Opinion
No. C0-96-1096.
Filed October 15, 1996.
Appeal from the District Court, Clearwater County, File No. F1-95-180.
Patti J. Jensen, (for Appellant)
James C. Fischer, (for Respondent)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994)
Unpublished Opinion
Appellant-father challenges the district court's denial of his motion to modify custody. We affirm.
Facts
The judgment dissolving the marriage of appellant-father Roger E. Gilbert and respondent-mother Jane A. Gilbert n/k/a Jane A. Fox, awarded the parties joint legal custody of their three minor children with physical custody of the daughter awarded to mother and that of the sons awarded to father. In early 1995, father took the children to a North Dakota counselor who reported to a North Dakota social service agency that the children might be abused and neglected. The agency found probable cause to support the counselor's suspicions; father thereupon moved a North Dakota court for sole custody of the children. That court dismissed the action, finding that North Dakota was not a convenient forum. Father then brought the instant custody motion in Minnesota, claiming that mother neglected daughter and that daughter was abused by mother's husband and two of mother's brothers, one of whom lived with mother. After a hearing, the district court denied father's motion, finding that mother's brother no longer lived with mother and that there was no current endangerment. Father appeals.
Decision
Our review of custody decisions is limited to whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. In re Welfare of H.M.S., 541 N.W.2d 301, 303 (Minn. 1995). The relevant part of the custody modification statute precludes modification unless the child's present environment endangers the child. Minn. Stat. § 518.18(d) (iii) (Supp. 1995). Father claims that the district court erred by not finding daughter to be endangered in mother's custody. We will not reverse a district court's finding of fact unless it is clearly erroneous. Minn.R.Civ.P. 52.01. In determining whether a district court's finding is clearly erroneous, we view the record in the light most favorable to the district court's finding. Johnson v. Smith, 374 N.W.2d 317, 319 (Minn.App. 1985), review denied (Minn. Nov. 18, 1985).
Mother's brother, whose abuse of daughter was a basis for much of father's claim that daughter was endangered in mother's custody, was removed from mother's home the day father served process on mother in this proceeding; he was not a part of daughter's environment while father's motion was pending. Father notes that mother admitted that she was aware of the children's problems with her brothers by late 1994, but that she did not remove the resident brother from her house until March 1995. Father claims that endangerment was shown because mother had "full knowledge" of the abuse but allowed it to continue. He also challenges the district court's finding that mother's failure to react more quickly was "understandable" due to the illness of mother's father.
Mother's father was dying and mother was, understandably, spending a significant amount of time with him. The record supports the district court findings that the brother who did not live with mother was not present with the children often and that "when [mother] recognized [her other brother as a] threat to her children, she removed the threat." Mother testified that, after hearing about the children's problems with the resident brother, she told him "[n]ot to be pushing the kids or rough housing them around" but that "it didn't seem so bad at the time[.]" She also stated that she avoided having her brothers baby-sit the children and thought the problem had been resolved. Thus, while mother may have become aware, in November or December 1994, that the resident brother was a problem, she apparently did not realize the extent of the problem until father served his motion on her; thereafter, mother had that brother out of her home in less than 24 hours.
Father also alleges "potential sexual contact" of daughter by mother's brother. Because, even after the hearing, father admits that the sexual contact is only "potential," he has not shown that the alleged contact occurred. See Nice-Peterson v. Nice-Peterson, 310 N.W.2d 471, 472 (Minn. 1981) (in custody modification proceeding, moving party must show change of circumstances endangering child).
Father also claims that the abuse by mother's brothers, when combined with other circumstances, shows endangerment. Father asserts that daughter witnessed domestic violence between mother and her husband and that those observations caused daughter to be violent. Mother testified, however, that only the sons witnessed the incident. Even if daughter did see it, that fact would not necessarily require that she be removed from mother's custody. See generally Uhl v. Uhl, 413 N.W.2d 213 (Minn.App. 1987) (affirming award of custody of abused child to parent who abused the child).
Part of father's brief functionally argues that daughter's alleged observation of the domestic dispute is endangerment per se. The cases father cites to support this claim are foreign or distinguishable, or both.
The guardian ad litem explained daughter's violence, testifying that he and the people with whom he spoke at the children's schools concluded that the children were under "a lot of stress" because they were aware of the implications of father's motion and that, as the hearing date approached, daughter "acted out."
Citing daughter's illnesses, father claims daughter does not practice proper hygiene when living with mother. The record shows that daughter contracted several of the illnesses during outbreaks at school and that another illness was an anticipated side effect of daughter's treatment for strep throat. Also, because the district court questioned mother about father's claims that daughter has a weight problem and poor bathing habits, we conclude that the district court considered these claims in making its decision.
Father claims that daughter was endangered because she was cared for by mother's husband. Consistent with the testimony of mother and the guardian ad litem, the district court found that the children's relationship with mother's husband "in general is a good one" and that "[a]pparently the children like [him] and relate well to him." The district court also found that the attempts of mother's husband to avoid police because he drives without a driver's license were "hardly grounds to cause a change of custody." Father cites no authority that such conduct, however disreputable, constitutes endangerment for the purpose of custody modification. Also, the guardian ad litem testified that he was aware of the criminal history of mother's husband, examined the offenses, discovered that many were alcohol-related, and asked the police whether mother's husband was dangerous; the police did not regard him as dangerous.
Father makes a general reference to "alcohol issues." The district court found that there was "no evidence" that mother's husband drives with the children in the car while he is intoxicated. This is consistent with mother's testimony that she and her husband now drink about once a month and that she stopped letting her husband drive the children when it "became an issue." Viewing the record in the light most favorable to the district court's findings, the district court's rejection of current endangerment is not clearly erroneous. We affirm the denial of father's motion to modify custody. See Niemi v. Schachtschneider, 435 N.W.2d 117, 119 (Minn. App. 1989) (endangerment is a "threshold" for custody modification).