Opinion
No. A04-594.
Filed January 18, 2005.
Appeal from the District Court, Mille Lacs County, File No. F59750207.
Cynthia J. Vermeulen, Vermeulen Law Office, (for appellant)
Doug Clark, St. Cloud Area Legal Services, (for respondent)
Considered and decided by Willis, Presiding Judge; Hudson, Judge; and Parker, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
In this custody-modification dispute that resulted in a change of custody of the parties' minor child to respondent-father Joel Blake DeForrest, appellant-mother Christine Louise Bolander argues that the district court made numerous factual findings that were not supported by the record, and failed to properly apply the law by not adequately addressing the question of endangerment and whether her conduct actually adversely affected the child. We affirm.
DECISION
1. District court's findings of fact
Mother first argues that the district court abused discretion by making findings of fact that were unsupported by the evidence. This court "will not reverse a district court's custody-modification ruling absent an abuse of discretion." Sharp v. Bilbro, 614 N.W.2d 260, 263 (Minn.App. 2000) (citing Frauenshuh v. Giese, 599 N.W.2d 153, 156 (Minn. 1999), review denied (Minn. Sept. 26, 2000). On appeal, we view the record "in the light most favorable to the district court's findings and defer to district court credibility determinations." Prahl v. Prahl, 627 N.W.2d 698, 702 (Minn.App. 2001). A district court's findings of fact will be sustained unless they are clearly erroneous. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).
The record reveals that in April 1999, the court adopted an agreement reached by the parties that awarded mother sole physical custody of J.L.B., the parties' minor child. However, prior to the 2002 school year, the parties agreed that J.L.B. would live primarily with father in Ogilvie and transferred J.L.B. from the Onamia school district, where J.L.B. had attended kindergarten, to the Ogilvie school district. Approximately one month later, while J.L.B. was staying with mother over the weekend, mother unilaterally transferred J.L.B. back to the Onamia school district and J.L.B. remained with mother.
The instant action was precipitated by father's motion for ex parte relief seeking temporary custody of J.L.B. in November 2002. In his affidavit accompanying his motion, father alleged that mother physically and emotionally abused J.L.B. Father further alleged that he was concerned for J.L.B.'s safety based on mother's earlier petition against her boyfriend, Norman Hanson, for an order for protection for her and J.L.B. Father's affidavit attached a copy of a complaint charging mother with gross-misdemeanor domestic assault against J.L.B. following a report from school personnel and family services workers that J.L.B. reported that his mother struck him in the nose, resulting in a nose bleed. The court granted father's motion, finding reasonable grounds to believe J.L.B. was in physical and emotional danger while in the custody of his mother and that it was in J.L.B's best interests to grant father temporary physical custody.
The criminal charges were subsequently dismissed.
The district court in the instant action made a finding that maltreatment had not been substantiated.
Following a hearing on the matter, the court issued a temporary order appointing Anne Carlson as guardian ad litem (GAL), and granting father temporary physical custody of J.L.B. with liberal parenting time for mother, provided J.L.B. have no contact with Hanson. An evidentiary hearing to determine permanent custody was held on October 8-9, 2003, and November 10, 2003. Based on the testimony and evidence submitted at the hearing, the district court made numerous factual findings bearing on the comparative environments of mother and father, their ability to parent J.L.B., and J.L.B's best interests. In a lengthy and thorough order, the district court determined that a change in custody was warranted and granted father sole physical custody with liberal parenting time for mother. The parties continue to share joint legal custody.
Mother takes issue with many of the factual findings in part because of the conflicting evidence that was presented. It is the duty of the district court to reconcile conflicting evidence. Prahl, 627 N.W.2d at 702. "[T]he fact that the record might support findings other than those made by the district court does not show that the court's findings are defective." Id. (quotation omitted). The district court specifically stated that credibility was the key factor in its decision to award father custody. The court found that both parties suffered from credibility issues, but that mother had the "greater credibility problem." We defer to the district court's credibility determinations. Id.
Upon a thorough and careful review of the record, we conclude that there is sufficient evidence in the record to support the district court's findings. Because the court's findings are not clearly erroneous, we decline to address in detail mother's discussion of the evidence in support of her arguments that the court's findings are in error. See Wilson v. Moline, 234 Minn. 174, 182, 47 N.W.2d 865, 870 (1951) (stating appellate court need not "discuss and review in detail the evidence for the purpose of demonstrating that it supports the trial court's findings," and that its "duty is performed when [the court] consider[s] all the evidence . . . and determine[s] that it reasonably supports the findings"); Vangsness v. Vangsness, 607 N.W.2d 468, 474-75 n. 1 (Minn.App. 2000) (applying Wilson in dissolution case).
We note that in some instances, mother does not explain how she was prejudiced by the alleged error in the findings. Therefore, in those instances, we conclude that any error was waived or harmless. See Toughill v. Toughill, 609 N.W.2d 634, 639 (Minn. App. 2000) (to prevail on appeal, appellant must show both error and that error caused prejudice); see also Minn. R. Civ. P. 61 (harmless error ignored).
Mother also argues that the district court omitted findings regarding (a) father's wife's mental health; (b) why mother returned J.L.B. to Onamia school; (c) J.L.B.'s teacher's testimony concerning the frequency in which J.L.B. comes to school without his folder or homework; (d) mother's close contact with J.L.B.'s teacher and father's lesser contact with J.L.B.'s teachers; and (e) mother's belief that father continues to use drugs and alcohol. In essence, mother challenges the district court's assessment of the weight given the witness's testimony. Because the district court is in the best position to judge the credibility of the witnesses and to make determinations in the face of conflicting testimony, this court defers to those assessments and determinations. Braith v. Fischer, 632 N.W.2d 716, 724 (Minn.App. 2001) (citing Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988), review denied (Minn. Oct. 24, 2001). We note, however, that the district court did make findings relative to father's wife's mental health, father's drug use, J.L.B.'s performance in school, and the parties' involvement with J.L.B.'s school. The court also found that mother returned J.L.B. to Onamia because J.L.B. asked to be returned. Moreover, as previously stated, "[t]hat the record might support findings other than those made by the district court does not show that the court's findings are defective." Prahl, 627 N.W.2d at 702 (quotation omitted). Here, upon review of the record, we are satisfied that the district court made adequate findings to support its custody determination. Cf. Abbott v. Abbott, 481 N.W.2d 864, 867 (Minn.App. 1992) (stating appellate courts have consistently remanded decisions modifying custody when district court did not include findings adequate to demonstrate appropriate factors were considered before motion was granted).
2. District court's application of the law
Mother also argues that the district court erred by improperly applying the law. Modification of custody is governed by section 518.18 (2002), which provides in relevant part:
[A] court shall not modify a prior custody order . . . unless it finds, upon the basis of facts . . . that have arisen since the prior order[,] . . . that a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child. In applying these standards the court shall retain the custody arrangement . . . that was established by the prior order unless: . . .
(iv) the child's present environment endangers the child's physical or emotional health or impairs the child's emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.
Minn. Stat. § 518.18(d)(iv). What constitutes changed circumstances for custody-modification purposes is "determined on a case-by-case basis." Lilleboe v. Lilleboe, 453 N.W.2d 721, 723 (Minn.App. 1990). To warrant a modification in custody, "[a] change in circumstance must be significant and must have occurred since the original custody order; it cannot be a continuation of conditions existing prior to the [original custody] order." Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn.App. 1997). The change in circumstances must endanger the child's physical or emotional health or development. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981) (citing Minn. Stat. § 518.18(d)). In the instant case, father bears the burden of proving that a significant change in circumstances has occurred. Murray v. Antell, 361 N.W.2d 466, 469 (Minn.App. 1985).
"Endangerment requires a showing of a significant degree of danger, but the danger may be [solely] to emotional development." Geibe, 571 N.W.2d at 778 (quotation omitted). "Allegations of physical and emotional abuse are indicators of endangerment, but only when the degree of danger is significant." Weber v. W.P.W., 653 N.W.2d 804, 811 (Minn.App. 2002). "[T]o establish danger to a child's welfare, a parent's conduct must be shown to result in an actual adverse effect on the child." Id. "[B]ehavioral problems and poor school performance by the child have served as indications of endangerment to a child's physical and emotional health." Id.
The best interests of the child are determined according to the factors listed in Minn. Stat. § 518.17, subd. 1 (2002). Those factors include (1) the parents' wishes as to custody; (2) the reasonable preference of the child; (3) the primary caretaker; (4) the intimacy of the relationship between each parent and the child; (5) the interaction of the child with each parent, siblings, and other significant persons in the child's life; (6) the child's adjustment to school, community, and home; (7) the stability of the child's environment and the desirability of maintaining continuity; (8) the permanence of the existing or proposed custodial home as a family unit; (9) the physical and mental health of all individuals involved; (10) the capacity of the parents to give the child affection, guidance and love; (11) cultural background; (12) the effect on the child of the actions of an abuser, if related to domestic abuse that has occurred between the parents or between a parent and another individual. Id., subd. 1(a).
The district court found that J.L.B. had a significant change of circumstance due to the moves he made with mother to different homes during the period of 2001 and 2002 and that these moves endangered J.L.B. because the men with whom mother was living were so abusive to both mother and J.L.B., that mother found it necessary to obtain legal protection on behalf of herself and J.L.B. Further, the court found that despite obtaining an order for protection against one of the men, and a harassment restraining order against the other, mother returned, with J.L.B., to the residence of one of these men after she had previously obtained an order for protection against him.
Mother argues that it is questionable whether J.L.B. was physically or emotionally endangered by the moves and by what mother now describes as the "primarily verbal abuse" of the males with whom she lived. Mother asserts that there was no evidence of actual harm or actual adverse effects on J.L.B. caused by his present environment. Essentially, mother argues that the evidence is insufficient to support a finding of endangerment.
The record reveals that mother lived in five different places from February 2002 through November 2002. Prior to living with her own mother, mother lived in a mobile home with Hanson, against whom she obtained two orders for protection, one in January 2001 and another in April 2001, and later sought a harassment restraining order after she moved out in April 2001. In her January 2001 petition, mother attested that Hanson emotionally abused J.L.B. and verbally abused J.L.B. on a daily basis. Her petition states that Hanson cursed at J.L.B., pushed him down on the ground, and threw at him a hot steaming blanket from the washer that left a red mark on J.L.B.'s back. Despite Hanson's abusive behavior toward both mother and J.L.B., mother moved back into Hanson's home with J.L.B. for a brief period in October 2002. Between periods when she resided with Hanson, mother resided with Michael Blue, an individual who apparently was also abusive toward her. Mother sought a harassment restraining order against Blue in September 2002, though this was later dismissed.
Mother testified that she dismissed the first OFP following an agreement she made with Hanson. Mother also testified the April 2001 OFP was dismissed as well, though the reasons are unclear.
The record supports the district court's findings that mother repeatedly moved J.L.B. to households that endangered his safety, emotional health, and development. Even assuming that no physical abuse of J.L.B. occurred, "[t]his court has consistently held that emotional abuse alone may constitute sufficient endangerment." Geibe, 571 N.W.2d at 779.
Moreover, there was evidence that J.L.B. had more serious behavioral problems at school when he was living with mother due to her inability to provide parental guidance or establish boundaries for J.L.B. "[B]ehavioral problems and poor school performance by the child have served as indications of endangerment to a child's physical and emotional health." Weber, 653 N.W.2d at 811.
The district court found that J.L.B. experienced behavioral problems while attending kindergarten when he was living with mother and that those problems had diminished since he began attending a different school while living with father. In support of that finding, the GAL testified, and her April 2003 report states that J.L.B.'s kindergarten teacher asked mother to discontinue her practice of eating lunch with J.L.B. once a week because after having lunch with his mother, J.L.B. returned to class late and exhibited defiant behaviors. Additionally, Amanda Hintz, J.L.B.'s therapist, noted that mother brought J.L.B. in to see her in part because of J.L.B.'s behavioral problems. While Hintz did not testify at trial, the record contains a copy of Hintz's notes, which indicate that mother reported that J.L.B. had become more physically aggressive in school and had repeatedly gotten into trouble at school for hitting, kicking, or punching. Further, the GAL testified, and Hintz's notes confirm, that J.L.B. had been stealing from other children. He would take toys that were not his home from school and he also took items that belonged to his stepsisters. By the end of February 2003, Hintz's notes indicate that J.L.B. was doing better in school with less acting-out behavior. Father was awarded temporary physical custody of J.L.B. in November 2002. While there was testimony from J.L.B.'s current teacher that J.L.B. continued to have difficulty staying on task at school, and the GAL's September 2003 report indicates that J.L.B. continues to have difficulty acting respectfully and attentively in school, it is the district court's role as factfinder to resolve conflicting testimony. Braith, 632 N.W.2d at 724.
Moreover, endangerment can be prospective; the court may find endangerment if a parent's actions are likely to cause harm to a child's further development. See Sharp, 614 N.W.2d at 263-64 (citing testimony that parent's actions will cause emotional damage to child, because parent did not understand scope of problem), review denied (Minn. Sept. 26, 2000). Here, the district court found that J.L.B.'s
emotional and personal development and his physical well-being would likely be endangered if [mother] were awarded custody. [Mother's] penchant for establishing relationships with abusive men poses a significant threat to [J.L.B.], particularly since it is not clear where or with whom she would reside if custody of [J.L.B.] were returned to her.
Viewing the record in the light most favorable to the district court's findings, we conclude that the court did not clearly err in finding that mother's conduct resulted in an actual adverse effect on J.L.B., thereby establishing endangerment.
Mother also argues that in examining the "present environment," the court must determine if the child is presently endangered in her care, asserting, without authority, that "present environment" means at the time of the modification decision, that is to say, the time during which physical custody of J.L.B. was temporarily transferred to father and mother was living with her mother. But caselaw makes clear that "present environment" refers to the child's last judicially-approved permanent custodial environment before any modification, temporary or otherwise, to the custodial arrangement. See, e.g., Ross v. Ross, 477 N.W.2d 753, 754, 756 (Minn.App. 1991) (relying on improvements to child's school performance since temporarily placed in moving party's home); Kimmel v. Kimmel, 392 N.W.2d 904, 906, 909 (Minn.App. 1986) (same), review denied (Minn. Oct. 29, 1986).
Finally, mother argues that the court erred in balancing the harm to J.L.B. by a change of custody with the benefits of doing so. "Minnesota law presumes that stability in custody is in a child's best interests." Weber, 653 N.W.2d at 811; see Minn. Stat. § 518.18(d)(iv) (establishing court must find benefits of change outweigh harms). Mother asserts that father has demonstrated the benefits to J.L.B. of a change of custody only by inference.
Without doubt, the evidence concerning the ability of the parties to parent J.L.B. was conflicting. Regarding mother, the court found that she
has placed [J.L.B.] in danger by establishing — and then resuming — relationships with men that were abusive towards her and [J.L.B.] . . . [Mother] has had difficulty recognizing her own shortcomings as a parent, which when pointed out to her she has been only partially successful in correcting. She, for example, readily admits that she is excessively indulgent toward [J.L.B.], but she still does not recognize how much harm such overindulgence can to do to [J.L.B.'s] development. She capitulates to too many of [J.L.B.'s] whims and capricious desires, and she fails to impose adequate discipline when discipline is needed for [J.L.B.] to learn what behavior is appropriate and what behavior is inappropriate.
The court also found that mother "lacks the ability both to step back and objectively assess her parenting choices and to see how those choices affect [J.L.B.]"
With respect to father, the court found that he was frequently reluctant to become involved in the day-to-day parenting responsibilities and often left the responsibility of parenting to his wife, Pamela. Father and Pamela live in a three-bedroom single-family home with their three children and J.L.B.
Primarily because [Pamela] does not work outside the home, [Pamela] takes the lead in matters related to parenting and she[,] rather than [father,] is typically responsible for enforcing discipline in the family. [Father], in contrast, seldom gets involved in parenting matters. He, in fact, frequently exhibited an unwillingness even to take part in counseling sessions, although the demands of his job may have had something to do with his non-participation. [Father's] contact with [J.L.B.] was sporadic during the first three years of [J.L.B.'s] life. That has changed dramatically in the past few years, but [father] continues to be reluctant to become involved in day-to-day parenting decisions where [J.L.B.], or [J.L.B.'s] half siblings, are concerned.
Father also has a history of drug and alcohol use. Father was treated in 2002 for chemical dependency after testing positive for marijuana in an employment-related drug test in January 2002. However, a chemical-use assessment in February 2003 determined father had no current chemical-dependency or substance-abuse problems. Notably, father denied any recent alcohol and marijuana use to the GAL and other professionals who interviewed him prior to the hearing and the court found that father's deceit regarding his past drug use diminished his credibility on that issue. However, the GAL testified that after hearing about father's January 2002 drug use for the first time at trial, she contacted Lisa Splett, who did the chemical-dependency evaluation in February 2003. The GAL testified that Splett was aware of father's positive urinalysis in January 2002 when she conducted the February 2003 evaluation. Based on the GAL's conversation with Splett, the GAL was comfortable accepting the February 2003 assessment, which concluded father had no chemical-dependency or drug-abuse problems at the present time.
Both parties have criminal histories. In 1987, mother was convicted of driving while intoxicated. In 1996, mother was convicted for writing a check without sufficient funds to cover it. Mother pleaded guilty to a fifth-degree assault charge stemming from a November 1996 incident in which she hit father on the head with a bottle. Additionally, there have been three separate civil orders for protection obtained against mother. More recently, mother was convicted for driving after suspension of her license.
Father's criminal history includes a conviction for aiding fourth-degree criminal sexual conduct arising from a 1986 incident. He also had two convictions for driving under the influence, one in 1987 and one in 1993. Also in 1993, father was charged with fifth-degree domestic assault and criminal damage to property for an assault upon Pamela Brown, to whom he is now married. Brown subsequently obtained an order for protection and a harassment restraining order against respondent.
Based on the evidence presented, the court concluded that each party had serious parenting and personal issues. "In view of this conflict, the [district] court had to make numerous judgments on the basis of credibility," which the district court is uniquely situated to do. Corwin v. Corwin, 366 N.W.2d 321, 325 (Minn. App. 1985). Indeed, the court stated that the custody determination was based primarily on the credibility determinations the court made, not the parental commitment of the parties. This court defers to the district court's credibility determinations. Prahl, 627 N.W.2d at 702.
Having found that (1) father is better able to provide J.L.B. with stability, discipline, and guidance; and (2) that J.L.B. is more likely to receive the parental supervision he requires by living with father than with mother, the district court concluded that any harm caused by a transfer of custody would be significantly outweighed by the benefit J.L.B. would receive from living with father. The court's findings reflect that the harm caused by the child's change in environment was outweighed by the advantages to his physical and emotional well-being. We conclude that the court did not improperly apply the law or err in ordering a change in custody.