In the Marriage of: Fatemah Green, petitioner, Respondent, vs. Mervin Green, Appellant.

In the Marriage of: Fatemah Green, petitioner, Respondent, vs. Mervin Green, Appellant. A07-365, Court of Appeals Unpublished, September 11, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A07-365

 

In the Marriage of:

Fatemah Green, petitioner,

Respondent,

 

vs.

 

Mervin Green,

Appellant.

 

Filed September 11, 2007

Affirmed Hudson, Judge

 

Hennepin County District Court

File No. 27-FA-06-1611

 

William Ford, Ford Law Office, 32 Tenth Avenue South, Suite 101, Hopkins, Minnesota 55343 (for respondent)

 

Mervin Green, 2220 Fourth Avenue North, P.O. Box 1151, Minneapolis, Minnesota 55411 (pro se appellant)

 

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

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            In this custody appeal, pro se appellant father argues that the district court abused its discretion by granting custody of the parties' child to respondent because (a) the record does not support the district court's findings regarding the child's best interests; (b) the testimony of respondent mother and aspects of the testimony of the custody evaluator were not credible; (c) inadequate consideration was given to mother's background; (d) the district court lacked authority to modify an Illinois custody ruling; and (e) appellant's constitutional right against double jeopardy was violated.  Because the district court did not abuse its discretion, we affirm.

FACTS

            Appellant Mervin Green and respondent Fatemah Green were married in Illinois in July 2002.  The parties have one child together, M., born February 16, 2003, and each also has other children from previous relationships.  The parties separated in August 2005. 

A dissolution proceeding was previously commenced in Illinois but dismissed without prejudice by the Illinois court in January 2006.  Respondent filed a petition for dissolution in Minnesota in March 2006.  Custody of the child was originally granted to appellant but was transferred to respondent in May 2006.

            Prior to the November 2006 hearing on the dissolution petition, the family custody evaluator (evaluator) submitted a report to the district court recommending that respondent be granted sole legal and physical custody of the child.  The evaluator stated in the report stated that appellant seemed to be "more of a playmate" for the child, while respondent was "more task oriented and emotionally stable."  The evaluator stated that "there were periods of time when [appellant] and the children were homeless and stayed in places that were unsatisfactory and unsafe."  The evaluator added: 

Despite his soft-spoken and obsequious demeanor, there is ample evidence that [appellant] is a very violent man.  His criminal record reflects that he served five years in prison and five years of parole for aggravated battery, after being charged with attempted murder for stabbing a man.  [Appellant] has two convictions for assault and one conviction for a weapons charge.  His police records indicate that he had three domestic battery arrests between 1997 and 2005.

           

The evaluator also noted that "[appellant] can be loving, affectionate, and fun, but he has limited parenting skills, and is not inclined to provide needed structure, positive forms of discipline, or self-esteem enhancing activities for children" and that appellant "is easily distracted and not able to reliably attend to children's safety needs."

Two of respondent's other children reported to several service providers that appellant "hit [M.] with a belt for potty accidents, hit her on the hands hard enough to leave marks, smacked her, and frequently cursed at her" and also reported "seeing [appellant] hit, punch, and choke [respondent]."

The evaluator concluded that "[respondent] shows evidence that she can provide a stable and satisfactory home for [the child]."  While the evaluator was not able to reach any conclusion regarding which parent was the primary caretaker of the child, she was able to conclude that "[t]he parties' volatile relationship and extensive history of domestic violence does not support any form of co-parenting."  The evaluator's report concluded that almost all of the factors weighed in favor of granting respondent sole legal and physical custody. 

At the conclusion of the hearing, the district court, ruling from the bench, granted the dissolution petition and awarded sole legal and physical custody of the child to respondent.  In January 2007, the district court issued findings of fact, conclusions of law, order for judgment, and judgment and decree.  This appeal follows.

D E C I S I O N

            Appellant argues that the district court abused its discretion by granting sole legal and physical custody of the parties' child to respondent. 

District courts have broad discretion to resolve child-custody issues.  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989).  On appeal, we are limited to determining whether the district court "abused its discretion by making findings unsupported by the evidence or by improperly applying the law."  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  We review findings of fact for clear error.  Id. 

Appellant first argues that the record does not support the district court's finding regarding the child's best interests.  The controlling principle in a child-custody determination is the child's best interests.  Id. at 711.  When making a custody determination, the district court must consider the 13 statutory factors set forth in Minn. Stat. § 518.17, subd. 1(a) (2006).  The district court "may not use one factor to the exclusion of all others."  Id.  If a parent proposes joint physical custody, the court also must consider the factors listed in Minn. Stat. § 518.17, subd. 2 (2006).  Minnesota law "leaves scant if any room for an appellate court to question the [district] court's balancing of best-interests considerations."  Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000).

            The district court "must make detailed findings on each of the factors" and explain how the factors led to its conclusion that the custody determination would be in the best interests of the child.  Minn. Stat. § 518.17, subds. 1(a), 2.  But "[t]he court need not make specific findings concerning each . . . factor[] if the findings as a whole reflect that the trial court has taken the relevant statutory factors into consideration in reaching its decision."  Peterson v. Peterson, 393 N.W.2d 503, 505 (Minn. App. 1986).

Here, the district court carefully considered each of the factors listed in Minn. Stat. § 518.17, subd. 1(a).  In its written order, the district court specifically adopted the report of the custody evaluator, which addressed each of the 13 statutory factors in detail.  The report also analyzed the possibility of joint custody and addressed each of the statutory factors of section 518.17, subdivision 2.  

Second, appellant argues that the testimony of respondent and aspects of the testimony of the custody evaluator were not credible.  But the district court acts within its discretion to make credibility determinations, and we do not reweigh credibility on appeal.  Vangsness, 607 N.W.2d at 472 (noting that "appellate courts defer to trial court credibility determinations").  The district court made specific credibility findings in its written order and concluded that appellant's testimony was not credible and that the testimony of respondent and the custody evaluator was credible.

Third, appellant argues that the district court did not give adequate consideration to respondent's background when making the custody determination.  But even if the record before the district court could support a different custody determination, "this court may not substitute its judgment for that of the district court."  Zander v. Zander, 720 N.W.2d 360, 368 (Minn. App. 2006), review denied (Minn. Nov. 14, 2006).  Because the district court properly considered all of the relevant statutory factors, and because the evidence in the record provides ample support for the district court's findings, we conclude that the district court's findings regarding the best interests of the child were not erroneous and that it did not abuse its discretion by granting custody of the parties' child to respondent.

Finally, appellant argues that the district court lacked the authority to modify an Illinois custody ruling and that his constitutional right against double jeopardy was violated.  But because appellant failed to raise either issue before the district court, we decline to consider them.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding that in general, a reviewing court must only consider issues that were presented to and considered by the district court).

            Affirmed.