State of Minnesota, Respondent, vs. Dallas James Anderson, Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C8-98-718

In Re the Marriage of:
Jennifer Jane Newstrom, petitioner,
Appellant,

vs.

Steven Louis Newstrom,
Respondent.

Filed August 25, 1998

Affirmed
Toussaint, Chief Judge

Anoka County District Court
File No. F2-97-1042

Michael Ormond, Ormond Law Offices, 300 Sexton Building, 529 South Seventh Street, Minneapolis, MN 55415 (for appellant)

David E. Albright, 7814 131st Street West, Apple Valley, MN 55124 (for respondent)

Considered and decided by Crippen, Presiding Judge, Toussaint, Chief Judge, and Klaphake, Judge

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant-mother, Jennifer Jane Newstrom challenges the district court's order granting respondent-father Steven Louis Newstrom a change in custody. Because the record supports the district court's custody determination, we affirm.

D E C I S I O N

An appellate court will 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). A trial court's findings will be sustained unless they are clearly erroneous. Id.

Custody modifications are governed by Minn. Stat. § 518.18 (d) (1996). Minn. Stat. § 518.18(d) provides:

If the court has jurisdiction to determine child custody matters, the court shall not modify a prior 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, 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:

* * * *

(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.

Under this statute, the moving party must show (1) a change in the circumstances of the child or custodian; (2) that a modification would serve the best interests of the child; (3) that the present environment endangers the child's physical or emotional health or emotional development; and (4) that the harm to the child likely to be caused by the change of environment is outweighed by the advantage of change. Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992).

I.

The June 1994 judgment dissolving the parties' marriage awarded appellant custody of the parties' two minor children, J.J.R.N. and J.J.N. Respondent moved for custody of the children in January 1997 because J.J.N. sustained an unexplained bruise/abrasion to the bottom of her chin, a deep lengthy scratch on her inner arm, and a deep right shin abrasion while in appellant's care. After a change of custody hearing, the district court found, among other things, that (1) appellant's continued physical custody of the children created a substantial danger of harm, and a risk of physical and/or emotional abuse; and (2) the risk to the children of remaining in appellant's custody far outweighed any likely harm that would result from a change of custody.

Appellant argues that the district court's finding of maltreatment is not supported by the record. To support her claim that she did not previously abuse the children, appellant argues that more weight should have been given to the testimony of (1) Dr. Stephen Clark, who examined J.J.N. and concluded that the injuries were consistent with normal childhood injuries; (2) Dr. Robert Van Sielen, the children's treating psychologist, who concluded that the children were not suffering from abuse or in danger; and (3) Dr. James Gilbertson, psychologist and neutral evaluator, who concluded there was no abuse or endangerment.

Appellate courts defer to district court determinations of the weight and credibility of testimony, including expert testimony. Alstores Realty, Inc. v. State, 286 Minn. 343, 354, 176 N.W.2d 112, 118 (Minn. 1970). Furthermore, a review of the record indicates that the experts did not conclusively determine whether there was abuse.

Custody modification where endangerment is alleged requires a showing of a "significant degree of danger." See Ross v. Ross, 477 N.W.2d 753, 755 (Minn. App. 1991). The danger may be purely to emotional development. Eckman v. Eckman, 410 N.W.2d 385, 389 (Minn. App. 1987). Here, it is undisputed that the children suffered injuries. In evaluating the parties' conflicting explanations of the source(s) of the children's physical and emotional injuries, the district court stated:

[d]uring the course of the proceeding, the Court assessed all of the evidence regarding the injuries presented by the parties. For example, the children's explanation about the cause of the injuries was weighed along with the physical evidence, testimony from the emergency room doctor and the [mother's] explanations. Ultimately, the Court determined that the children's account was a more reasonable version of the incidents.

Thus, the district court's finding of endangerment, like its finding of past abuse, is based on (1) the assessment of the weight and credibility of the witnesses; (2) physical evidence, that is the pictures in the record, corroborates the children's allegations that appellant abused J.J.N.; and (3) the fact that J.J.N.'s injuries were medically and forensically consistent with the J.J.N.'s history. The district court's finding of endangerment is supported by the record.

II.

Appellant argues that the district court erred in not considering the psychological evaluation of appellant performed by Dr. Roger Kollmorgen. The district court announced its decision from the bench, supplemented by a custody order that reduced its oral ruling to writing. Dr. Kollmorgen's report was submitted to the district court after the district court's oral ruling but before the written order was filed.

Because the district court ruled on the custody issue from the bench, the custody issue was resolved at that time. See Minn. R. Civ. P. 52.01 (allowing district court to rule orally). Therefore, any consideration of the psychological evaluation would have been improper unless appellant had moved to reopen or modify the custody adjudication. See Minn. Stat. § 518.145, subd. 2(2) (1996) (addressing reopening of ruling for new evidence); Rathbun v. W.T. Grant Co., 300 Minn. 223, 238, 219 N.W.2d 641, 651 (1974) (when considering motion for amended findings, district court "may neither go outside the record nor consider new evidence"). Additionally, the district court ordered the psychological evaluation solely to evaluate whether to reinstate appellant's extended summer visitation schedule. The district court did not abuse its discretion in not considering Dr. Kollmorgen's report to determine custody.

Affirmed.