Kimberly Kay Dipprey, petitioner, Appellant, vs. Andrew Douglas Lotter, Respondent.

Kimberly Kay Dipprey, petitioner, Appellant, vs. Andrew Douglas Lotter, Respondent. A05-2082, Court of Appeals Unpublished, September 12, 2006.

This opinion will be unpublished and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

A05-2082

 

Kimberly Kay Dipprey,

petitioner,

Appellant,

 

vs.

 

Andrew Douglas Lotter,

Respondent.

 

Filed September 12, 2006

Affirmed
Klaphake, Judge

 

Hennepin County District Court

File No. PA-40341

 

Steven Theesfeld, 2050 Pillsbury Center South, 220 South Sixth Street, Minneapolis, MN  55402 (for appellant)

 

Andrew Douglas Lotter, 3821 Sheridan Avenue South, Minneapolis, MN  55410 (pro se respondent)

 

            Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Kimberly Kay Dipprey claims that the district court erred in determining the custody of her child, B.E.L., and abused its discretion in finding that she consented to B.E.L.'s continued primary residence with his father, respondent Andrew Douglas Lotter.  Because the district court's custody determination is supported by the findings and the record evidence supports those findings, we affirm. 

D E C I S I O N

            District courts apply broad discretion to child custody determinations, and appellate review of such determinations "is limited to whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law."  In re Custody of N.A.K., 649 N.W.2d 166, 174 (Minn. 2002).  In examining findings to determine whether they are clearly erroneous, the appellate court will not alter findings "[i]f there is reasonable evidence to support them."  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn.1999). 

            When B.E.L. was born on April 15, 1998, the parties were residing in the same household.  The district court initially granted joint legal and physical custody of B.E.L. to the parties during an uncontested paternity proceeding, basing its determination on the fact that the parties were "resid[ing] together as an intact family unit."  In December 2001, the parties separated and B.E.L. began residing primarily with respondent, but the parties did not formalize their custody arrangement in a judicial proceeding.  In November 2004, respondent contemplated a job promotion that necessitated a move to Georgia and sought sole physical custody of B.E.L. and authority to remove the child from this state.  After a custody evaluation and hearing, the district court adopted the referee's findings and issued an order granting sole physical custody of B.E.L. to respondent and authorizing him to remove the child from this state. 

            Appellant contends that the district court erred by applying Minn. Stat. § 518.17 (2004), which pertains to original custody determinations, rather than Minn. Stat. § 518.18 (2004), which pertains to custody modifications.  She argues that because custody was determined during the 1999 paternity action, any modification of custody should have been made under the more stringent standards of Minn. Stat. § 518.18.  See Morey v. Peppin, 375 N.W.2d 19, 23 (Minn. 1985) (where father admits paternity and paternity adjudicated by court proceeding, custody is "to be determined under section 518.17"); Psyck v. Wojtysiak, 400 N.W.2d 409, 411 (Minn. App. 1987) (in concurrent or consolidated custody and paternity action, "the court must apply the standards set out in Minn. Stat. § 518.17"), review denied (Minn. Apr. 17, 1987).  The original custody determination made in the paternity adjudication was premised on the parties' living together as an intact family unit.  Because the district court did not make a true custody determination during the paternity adjudication and no prior court has applied Minn. Stat. § 518.17 to determine custody, we find no error in the district court's reference to Minn. Stat. § 518.17 in determining custody here. 

            Further, the court's findings and the underlying evidence support the district court's decision.  Respondent has been the primary caretaker of B.E.L. since the parties separated, and B.E.L. has become integrated into respondent's family during the three and one-half years since the parties separated.  During the majority of that time, B.E.L. resided with respondent's family all but three to eight days per month.  Respondent has a stable family situation and employment, while appellant has not had a stable family unit or consistent employment or housing since the parties' separation.  The record supports the district court's determination that the custody factors favor a grant of sole physical custody of B.E.L. to respondent. 

            Appellant further argues that the district court abused its discretion by finding that B.E.L. was integrated into respondent's family with appellant's consent, because she never consented to integration.  The record includes evidence that appellant acquiesced to the custody arrangement that allowed B.E.L. to reside primarily with respondent and that appellant challenged this arrangement only a few months before respondent sought approval to remove B.E.L. from the state.  On these facts, appellant's acquiescence to the long-standing custody arrangement is evidence of her consent to B.E.L.'s integration into respondent's family.  For this reason, we find no abuse of discretion in the district court's finding that appellant acquiesced to the custody arrangement ultimately approved by the district court.  See Custody of Child of Williams v. Carlson, 701 N.W.2d 274, 278 (Minn. App. 2005) (holding no abuse of discretion in child custody determination if finding supported by evidence).  We also note that integration of a child with the consent of a parent is a proper basis for modifying custody.  See Minn. Stat. § 518.18(d)(iii) (2004). 

            Affirmed.