical custody. Following the hearing, the trial court made findings on the best interests of the children and awarded father sole physical custody. This appeal followed.
DECISION
Mother argues the trial court erred in determining that the best interests of the children are served by granting father sole physical custody. When determining custody, the trial court must consider all factors relevant to "the best interests of the child[ren]," including the factors listed in Minn. Stat. § 518.17, subd. 1(a) (1994). Appellate review of custody determinations is limited to evaluating "whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law." Ayers v. Ayers , 508 N.W.2d 515, 518 (Minn. 1993). Absent clear error, the reviewing court must sustain the trial court's findings, but the reviewing court need not defer to the trial court on questions of law. Id.
Mother contends the trial court's custody determination constitutes clear error because (1) she was the primary caretaker of the children when the parties separated, (2) the trial court acknowledged her caretaking capabilities, (3) Pack recommended that she receive custody, and (4) it was irrelevant that father was the primary caretaker in the fifteen months between the separation and trial. Mother relies on Pikula v. Pikula , 374 N.W.2d 705, 714 n. 3 (Minn. 1985) (holding that a child's best interests will be served by placing child with the primary caretaker, determined at the time the parties separated, unless the primary caretaker would be an unfit custodian).
A parent's caretaker role at the time of separation, however, "may not be used as a presumption in determining the best interests of the child[ren]." Minn. Stat. § 518.17, subd. 1(a); see also Sefkow v. Sefkow , 427 N.W.2d 203, 212 (Minn. 1988) (holding that the Pikula analysis only has viability if the separation date is reasonably close to the trial). The trial court must inquire into all relevant best interest factors. Sefkow , 427 N.W.2d at 212. Further, in exercising its discretion in custody matters, a court need not accept a custody study's recommendation. See Roehrdanz v. Roehrdanz , 410 N.W.2d 359, 362 (Minn.App. 1987), review denied (Minn. Oct. 28, 1987). Here, the trial court considered the relevant best interest factors and found that (1) the children have a close relationship with both parents, (2) their maternal grandmother in Austin is a positive influence, (3) they have developed a strong and healthy relationship with the Jackson family, (4) they are well-adjusted, and (5) it is desirable to maintain the continuity of their environment in Austin. The court concluded that it is in the best interests of the children to remain in father's sole physical custody.
Mother disputes several findings on which the trial court based its custody determination. Mother challenges the trial court's finding that the children are well-adjusted to their temporary custody arrangement, arguing that father and Jackson made frequent moves between their respective homes while sharing caretaking responsibilities. Although Pack testified that if the children were constantly moved from place to place, "it would affect their best interests," mother offered no evidence that the children were not well-adjusted. The testimony of the children's daycare director, their kindergarten teacher, a friend of father, and father's neighbor provided ample support for the trial court's determination. The testimony indicated that neither child is suffering emotionally; the children are always neat, well-dressed, and well-mannered; and they are good students.
Mother also argues that the evidence does not support the trial court's finding that the children had been living in a stable environment, because father has an irregular work schedule and had asked the children's maternal grandmother to care for them once a week. Father, however, testified that he has changed his work schedule since the separation so he usually works only one evening each week, and Jackson takes care of the children on those evenings. Moreover, mother does not dispute the finding that the children's maternal grandmother is a positive factor in their lives.
Mother claims that the trial court erred by speculating about the home that Jackson and father were planning to build. The record, however, contains ample support for the finding that [Father] is contemplating moving the children and himself from the family [home] into Kathy Jackson's home after the home has been remodeled to add an addition. The addition added to Kathy Jackson's home will allow each of the four children (the two Sollie children and the two Jackson children — all four of whom are girls) to have their own bedroom.
The trial court specifically acknowledged that the couple's building plans "are contingent on the continuing relationship of [father] and Kathy Jackson." Further, father and Jackson both testified that their building plans were relatively definite, the process had been delayed pending the outcome of the custody determination, and they had been preparing father's home for sale.
Finally, mother challenges the findings in general, arguing the court made extensive findings on the children's positive relationship with Jackson, but failed to make findings on father's ability to parent without Jackson's assistance and ignored the children's relationship with Stevenson. This court rejected a similar argument in Sinsabaugh v. Heinerscheid , 428 N.W.2d 476, 480 (Minn.App. 1988), based on the trial court's discretion to weigh the evidence and to determine the credibility of testimony. The trial court here did not abuse its discretion because it considered all of the relevant best interest factors, and the record supports those findings.