Opinion
No. C0-02-1464.
Filed April 15, 2003.
Appeal from the Ramsey County District Court, File No. F298564.
Sarah J. Batzli, Cousineau, McGuire Anderson, Chtd., (for respondent)
Christina C. Huson, Daniel R. Butler Assoc., P.A., (for appellant)
Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Stoneburner, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant Kevin Busko appeals a post judgment order modifying the parties' agreed-on joint-custody arrangement to an award of sole legal and physical custody to respondent Linda Ferens-Busko, subject to supervised visitation by Busko. Busko also appeals the denial of his motion for modification of his child-support obligation. Busko argues that the district court (1) erred by not appointing a guardian ad litem prior to the evidentiary hearing; (2) made clearly erroneous findings; (3) erred by considering a confidential statement of preference by the six-year-old child; (4) erroneously applied custody-modification factors to the facts; (5) abused its discretion by failing to modify the amount of child support established in a temporary order; and (6) abused its discretion by failing to grant a new trial based on new material evidence. Because the district court erred by failing to appoint a guardian ad litem prior to the evidentiary hearing but did not abuse its discretion by declining to modify child support, we reverse in part and affirm in part.
FACTS
Appellant Kevin Busko and respondent Linda Ferens were married from 1992 until 1998 and have a daughter who was born in 1995. The dissolution judgment, based on the parties' stipulation, provided for joint physical and joint legal custody, and the parties shared almost equal parenting time until January 2001.
In August 2000, Ferens, without telling Busko, took the child to a licensed psychologist for a custody evaluation. This psychologist began providing therapy to the child and possibly to Ferens. In January 2001, Busko was convicted of assaulting Ferens while she was holding the child. In February 2001, Ferens obtained an order for protection against Busko that gave her temporary sole custody of the child and limited Busko's time with the child to supervised visitation. Ferens then moved to amend the dissolution judgment to grant her sole legal and physical custody. Busko opposed the motion and requested appointment of a guardian ad litem.
In March 2001, the psychologist was made aware of the child's complaints about the manner in which Busko applied Vaseline to a vaginal rash and allegations that Busko, for purposes of discipline, had placed the child's hand on a hot stove and on a hot light bulb. The psychologist, a mandated reporter, reported these allegations to Ramsey County Child Protection for investigation.
In May 2001, the district court determined that Ferens had made a prima facie case for custody modification. The determination was based, in part, on the allegations of physical and sexual child abuse by Busko. The district court set the matter for an evidentiary hearing and ordered a custody evaluation but failed to appoint a guardian ad litem. The district court established child support based on Busko's earnings from full-time employment.
Much of the evidence at the September 2001 evidentiary hearing related to the allegations that Busko had sexually abused the child. Busko requested modification of child support based on his testimony that he was no longer working full-time. In an order dated December 27, 2001, the district court awarded Ferens sole physical and sole legal custody of the child, required continued supervision of Busko's visitation with the child, and ordered Busko to continue paying child support based on earnings from his prior full-time employment.
Allegations of physical abuse were unsubstantiated, but Ramsey County Child Protection made a determination of maltreatment by Busko based on his admitted touching of the child's vagina to treat a rash.
In January 2002, an Administrative Law Judge (ALJ) concluded that there was no evidence that Busko's admitted touching of his daughter's vagina was done with sexual or aggressive intent and reversed the child protection agency's determination of maltreatment. Based on the reversal of the maltreatment finding, Busko moved the district court for amended findings of fact, conclusions of law, and order, or, in the alternative, a new trial. Busko also requested modification of child support, modification of visitation, and appointment of a guardian ad litem. The district court amended its findings to reflect the ALJ's determination and clarified that the district court did not base the custody modification on a conclusion that Busko had abused his daughter, but on testimony that the child is afraid of Busko. All other motions were denied. This appeal followed.
At oral argument, counsel noted that the district court has now affirmed the ALJ's ruling.
DECISION I. Custody modification
"Application of a statute to the undisputed facts of a case involves a question of law." O'Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn. 1996). This court reviews such questions de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).
Minn. Stat. § 518.165, subd. 2 (2002), requires the court to appoint a guardian ad litem (GAL) in child-custody proceedings if the court has reason to believe the child is a victim of domestic abuse (either physical or sexual). Busko contends that the district court erred by not appointing a GAL prior to the evidentiary hearing. Ferens argues that because a GAL has recently been appointed, in response to Busko's parents' motion for visitation, the issue of appointment of a GAL is moot. We disagree. The purpose of the statute is to ensure that the child's best interests are represented at the time allegations of abuse are under consideration.
In this case, the district court's determination that Ferens had made a prima facie case of changed circumstances to support a motion for custody modification was based on allegations that Busko had physically and sexually abused the child, triggering the mandatory appointment of a GAL to represent the child's best interests. It is irrelevant that the district court ultimately stated that it declined to determine that sexual abuse had occurred. We have previously held that expert testimony indicating that abuse may have occurred, even where there is contradictory testimony, is sufficient to compel the court to appoint a GAL. J.E.P. v. J.C.P., 432 N.W.2d 483, 487 (Minn.App. 1988). The triggering factor mandating appointment of a GAL is the existence of a reason to believe abuse occurred. Minn. Stat. § 518.165. A determination that abuse has occurred is not necessary. Failure to appoint a GAL as required by the statute, compels reversal and remand. Id. at 486.
Ferens argues that J.E.P. only applies when there is a question about whether the child's interests have been represented. We disagree. J.E.P. holds that the appointment of a GAL in cases where there is a reason to believe sexual abuse has occurred is mandated by statute. Id. at 487. Because the district court erred by not appointing a GAL as required by Minn. Stat. § 518.165, we reverse the judgment modifying custody and remand to the district court for an evidentiary hearing at which the child's interests are represented by a GAL. We decline to address the additional grounds on which Busko appeals the custody modification.
Ferens argues that the child's best interests were represented at the evidentiary hearing but Busko disagrees noting that (1) the child's therapist was selected by Ferens, was possibly treating Ferens, and never met with or spoke to Busko or observed him with the child; (2) the court-appointed custody evaluator never observed Busko with the child; and (3) the majority of Ferens's witnesses testified about the maltreatment finding which was subsequently reversed.
II. Child support
A district court's order regarding child-support modification will be reversed only if we are convinced that the district court abused its broad discretion by reaching a conclusion that is against logic and facts on the record. Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999).
Modification of child support is allowable when an obligor shows a substantial change of circumstances making the existing terms * * * unreasonable and unfair.
Kuronen v. Kuronen, 499 N.W.2d 51, 53 (Minn.App. 1993), review denied (Minn. Jun. 22, 1993).
In denying Busko's motion for modification of child support, the district court stated that Busko had not produced evidence sufficient to persuade it to alter the previously established support. The prior order was based on Busko's full-time teaching earnings. Busko testified that he had resigned from his teaching job due to the allegations raised by Ferens and was working part-time at a department store for a specified hourly wage. No other evidence related to the change in his financial circumstances was presented. Based on this record we cannot find that the district court abused its discretion by determining that Busko failed to demonstrate that his previously ordered support was unreasonable or unfair.