Opinion
No. C7-00-548.
Filed November 7, 2000.
Appeal from the District Court, Goodhue County, File No. FX893537.
Lawrence H. Crosby, (for appellant)
Jo Lynne Campbell, (Pro se respondent)
Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appealing from a district court order denying his motion for modification of a custody order, appellant Bruce Campbell contends that the district court erred by concluding that respondent Jo Lynne Campbell's misappropriation of $94,581.51 from her children's trust account and $8,500 from her children's certificate of deposit, among other things, did not meet the elements for custody modification under the best-interests-of-the-child or endangerment standards in Minn. Stat. § 518.18 (1998). Because the district court did not abuse its discretion in making findings or applying the law, we affirm.
DECISION I.
Appellant contends that the district court erred by declining to modify custody to award him sole physical custody of his two children, CVC and TLC. An appellate court will reverse a custody determination only if the district court abused its discretion by (1) making findings unsupported by the evidence, or (2) improperly applying the law. Frauenshuh v. Giese, 599 N.W.2d 153, 156 (Minn. 1999). On appeal, this court reviews a district court's findings of fact in a light most favorable to the findings and will not reverse the findings unless they are clearly erroneous. Id.; see Minn.R.Civ.P. 52.01. Minn. Stat. § 518.18 (d) (1998), which governs motions to modify custody, provides that:
[T]he court shall not modify a custody order unless it finds, upon the basis of facts, including unwarranted denial of, or interference with, a duly established visitation schedule, that have arisen since the prior order or that were unknown to the court at the time of 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 established by the prior order unless:
(i) both parties agree to modification;
(ii) the child has been integrated into the family of the petitioner with the consent of the other party; or
(iii) 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.
Id.; see Frauenshuh, 599 N.W.2d at 157.
Because the parties have not agreed to modify custody and respondent has not consented to integrating her daughters into appellant's family, we must determine whether appellant has established the necessary elements for modification under subdivision (iii) (the "endangerment" standard). To modify a custody order under subdivision (iii), the party seeking modification must show:
(1) a [significant] change in the circumstances of the child[ren] or custodian; (2) that a modification of custody would serve the best interests of the child[ren]; (3) that the child[ren]'s present environment endangers [their] physical or emotional health or emotional development; and (4) that the harm to the child[ren] likely to be caused by the change of environment is outweighed by the advantage of change.
Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn.App. 1997) (citing Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn.App. 1992)). "The [district] court must find all four elements." Leyh v. Stelzer, 398 N.W.2d 63, 66 (Minn.App. 1986) (citation omitted).
A. Significant Change in Circumstances
The district court found that no significant change in circumstances occurred since its August 7, 1996 order. While the district court modified the visitation schedule on August 7, 1996, respondent has remained the sole physical custodian since the June 27, 1990 Judgment and Decree of Dissolution. Courts assess a change in circumstances from the original custody order or the last order modifying custody. See Geibe, 571 N.W.2d at 778 (stating that "[a] change in circumstances must be significant and must have occurred since the original custody order, * * * ."). Because custody has not been modified since the original judgment, the district court erroneously relied on its August 7, 1996 order to assess a change in circumstances. Accordingly, we must examine the record to determine whether such a change has occurred since June 27, 1990.
The record shows: (1) respondent and the children moved to Alabama in September 1992 and continue to reside there; (2) respondent misappropriated or stole from her children by not depositing per capita payments in their trust account and cashing their certificate of deposit; and (3) CVC would prefer to return to Minnesota to reside with appellant. A child's strong preference to change residence can constitute a change in circumstances. See id.; Eckman v. Eckman, 410 N.W.2d 385, 388 (Minn.App. 1987) (concluding that a child's expressed preference to live with other parent constituted primary change in circumstances). Because the record shows the children's and custodian's circumstances have changed significantly since June 27, 1990, the district court's finding that no significant change in circumstances occurred was clearly erroneous.
B. Best Interests of the Children
Appellant alleges that the district court erred in determining that it is in the children's best interests to remain in Alabama with their mother. A child's best interests are determined according to the factors listed in Minn. Stat. § 518.17 subd. 1(a) (1998). Geibe, 571 N.W.2d at 778. In considering a child's best interests, the district court must make findings to show that it considered all relevant factors, including those listed in Minn. Stat. § 518.17, subd. 1(a). Rogge v. Rogge, 509 N.W.2d 163, 165 (Minn.App. 1993), review denied (Minn. Jan. 28, 1994).
Appellant argues that the district court failed to consider: (1) the children's reasonable preferences; (2) the children's adjustment to their home, school, and community; and (3) the instability of continuing the children's current custodial environment with respondent. But the record shows that the district court considered and made findings with regard to all relevant statutory factors. Therefore, presumably, appellant contends the evidence does not support the findings with regard to these factors.
1. Child's reasonable preference
A child's reasonable preference is one of the statutory factors to consider in determining a child's best interests. Minn. Stat. § 518.17, subd. 1(a)(2). In Minnesota, a child's preference is an "overwhelming consideration in determining the child's custody * * * ." Ross v. Ross, 477 N.W.2d 753, 756 (Minn.App. 1991); see also Johnson v. Johnson, 424 N.W.2d 85, 88 (Minn.App. 1988) (explaining that a trial court may give considerable weight to preference of children as young as eight years old). In determining a child's best interests, however, a district court "may not use one factor to the exclusion of all others." Minn. Stat. § 518.17, subd. 1(a).
The trial court found that: (1) CVC, who is 13 years old, prefers to reside in Minnesota with appellant, unless the court decides T.L.C. should remain in Alabama; (2) T.L.C., who is nine years old, wants the court to decide because she wants to live with appellant sometimes and respondent sometimes; and (3) "first and foremost, the girls prefer to remain together." The evidence supports each finding. While C.V.C.'s preference to reside with her father is entitled to considerable weight, the district court's conclusion that it cannot be the sole factor used in determining the children's best interests is consistent with Minnesota law. Accordingly, there was no abuse of discretion.
2. Adjustment to home, school, and community
Appellant contends that the district court erred in concluding that the children's adjustment to home, school, and community favors remaining in Alabama. The district court found that the children have adjusted well to living in Alabama, actively participate in school events, and have numerous friendships and relationships. Despite recognizing that the children's extended family, tribal affiliation, and educational opportunities would ease adjusting to life in Minnesota, the court concluded that Minnesota law favors stability and continuity in custody determinations. See Auge v. Auge, 334 N.W.2d 393, 399 (Minn. 1983) (explaining that courts should restrict interference because "continuity and stability in relationships are important for the child"); Geibe, 571 N.W.2d at 780 (stating "Minnesota law rests on a presumption that stability of custody is in a child's best interests."). Because the record supports the court's findings and the court properly applied Minnesota law, there was no abuse of discretion.
3. Maintenance of stable, satisfactory custodial environment
Appellant also challenges the district court's finding that the length of time the children have lived in a stable, satisfactory custodial environment favors the children remaining in Alabama. Appellant claims that respondent's home is no longer a stable or satisfactory environment because she committed defalcation of her children's assets and lied about the children's Indian heritage and father. The record shows that the children have lived with respondent in the same home in Alabama since April 1993 and that appellant has lived in numerous residences while awaiting a tribal land assignment. The evidence supports the district court's finding.
C. Endangerment
Appellant contends the district erred in finding that he failed to show that the circumstances of this case meet the endangerment standard. In concluding that the children's present environment does not endanger their physical health or emotional health and development, the district court found that: (1) respondent's financial irresponsibility did not deprive the children of anything and will not occur again; (2) the children's decreased involvement in their Indian heritage must be balanced with other best interests factors and non-custodial visitation schedules; (3) there is no evidence to show Alabama schools endanger the children's well-being; (4) the children get adequate medical treatment in Alabama; (5) while C.V.C.'s preference to live with appellant must be given significant consideration, it cannot be the sole basis for assessing the children's best interests or changing custody; (6) either custodial arrangement potentially isolates the children from the non-custodial parent's relatives; (7) respondent's alleged sexual abuse by a family member is not credible; and (8) C.V.C.'s hair-pulling is a predictable reaction to stress from the parties' numerous post-divorce disputes.
While appellant cites several cases where courts have found endangerment in factual circumstances similar to the present case, "[a] finding of present endangerment must be based on the particular facts of each case." Lilleboe v. Lilleboe, 453 N.W.2d 721, 724 (Minn.App. 1990). The district court made detailed findings of fact to support its conclusion that the children's present custodial environment does not endanger their physical health or emotional health and development. Because record evidence supports the findings, the court did not abuse its discretion in concluding that no endangerment exists. See In re Welfare of H.M.S., 541 N.W.2d 301, 303-04 (Minn. 1995) (finding no abuse of discretion where district court "made ample and detailed findings of fact" to support its conclusion that custodial arrangement did not endanger physical health or emotional health and development).
In determining whether endangerment exists, Minnesota courts give important consideration to a teenage child's custodial preference. See Geibe, 571 N.W.2d at 778; Ross, 477 N.W.2d at 756. But the children's best interests are always the "overriding consideration in custody decisions." In re Custody of N.M.O., 399 N.W.2d 700, 703 (Minn.App. 1987) (citation omitted); see also Minn. Stat. § 518.17, subd. 1(a) (explaining that a child's best interests are assessed on all relevant statutory factors rather than any single factor). The district court gave considerable attention to C.V.C.'s preference to live with appellant, but concluded that it was in the children's best interests to remain in Alabama. Because the district court properly applied Minnesota law, there was no abuse of discretion.
D. Balance of harms and advantages of custody change
To modify custody, appellant must also show the advantages of modifying custody outweigh the harms of the change. Minn. Stat. § 518.18(d)(iii). In its memorandum, the district court thoroughly discussed its assessment of the primary advantages and harms of changing custody. Finding that: (1) respondent was the children's primary caretaker; (2) there was no endangerment; (3) the children have adjusted well to life in Alabama; and (4) the children are entitled to extensive visitation and frequent communication with appellant, the district court concluded that the harms of modifying custody outweighed its advantages. In addition, the district court correctly recognized that Minnesota courts prefer maintaining stability and continuity in custody determinations. See Geibe, 571 N.W.2d at 780 (stating that "stability of custody is in a child's best interests").
Appellant argues that the district court ignored the importance of C.V.C.'s preference to return to Minnesota. While Minnesota courts have generally upheld custody modifications on the basis of a child's custodial preference, those cases have involved the preference to remain in the present arrangement or return to a previous long-term custodial arrangement. See, e.g., In re Campbell's Guardianship, 216 Minn. 113, 120-21, 11 N.W.2d 786, 790 (1943) (upholding custodial change where child wanted to continue living in present arrangement with unrelated party); Gauthier v. Walter, 110 Minn. 103, 105-6, 124 N.W. 634, 635 (1910) (same); Ross, 477 N.W.2d at 756-57 (upholding custody transfer where teenager moved in with noncustodial parent before modification motion was made); Edsten v. Edsten, 407 N.W.2d 102, 104 (Minn.App. 1987) (upholding transfer based on teenager's preference, but remanding for factual findings following an evidentiary hearing); see also State ex rel. Feely v. Williams, 176 Minn. 193, 197, 222 N.W. 927, 928 (1929) (awarding change in custody to aunt who had raised child for several years). This case is distinguishable because C.V.C. neither wishes to remain in her present living arrangement nor return to a previous long-term custodial arrangement. Here, C.V.C. wants to live with appellant and the children have lived with respondent since the parties were divorced. Because the record supports the findings and the district court properly applied Minnesota law, there was no abuse of discretion in finding that the harms of changing custody outweigh its advantages.
II.
Appellant also contends that the district court improperly relied on reports prepared by the Alabama guardian ad litem and Alabama visitation worker because neither individual interviewed appellant. Relying on Nicholson v. Maack, 400 N.W.2d 160, 165 (Minn.App. 1987), appellant contends that a guardian ad litem must consider all relevant factors and must, at a minimum, interview the children, their mother, and their father. In Nicholson, this court reversed and remanded summary judgment in favor of the guardian ad litem because the guardian's report failed to consider whether adjudication of paternity was in the child's best interests. Id. Because the guardian did not interview the child, her mother, her mother's husband, or her biological father, this court concluded that the guardian had no factual basis to recommend that adjudication was in the best interests of the child. Id. Nothing comparable occurred here.
While neither the guardian ad litem nor the visitation worker interviewed appellant, the record shows that each person did interview the children, respondent, and the children's school principal. In preparing their reports, the guardian ad litem also interviewed the children's twirl team coach and the visitation worker interviewed respondent's employer. The district court admitted the reports and allowed each person to testify, but did not indicate to what extent it relied on the reports. On this record, there is no basis to overturn the district court's denial of appellant's motion to modify custody.