In re the Marriage of: Isaac John Carey, petitioner, Respondent, vs. Shea Antoinette Carey, Appellant.

In re the Marriage of: Isaac John Carey, petitioner, Respondent, vs. Shea Antoinette Carey, Appellant. A06-440, Court of Appeals Unpublished, October 3, 2006.

This opinion will be unpublished and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

A06-440

 

In re the Marriage of:

Isaac John Carey, petitioner,

Respondent,

 

vs.

 

Shea Antoinette Carey,

Appellant.

 

Filed October 3, 2006

Affirmed

Ross, Judge

 

St. Louis County District Court

File No. 69-F0-02-600406

 

Cheryl M. Prince, Anna C. Mickelson, Hanft, Fride, P.A., 1000 U.S. Bank Place, 130 West Superior Street, Duluth, MN 55802-2082 (for respondent)

 

Sally L. Tarnowski, Law Office of Sally L. Tarnowski, LLC, 520 U.S. Bank Place, 130 West Superior Street, Duluth, MN 55802-4015 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Dietzen, Judge; and Ross, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

ROSS, Judge

 

This case involves a dispute between parents concerning the custody of their only minor child.  Shea Carey appeals from the district court's judgment granting Isaac Carey sole physical custody of their child and granting her limited parenting time.  She argues that the district court's findings were clearly erroneous and demonstrate bias.  Because the district court's findings have support in the record and demonstrate full consideration of the statutory factors, we affirm.

FACTS

Shea and Isaac Carey were married in August 1999.  They had one child, who was four years old at the time of their marriage dissolution in July 2005.  The custody dispute began before the dissolution was final when the district court gave the parties temporary joint legal and physical custody of the child in an August 2002 order.  This order provided for physical custody on an alternating weekly schedule.

In March 2003, the district court granted Isaac Carey an ex parte order giving him temporary sole physical custody, based in part on the recommendation of a custody evaluator.  In April and May 2003, Shea Carey received and completed chemical dependency treatment.  The parties later lived together and attempted to reconcile.   In late May 2003, the custody evaluator stated that she planned to recommend granting Isaac Carey sole physical custody, but the parties' reconciliation efforts suggested an end to their custody dispute.

By April 2004, however, the parties had separated again and were no longer attempting to reconcile.  The district court ordered them to continue sharing joint legal and physical custody on an alternating weekly schedule.  A month later, the district court considered the guardian ad litem's (GAL) recommendation to give temporary sole physical custody to Isaac Carey after Shea Carey obtained employment that would require her to travel to Iowa every other week.  Her job arrangement required their child to make a roundtrip from Duluth to Iowa every two weeks. The court gave temporary sole physical custody to Isaac Carey with visitation to Shea Carey every two weeks, with the condition that she not remove the child from Minnesota.

The district court conducted a bench trial in June 2005, in which it considered the parties' testimony, the GAL's testimony, and the GAL's reports, including the recommendation that custody be awarded to Isaac Carey.  The court issued findings on each of the statutory best-interests factors, made conclusions, and determined that the parties should have joint legal custody.  But the court determined that giving sole physical custody to Isaac Carey was in the child's best interests.  The court also set parenting time, ordering the child to reside primarily with Isaac Carey during the school year and with Shea Carey during the summer.  The court denied Shea Carey's posttrial motions and entered judgment in January 2006.  Shea Carey appeals, arguing that the district court abused its discretion by giving Isaac Carey sole physical custody and by placing their child with him throughout most of the school year.

D E C I S I O N

I

Shea Carey asks this court to reverse the district court's custody decision.  The district court has broad discretion to resolve child-custody disputes.  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989).  Appellate review of the district court's custody decision is limited; we determine 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).  In doing so, we consider the record in the light most favorable to the district court's findings.  In re Custody of N.A.K., 649 N.W.2d 166, 174 (Minn. 2002).

In making a custody determination, the district court must consider the specific statutory factors enumerated in Minn. Stat. § 518.17, subd. 1(a) (2004).  It "may not use one factor to the exclusion of all others."  Id. Ultimately, all custody determinations must meet the best interests of the child.  Id.; In re Custody of N.M.O., 399 N.W.2d 700, 703 (Minn. App. 1987).

The district court made findings on each statutory best-interests factor before determining that giving sole physical custody to Isaac Carey was in the best interests of the Careys' child.  Neither Isaac nor Shea Carey sought joint custody, and the district court found that their current joint physical custody arrangement was "not working."  The court found that both parties love the child and would be good custodians, and it noted that it could not make a "bad choice in this case."  Left with the choice between two loving parents and facing circumstances in which both parties concluded that joint custody is unworkable, the court evaluated all of the statutory factors and determined that the balance tipped to Isaac Carey because he could provide the most stability for the child.  See In re Weber, 653 N.W.2d 804, 811 (Minn. App. 2002) (stating that law presumes that stable environment is in child's best interests). 

Shea Carey argues that the district court based its custody decision on one factor by considering only the level of stability each parent could provide.  In support of her argument, she contends that the following findings were erroneous: (1) that the child lived in Isaac Carey's home since the child was one; (2) that her intention to move to Iowa affects the stability that she can provide and is in contrast to Isaac Carey's ability to provide stability in Duluth; (3) that the child has a stronger relationship with the paternal grandparents than the maternal grandparents; and (4) that instability may have caused the child's delayed development.  She further contends that the district court demonstrated bias based on its findings regarding her work history and that the court failed to consider Isaac Carey's work schedule.  We find that the record supports the district court's findings and that Shea Carey's additional arguments lack merit.

Shea Carey correctly notes that it would be erroneous to give one parent physical custody "solely because [the parent] is able to continue working and residing on the family [homestead]."  Smith v. Smith, 425 N.W.2d 854, 857 (Minn. App. 1988).  The district court, however, did not base its decision solely on the child's opportunity to remain in the family home.  A child's home and community adjustment is a relevant factor, and the district court found that the Careys' child has resided in and was most adjusted to the family home in Duluth where she has lived with one or both parents since the age of one.  In concluding that the Duluth home was the best custodial home for the child, the court also considered the parties' living and work arrangements, their respective family support, and the impact of both on the child.

The court acknowledged that Shea Carey had recently taken steps to make a home and maintain employment in Duluth, but it contrasted these steps with her plan to move to Iowa one year before trial and her residence in the Twin Cities area six months before the trial.  When the child was in her custody, she has resided in Iowa, the Twin Cities, and two locations in Duluth.  The district court had a sufficient basis to rely on the GAL's conclusion that the stability of Isaac Carey's Duluth home was an appropriate consideration and weighed in favor of granting Isaac Carey physical custody.  In weighing placement in the proposed custodial homes, the court expressed "concerns regarding the child's stability if placed in the custody of the mother" and stated that "many of [Shea Carey's] answers on certain subjects seemed evasive and deceiving."  See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (noting that appellate courts defer to credibility determinations by the district court).  The court's finding that Shea Carey's residence history affects the level of stability she can provide the child therefore is not clearly erroneous.

The district court also considered the extended family and support systems available to the parents and their child.  It concluded that the child had spent more time and had developed a stronger relationship with her paternal grandparents in Duluth than with her maternal grandparents in Iowa.  The record supports this finding.  It indicates that both parents decided to move to Duluth when the child was one year old and that both relied on the paternal grandparents to provide child care to accommodate their work schedules.  In contrast, neither the testimony nor the GAL's reports support the idea that the child had the same amount of contact with her maternal grandparents.  Shea Carey argues that the April 2004 court order prevented the child from developing the same relationship with the maternal grandparents.  But the court's findings regarding these relationships are based on the child's contacts with them from early in life, not just the short period in which her residence was restricted.  Because the record supports the district court's finding regarding the child-grandparent relationships, the finding is not clearly erroneous. 

Shea Carey also challenges the district court's finding that the weekly alternating custody and the instability of her residence were negatively affecting the child's development.  The court found that the lack of routine and stability "possibly resulted in delayed development."  The GAL, who has training in child development, had concerns about the child's speech and hearing and toilet training.  Shea Carey's argument that there was "no medical evidence that the child is delayed in any way" may be accurate, but it is countered by the record, which shows that the GAL identified speech difficulties and noted that the child was not toilet-trained at more than four years old.  The district court's finding that instability and impermanence could "possibly" affect the child's development therefore is not clearly erroneous.

Shea Carey next contends that the court used her testimony that she formerly worked as a stripper against her.  She alleges bias, citing one finding by the court that she traveled to Iowa for "employment in which she received cash in payment."  She correctly states that a court may not consider conduct of a proposed custodian that does not affect the custodian's relationship with the child.  Minn. Stat. §518.17, subd. 1 (b) (2004).  We need not consider whether her conduct as a stripper affects her relationship to the child because she overstates the nature of the actual finding.  She does not explain how the finding relates to her employment as a stripper or how it reflects improper bias.  Standing alone, the finding seems neutral and unbiased.  A review suggests that she was paid cash by an Iowa employer who worked in the insurance industry.  Insofar as she suggests that her employment as a stripper was used against her in temporary orders, her basis for this claim is unclear, and it is unsupported by her citations to the record.  She therefore has not established that this finding rests on bias or prejudice.

Shea Carey complains that Isaac Carey should not have custody because he is out of town six months of the year.  This complaint is unpersuasive for three reasons.  First, the record does not establish that Isaac Carey works out of town for six months.  But the record supports the court's finding that, during "summer peak season," Isaac Carey works out of town on weekdays and that from November to April he does not work.  Second, Isaac Carey's employment is only one factor among several considered by the district court to support the custody arrangement.  Third, the court was guided by the child's school schedule in defining an appropriate parenting plan.

The evidence in the record, which we do not reweigh on appeal, supports the district court's findings and its determination to give Isaac Carey sole physical custody.  The court reached its custody determination after considering all of the statutory best-interests factors.

II

Shea Carey also challenges the district court's parenting-time decision.  When requested by a parent, the district court must grant parenting time to ‘enable the child and the parent to maintain a child to parent relationship that will be in the best interests of the child."  Minn. Stat. § 518.175, subd. 1(a) (2004).  The district court has broad discretion in deciding parenting time and we will not reverse absent a determination that the district court has abused its discretion.  Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).  Shea Carey argues that the district court abused its discretion by placing their child with Isaac Carey for most of the school year.  We disagree.

Shea Carey's primary contention is that she should have received more time with the child during May, September, and October, when Isaac Carey is working away from Duluth.  This argument was addressed with regard to the custody arrangement, and the same considerations apply to the parenting plan.  In short, the court did not abuse its discretion by using the child's school schedule as a framework for the parenting plan.  The court found that the plan provides stability and consistency by reducing the number of changes in the child's day-to-day routine.  The significant changes in the parenting plan coincide with summer vacation and therefore do not interrupt the child's school routine.  We find no abuse of discretion.

Finally, Shea Carey argues that the district court improperly imposed a geographic restriction on her parenting time.  Without citing legal authority, she argues that it is clear error for the court to order the child to remain in the Duluth area while in her care.  The order requires that the child "principally reside" with her in or near Duluth during the summer parenting time "unless the Court orders otherwise."   In light of the court's findings regarding her prior moves, work locations, expressed interest in residing elsewhere, and failure to keep the GAL and Isaac Carey apprised of the child's whereabouts during her custody weeks, the restriction is supported by the record.  The order does not preclude visits to Iowa or residing with the child elsewhere with the court's permission, and it represents a measured remedy to the stability concerns that underlie the district court's analysis.

Affirmed.