Opinion
No. A03-2025.
Filed August 10, 2004.
Appeal from the District Court, Wabasha County, File No. F0-96-393.
Karen E. England, Gartner Associates, Lake City, Mn, (for appellant).
Gail D. Baker, Rochester, Mn, (for respondent).
Considered and decided by Wright, Presiding Judge; Randall, Judge; and Kalitowski, 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This opinion will be unpublished and may not be cited except as provided by Minn.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UNPUBLISHED OPINION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 challenges the district court's decision to grant respondent sole legal and physical custody of the parties' 13-year-old daughter, J.R., arguing that it erred in (1) temporarily modifying the custody order without conducting an evidentiary hearing; (2) modifying the previous custody order; (3) granting respondent sole legal custody when appellant was granted liberal unsupervised parenting time with J.R.; (4) awarding respondent attorney fees; and (5) allowing J.R. to take personal items to respondent's home. We affirm.
DECISION I.
Appellant argues that the district court erred in temporarily modifying the previous custody order without an evidentiary hearing. But where a court grants a party temporary custody and subsequently grants the same party permanent custody, a reviewing court cannot grant relief from the order granting temporary custody. Sharp v. Bilbro, 614 N.W.2d 260, 262 (Minn.App. 2000), review denied (Minn. Sept. 26, 2000). And "if an appellate court cannot grant relief, the relevant part of the appeal is moot." Id. Because the district court granted respondent temporary custody and subsequently granted her permanent custody, the issue of temporary custody is moot.
II.
Appellant argues that the district court erred in modifying the 2000 custody order. This court's review of a district court's custody determination is limited to whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996).
Appellant first argues that the district court erred by incorrectly relying on the best-interests-of-the-child standard when determining whether to modify the custody order. We disagree. To modify a custody order specifying a child's primary residence, the district court must find that a change in circumstances has occurred since the date of the prior order and modification is necessary to serve the best interests of the child. Minn. Stat. § 518.18(d) (2002). But in applying this standard, the court must retain the custody arrangement unless "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).
Here, the district court's findings state that the court is required to determine whether a change has occurred and whether modification is necessary to serve the best interests of the child. Thus, in determining the motion for custody modification, the court correctly considered the best-interests factors enumerated in Minn. Stat. § 518.17, subd. 1 (2002). But the district court also specifically found that "[J.R.'s] emotional health and her past, current and possible future emotional development are endangered by remaining with [appellant]," "a transfer of custody from [appellant's] home to respondent's would be advantageous to [J.R.]," and, based on the evidence, "there will be no harm to [J.R.] by the change of her environment from [appellant's] home to Respondent's, but in fact it would be better for [J.R.]." Thus, the record indicates that the district court found that living with appellant endangered J.R.'s emotional health and impaired her emotional development. The district court also determined that the harm caused by a change of environment was outweighed by the advantage of a change to J.R. Therefore, we conclude that the district court correctly applied the law to respondent's motion for modification of custody.
Appellant also argues that the elements required by Minn. Stat. § 518.18 (2002) to modify a custody order were not met, that the district court failed to make detailed findings, and that the district court made findings that are not supported by the record. We disagree. First, the district court must find that a change of circumstances occurred since the date of the original order. Minn. Stat. § 518.18(d). Here, the district court found that since the original order, appellant has remarried, appellant's new wife and her child have moved in with appellant, appellant has moved, and the move would require J.R. to attend a new school where she does not know anyone. The record supports these findings.
Moreover, the district court noted that appellant's alcohol abuse and anger problems were affecting his life and J.R.'s life; this is also a change of circumstances from the time the 2000 order was decided. Appellant's alcohol problems are demonstrated by testimony that appellant drives under the influence of alcohol with J.R. in the vehicle and was passed out once when respondent went to pick up J.R. His anger problems are demonstrated by evidence that police had to be called several times during visitation exchanges and that on at least one occasion appellant became very belligerent with police officers.
Finally, the district court found that then-12-year-old J.R. clearly expressed her preference to live with respondent and that her preference should be respected. This is supported by the testimony of the guardian ad litem. And a child's strong preference to change residence after a custody decree can constitute a change in circumstances. Eckman v. Eckman, 410 N.W.2d 385, 388 (Minn.App. 1987). Thus, we conclude that the district court made several detailed findings, supported by the record, that establish that a change has occurred since the date of the original order for custody.
The district court must also find that modification of custody is in the best interests of the child. Minn. Stat. § 518.18(d). The court is required to make particularized findings on factors related to the best interests of the child when modifying custody. Rogge v. Rogge, 509 N.W.2d 163, 165 (Minn.App. 1993), review denied (Minn. Jan. 28, 1994).
Here, the district court made findings with respect to each of the best-interests factors in Minn. Stat. § 518.17, subd. 1. Specifically, the court found that (1) J.R. wanted to live with respondent; (2) appellant restricts J.R.'s telephone contact with respondent; (3) appellant berates respondent in the presence of J.R.; and (4) appellant prohibits contact between J.R. and her brothers. The court found that J.R. has a good relationship with respondent and her fiancé and half-siblings living in that household. And while J.R. appears to get along with her new stepmother and stepbrother, the record indicates that appellant and several members of his family berate respondent in the presence of J.R. and blame J.R. for the court action. J.R. is currently attending school in Wisconsin where she had previously attended and has several friends. J.R. is involved in extracurricular activities at the new school. Because appellant recently remarried and moved, had J.R. continued to live with him, she would be attending a new school where she does not know anyone. In contrast, respondent has been in the same relationship and living situation since the 2000 hearing. While both parties are in good physical health, appellant has alcohol abuse and anger issues. The court found incidents of excessive physical punishment and emotional abuse by appellant. Finally, appellant has consistently been inflexible with visitation time and exchanges. Because the record supports each of these findings, we conclude that the district court's findings establish that modification of the custody order is in J.R.'s best interests.
The district court must also find that the child's present environment endangers her physical or emotional health or impairs her physical or emotional development. Minn. Stat. § 518.18(d)(iv). Here, the district court made several findings, which are supported by the record, that indicate that the environment at appellant's home is endangering J.R.'s emotional health. Specifically, the district court found that (1) J.R. was frightened when appellant drove under the influence of alcohol with her in the vehicle; and (2) J.R. was afraid of appellant and was afraid to tell him that she would rather live with respondent. In addition, the court found that on March 3, 2003, J.R. was afraid to return home because of a previous incident between her and appellant. The police found J.R. was in danger and took her into protective custody. J.R. spent two nights with an uncle because appellant refused to let J.R. stay at respondent's home. During this time, appellant's father contacted J.R. and berated respondent. Child protection ultimately found that J.R. was not physically abused and she returned to appellant's home.
The record further supports the district court's findings that in the fall of 2002, J.R. began to have problems in school. And between the fall of 2002 and the spring of 2003, J.R.'s principal, one of her teachers, and a child-protection employee recommended that J.R. receive counseling. But appellant placed a note in J.R.'s school files that prevented her from receiving counseling. Therefore, J.R. was unable to receive counseling until appellant finally approved in the spring of 2003.
The court also found that in December 2002 or January 2003, J.R. told respondent that J.R. could hear sexual noises coming from appellant's bedroom. But on January 6, 2003, appellant made J.R. call respondent and tell her that she had lied. J.R. indicated to respondent that she was afraid, and respondent was so concerned that she called Olmsted County Community Services, which performed a welfare check to assure J.R.'s safety.
In addition, the court found that (1) J.R. was carrying heavy guilt and was being blamed by appellant for visitation exchange problems and this court action; (2) appellant was using J.R. to punish respondent; (3) appellant completely shut J.R.'s brothers out of her life; (4) J.R. had "shut down socially and emotionally, her self worth and self esteem were low and she felt defeated"; (5) appellant restricted telephone access between J.R. and respondent; and (6) the need to call police officers to aid in visitation exchanges cause J.R. embarrassment, fear, and disgust. The record and testimony of J.R.'s school counselor, the guardian ad litem, and respondent support each of these findings. Thus, we conclude that the district court's detailed findings, which are supported by the record, establish that living with appellant endangered J.R.'s emotional health.
Finally, the district court must find that the harm caused by a change of environment is outweighed by the advantage of a change to the child. Minn. Stat. § 518.18(d)(iv). Minnesota law prefers stability in custody arrangements, which creates an underlying presumption that continuation of a current custodial arrangement is preferable. In re Weber, 653 N.W.2d 804, 811-12 (Minn.App. 2002). Here, the district court found that, based on the evidence, there will be no harm to J.R. by the change of her environment from appellant's home to respondent's and concluded that the change will benefit J.R. Specifically, the court made findings concerning the school J.R. will be attending, as discussed above, to support this conclusion. We conclude that the district court made sufficient detailed findings, supported by the record, that establish that any harm caused by the change of environment is outweighed by the advantage of a change to J.R.
Ultimately, we conclude that the district court correctly applied the law and made detailed findings, supported by the record, that establish all of the elements required by Minn. Stat. § 518.18 for modification of a custody order.
III.
Appellant argues that the district court's order is inconsistent because it grants respondent sole legal custody while granting him liberal visitation. Appellant cites no legal authority in support of this proposition. Previously, this court addressed a similar argument and held that where the parties' history of animosity necessitated an award of sole legal custody, the district court did not err in granting liberal visitation to the noncustodial parent. Crosby, 587 N.W.2d at 295-96. Similarly, we conclude that the communication problems between the parties in this case support the district court's decision to grant respondent sole legal custody of J.R. But because both parties play a large role in J.R.'s life, the district court did not err in also granting appellant liberal visitation.
IV.
Appellant argues that the district court erred in awarding respondent attorney fees. An award of attorney fees under Minn. Stat. § 518.14, subd. 1 (2002), rests almost entirely within the discretion of the district court and will not be disturbed absent a clear abuse of discretion. Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn.App. 1998), review denied (Minn. Feb. 18, 1999).
Under section 518.14, subdivision 1, a district court shall award attorney fees when (1) they are necessary for a party to assert his or her rights; (2) the party seeking the award does not have the means to pay the fees; and (3) the other party has the ability to pay. Minn. Stat. § 518.14, subd. 1. And Minn. Stat. § 518.14, subd. 1, provides that attorney fees may be awarded in a modification proceeding under section 518.18.
Here, appellant's sole argument is that he should not be ordered to pay attorney fees incurred in an action brought by respondent, citing Watson v. Watson, 238 Minn. 403, 57 N.W.2d 691 (1953), for support. But Watson is merely one example when such attorney fees were not awarded. Watson did not hold that a party is never responsible for attorney fees incurred in an action brought against him or her. And courts have since upheld attorney fees awarded to the party who brought the action. See, e.g., Sharp, 614 N.W.2d 264.
When a court awards need-based attorney fees, its order must be accompanied by findings that one party has the ability to pay and that the other party is unable to pay. Courey v. Courey, 524 N.W.2d 469, 473 (Minn.App. 1994). Conclusory findings on the statutory factors do not adequately support a fee award. See Richards v. Richards, 472 N.W.2d 162, 166 (Minn.App. 1991) (remanding attorney-fee issue because court made only "general findings"). But a lack of specific findings is not fatal to an award where a review of the order "reasonably implies" that the district court considered the relevant factors and where the district court "was familiar with the history of the case" and "had access to the parties' financial records." Gully v. Gully, 599 N.W.2d 814, 825-26 (Minn. 1999).
Here, although the district court did not make specific findings with respect to each party's ability to pay attorney fees, the court made specific findings with respect to each party's income. And the district court found that appellant has a substantially greater income than respondent. Moreover, respondent's inability to pay child support indicates that appellant has a greater ability to pay than respondent and that the award was necessary for respondent to assert her rights. Thus, we conclude that the order reasonably implies that the district court considered the relevant factors, was familiar with the history of the case, and had access to the parties' financial records. And we conclude that the record supports the district court's grant of need-based attorney fees to respondent.
V.
Finally, appellant argues that the district court erred in allowing J.R. to obtain items of her personal property located at appellant's home. This court generally cannot address arguments that were not made before the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). At the evidentiary hearing in September 2003, the district court received, without objection, a list prepared by J.R. of items that she wanted to take with her to respondent's house. And respondent specifically requested the court to order appellant to transfer those items to J.R. Appellant had the opportunity to present evidence or argue that J.R. should not be allowed to take specific items. Appellant also had the opportunity to submit written arguments and proposed findings to the district court on this issue following the evidentiary hearing, but did not do so. Because appellant failed to argue this issue before the district court, we decline to address the issue on appeal.