Opinion
No. C5-95-2234.
Filed June 25, 1996.
Appeal from the District Court, Hennepin County, File No. DC 193 410.
Nancy Zalusky Berg, Gary A. Debele, William A. Winter, (for Appellant)
Louis M. Reidenberg, (for Respondent)
Considered and decided by Norton, Presiding Judge, Peterson, Judge, and Amundson, 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This opinion will be unpublished and may not be cited except as provided by Minn.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Unpublished Opinion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 alleges that the trial court abused its discretion by concluding that the best interests of the children were served by placing sole physical custody with respondent, especially in light of respondent's proposed move to Texas. Appellant also challenges the trial court's decision not to allow his expert to testify at trial and its determination of visitation, child support, and the division of marital assets.
We reverse and remand the child custody issue for a new trial to include the testimony of father's expert and for proper consideration and analysis of the best interests of the children. We affirm in part, reverse in part, and remand the marital property issue.
Facts
Appellant Jeffrey Michaud and respondent Elisa August-Michaud were married in March 1988 and separated in July 1993. They have two boys born to their marriage, now ages seven and five. During the marriage, father worked full time; mother worked full time until the parties' second child was born.
In August 1993, the court entered a temporary relief order that provided for joint legal and physical custody of the parties' children. Pursuant to this arrangement, the children alternated approximately every two weeks between their father's residence, which is the children's birth homestead, and their mother's residence.
At the dissolution trial in April 1995, the parties strongly contested the custody issue, mainly due to mother's plans to move to Texas to attend graduate school.
Several witnesses testified to the parties' parenting capabilities, relationships with the children, and mental health. Mary Ellen Bauman, a representative from Hennepin County Court Services, testified regarding the contents of the 1993 court-ordered custody study. Bauman testified that the custody study found that mother performed the majority of primary parenting tasks, and the children's best interests mandated sole physical custody with mother. Bauman indicated, however, that the custody study recommended not allowing the children to move away from their father for two years.
Several witnesses testified regarding mother. Dr. Julia Davis, a licensed psychologist whom mother had hired, testified that mother was mentally healthy and has excellent parenting skills. Carolyn Barinsky testified that mother has patience with the children, sets limits, and puts the children first in her life. Jane Mondry testified to mother's excellent parenting and said she would be willing to move to Texas for an unspecified duration to help mother with the children. Dr. Winifred B. Lilly-Taylor testified that she had treated mother for a history of depression and bulimia during May and June 1993.
Several witnesses also testified or submitted reports regarding father. Dr. Randall S. Voeks testified that father had seen him for a sexual behavior problem, which now had subsided and was not a parenting issue. Father hired Dr. Richelle Moen to testify to father's parenting capabilities. The court received Dr. Moen's report into evidence, but refused to allow Dr. Moen to testify at trial. Dr. Moen's report indicates that father is nurturing and committed to the best interests of the children.
The trial court concluded the best interests of the children would be fulfilled by placing sole physical custody with mother. The trial court waived the two-year waiting period recommended in the custody study and allowed mother to move to Texas as of the date of the decree. The trial court ordered father to pay $692 per month in child support, ordered visitation between father and the children during the school year and summers, and divided the marital property. Father brought a motion for amended findings or, alternatively, a new trial, and a stay of the custody decision. The court stayed the custody decision and reinstated the temporary relief order of August 1993 pending a decision on father's motion. Due to the initial judge's retirement, a new judge heard the motion and denied it. The court also denied father's motion to stay the custody decision pending appellate review.
Decision 1. The Children's Custody
Father argues that the trial court abused its discretion by finding that sole physical custody with mother serves the best interests of the 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). We may not set aside the trial court's findings unless they are clearly erroneous. Id. At the heart of this custody dispute is mother's proposed move to Texas to enroll in the Physician's Assistant program at Baylor University. Father argues that the trial court applied an erroneous standard of law in allowing mother to move the children to Texas with her. We disagree.
Father asserts, "The party seeking to alter the status quo by removing the children" has the burden of proving that a move is in the children's best interests. See Sydnes v. Sydnes, 388 N.W.2d 3, 6 (Minn. App. 1986) (when both parties are granted legal and physical custody under the terms of the divorce decree, neither is the primary caretaker and the party seeking to remove the child must demonstrate the move is in the child's best interests). The Sydnes standard, however, concerns a move after a formal decree has been entered, not the situation here, where only a temporary order has been issued. See Minn. Stat. ___.131, subd. 9(a) (1994) (providing that temporary orders have no impact on later proceedings).
In an initial dissolution proceeding, the trial court treats a proposed move simply as another factor to balance in determining who should have custody of the child. Stangel v. Stangel, 355 N.W.2d 489, 490 (Minn. App. 1984), review denied (Minn. Feb.6, 1985). Here, the trial court's findings indicate that, to the extent it considered mother's proposed move at all, the move was just another factor in the best interests analysis. The trial court applied the correct standard.
Although mother does not bear the burden of proving the move was in the children's best interests, the trial court has the responsibility to consider the move, and all other pertinent factors, in determining the best interests of the children pursuant to Minn. Stat. ___.17, subd. 1 (1994). A proposed move bears implicitly, if not explicitly, on several of the best interests factors in section 518.17. In particular, the best interests factors stressing stability and continuity of care are of particular importance in light of mother's proposed relocation to Texas and the young age of the children. See Sydnes, 388 N.W.2d at 6; see also Minn. Stat. ___.17, subd. 1(a)(4), (5), (6), (7), and (8) (pertinent factors). Father argues that not only do the trial court's findings fail to reflect the impact of the move on the best interests of the children, but that, overall, the findings and conclusions with respect to the best interests factors are insufficient and merit a reversal of the custody decision. With respect to many factors, we agree.
Although Sydnes was a case involving removal and a resulting modification of a prior custody decree, the importance of stability and continuity in a child's life is relevant in all relocation situations involving young children. Cf. Auge v. Auge, 334 N.W.2d 393, 399 (Minn. 1983) ( creating presumption in favor of allowing custodial parent to remove child from state when custodial parent moves out of state; presumption based on concern for continuity).
Father contends the trial court abused its discretion when it awarded custody to mother without making any findings on the effect of the move on his relationship with the children, their relationship with extended family, their adjustment to school, home, and community, and the permanence, stability and continuity of their home life. Minn. Stat. ___.17, subd. 1(a)(5), (6), (7), (8). We agree.
Although the evidence supports the court's finding regarding the children's current relationship with extended family, the finding is insufficient because it failed to articulate how a move would affect those relationships and why the move to Texas outweighs the potential deterioration of those relationships. See Id., subd. 1(a) ("The court must make detailed findings on each of the factors and explain how the factors led to its conclusions and to the determination of the best interests of the child").
Similarly, the trial court's mere mention of the facts relating to the children's home, school, and community are not sufficient when section 518.17 requires the trial court to explain how the findings, in light of the move, affected the decision that custody with mother in Texas was in the children's best interests. Aside from finding that the children lived in their birth homestead prior to the parties' separation, the court failed to make detailed findings on the length of time the children have lived in a stable environment and the importance of continuity in their lives. The trial court "must make detailed findings on each of the factors" in section 518.17 and explain how these factors affect the children's best interests in a custody determination. Minn. Stat. ___.17, subd. 1(a); Rogge v. Rogge, 509 N.W.2d 163, 165 (Minn. App. 1993), review denied (Minn. Jan.28, 1994). Given that custody with mother will result in a completely new home environment for the children, it is important for the court to consider how that move would affect the stability and continuity in the children's lives and serve their best interests. Sydnes, 388 N.W.2d at 6.
Likewise, the findings are insufficient on the permanence and stability of the home each parent has and will continue to offer. Minn. Stat. ___.17, subd. 1(a)(8). Where a move is involved, the factors indicating stability and continuity are critical. Sydnes, 388 N.W.2d at 6. The trial court made no findings directly bearing on the permanence of the proposed custodial home.
Mother argues that the permanence of the custodial home should not be considered solely in terms of one parent's ability to continue caring for the children in the family home. See Smith v. Smith, 425 N.W.2d 854, 857 (Minn. App. 1984) (holding it error to grant custody to father "solely" because he was able to continue to work and care for children on the family farm). Instead, she contends that her ability to meet the children's economic needs in Texas serves their best interests, based on Lees v. Lees, 404 N.W.2d 346, 348 (Minn. App. 1987). Lees involved a mother's request for custody modification to move the children to South Carolina to secure employment. Id. The parties had joint physical custody of the children, but the father had relocated to Kansas. Id. In light of that unique situation, the trial court found that the children's stability and continuity could be preserved by a move to South Carolina. Id.
In contrast to Lees, which involved removal and resulting modification of custody, this appeal is from the initial custody determination. Neither party here has sole physical custody of the children yet. Further, unlike in Lees, father still resides in Minnesota. Most significantly, mother is not moving to Texas for employment, but to enter a graduate program, which is arguably both more demanding and time-consuming than her prospective job. The trial court's finding that the graduate program will provide mother with a good income seems premature as mother first has to complete the program, then find a job, and in the meantime may not be providing any financial support to the children. Moreover, as the children are adjusting to their new home in an unfamiliar environment, mother will be balancing motherhood and rigorous studies. Once again, the trial court, while acknowledging the best interest factor regarding the stability of the custodial home, failed to provide any explanation of how that finding affected the ultimate best interests decision as required by Minn. Stat. ___.17, subd. 1(a).
Father argues that the evidence does not support the trial court's finding that mother was the primary caretaker. Id., subd. 1(a)(3). We disagree. The trial court found that mother performed the majority of parenting duties during the marriage and both parties cared for the children during the pendency of the dissolution proceeding. The record is replete with testimony regarding mother's parenting role before and after the parties' separation that supports the trial court's finding.
Father contends the trial court made the primary caretaker finding without regard to specific evidence of his parenting skills listed in the custody study. The trial court heard evidence regarding both parents, weighed the conflicting evidence, and made a finding accordingly. We defer to the trial court's opportunity to weigh conflicting testimony and determine credibility. Sefkow v. Sefkow, 427 N.W.2d 203, 210-11 (Minn. 1988). The trial court did not abuse its discretion by failing to include in the findings the evidence that father cited.
Similarly, we note father's objection to the fact that the trial court did not mention his nurturing role with the children, their attachment to him, or mother's lack of attendance in parenting classes. Our review of the record shows conflicting evidence on each of these points, which left the credibility determination to the trial court. Sfekow, 427 N.W.2d at 210. We detect no abuse of discretion here.
Father also argues the trial court misapplied the law in determining mother was the "more primary caretaker." Minn. Stat. ___.17, subd. 1(a) (3). We disagree. The trial court found that mother was responsible for most of the basic parenting duties before separation. See Pikula, 374 N.W.2d at 713 (listing parental duties court should consider). The trial court also found that the parties have shared parenting duties since their separation. In making its finding, the court looked not only at the children's caretaking before the separation, but also over the course of their entire lives. Rutanen v. Olson, 475 N.W.2d 100, 103 (Minn. App. 1991) (considering parties' parenting roles during children's entire lives). The trial court properly applied the law when it concluded that mother was the primary caretaker.
Father claims that the trial court failed to make significant findings regarding mother's relationship with the children. Minn. Stat. ___.17, subd. 1(a)(4). Again, we disagree. The trial court found that mother has a healthy and close parental relationship with the children. These findings are supported by the custody study, which provides that "both children were observed to interact affectionately with both parents, to seek their attention, direction, and assistance."
Father also claims the trial court failed to incorporate into the findings certain evidence regarding his relationship with the children. We note that the record states the boys are at their "peak psychological attachment" to father; it does not indicate the children are more attached to father than mother. Further, although the custody study acknowledged that the children felt father was more nurturing, the therapists expressed concern that father had caused this response by talking negatively about mother and by not disciplining the children. Finally, contrary to father's allegations, Barinsky's testimony indicates that mother did enroll in parenting classes. Given this conflicting evidence, we defer to the trial court's ability to weigh the evidence, determine its credibility, and reach a decision. Sefkow, 427 N.W.2d at 210.
Father next challenges the trial court's finding regarding the mental health of the parties. Minn. Stat. ___.17, subd. 1(a)(9). The trial court adopted the findings of Dr. Davis, who found mother was mentally healthy and engaged in appropriate behavior with the children. The trial court found Dr. Davis's testimony was credible and refuted claims of mother's mental instability. We defer to the trial court's opportunity to weigh conflicting testimony and judge its credibility. Sefkow, 427 N.W.2d at 210.
Father claims that the trial court erred in awarding mother custody after it had found that father had a loving relationship with the children. Minn. Stat. ___.17, subd. 1(a) (10). We note that the trial court also found that mother had a loving relationship with the children. The evidence supports both of those findings. The trial court is vested with the authority to determine custody. Rutten, 347 N.W.2d at 50 (holding that trial court is vested with broad discretion to provide for custody of children). When the evidence supports the trial court's conclusions, we must affirm, even though the evidence would have supported other conclusions as well. Sefkow, 427 N.W.2d at 210.
Father also challenges the accuracy of the finding that says, "The experts who testified on behalf of [father] did not shed any light on the issue of [father's] ability to function appropriately as a custodial parent." The record contains the nine-page report from Dr. Moen analyzing and highlighting father's strengths as a parent. Dr. Moen concluded that father is "a nurturing father who is committed to the best interests of his children * * * who appears to provide a stable environment for [his] children which has contributed to [their] healthy psychological development." This evidence does "shed light" on father's parenting abilities and renders the finding clearly erroneous. Dr. Moen was unable to shed further light on this issue, because the trial court refused to allow her to testify.
Finally, father argues that the trial court abused its discretion when it failed to explain why it rejected the recommendation of the custody study that the children not be moved out of state for two years. We agree. A trial court may reject custody study findings, but it must explain why it rejected the recommendation or make particularized findings justifying its decision. Rutanen, 475 N.W.2d at 104. Here, the trial court's findings are not particularly detailed; the court gave no reason for rejecting the study's recommendation of a two-year waiting period, stating only that "the court does not find this waiting period is further necessary since almost one and one-half years have passed since the Custody Study was completed." The court issued these findings June 26, 1995, only one year and three months after the completion of the custody study, not one and one-half years. Moreover, given that the crux of this dispute is whether the children's best interests are served by moving to Texas, the trial court's lack of elaboration on this issue is troubling. The trial court's failure to make particularized findings adequately explaining why it waived the recommended two-year waiting period is an abuse of discretion.
Because the trial court failed to explain why its findings led to a conclusion that the best interests of the children mandated physical custody with mother, particularly in light of mother's proposed move to Texas, we reverse and remand for consideration and proper analysis on this issue.
Our decision on the custody issue obviates discussion of visitation and child support, because those issues hinge on custody. In the interest of judicial efficiency, however, we note that the trial court acted well within its broad discretion when it decided visitation and child support here. Rutten, 347 N.W.2d at 50 (child support); Manthei v. Manthei, 268 N.W.2d 45, 46 (Minn. 1978) (visitation). For purposes of clarity on remand, the trial court may incorporate into the decree the parties' agreement that father pays no child care costs during summer months when he has custody of the children.
2. Expert Testimony
Father argues the trial court abused its discretion by refusing to allow his expert witness to testify regarding his parenting skills. See Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990) (admission of evidence rests within broad discretion of trial court and will only be reversed if erroneous or an abuse of discretion). To show entitlement to a new trial on the grounds of an improper evidentiary ruling, a complaining party must demonstrate prejudicial error. Id. Father argues that the gravity of the prejudice is demonstrated by the court's finding: "The experts who testified on behalf of [father] did not shed any light on the issue of [father's] ability to function appropriately as a custodial parent." We agree.
This finding is contrary to the evidence. Even though Dr. Moen was not given the opportunity to testify, her written report lists numerous criteria reflecting positively on father's parenting skills with his children. The court's finding reflects that it failed to consider this report among the evidence from father's experts. Dr. Moen's live testimony may have changed the result in this case. The court's treatment of this witness undeniably caused father prejudice and constitutes an abuse of discretion. Father is entitled to a new trial that includes Dr. Moen's testimony.
3. Trial Court's Independent Weighing and Assessment of the Evidence
Father argues that the trial court's findings of fact and conclusions of law "mirror" mother's proposed findings and conclusions, and thus legal error exists justifying reversal of the case. We disagree. A trial court's verbatim adoption of one party's proposed findings and conclusions is not reversible error per se, but "raises a 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). Other than those findings that we have enumerated as faulty, "the record supports the [remaining] findings and shows the trial court conscientiously considered" the issues. Bersie v. Zycad Corp., 417 N.W.2d 288, 292 (Minn. App. 1987), review denied (Minn. May 5, 1988).
4. Marital Property
The trial court has broad discretion in dividing property. Rutten, 347 N.W.2d at 50. Absent an abuse of discretion, the trial court's decision must stand. Id.
Father challenges the finding that he dissipated marital assets. The trial court found that father disposed of a certificate of deposit worth approximately $2,500 and a Norwest account worth $1,382 in violation of the temporary order. The evidence supports this finding; father testified to spending this money.
Father next contends the trial court erroneously included two accounts in the schedule of marital assets. The evidence shows that Norwest Account No. 0038369456 was a personal checking account, not a retirement account. The evidence also shows Norwest Account No. 26100-188864 was closed prior to trial and should not have been included with the other retirement accounts in the schedule of marital assets. The trial court's inclusion of these accounts as retirement accounts is clearly erroneous.
Father argues the cash property settlement was excessive. The trial court's award of $5,506.50 is supported by the evidence and does not appear excessive considering that father received the marital homestead. The trial court did not abuse its discretion in making this cash settlement.
The trial court's division of marital property is affirmed in part, reversed in part, and remanded for the correct disposition of the Norwest accounts that were erroneously included as retirement accounts.
Affirmed in part, reversed in part, and remanded.