Opinion
No. C1-98-1998.
Filed April 6, 1999.
Appeal from the District Court, Dakota County, File No. F19715964.
Vicki Miller Luoma, Luoma Law Office, (for appellant)
Candace J. Barr, John Michael Jerabek, Niemi Barr, P.A., (for respondent)
Considered and decided by Crippen, Presiding Judge, Amundson, Judge, and Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
In this appeal from the dissolution judgment, Michael Hyland challenges the award of sole legal and physical custody of the parties' children to respondent Virginia Hyland, the determination of child support based on imputed income, and the award of attorney fees to respondent. We remand the attorney fees award because of the lack of findings but otherwise affirm.
FACTS
The parties were married in September 1992, and they separated in March 1997. Two children were born of the marriage. Appellant was not represented by counsel at the August 18, 1998, dissolution trial.
Both parties were employed during the marriage. Respondent has worked for American Express since 1987, except for a three-month period. Respondent's gross annual income from her employment with American Express at the time of the dissolution trial was $33,000.
Appellant testified that he is employed by National Karate with a gross monthly income of $1,300. Appellant stated that he had previously worked for Polka Dot Dairy for nine years, and that he had earned about $40,000 in annual gross income from that employment. Respondent testified that appellant "quit" his job with Polka Dot Dairy in November 1996.
Respondent sought sole legal and physical custody of the children and appellant sought sole physical custody with joint legal custody for the parties. Appellant testified that the way he and his girlfriend are raising the children is very loving, fun, and safe, but appellant did not provide any other direct testimony regarding custody. Respondent testified in detail regarding her interaction with the children, her concerns about appellant's parenting skills, and incidents of domestic abuse during the marriage.
The judgment of dissolution was entered on August 31, 1998. The trial court adopted respondent's proposed findings of fact, conclusions of law, and order for judgment verbatim, except that the trial court included a provision that the older child attend school in the district where respondent lives. The decree awards respondent sole legal and physical custody of the children. The decree awards respondent guideline child support in the amount of $642 per month based on appellant's imputed gross annual income of $35,000. The decree also awards respondent attorney fees in the form of appellant's 50% share of the $13,000 retirement account from respondent's employment. This appeal followed.
DECISION I.
The scope of appellate review of custody determinations is limited to 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). The dissolution statute requires that a grant of custody be based on the best interests of the child. Minn. Stat. § 518.17, subd. 1(a) (1998) (specifying 13 factors to be considered in determining child's best interests).
Appellant raises two procedural issues pertaining to custody: (1) whether the trial court abused its discretion in refusing to admit the report from a private custody evaluation and (2) whether the trial court abused its discretion in failing to question appellant regarding the best interest factors under Minn. Stat. § 518.17, subd. 1(a). The procedural issues are not properly before us because appellant failed to move for a new trial. See Sauter v. Wasemiller , 389 N.W.2d 200, 202 (Minn. 1986) (posttrial motion for new trial pursuant to Minn.R.Civ.P. 59.01 raising individual errors allegedly occurring at trial is prerequisite to appellate review of those errors).
Even if we were to review the procedural issues on the merits, appellant has not demonstrated any error. The custody evaluation was not court ordered, and the evaluator's report was inadmissible hearsay. See Minn.R.Evid. 802. Moreover, the trial court acted within its discretion in its questioning of appellant at trial. See Sheeran v. Sheeran , 401 N.W.2d 111, 116 (Minn.App. 1987) (questioning of witness by trial court is within court's discretion).
Appellant argues that the record does not support many of the trial court's findings pertaining to custody. An appellate court will affirm the trial court's findings unless clearly erroneous. Pikula v. Pikula , 374 N.W.2d 705, 710 (Minn. 1985).
The wholesale adoption of one party's findings and conclusions is not reversible error per se, but does raise the question of whether the trial court independently evaluated each party's testimony and evidence. Bliss v. Bliss , 493 N.W.2d 583, 590 (Minn.App. 1992), review denied (Minn. Feb. 12, 1993). In this case, because appellant provided no direct testimony regarding the custody factors, the trial court's findings necessarily focus on respondent's testimony.
The evidence presented at trial does not support the trial court's findings that appellant's mental health is unstable, that appellant lies for no reason, that the children did not indicate that they missed appellant when the parties separated, or that the children consider being with respondent as being home and being with appellant as visiting. But respondent's testimony does support the trial court's findings that respondent is the primary caretaker of the children, that the children are very close to respondent and her extended family, that respondent's living circumstances are more stable than appellant's, and that respondent is more capable of providing the children with guidance and affection.
This court must defer to the trial court's assessment of the credibility of witnesses and the weight to be given to their testimony. General v. General , 409 N.W.2d 511, 513 (Minn.App. 1987). In this case, the trial court clearly found respondent's testimony to be credible. The trial court acted within its discretion in awarding sole physical custody of the children to respondent based on respondent's testimony.
In determining whether to award joint custody, the court shall consider the parties' ability to cooperate, their methods for resolving disputes regarding any major decision concerning the child, whether it would be detrimental to the child if one parent were to have sole authority over the child's upbringing, and whether domestic abuse, as defined in section 518B.01, has occurred between the parties. Minn. Stat. § 518.17, subd. 2. If domestic abuse has occurred, the court shall use a rebuttable presumption that joint legal or physical custody is not in the child's best interests. Id.
The trial court awarded sole legal custody to respondent, finding that the parties are unable to cooperate, that they have no method for resolving disputes, that it would not be detrimental if one parent were to have sole custody, and that domestic abuse has occurred. Respondent testified that the parties are unable to come to agreement on major decisions regarding the children, noting that the parties could not resolve their dispute about where the older child should attend school. Respondent also presented undisputed testimony that appellant physically abused her during the marriage. The record supports the trial court's award of sole legal custody to respondent.
II.
The trial court has broad discretion to provide for the support of the parties' children. Rutten v. Rutten , 347 N.W.2d 47, 50 (Minn. 1984). This court will not reverse the trial court's decision unless it has abused its discretion. Id.
In calculating child support, the trial court may impute income to a voluntarily unemployed or underemployed obligor. Minn. Stat. § 518.551, subd. 5b(d) (1998). A parent is not considered voluntarily unemployed or underemployed upon a showing by the parent that the unemployment or underemployment is temporary and will ultimately lead to an increase in income or represents a bona fide career change that outweighs the adverse effect of that parent's diminished income on the child. Id.
In this case, the trial court found that appellant is employed as an instructor with National Karate with a gross income of $16,000 per year. The trial court found that appellant voluntarily left a job paying $35,000 per year, and that appellant did not establish that the underemployment is temporary and will ultimately lead to an increase in income or that the change in employment outweighs the adverse effect on the children. The court found that appellant is capable of earning a gross annual income of $35,000, and based child support on imputed net annual income of $25,671.
Appellant challenges the trial court's finding that he voluntarily left a job paying $35,000 per year. At trial, appellant testified that he earned $40,000 in gross income per year when he was employed at Polka Dot Dairy. Appellant did not dispute respondent's testimony that appellant "quit" his job with Polka Dot Dairy in November 1996. Respondent's testimony supports the trial court's finding that appellant voluntarily left higher paying employment. The trial court acted within its discretion in basing the child support award on imputed income.
III.
The decision to award attorney fees in a marital dissolution action rests almost entirely within the discretion of the trial court. Novick v. Novick , 366 N.W.2d 330, 334 (Minn.App. 1985). The trial court may award fees based on the need of the requesting party, if the other party has the ability to pay, or against a party "who unreasonably contributes to the length or expense of the proceeding." Minn. Stat. § 518.14, subd. 1 (1998).
In this case, the trial court, in effect, awarded respondent $6,500 in attorney fees, representing appellant's 50% share of a marital asset worth $13,000. The court found that appellant "has prolonged the proceedings and caused [respondent] to incur substantial attorney fees." The trial court made no findings in support of this conclusion.
Respondent argues that appellant acted in bad faith by failing to make the payments on a joint loan pertaining to a truck in appellant's possession, and by changing the beneficiary on appellant's life insurance policy. But respondent does not demonstrate how either of these actions caused her to incur attorney fees or contributed to the length and expense of the proceeding.
Respondent also points to appellant's failure to attend his deposition, which resulted in respondent bringing a motion to continue the trial. The motion, however, was based on respondent's counsel's desire to attend a committee meeting scheduled on the same day as the trial, as well as appellant's failure to attend the deposition. The disposition of the motion is unclear, but it appears that it was either withdrawn or denied, because the trial proceeded as scheduled.
Where a claim for attorney fees in a dissolution proceeding is based on a party's conduct, the trial court's determination regarding fees should be accompanied by findings. Kronick v. Kronick , 482 N.W.2d 533, 536 (Minn.App. 1992). Because the trial court made no findings in support of its conclusion that appellant prolonged the litigation, a remand is required.