In Re the Marriage of: Kristi Kay Sharbono, petitioner, Respondent, vs. Douglas Brian Sharbono, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-99-1903

 

 

In Re the Marriage of:

Kristi Kay Sharbono, petitioner,

Respondent,

 

vs.

 

Douglas Brian Sharbono,

Appellant.

 

 

Filed May 2, 2000 Affirmed Halbrooks, Judge

 

Polk County District Court

File No. F8-99-139

 

 

James C. Fischer, Fischer Law Office, 310 South Broadway, PO Box 644, Crookston, MN 56716-0644 (for respondent)

 

William P. Harrie, LaDonne R. Vik, Nilles, Hansen & Davies, Ltd., 1800 Radisson Tower, 201 North 5th Street, PO Box 2626, Fargo, ND 58108-2626 (for appellant)

 

Jolinda M. Michels, 448 Clearview Court, Moorhead, MN 56560 (guardian ad litem)

 

 

 

            Considered and decided by Willis, Presiding Judge, Kalitowski, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant Douglas Sharbono appeals from the trial court's award of child custody to respondent Kristi Sharbono.  Appellant contends that the evidence in the record does not support the award and that the trial court abused its discretion in disregarding the custody evaluator's recommendation without explanation.  Because we find no abuse of the trial court's broad discretion, we affirm.

FACTS

            Appellant and respondent were married on June 14, 1997.  The parties have one child, K.J.S., born January 29, 1997.  Respondent has one other child, S.R.B., born November 9, 1989.  The parties resided together until December 13, 1998.  At that time, respondent was arrested and placed in jail following an incident of domestic abuse against appellant.  Subsequently, the children resided with appellant in the family home until February 19, 1999.  The parties then agreed that the children should be returned to respondent.  Respondent returned to the family home, and appellant moved into an apartment.  Appellant exercised visitation on most weekends and Wednesday nights until the time of trial.

            During one of the Wednesday night visits with appellant, K.J.S.'s elbow was dislocated.  Respondent and appellant took K.J.S. to the emergency room the next day.  Respondent testified that the doctor concluded K.J.S.'s elbow had been dislocated when appellant lifted her by her wrists.  Respondent did not characterize this incident as child abuse, and no child-abuse report was filed by the doctor.

            A petition for dissolution of marriage was filed on January 26, 1999.  Prior to trial, the parties resolved all issues except custody, child support, and visitation.  The parties stipulated to the appointment of a guardian ad litem and requested a custody report. 

The guardian ad litem concluded that the case was a close one and found that most of the factors did not favor either parent.  But she found that the interaction and interrelationship of K.J.S. with her parents and sibling favored appellant because of the guardian ad litem's belief that respondent had given S.R.B. too much responsibility to care for her half-sister and, consequently, S.R.B. had been forced to grow up too quickly.  The guardian ad litem also expressed concern about S.R.B.'s numerous absences from school and her "teen-age" appearance.  She noted S.R.B. had not missed any school during the two months she was in appellant's care.

The guardian ad litem also found that the physical and mental health of the parties favored appellant due to respondent's use of prescription medication and diagnosis with multiple sclerosis.  Additionally, the guardian ad litem found that the incident of domestic abuse for which respondent was incarcerated, although not directly involving K.J.S., weighed in favor of granting appellant custody.  After balancing all of the factors, the guardian ad litem recommended that appellant receive custody of K.J.S.

The case was tried on August 19, 1999.  Following trial, the court issued written findings utilizing the factors set forth in Minn. Stat. § 518.17, subd. 1 (1998).  The trial court found that the majority of factors favored both parents equally, but that respondent was K.J.S.'s primary caretaker.  The court also found that the "interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child's best interests" favored respondent.  The court noted that K.J.S. had a very close relationship with her half-sister, S.R.B., and that removing K.J.S. from this relationship would adversely affect K.J.S.'s best interests.  Additionally, the court found that the length of time that the child had lived in a stable, satisfactory environment and the desirability of maintaining continuity favored respondent.  Finally, the court found that appellant had committed domestic abuse due to the dislocation of K.J.S.'s elbow while she was in his care.  The court then concluded that it was in the best interests of K.J.S. for the parties to share joint legal custody and for respondent to have physical custody.  Appellant appeals from the trial court's custody decision.

D E C I S I O N

The trial court has broad discretion in determining custody issues between parties.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  This court will not reverse a custody determination absent a showing that the trial court's findings were clearly erroneous and that 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 review the evidence in the light most favorable to the trial court's findings.  Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn. 1993).

            In awarding physical custody of a child, a trial court must consider the best interests of the child in view of the statutory factors set out in Minn. Stat. § 518.17, subd. 1 (1998).  Nazar v. Nazar, 505 N.W.2d 628, 633 (Minn. App. 1993).  The court is to 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."  Minn. Stat. § 518.17, subd. 1(a).  Courts may not use one factor to the exclusion of all others.  Id.

Appellant disagrees with the court's finding that respondent is the primary caretaker, but concedes that there is sufficient evidence in the record to support the court's finding on this issue.  Appellant also disagrees with the following three findings:  (1) that K.J.S.'s dislocated elbow resulted from abuse by appellant; (2) that K.J.S. has lived in a stable, satisfactory environment with respondent; and (3) that removing K.J.S. from the home would significantly impact her relationship with S.R.B.  Appellant also contends the court should have addressed S.R.B.'s excessive absences from school. 

1.         Domestic Abuse

            We agree with appellant that there is no evidence in the record to support the trial court's finding that he committed domestic abuse as defined by Minn. Stat. § 518B.01 (1998).  At trial, respondent testified that K.J.S.'s elbow was sore and slightly swollen after a Wednesday night visit with appellant.  The following day she and appellant took K.J.S. to the hospital.  According to respondent, the doctor indicated that K.J.S.'s dislocated elbow likely resulted from appellant picking K.J.S. up by her wrists. 

The doctor did not testify at trial, and there is no evidence that the doctor believed this was an incident of child abuse or that the doctor filed a child-abuse report.  Respondent did not characterize the incident as abuse in her testimony, and the guardian ad litem did not consider the incident significant enough to be included in her report.  Additionally, appellant was not asked any questions about domestic abuse or whether he intended to harm K.J.S.

In light of this record, we conclude the trial court erred in finding appellant committed domestic abuse.  The record supports nothing beyond a finding of unintentional injury.  

2.         Stability of Environment/Relationship with Sibling

            Appellant contends the trial court made insufficient findings regarding the stability of K.J.S.'s environment and her relationship with her half-sister, S.R.B.  Appellant asserts there is a heightened requirement for detailed findings on these issues because the trial court did not follow the custody evaluator's recommendation.  See Lawver v. Lawver, 360 N.W.2d 471, 473 (Minn. App. 1985) (stating where trial court custody decision contradicts recommendation in custody study need for particularized findings is "enlarged").

            The trial court has discretion not to follow the child custody evaluator's recommendation if the court believes it is outweighed by other evidence.  Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991).  But appellate courts require

that the trial court either (a) express its reasons for rejecting the custody recommendation, or (b) provide detailed findings that examine the same factors the custody study raised.

 

Rogge v. Rogge, 509 N.W.2d 163, 166 (Minn. App. 1993) (citation omitted), review denied (Minn. Jan. 28, 1994).  When the trial court fails to fulfill either of these requirements, this court has required a remand.  Id. 

            Here, the trial court did not discuss its reasons for rejecting the custody evaluator's recommendation, and although it examined the same 13 statutory factors as the custody evaluator did, its findings were limited and somewhat conclusory.  Nevertheless, we are confident that we can conduct meaningful review and, in light of our narrow standard of review, we affirm the trial court's custody determination.  See Minn. R. Civ. P. 52.01 ("[f]indings of fact * * * shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses").

            The trial court found that respondent was the child's primary caretaker, and appellant conceded there was sufficient evidence in the record to support this finding.  Moreover, there is evidence in the record supporting the trial court's findings regarding the stability of K.J.S.'s environment and her close relationship with her half-sister.  Respondent, respondent's neighbor, and S.R.B. all testified to the stability of K.J.S.'s environment and her close relationship with S.R.B.  Further, the guardian ad litem admittedly did her own unrequested, independent research on multiple sclerosis and seemed to reach broad, general conclusions about the future course of respondent's condition for which there is no medical support in this case.  The trial court specifically found that respondent's health problems were not a factor.

Thus, while it would have been preferable for the trial court to indicate its rationale for rejecting the custody-study recommendation or to have given a more detailed analysis of the factors concerning K.J.S.'s best interests, we do not conclude the trial court abused its discretion.  See Elliott v. Mitchell, 311 Minn. 533, 535, 249 N.W.2d 172, 174 (Minn. 1976) (indicating that although record might support findings other than those made by district court, that does not demonstrate that district court's finding are defective); Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. Mar. 17, 2000) (applying Elliott in custody dispute).

            Affirmed.