In re: Jualy Yang, petitioner, Appellant, vs. Jer Yang, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-02-1674

 

 

In re:  Jualy Yang, petitioner,

Appellant,

 

vs.

 

Jer Yang,

Respondent.

 

Filed May 27,  2003 Affirmed Poritsky, Judge*

 

Hennepin County District Court

File No. DC266801

 

 

John P. Guzik, Hlee Mai Ly, 2332 Lexington Avenue North, Roseville, MN 55113 (for appellant)

 

 

Thomas L. Steffens, Shannon L. Ort, Elizabeth C. Henry, 300 Southdale Place, 3400 West 66th Street, Edina, MN 55435 (for respondent)

 

 

            Considered and decided by Peterson, Presiding Judge, Harten, Judge, and Poritsky, Judge.

U N P U B L I S H E D   O P I N I O N

PORITSKY, Judge

            In this dissolution action, the district court awarded sole legal and physical custody of the parties' minor child to respondent-father.  In doing so, the court adopted the findings of a court-appointed custody evaluator and made its own additional findings.  Appellant-mother argues that the district court erred (1) by failing to make findings on the statutory best-interest factors set forth in Minn. Stat. § 518.17, subd. 1(a) (2002); (2) by failing to consider domestic abuse pursuant to Minn. Stat. § 518.17, subd. 1(a)(12) (2002); (3) by failing to adequately consider that the mother was the child's primary caretaker and (4) by not awarding joint legal custody.  Because the court made appropriate findings on all the above issues, we affirm. FACTS

            Appellant-mother, Jualy Yang, and respondent-father, Jer Yang, married on June 22, 1981.  The mother commenced a marriage dissolution proceeding on May 9, 2001.  During their twenty-year marriage, the parties had four children, Houa, Lyfonge, Paul, and A.Y.  The three oldest sons, Houa, Lyfonge, and Paul, are currently living with the father and are either adult or emancipated, and not part of the proceeding before this court.

When the district court made its findings, it did so based on the testimony at a four-day custody hearing, the recommendations of the court-appointed custody and parenting-time evaluator ("custody evaluator" or "evaluator"), and psychological evaluations of the parties.  The custody evaluator considered each of the statutory best-interest factors.  The evaluator stated that A.Y.'s lack of proficiency in English coupled with his young age (he was five years old at the time of the trial) made him unable to express a reasonable preference as to custody.[1]  The evaluator determined that there was no "significant lack in either parent's ability to provide adequate care for [A.Y.]."  The evaluator noted that A.Y. has been living with the mother since March 2001 and is well adjusted to the home and school.  He also noted that the father was not responsible for the direct physical care of the children, in part due to Hmong gender and family roles.  While both parents were verbally and physically affectionate with A.Y., the mother was more "attentive" and "directly responsive" to A.Y.'s needs.

In reaching his conclusion that the father should nonetheless have custody, the evaluator noted that he "was impressed with the strength of the older children's conviction regarding their mother's inability to provide appropriate ongoing care for [A.Y.]," because she was "physically rageful at times, as well as emotionally distant."  He recognized a close bond between the brothers and found that A.Y.'s interaction and interrelationship with his brothers was positive and appropriate.  Besides recognizing the sons' concerns, the custody evaluator also expressed concern about the mother's mental health.  Specifically, he was concerned the mother's "reported defensiveness and inconsistencies," her inability to accept reality, and her inability to accept responsibility for her actions.  Also troubling to the custody evaluator were the mother's unsubstantiated claims of abuse allegedly perpetrated by the father, because it appeared that the mother made the claims in order to manipulate the legal system.  The custody evaluator's report included issues of domestic abuse and factors concerning whether joint physical and/or legal custody would be appropriate.  The custody evaluator recommended that the father have sole legal and physical custody of A.Y.

            The court fully adopted the custody evaluator's recommendations in its findings, and made additional findings on the issue of domestic violence.  On that issue, the court heard testimony about one incident of abuse by the father against the mother, incidents of alleged abuse by the mother against her children, and alleged abuse by the father against A.Y.  The incident in which the father abused the mother occurred in 1999.  As a result of that incident, the father was charged with, and pleaded guilty to, fifth degree assault.  At the trial of the present case, a witness to the incident described it to the court.  The witness testified that she was in a neighboring office when she heard a woman's voice yelling for help.  The witness went into the parties' office and saw the mother, crying with no shirt on.  A.Y. was also in the room.  The witness quoted the mother as saying, "my husband, my husband."  The mother testified "He choke me neck" and that A.Y. was with her at the time.

The court heard testimony at trial regarding the mother's alleged abused of her children.  At trial, Houa Yang, one of the parties' adult sons, testified that on one occasion, the mother called a Hmong clan elder claiming that her sons had attacked her, but both Houa and his brother Lyfounge testified the she had attacked both of them with a knife.  Houa testified that his mother attacked him with her fingernails, scratched his face, and often pinched him and hit him with her knuckles.  The third son, Paul, testified that on one occasion, his mother caused him to have a black eye.

The court also heard the mother's allegation that the father abused A.Y; but the court also heard that Hennepin County Child Protective Services ("Child Protection") was not able to substantiate these allegations.

            After four days of testimony, sometimes conflicting, the trial court awarded sole legal and physical custody of the minor child A.Y. to the father, subject to reasonable parenting time with the mother.  Without moving for a new trial, the mother brought this appeal.

D E C I S I O N

 

1.         Did the district court abuse its discretion by failing to make sufficient findings on the statutory best-interest factors set forth in Minn. Stat. § 518.17, subd. 1(a) and by incorporating the custody and parenting time evaluator's report by reference?

 

The mother contends that the district court erred by failing to make its own specific findings about the best-interest factors set forth in Minn. Stat. § 518.17, subd. 1(a) (2002) and by incorporating the custody evaluator's report by reference. 

On appeal from a judgment where there has been no motion for new trial, the only questions for review are whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment. 

 

Erickson v. Erickson, 434 N.W.2d 284, 286 (Minn. App. 1989) (citation omitted).  We review the evidence in the light most favorable to the district court's findings and the court's findings will not be overturned unless clearly erroneous.  Minn. R. Civ. P. 52.01; Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn. 1993). 

            Determinations of child custody must be based on the best-interest-of-the-child standard.  Minn. Stat. § 518.17, subd. 3(a)(3) (2002).  When considering the best interest of a child, the district court must make detailed written findings that reflect the court's consideration of factors set forth 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).  Although the district court must consider all the factors listed in Minn. Stat. § 518.17, subd. 1(a), the court need not make specific findings on each and every factor.  Nazar v. Nazar, 505 N.W.2d 628, 633 (Minn. App. 1993), review denied (Minn. Oct. 28, 1993). 

Here, the district court adopted all findings and recommendations contained in the detailed custody evaluation.  It is appropriate for the district court to adopt a court-appointed evaluator's report, provided that it appears from the record that the court considered both the contents of the report and all evidence submitted at trial.  Here, the district court made sufficient findings of fact to show that it considered the evidence at trial.  Specifically, in Finding XII, the district court made findings regarding the allegations of abuse.  The court found credible testimony that the mother could not control her temper, that she cursed the family and threatened to poison them, and that she attacked her sons.  Supporting evidence showed that one attack resulted in one son receiving a black eye, and another resulted in another son getting cut with a knife.

 Additionally, in Finding XIII, the court considered the statutory best-interest factors and found that 

[t]he parties are relatively evenly matched as far as their parenting skills with regard to the majority of the "best interest" factors set forth in Minn. Stat. § 518.17, including the wishes of the parents, primary caretaker, intimacy of the relationship, interaction with parents and siblings, permanence of the family unit, capacity to give love and affection, and cultural background.

 

The court then concluded that "[t]he parties differ in the areas of abuse, disposition to encourage contact with the non-custodial parent and mental health/ability to provide a mentally healthy environment for the child."  The custody evaluator's report is very inclusive, and the court adequately explains which testimony from the trial influenced its findings and final decision, specifically referring to the testimony of A.Y.'s three older brothers.  On this record, we conclude that the court adequately addressed the factors, through both the custody evaluator's report and the court's additional findings.  The evidence sustains the findings of fact, and the findings sustain the conclusions of law.

2.         Did the trial court err by failing to adequately consider the effects of domestic abuse pursuant to Minn. Stat. § 518.17, subd. 1(a)(12). 

 

The mother contends that the trial court and the custody evaluator improperly ignored or otherwise minimized the acts of domestic abuse witnessed by or occurring against A.Y.  Minn. Stat. § 518.17, subd. 1(a)(12) requires that the court consider "the effect on the child of the actions of an abuser."  We must view the record in the light most favorable to the trial court's findings of fact and defer to the trial court's credibility determinations.  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).  Merely because the record might support findings other than those made by the trial court does not warrant a reversal.  Id.

Here, the court properly considered the allegations of domestic violence.  The court made findings regarding the allegations of abuse that were made by both parties and those reported by A.Y.  The court recognized that the father pleaded guilty to 5th Degree Assault in August 1999.  The court also found that the mother's other allegations and A.Y.'s reports of abuse by were not substantiated. [2]

The court indicated the specific evidence that led to its conclusions about the existence or impact of any violence on A.Y.  The court found that the parties' three adult sons were credible.  It found the mother not to be credible, due to her inconsistent testimony and due to the additional inconsistencies she presented to both the court evaluator and the psychologist.  In fact, the court believed that the mother "may have coached and encouraged [A.Y.] to make allegations with regard to [the father]." 

After making a credibility determination, the court relied on the "compelling testimony" by the parties' adult sons about specific incidents of physical abuse that demonstrated that the mother "has a temper that she is unable to control."  One son testified to receiving a black eye from his mother, another testified to an incident where his mother chased him with a knife, cutting him.  The third son testified that his mother scratched him in the face.  Because we give significant deference to a trial court's credibility determinations, and will not reverse unless findings are clearly erroneous, we conclude that the court adequately considered the effects of domestic abuse, pursuant to Minn. Stat. § 518.17, subd. 1(a)(12). 

 

3.         Did the trial court adequately consider the fact that the mother was the child's primary caretaker?

 

            The mother complains that the trial court failed to adequately consider the effects of removing A.Y. from the parent who has done the majority of caretaking for the child since birth.  But, "[t]he court may not use one factor to the exclusion of all others."  Minn. Stat. § 518.17, subd. 1(a)(13).  And the law currently "leaves scant if any room for an appellate court to question the trial court's balancing of best-interests considerations."  Vangness, 607 N.W.2d at 477.

            There is little dispute that the mother provided the majority of direct care for A.Y., and the custody evaluator stated that the father "would most likely delegate many of the caretaker tasks to [A.Y.'s] older brothers."  But after recognizing that the mother had more contact with A.Y.'s school and experience in direct caregiving, the evaluator still concluded the father "possesses a greater ability to provide ongoing and consistent love and affection to [A.Y.]."

            The evaluator adequately considered the primary caretaker issue, and the court adopted the evaluator's findings.  Moreover, the court, in its own findings, concluded that the parents were relatively evenly matched in terms of several best-interest factors including primary caretaker.  Although it could be argued that on the record the primary-caretaker factor should have been weighed in favor of the mother, we conclude that the court did not abuse its discretion when it concluded that other factors outweighed this one factor.  The evidence sustains the findings of fact, and those findings sustain the conclusions of law.

 

4.         Did the trial court err by not awarding joint legal custody?

 

The mother also asserts that because the district court did not adequately consider the statutorily-mandated factors, the court abused its discretion when it awarded sole legal custody to the father.  "[J]oint legal custody should be granted only where the parties can cooperatively deal with parenting decisions."  Wopata v. Wopata, 498 N.W.2d 478, 482 (Minn. App. 1993) (quotation omitted).  Minn. Stat. § 518.17, subd. 2 (2002) addresses a request for joint custody:

            In addition to the factors listed in subdivision 1, where either joint legal or joint physical custody is contemplated or sought, the court shall consider the following relevant factors:

(a) the ability of parents to cooperate in the rearing of their children;

(b) methods for resolving disputes regarding any major decision concerning the life of the child, and the parents' willingness to use those methods;

(c) whether it would be detrimental to the child if one parent were to have sole authority over the child's upbringing; and

(d) whether domestic abuse, as defined in section 518B.01, has occurred between the parents.

            The court shall use a rebuttable presumption that upon request of either or both parties, joint legal custody is in the best interests of the child.  However, the court shall use a rebuttable presumption that joint legal or physical custody is not in the best interests of the child if domestic abuse, as defined in section 518B.01 has occurred between the parents.

            If the court awards joint legal or physical custody over the objection of a party, the court shall make detailed findings on each of the factors in this subdivision and explain how the factors led to its determination that joint custody would be in the best interests of the child.

           

            Although it is preferable for the district court to discuss each of the four factors stated in Minn. Stat. § 518.17 subd. 2 individually, the court need only make clear that it has considered each factor necessary in determining joint custody.  Schultz v. Schultz, 358 N.W.2d 136, 138 (Minn. App. 1984). 

            Here, the court stated that "[t]he [custody] evaluator's findings with regard to Joint Legal Custody are sufficient, and the Court finds that the parties are unable to share joint legal custody of [A.Y.]."  The custody evaluator considered each of the statutory factors and concluded that, due to the high level of conflict between the parties and their inability to cooperate in the rearing of their children, joint legal custody was not appropriate.  The court evaluator noted the existence of past domestic violence, thus triggering the rebuttable presumption that joint legal custody is not in the best interests of the child.  Because the trial court adopted in full the custody evaluator's report, which adequately addressed the statutory factors, and because the conclusion that the parties cannot work together is supported by the record, the trial court did not err.

            Affirmed.

           

 

*   Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

 

[1] We note that had A.Y. been older, it would have been appropriate to have an interpreter available so that A.Y.'s preferences could have been taken into account.  Because of the A.Y.'s immaturity, however, the lack of an interpreter in this case does not affect the validity of the evaluator's conclusions.

[2] Sandra Johnson, a clinical therapist who met with A.Y., and who made several reports to Child Protection based on A.Y.'s disclosures, testified that she received information from Child Protection indicating that the alleged child abuse by the father was not substantiated.