In re Mark William Carroll, petitioner, Respondent, vs. Desiree Lucille Boeltl, Appellant.

In re Mark William Carroll, petitioner, Respondent, vs. Desiree Lucille Boeltl, Appellant. A04-1133, Court of Appeals Unpublished, February 8, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1133

 

In re Mark William Carroll, petitioner,

Respondent,

 

vs.

 

Desiree Lucille Boeltl,

Appellant.

 

Filed February 8, 2005

Remanded Hudson, Judge

 

Ramsey County District Court

File No. F2-00-310

 

Michael C. Black, Michael C. Black Law Office, Ltd., 265 West Seventh Street, Suite 201, St. Paul, Minnesota 55102 (for respondent)

 

John P. Guzik, Guzik Law Office, P.A., 2332 Lexington Avenue North, Roseville, Minnesota 55113 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            Appellant-mother challenges the district court's child custody-modification order granting sole custody of the parties' two children to respondent-father and awarding him child support.  Appellant argues that the district court abused its discretion by (1) modifying the parties' child-support arrangement without making specific findings regarding the best interests of the children and any alleged endangerment, as required by Minn. Stat. § 518.17, subd. 1 (2002), and Minn. Stat. § 518.18(d)(iv) (2002); (2) failing to consider the family court officer's evaluation in its decision; (3) not restoring her parenting time through Monday mornings; and (4) establishing a child-support obligation and imputing full-time income to her without evidence that full-time employment was available.  Because the district court's findings regarding modification of custody are insufficient, we remand for further findings consistent with this opinion.  We also remand to the district court for further findings on imputing income to appellant consistent with Minn. Stat. § 518.551, subd. 5b(d) (2002). 

FACTS

On May 26, 1995, Desiree Boeltl (appellant) and Mark Carroll (respondent) were married.  The parties had two children during their marriage.  On March 14, 2000, their marriage was dissolved.  At the time of dissolution, the parties stipulated to a marital-termination agreement, which stated that (a) the children would live with respondent from September through June and with appellant from June through September; (b) the parties would have "reasonable visitation" during those months; and (c) neither party wanted child support.

            In the first two years after the dissolution, the parties generally kept to the following parenting-time schedule:  (a) from Labor Day until the end of the school year, the children stayed with respondent, but spent every other weekend and overnight on Tuesdays with appellant; (b) from the end of the school year until Labor Day, the children stayed with appellant, but spent every other weekend and overnights on Tuesdays with respondent; and (c) the parties alternated holidays and school vacations. 

            The parties had numerous disputes over parenting issues during this period, and in August 2002, appellant moved for a set visitation schedule.  In November 2002, the district court entered an order memorializing the parties' informal arrangement, but with one important change the court ordered that, during the school year, appellant must return the children to respondent by 7:30 p.m. Sunday evening, rather than taking them to school on Monday mornings as had been her practice.  The district court also ordered appellant to complete a chemical-dependency evaluation, noted that the parties had been referred to family services for mediation and a custody evaluation, and reserved judgment on the issue of child support.

            On April 17, 2003, after conducting interviews of all relevant parties, a Ramsey County family court officer issued a custody evaluation.  The evaluation provided detailed analyses of respondent's allegations of problematic drinking by appellant, of appellant's claims that respondent does not consult her before making important decisions about the children, and of various other issues between the parties.  It also indicated that the children have healthy relationships with both parents and their significant others, and that both children are doing well in school, although appellant has less contact with the children's teachers than respondent.  The evaluation also analyzed each of the 13 "best interests" factors defined in Minn. Stat. § 518.17, subd. 1(a) (2002).  In the section entitled "summary," it states that,

[d]espite problems and concerns, it does not appear that the current joint legal or joint physical custody arrangement rises to the level of endangering the children's physical or emotional health or impairs the children's emotional development.  Overall, it appears that [D.C.] and [J.C.] are functioning well.  They are performing well in school, appear to be positively socially adjusted, are well behaved, physically cared for, and have important relationships with their mother and father.

 

The evaluation also noted that "[g]iven the mother's history of alcohol abuse and acknowledgement of on-going use, it does appear that it is in the best interests of the children for the mother to completely abstain from the use of alcohol," and "[c]ontinued engagement in the adult conflicts will likely have a detrimental effect on the children."

            In May 2003, appellant moved for an order implementing the family court officer's recommendations.  Respondent, in turn, moved for an evidentiary hearing on his request for a modification of custody.  And, on June 24, 2003, the district court issued an order setting a date for a review hearing, defining a parenting-time schedule, ordering appellant to completely abstain from alcohol and drugs, and reserving respondent's request for an evidentiary hearing.

            In November 2003, appellant again moved for an order implementing the family court officer's recommendations.  After hearing arguments on December 1, 2003, the district court issued an order setting a date for an evidentiary hearing. 

            The district court conducted an evidentiary hearing on January 14, 2004, and entered its order on April 7, 2004.  The order denied appellant's request that the court implement the family court officer's April 17, 2003 recommendations, granted respondent sole legal and physical custody of the children, and directed appellant to pay child support in the amount of $566 per month.  The order also provided that appellant shall have parenting time with the children every Tuesday from 3:30 p.m. through Wednesday morning at the start of school.  On May 4, 2004, appellant moved for amended findings and/or a new trial.  And on June 3, 2004, the district court denied her motion.  This appeal follows.

D E C I S I O N

I

Appellant contends that the district court's findings are insufficient to support a modification of custody.  When the district court grants a custody-modification motion, specific findings showing that the court considered the factors listed under Minn. Stat. § 518.17.18 (2002) are "absolutely required."  Rogge v. Rogge, 509 N.W.2d 163, 165 (Minn. App. 1993) (quoting Abbott v. Abbott, 481 N.W.2d 864, 867 (Minn. App. 1992)), review denied (Minn. Jan. 28, 1994).

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 that modification is necessary to serve the best interests of the child.  Minn. Stat. § 518.18(d) (2002); see also Minn. Stat. § 518.17, subd. 1(a) (2002) (listing the 13 "best interests" factors).  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). 

1.  Change of circumstances

The first factor that the district court must consider is whether a change of circumstances has occurred since the date of the original March 14, 2000 custody order.  See Minn. Stat. § 518.18(d).  The law is clear in Minnesota that a "change in circumstances must be a real change and not a continuation of ongoing problems."  Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989), review denied (Minn. June 21, 1989).  And the change in circumstances necessary to support an endangerment-based motion to modify custody must endanger the children's physical or emotional health or development.  Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981).  Here, in considering a change of circumstances, the district court did not specifically identify which factors it relied on to determine that there had been a change of circumstances.  We note, however, that the district court did discuss appellant's lengthy chemical-dependency history, including two DWI convictions, several failed treatments in chemical-dependency programs, and drinking-related altercations in the fall of 2003 involving appellant and her current boyfriend.[1] 

But appellant's chemical dependency is not a new development; to the contrary, the parties were well aware of it when the district court filed its March 2000 judgment and decree.  Thus, the basis for the district court's determination that a change of circumstances occurred is unclear.  Because the district court's findings are not sufficient for this court to conduct a meaningful review into whether a change in circumstances occurred in this case, we remand to the district court for further findings on this issue.

2.  Best interests of the children

In addition to the requirement that the district court find that a change in circumstances has occurred, the district court must also find that a modification of custody is in the best interests of the children.  Minn. Stat. § 518.18(d).  When determining the children's best interests, the district court must consider "all relevant factors," including the 13 factors defined by statute.  Rogge,509 N.W.2d at 165; see also Minn. Stat. § 518.17, subd. 1(a) (stating that "[t]he court must 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"). 

While the district court made findings that reflect consideration of some of the "best interests" factors, its findings do not reach the level of detail required by Minn. Stat. § 518.17, subd. 1(a).  For example, the order states that "[w]hile the boys need the affection of [appellant], it is [respondent] who is the person more actively involved in meeting the children's needs for clothing, shelter, emotional support and nurture.  It is he who tends to the children's medical needs and arranges their extra-curricular activities."  This finding appears to address the "best interests" factor of who is the primary caregiver.  Next, the order states that "[t]he children have a more intimate relationship with [respondent] . . . than they do with [appellant]."  This obviously addresses the intimacy factor.  And "[t]he children's relationship with [respondent's] significant other . . . is far more positive than it is with [appellant's] significant other."  Here, the court seems to be addressing the factor dealing with the interaction with significant others.  The court also finds that respondent "provides stability and security for the children," while appellant's "relationship with the children is affected by her drinking."  This statement seems to address the stability and continuity factor.

But these findings do not explain how these factors led to the district court's conclusions and to the determination of the best interests of the child.  And, while this court has stated that "[i]t is sufficient if the findings as a whole reflect that the trial court has taken the relevant statutory factors into consideration in reaching its decision," the findings here do not reflect such consideration.  Berthiaume v. Berthiaume, 368 N.W.2d 328, 332 (Minn. App. 1985) (citing Rosenfeld v. Rosenfeld, 311 Minn. 76, 83, 249 N.W.2d 168, 17172 (1976)).  Accordingly, on remand, if the district court finds sufficiently changed circumstances to allow modification of custody, it shall also make further detailed findings regarding the best interests of the children.

3.  Endangerment

Notwithstanding its determinations of a change in circumstances and the best interests of the children, to support an endangerment-based modification of custody, the district court must also find that the children's present environment endangers their physical or emotional health or impairs their physical or emotional development.  Minn. Stat. § 518.18(d)(iv).  For an existing or potential threat to a child's emotional health or physical safety to constitute endangerment, there must be "a showing of a significant degree of danger."  Sharp v. Bilbro, 614 N.W.2d 260, 263 (Minn. App. 2000) (quotation omitted), review denied (Minn. Sept. 26, 2000). 

Endangerment can be prospective; the court may find endangerment if a parent's actions are likely to cause harm to a child's further development.  See id. at 26364.  But "to establish danger to a child's welfare, a parent's conduct must be shown to result in an actual adverse effect on the child."  In re Weber, 653 N.W.2d 804, 811 (Minn. App. 2002).  And this court has stated that "behavioral problems and poor school performance by the child have served as indications of endangerment to a child's physical and emotional health." Id.

Again, while the district court's findings seem to infer that appellant's behavior, particularly her alleged drinking, is endangering the children, the court made no specific findings of actual adverse effects on the children while in appellant's care.  Indeed, testimony from the family court officer indicates that the children are well adjusted, successful in school and athletics, and generally happy.  The record contains no evidence from any doctor or other health-care professional to the contrary.  Therefore, on remand, further findings on the issue of endangerment will be required if the district court finds sufficiently changed circumstances to support modification of custody.

4.  Balancing of harm

            Finally, the district court must find that the harm caused by a change of custody is outweighed by the advantage of a change to the child.  Minn. Stat. § 518.18(d)(iv).  Minnesota law prefers stability in custody arrangements, and this preference creates an underlying presumption that continuation of a current custodial arrangement is favored.  Weber, 653 N.W.2d at 81112.  The district court, apparently in an attempt to end the constant bickering between appellant and respondent, failed to address the harm that its order might have on the children.  Thus, the district court's order must be remanded for further findings on this factor if the other requirements for an endangerment-based custody modification are found here.[2] 

II

            Appellant argues that the district court erred in not following the family court officer's recommendation for continued joint custody.  The district court has discretion in whether or not to follow a custody recommendation.  Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991).  But when a district court diverges from a custody recommendation, this court has required that the district 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, 509 N.W.2d at 166.

            Here, the district court failed to express its reasons for rejecting the family court officer's recommendations or otherwise indicate that it reviewed or considered the recommendations.  Accordingly, we remand for further findings on this issue.

III

            Appellant claims that the district court erred in not restoring appellant's right to keep the children at her home on Sunday nights, versus returning them to respondent by 7:30 p.m. per the November 4, 2002 order.  Minn. Stat. § 518.175, subd. 5 (2002), provides that modification of a parenting-time order is required whenever it would serve the best interests of the child.  Section 518.175, subdivision 5, also states that the district court may not restrict parenting time unless the court finds that parenting time with one parent "is likely to endanger the child's physical or emotional health or impair the child's emotional development."

Again, the district court's order does not provide sufficient findings for us to review whether this change in parenting time serves the best interests of the children, nor does it supply findings on the issue of endangerment.  Accordingly, we remand for further findings on these issues.

IV

Finally, appellant argues that the district court abused its discretion in imputing income to her and awarding child support to respondent.  Ordinarily, a child-support obligor's monthly net income is equal to his or her actual monthly gross income minus certain deductions.  Putz v. Putz, 645 N.W.2d 343, 348 (Minn. 2002).  But if a district court finds that an obligor is "voluntarily unemployed or underemployed," then the court must calculate the support obligation "based on a determination of [the obligor's] imputed income."  Id. (quoting Minn. Stat. § 518.551, subd. 5b(d) (2002)). 

The record here provides some support for the district court's finding that appellant was voluntarily underemployed.  Specifically, appellant's December 29, 2003 deposition testimony indicates that she made a conscious decision not to work full time in order to spend more time with her children.  But Minn. Stat. § 518.551, subd. 5b(d), provides that imputed income is defined as "the estimated earning ability of a parent based on the parent's prior earnings history, education, and job skills, and on availability of jobs within the community for an individual with the parent's qualifications." 

Again, the district court made no specific findings regarding these factors.  And, accordingly, we remand this issue for consideration of the factors set out in Minn. Stat. § 518.551, subd. 5b(d).

            Remanded.

[1] Appellant vigorously maintains that she has abstained from the use of alcohol since the district court's order to do so on June 24, 2003.

[2] We also note that the district court's finding that respondent "was awarded the physical custody and care of the minor children" on March 14, 2000, is clearly erroneous.  The March 14, 2000 order states that "[respondent] shall have the physical custody and care of the minor children . . . for the months of September through June and [appellant] June through September."