Bernie Jay Nelson, petitioner, Respondent, vs. Kristi Sue Nelson, Appellant.

Bernie Jay Nelson, petitioner, Respondent, vs. Kristi Sue Nelson, Appellant. A06-558, Court of Appeals Unpublished, October 24, 2006.

This opinion will be unpublished and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

A06-558

 

Bernie Jay Nelson, petitioner,
Respondent,
 
vs.
 
Kristi Sue Nelson,
Appellant.

 

Filed October 24, 2006

Affirmed

Peterson, Judge

 

Stearns County District Court

File No. F0-98-1298

 

Greg A. Engel, 925 South First Street, P.O. Box 638, St. Cloud, MN  56302 (for appellant)

 

Susan J. Mundahl, 207 Walnut Street, P.O. Box 668, Monticello, MN  55362-0868 (for respondent)

 

            Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from an order modifying custody, appellant-mother argues that the district court's findings of fact are not supported by the evidence and that the findings of fact do not support the decision to modify custody.  We affirm.

FACTS

            The parties entered into a marital-termination agreement, and their marriage was dissolved by judgment and decree in 1998.  The decree granted the parties joint legal and joint physical custody of their four children, S.N., J.N., K.N., and A.N., with respondent-father Bernie Nelson having parenting time every other week from Tuesday afternoon to Sunday evening.  In July 2004, appellant-mother Kristi Nelson filed a motion seeking sole physical custody of the parties' oldest child, who had been living solely with mother for three years, and a change in the parenting-time schedule.  Father filed a responsive motion seeking sole physical custody of all four children. 

            The district court appointed a guardian ad litem (GAL).  At an evidentiary hearing in April 2005, the GAL testified about her observations of the parties and the children and stated that she thought that it would be in the three younger children's best interests for father to be awarded sole physical custody and that the benefit of the change would outweigh any detriment of the transition.  The GAL recommended that mother have parenting time with the children every other weekend from Thursday evening until Sunday evening, and a midweek visit during the off weeks.  The GAL also testified that the children should continue to attend school in Monticello, and that father is the more stable parent.

            On cross-examination, the GAL testified that initially all three younger children stated that they would rather live with their mother and that they would rather attend school in the St. Cloud school district.  The GAL also testified that one of the children stated that he does not have a preference between parents and has a lot of friends in Monticello.  The GAL testified that the children seem to prefer their mother because she has fewer rules, allows more friends to stay overnight, and gives them more freedom.

            Julie Theismann, a clinical social worker who met with the children at mother's request, testified that in her opinion the children were not being harmed emotionally or physically.  Theismann testified that the children prefer to live with their mother, that based on their report cards, Theismann had no concerns about their schooling, and that although mother's parenting style is more relaxed, it does not harm the children.  Theismann also testified that the children indicated that the rules in father's home changed when he remarried and that the rules seem to be his wife's rules and are more applicable to a younger child, like her son.  Based on her meetings with the children and mother, Theismann stated that there were not enough concerns to recommend a change in custody because the current arrangement had been in place for years, and if custody were changed at this point, it would be hard on the children because they have a very strong emotional bond and comfort level with their mother.   

            Father testified that mother failed to keep him informed about court dates when their oldest child was facing criminal charges and about the children's school and medical issues.  The record indicates that the oldest child was charged with various offenses, including passing forged checks, underage alcohol and tobacco offenses, and theft.  Father testified about the rules and structure for the children in his home and the activities that they do together.  Father stated that he felt that the children should remain in the Monticello school district and he was concerned about the children's school and religion-class attendance when they are with mother.    

            Father testified that he believes that mother's parenting is having a detrimental effect on the oldest child because she is more of a friend than a parent and imposes no boundaries.  Father expressed concerns about mother leaving J.N. and K.N. in charge of A.N. for long periods of time and stated that when A.N. stays at father's home, he is not left alone or with the older boys.  Father testified that his concerns about mother's parenting also include keeping secrets and encouraging the children to keep secrets about things, such as moving to a new home and enrolling the children in another school district; her unstable home life since her husband moved out; and the children gambling online.  Father testified that he is now self-employed, so he is free to spend more time with the children, and he intends to remain in his current home in the Monticello school district until the children graduate.  Father also testified that he prefers that mother only have the children from Friday through Sunday, with no evening during the off weeks, so that the children will not miss soccer or religion classes. 

            Mother disagreed with the characterization of her parenting as lacking structure and explained that she has rules that the children must follow.  Mother acknowledged that she did not keep track of the oldest child's school attendance and despite his problems with the law and school, she thought it was a good idea for him to take a trip to Mexico; the younger children had missed "a couple" religion classes on nights that she had them; she did not tell father that she was going to Las Vegas for four days and instead had her husband come and stay with the children; she had moved three times in the last three years; and she did not always notify father when S.N. had a court hearing. 

            In an October 4, 2005 order, the district court awarded father sole physical custody of the three younger children and mother sole physical custody of S.N.  In a January 13, 2006 order, the district court granted both parties' motions for reconsideration, granted father's motion for a finding that S.N. is no longer a child, thereby eliminating father's child-support obligation, clarified specific provisions of the custody order, and denied all other pending motions.  This appeal followed.

D E C I S I O N

            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).  "Even though the trial 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). 

I.

            Mother argues that the district court made findings of fact that are not supported by the evidence, and she questions the accuracy and relevance of some findings.  This court does not review the entire record de novo.  Pikula,374 N.W.2d at 710.  The district court's findings of fact must be sustained unless clearly erroneous.  Id.  A finding is clearly erroneous if the reviewing court is left with the definite and firm conviction that a mistake has been made.  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).  In applying this clear-error standard, this court views the record in the light most favorable to the district court's determination, giving 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.  "So long as there is evidence to support the trial court's decision, there is no abuse of discretion."  Doren v. Doren, 431 N.W.2d 558, 561 (Minn. App. 1988).

            Mother identifies several findings of fact that she acknowledges are supported by the evidence but that she argues are irrelevant, inaccurate, incomplete, or misleading.  Without addressing the evidence that supports each of these findings, we conclude that they are supported by the evidence and are not clearly erroneous.  See Wilson v. Moline, 234 Minn. 174, 182, 47 N.W.2d 865, 870 (1951) (stating that appellate court need not "discuss and review in detail the evidence for the purpose of demonstrating that it supports the trial court's findings," and that its "duty is performed when [it] consider[s] all the evidence . . . and determine[s] that it reasonably supports the findings"); Vangsness, 607 N.W.2d at 474-75 & n.1 (applying Wilson in marital-dissolution case).  Mother's arguments that some of the findings are irrelevant, inaccurate, incomplete, or misleading raise concerns about the district court's credibility determinations and the conclusions that the district court drew based on the facts, but they do not demonstrate that the findings are clearly erroneous.

            It appears that three findings that mother cites are not supported by the evidence, but none of the three facts is significant to the district court's analysis of the issues before it.  The district court found that mother wanted to modify parenting time, but mother withdrew her motion to modify parenting time; the district court found that the parties had equally split time with the three younger children, but mother had more time with the children each week than father did; and the district court found that Theismann conducted a custody study, but Theismann's study was not intended to be a custody study, even though Theismann made a custody recommendation.

II.

            Mother argues that the district court's findings fail to address the requirements for a change in custody.  To modify custody based on endangerment, a district court must make specific findings that (1) a change in circumstances has occurred; (2) 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 advantage of a change to the child."  Minn. Stat. § 518.18(d)(iv) (2004); Bettin v. Bettin, 404 N.W.2d 807, 808 (Minn. App. 1987).

1.         Change in circumstances

            The moving party has the burden to demonstrate that there has been a change in circumstances.  Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981).  "A change in circumstances must be significant and must have occurred since the original custody order[.]"  Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997).  Whether a change in circumstances exists is a case-by-case determination.  Sharp v. Bilbro, 614 N.W.2d 260, 263 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000).  A finding that there has been a change in circumstances is reviewed for clear error.  Durkin, 442 N.W.2d at 152.

            The district court found that mother's changes of residence, including a recent relocation to a new school district, were changes in the circumstances of the children.  Mother argues that her change of residence did not cause any change for the children and that enrolling the children in a new school without notifying father was not a change because father transferred the children's records back to their original school before the children learned that they had been transferred.  But the district court did not find that just one change in mother's residence was a change in circumstances; it found that multiple changes of residence were a change in circumstances.  The district court found that in 2003, mother moved from St. Cloud to Monticello and enrolled the children in the Monticello school district. Father then moved to Monticello, purchased a home, and became settled in Monticello.  Then, in 2004, mother moved into a home that her mother owned in Clear Lake, and it is not known how long mother will remain in that home.   Also, although the district court found that mother did not notify father before enrolling the children in a new school, it did not identify the change in enrollment as a change in the children's circumstances.  The district court did not clearly err in finding that mother's changes of residence were a change in circumstances.    

2.         Best interests

            "In addition to the substantial change in circumstances, the modification must be necessary to serve the children's best interests."  Gustafson v. Gustafson, 376 N.W.2d 290, 293 (Minn. App. 1985); see Frauenshuh v. Giese, 599 N.W.2d 153, 158-59 (Minn. 1999) (stating that children's best interests are the "paramount" concern in deciding custody issues); Pikula, 374 N.W.2d at 711 ("The guiding principle in all custody cases is the best interest of the child.").  The court determines the best interests of the children by considering all relevant information, including thirteen factors identified in Minn. Stat. § 518.17, subd. 1 (2004).  "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) (listing 13 factors for court's consideration in determining children's best interests).  The law "leaves scant if any room for an appellate court to question the trial court's balancing of best-interests considerations."  Vangsness,607 N.W.2d at 477. 

            Mother argues that the district court did not do a specific, best-interests analysis applying the factors in Minn. Stat. § 518.17, subd. 1(a) and, therefore, this court cannot conduct a meaningful review.  But the district made specific findings about each of the relevant statutory factors; it just did not state its findings in a format that precisely parallels the statute.  See Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987) (holding that a district court's findings were sufficient because they demonstrated that the district court considered the statutory factors). 

            Mother also argues that testimony about all of the factors favored her and did not favor father.  But the only statutory factor that mother addresses is the preference of the children.  See Minn. Stat. § 518.17, subd. 1(a)(2) (stating that factors to be considered and evaluated by court when determining best interests of child include "the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference").  Mother contends that the district court erred in not addressing the "wishes of the children" or in not giving any weight to the preference of the children. 

            But the district court did address the wishes of the children; it found that the three youngest children expressed to the GAL that they wished to live full time with mother and have parenting time on alternating weekends with father.  However, the district court also found that the GAL determined that the three children prefer to live with mother because when they are with mother, "they have less chores, fewer rules, and can spend more time with friends" and that the children indicated to the GAL that mother helped them write letters to the court stating that they preferred to live with mother.  The district court did not fail to give any weight to the children's preference; it determined that their preference is outweighed by other factors that favor granting father custody. 

3.         Endangerment

            "The existence of endangerment must be determined on the particular facts of each case."  Sharp, 614 N.W.2d at 263 (quotation omitted).  Endangerment requires a showing of a significant danger, but the danger may be purely to the child's emotional development.  Geibe, 571 N.W.2d at 778.  Mother argues that the district court's failure to make meaningful findings makes it impossible to review whether the children's current environment endangers their physical or emotional health.  But the district court found that mother provides little discipline and guidance for the children and that the lack of discipline and guidance endangers their emotional health and development.  The district court also found that the children have few rules in mother's home; father has appropriate rules for the children when they are at his home; the children have fewer behavioral problems when given guidance and consequences at father's home; and the children's church, school, and extra-curricular attendance is better during the time they spend with petitioner.  These are meaningful findings that make it possible to review whether the district court clearly erred in finding that the children's current environment endangers their emotional health and development, and mother has not demonstrated that the district court's finding is clearly erroneous.

4.         Harm versus advantages

            The district court may not modify a custody order unless the harm caused by a change of custody is outweighed by the advantages, but this factor "may sometimes be implicit in the other factors."  Geibe, 571 N.W.2d at 778.  Mother does not address this factor, and we simply note that the district court found that the children are established in the Monticello school district; are active in extracurricular activities in Monticello; are involved in a Monticello church where they participate in confirmation classes on Wednesday evenings; mother does not respect the importance of the children's education and extracurricular activities; and "the benefit of a stable home environment where the children will have adult guidance, along with accessibility to school and extra-curricular activities, outweighs any harm moving [the children] to father's home may have." 

            The district court's findings of fact are supported by the evidence and address all four requirements for custody modification.

III.

            Mother argues that the district court erred in ignoring or not addressing Theismann's testimony when it found that Theismann's report was not neutral.  The district court found that Theismann's study was not neutral because mother unilaterally procured the study without notifying father, the GAL, or the court, and Theismann did not speak to father when preparing the study.  Theismann's testimony that she was contacted by mother and never met with father supports the district court's finding that Theismann's study was not neutral.  

IV.

            Mother argues that the district court improperly separated siblings without determining the impact that this would have on the family unit.  Mother contends that the custody modification has the effect of preventing the younger children from seeing the oldest child except on every other weekend. 

            Courts have allowed separation of children where evidence shows it to be in their best interest, however, it is not preferred.  This preference recognizes the sibling relationship as a significant aspect of family stability which is particularly important where the family has already been disrupted by loss of one parent from the home.

 

Johnson v. Lundell, 361 N.W.2d 125, 128 (Minn. App. 1985) (citations omitted).

            Although we recognize that separating siblings is not preferred, we are not persuaded that the separation here demonstrates that the district court abused its discretion because the oldest child is no longer a child, and he may choose to live with mother or father or somewhere else.

            Affirmed.