Wendy Lee Heckel, petitioner, Respondent, vs. Gerald Leonard Heckel, Appellant.

Wendy Lee Heckel, petitioner, Respondent, vs. Gerald Leonard Heckel, Appellant. A05-1494, Court of Appeals Unpublished, May 30, 2006.

This opinion will be unpublished and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

A05-1494

 

Wendy Lee Heckel, petitioner,

Respondent,

 

vs.

 

Gerald Leonard Heckel,

Appellant.

 

Filed May 30, 2006

Affirmed

Stoneburner, Judge

 

Chisago County District Court

File No. 13F899000068

 

Sharon K. Sill, Carrie M. Vaia, 8 North Lake Street, Forest Lake, MN 55025 (for respondent)

 

Steven A. Sicheneder, Suite 302, 20 North Lake Street, Forest Lake, MN 55025 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Harten, Judge.*

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

Appellant challenges the district court's post-dissolution modification of custody of the parties' minor children asserting that (1) the district court's adoption of respondent's proposed findings of fact and conclusions of law indicates that the district court did not independently evaluate the custody issues and (2) the findings regarding endangerment and the children's best interests are inadequate and unsupported by the record.  Because a careful review of the record leads us to conclude that the district court independently evaluated the custody issues, the record supports the findings, and the findings are adequate, we affirm.

FACTS

 

            The 1999 decree dissolving the parties' marriage awarded them joint legal and physical custody of their children, C.K.H., date of birth May 8, 1989, and T.G.H., date of birth, June 9, 1993.  In August 2004, respondent Wendy Lee Heckel (mother) moved for sole physical custody based primarily on her growing concern over the level of violence the children were being exposed to in the home of appellant Gerald Leonard Heckel (father), and father's treatment of C.K.H.  Father opposed the motion.  The district court concluded that mother had established a prima facie case of endangerment, ordered a custody evaluation, and scheduled an evidentiary hearing.  Before the hearing occurred, father was arrested for fifth-degree assault against his girlfriend, Rebecca Schmidt, and Schmidt obtained an order for protection against father.[1]  Based on this incident, mother moved ex parte for temporary sole physical custody of the children, and the district court granted the motion.  Father requested dismissal of the ex parte order.  After a hearing, the district court found that father was engaged in a volatile and unstable relationship with Schmidt that was detrimental to the children and upheld the award of temporary sole custody to mother.  The district court ordered father to abstain from using alcohol and mood-altering drugs during his parenting time and prohibited contact between Schmidt and the children.  Schmidt subsequently moved out of father's home, but there is evidence in the record that the children had contact with Schmidt in violation of the district court's order and evidence that, despite father's testimony to the contrary, father remained in frequent contact with Schmidt after she moved out of his home.

            The custody study was performed by Michele Bjork and included psychological evaluations of each party performed by Dr. Jones Adkins, a licensed psychologist at Five County Mental Health Centers.  Based on her investigation and review of records, Bjork's report set forth detailed facts regarding each of the factors contained in Minn. Stat. § 518.17, subd. 1(a) (2004).  Bjork concluded that the children's emotional and physical well-being has been seriously compromised while in father's care and recommended that an award of sole legal and physical custody to mother would be in the children's best interests.  Bjork also recommended that the children continue to have frequent contact with father.

            At the evidentiary hearing, the district court, by agreement of the parties, interviewed the children privately.  Mother, father, and the custody evaluator testified.  Based on the entire record, the district court found that (1) father violated the temporary custody order by allowing contact between Schmidt and the children; (2) the children witnessed domestic abuse by father against mother and Schmidt; (3) father used intimidation, humiliation, and ridicule in his relationship with C.K.H.; (4) father's custodial environment endangers the children's emotional health and impairs their emotional development; and (5) father has a history of alcohol abuse and admitted to driving with the children while intoxicated.  The district court stated that the modification is governed by Minn. Stat. § 518.18 and determined the children's best interests by making several pages of findings addressing each of the 13 factors set forth in Minn. Stat. § 518.17.  The district court, concluding that a change of circumstances endangers the children's physical and emotional health and requires modification to serve the children's best interests, granted mother sole legal and physical custody and granted father parenting time. 

            The district court denied post-hearing motions of the parties, including father's motion for a new trial and amended findings.  This appeal followed.

D E C I S I O N

 

"The trial court is afforded broad discretion in making custody decisions."  Wopata v. Wopata, 498 N.W.2d 478, 481 (Minn. App. 1993).  Currently, the law "leaves scant if any room for an appellate court to question the trial court's balancing of best-interests considerations."  Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000).  Appellate review of custody determinations is limited to determining 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); Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985); see In re Custody of N.A.K., 649 N.W.2d 166, 174 (Minn. 2002) (reciting this standard in case involving removal of children from natural parent).  "Even though the district court is given broad discretion in determining custody matters, it is important that the basis for the court's decision be set forth with a high degree of particularity."  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989) (quotation omitted).  Appellate courts will not reverse a factual finding that underlies a custody determination unless the finding is clearly erroneous.  Minn. R. Civ. P. 52.01; Pikula,374 N.W.2d at 710.  A finding is clearly erroneous if the reviewing court is left with the definite and firm conviction that a mistake has been made.  Vangsness, 607 N.W.2d at 474.  In applying this clear-error standard, we view the record in the light most favorable to the district court's determination, giving appropriate deference to the district court's credibility determinations.  Id. at 472.  "That the record might support findings other than those made by the trial court does not show that the court's findings are defective."  Id. at 474.

I.          Adoption of proposed findings of fact and conclusions of law

            Father first argues that the district court's adoption of mother's proposed findings of fact and conclusions of law demonstrates that the district court failed to independently consider the custody issues, evidence, and legal authority favorable to father, and failed to apply the law to the facts.  In Sigurdson v. Isanti County, this court concluded that "[a]lthough federal courts have firmly disapproved of this practice, no decision to our knowledge has held that verbatim adoption of a party's proposed findings and conclusions is reversible error per se.  Rather, the ‘clearly erroneous' standard remains the proper standard of review."  408 N.W.2d 654, 657 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987). 

Appellate courts "discourage district courts from adopting proposed findings of fact and conclusions of law verbatim because it does not allow the parties or a reviewing court to determine the extent to which the court's decision was independently made."  Lundell v. Coop. Power Ass'n, 707 N.W.2d 376, 380 n.1 (Minn. 2006).  "Adoption of a party's proposed findings by a district court is generally an accepted practice."  Schallinger v. Schallinger, 699 N.W.2d 15, 23 (Minn. App. 2005) (citation omitted), review denied (Minn. Sept 28, 2005) (citing Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993), noting that the practice raises the question of whether the court independently evaluated the evidence).

In this case, the district court did not adopt mother's findings of fact and conclusions of law verbatim, and the record demonstrates the district court's full participation and active attention to the issues involved in the custody dispute.  Despite father's assertions to the contrary, the findings and conclusions adopted by the district court are supported by the record, and there is no indication that the district court failed to independently evaluate the evidence.  There is no merit to father's assertion that adoption of mother's proposed findings and conclusions constitutes reversible error in this case.

II.        Custody modification

            Appellant next argues that the district court abused its discretion by modifying custody.  Custody modification is governed by Minn. Stat. § 518.18 (2004), which provides in part:

[T]he court shall not modify a prior custody order or a parenting plan provision which specifies the child's primary residence unless it finds, upon the basis of facts . . . 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 or the parenting plan provision specifying the child's primary residence that was established by the prior order 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) (2004) (emphasis added).  Therefore, to grant a motion to modify custody based on endangerment, a district court must make specific findings that (1) a change in circumstances has occurred; (2) a modification is necessary to serve the child's best interests; (3) the child's present environment endangers the child's health or impairs the child's emotional development; and (4) the harm likely to be caused by a change of environment is outweighed by the advantages of the change to the child.  See Bettin v. Bettin, 404 N.W.2d 807, 808 (Minn. App. 1987) (citing State ex rel. Gunderson v. Preuss, 336 N.W.2d 546, 548 (Minn. 1983)).  "The existence of endangerment must be determined on the particular facts of each case."  Sharp v. Bilbro, 614 N.W.2d 260, 263 (Minn. App. 2000) (quotation omitted), review denied (Minn. Sept. 26, 2000).  Endangerment requires a showing of significant danger, but the danger may be purely to emotional development.  Geibe v. Geibe, 571 N.W.2d 774, 779 (Minn. App. 1997).    

Father does not challenge the district court's finding of changed circumstances, but he challenges the finding of endangerment and intertwines a challenge to the court's best-interests finding with an assertion that the district court failed to weigh and make findings on the advantages and harms of custody modification.  The record reflects the fact that the district court accepted mother's testimony and found much of father's testimony not credible.  Viewing the evidence in the light most favorable to the decision, as we must, we conclude that father's assertions are without merit.

a.         Endangerment

Father's contention that the district court "made no finding that remaining in the joint physical custody of the parties endangered either of the children" and made no finding "with regard to T.G.H.'s emotional health and/or development" is erroneous.  The district court found that witnessing "[father's] pattern of abuse toward women and, [C.K.H.] . . . has created an environment which endangers the children's emotional health and impairs their emotional development."  The district court made numerous other findings that support the finding of endangerment.[2]  The court clearly found that the environment at father's home and continued joint custody endanger the children.

            Father argues that the district court's finding of endangerment was unsupported by the record, but our review of the record shows that the court's findings are supported by evidence including the custody study, psychological evaluations, witness testimony, and interviews with the children.  In oral argument, counsel for father specifically challenged the finding that T.G.H. has witnessed domestic abuse.  But mother testified that the children witnessed father's abuse of mother prior to the dissolution of marriage, and it is clear from the record that T.G.H. was very aware of father's anger toward mother about the requested custody change and that T.G.H. at a minimum, heard father's arguments with Schmidt.  T.G.H. was very clear with the custody evaluator and the district court that he did not want to be with father if Schmidt lived with him or if father was consuming alcohol.  What T.G.H. witnessed of father's treatment of C.K.H. is less clear from the record, but given the degree to which both parties discussed the custody issues with the children, it is a fair inference that T.G.H. was fully aware of father's conduct toward C.K.H. and that he was present for at least some of the encounters.   

            Father asserts that a district court cannot not find a child's emotional health or development is endangered without expert testimony, citing Rogge v. Rogge, 509 N.W.2d 163 (Minn. App. 1993), review denied (Minn. Jan. 28, 1994), Sharp, 614 N.W.2d 260, and Kimmel v. Kimmel, 392 N.W.2d 904 (Minn. App. 1986), review denied (Minn. Oct. 29, 1986).  Although there was expert testimony in Rogge, the opinion does not hold that expert testimony is required.  509 N.W.2d at 164-67.  In Sharp, expert testimony established endangerment, but the opinion does not hold that expert testimony is required to establish endangerment.  614 N.W.2d at 263-64.  Kimmel noted that the finding of endangerment was based on "the record," which consisted of testimony from child-protection workers, the child's mother, school records, and evidence of other incidents of physical abuse.  392 N.W.2d at 908-09.  We find no authority to support, and no merit in, father's argument that expert testimony is required to establish endangerment.

Finally, father contends that there are no allegations of physical or oral abuse of T.G.H., that there are only allegations of oral abuse of C.K.H., and that C.K.H. has not suffered any adverse consequences from the oral abuse.  But the district court clearly found that witnessing father's abuse of women endangers T.G.H.'s emotional development.  And there is evidence that father's oral abuse of C.K.H. has adversely affected her.  Additionally, father admitted that he drove with the children after he had been drinking, and the record demonstrates that father minimized this incident and minimized the extent to which he was using alcohol.  Mother testified that T.G.H. was becoming more defiant and less respectful towards her, and the record demonstrates that C.K.H. is not able to be candid with father.  Viewing the evidence in the light most favorable to the decision, we conclude that the record supports the finding that the children have experienced negative consequences and are endangered by father's conduct.

b.         Best interests and the advantages and harms of custody change

            Father argues that in making findings on the 13 factors set forth in Minn. Stat. § 518.17, subd. 1, the district court (1) failed to state how the factors support custody modification; (2) failed to show how the factors supported the children's best interests; and (3) failed to weigh the advantages and harms of a custody change. 

"The court may not use one factor to the exclusion of all others" and "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."  Minn. Stat. § 518.17, subd. 1(a).  Father concedes that the court made findings on the 13 factors, but argues that "there is no comparison of the thirteen (13) factors."  Although the district court found some of the factors neutral, it is clear from the findings that the district court weighed each factor in reaching its conclusion. 

The district court specifically found that "[t]here will be no significant harm to the children resulting from the change if [mother] was granted sole physical and legal custody" because the children are already assimilated into mother's home and will not be required to change schools, friends, jobs, or church activities.  The district court further found that father has sought to manipulate and intimidate the children, and retaliate against mother during the custody dispute and that granting mother sole custody will remove the children from further conflicts between mother and father. 

The district court implicitly found that the children will be endangered without a modification, stating: "[W]hile [T.G.H.] expresses a strong relationship with [father], this Court has concerns with regard to [T.G.H.] witnessing [father]'s anger and abusive relationships with [mother], Ms. Schmidt and with [T.G.H.]'s sister, [C.K.H.]."  The district court found that father emotionally and orally abused C.K.H., failed to provide a satisfactory living environment for the children, and has had problems with anger, self-control, and alcohol abuse.  The evidence supports these findings, and the findings support the conclusion that after considering the 13 statutory factors as they relate to both parties, a custody change will serve the children's best interests because it will remove the children from an abusive and unsatisfactory living environment with father and place them in mother's stable home with no negative consequences to the children.  We conclude that the district court's findings are adequate and that the district court did not abuse its discretion in modifying custody.

Affirmed.

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

[1] According to father, Schmidt subsequently had the order for protection vacated.

[2] The court found that father directly threatened to seriously harm C.K.H.; that father used intimidation, humiliation, and ridicule in his relationship with C.K.H.; that father has a history of alcohol abuse and admitted to driving with the children while intoxicated; that there is an element of fear in the children's relationship with father; that T.G.H. witnessed the anger and abusive relationships between father and mother, Schmidt, and C.K.H.; that based on the custody evaluation, there is tension, anger, shame, and ridicule in father's relationship with C.K.H.; that father is likely to engage in future domestic abuse; that living with father's problems with anger, self-control, and alcohol is detrimental to the children; that father subjects C.K.H. to rage, yelling, ridicule, and shaming; that father's history of domestic abuse and lack of responsibility or acknowledgement of the seriousness of its effect on the children and a climate of fear can have long-term detrimental consequences to the children's emotional well-being and development; that father prevented the children from contacting their mother during his parenting time; and that father manipulated or intimidated the children.