In Re the Marriage of: Darlin Angela Hasselius Kister, petitioner, Respondent, vs. Jeremy Steven Kister, Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat § 480 A. 08, subd. 3 (1998)

In Re the Marriage of:
Darlin Angela Hasselius Kister, petitioner,
Respondent,

vs.

Jeremy Steven Kister,
Appellant.

Anoka County District Court
File No. FX979406

Joann A. Anton, 2140 Fourth Avenue North, Anoka, MN 55303 (for respondent)

Elizabeth V. Larson, Carr & Mankey, P.A., 5100 Eden Avenue, Suite 306, Edina, MN 55436 (for appellant)

Considered and decided by Lansing, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.

This marital dissolution appeal is limited to the issue of physical custody. Jeremy Kister contends that the district court erred in granting physical custody of the Kisters' five-year-old child to Darlin Kister. Because the district court's findings are supported by the evidence and because we find no abuse of discretion in the court's application of the law to its findings, we affirm.

After nearly three years of separation, Jeremy and Darlin Kister dissolved their seven-year marriage in 1999. The Kisters have one child, born in 1993. Following a trial at which each parent and 11 additional witnesses testified, the district court ordered joint legal custody and granted physical custody to Darlin Kister, subject to Jeremy Kister's reasonable and liberal visitation.

Jeremy Kister moved for amended findings or, alternatively, a new trial. The district court denied the motion for a new trial but partially amended the findings to state that Darlin Kister and the child share Hispanic ethnicity. The amended findings did not alter the physical custody provisions. Jeremy Kister appeals, contending that the district court abused its discretion by (1) denying a new trial or failing to amend its finding that the child's best interests weigh in favor of Darlin Kister's custody of the child, and (2) rejecting the custody evaluator's recommendation that Jeremy Kister receive physical custody of the minor child.

"Appellate review of custody determinations is limited to whether the trial 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) (citations omitted). In determining physical custody of a child, the district court must consider numerous factors relating to the child's best interests. See Minn. Stat. § 518.17, subd. 1(a) (1998) (listing 13 factors relevant to best interests of child). Although a court may not use the primary-caretaker factor as a proxy for the best interests of the child, that factor may identify the optimal environment for emotional security and nurturance when both parents are appropriate custodians and the child is too young to express a preference. See Minn. Stat. § 518.17, subd. 1(a) (proscribing use of primary-caretaker factor as presumptive in determining best interests); Maxfield v. Maxfield, 452 N.W.2d 219, 223 (Minn. 1990) (identifying child's bond with primary parent as "golden thread" in best-interests analysis).

In determining physical custody for the Kisters' child, the district court made specific findings addressing each of the relevant statutory best-interests factors. The court also provided a memorandum that further explained its reasoning. The court found (1) that several factors were equally favorable to each party, several factors did not apply, and on the remaining factors found that Darlin Kister was the primary parent most closely bonded with the child; (2) that Darlin Kister's extended family, particularly her mother, provided interrelationships that were important and enriching to the child; and (3) that Darlin Kister's past inappropriate discussions on religion would not undermine the child's future relationship with Jeremy Kister, who does not share her Pentecostal faith.

Jeremy Kister challenges the findings on primary parent, the benefits of Darlin Kister's extended family, and the effect of Darlin Kister's religion on the child and the child's relationship with him. He also asserts that the district court should have made findings more favorable to him on other factors. Based on these challenges, Jeremy Kister contends that the district court's custody determination lacks evidentiary support. We disagree.

The district court's finding that Darlin Kister is the primary parent and more closely bonded to the child is supported by the record. The custody evaluation stated that Darlin Kister stayed at home with the child for the first four months and then returned to work as a daycare worker, integrating the child into her work responsibilities for an additional ten months. The record demonstrates she took the child to pediatric appointments, both well visits and the majority of sick visits, and all of the child's dental appointments. At the time of trial, she had arranged her work schedule to a four-day workweek to spend additional time with the child and to take care of errands relating to the child's needs. The district court, relying on the court evaluator's Family Relations test and other testimony, found that the child was more strongly bonded to Darlin Kister.

The record also supports the district court's findings on a positive interrelationship between the child and Darlin Kister's extended family. In the custody evaluation interview, the child listed Darlin Kister's mother as one of the significant people in his life. The custody evaluator's report stated that the child has a strong bond to his maternal grandmother, that her family provides child care when necessary, and that the child and other family members shop, play, and do chores together.

Jeremy Kister argues that the district court improperly determined that Darlin Kister's religious beliefs would not continue to have negative impact on the child or on Jeremy Kister's relationship with him. Darlin Kister testified that she understood that religiously based negative comments that she had made about Jeremy Kister were harmful to the child and would refrain from making any similar comments in the future. The district court accepted Darlin Kister's testimony that she would take precautions in discussing religious issues with the child, and we do not reweigh credibility determinations on appeal. In re Welfare of A.D., 535 N.W.2d 643, 648 (Minn. 1995) (stating that district court in better position than appellate court to assess credibility of witnesses).

The district court also found that Jeremy Kister was a loving parent and had a close relationship with the child. The district court acknowledged that a decision on who should have physical custody was not easy, but relied on the findings that the child was more strongly bonded with Darlin Kister and that Darlin Kister's family structure was a strong and positive influence on the child. The court did not evaluate factors relating to current environment or maintaining a stable environment because the parents had shared custody pending the final determination. The district court did not abuse its discretion by discounting the factors relating to the stability or continuity of the child's current home, and its affirmative findings on primary parenting, bonding, and family interaction are supported by the record. The court did not err in its findings or in rejecting the motion for a new trial.

II

Jeremy Kister argues that the district court improperly rejected the recommendation of the custody evaluator and that it failed to either express its reasons for rejecting the recommendation or provide detailed findings that examine the same factors raised by the custody study. Because the district court is accorded broad discretion in custody decisions, it is important that the basis for the court's decision be set forth with a high degree of particularity. Wallin v. Wallin, 290 Minn. 261, 267, 187 N.W.2d 627, 631 (1971).

If the district court exercises its discretion contrary to an evaluator's custody recommendation, the need for particularized findings is heightened. Rogge v. Rogge, 509 N.W.2d 163, 166 (Minn. App. 1993), review denied (Minn. Jan. 28, 1994). But the district court need not specifically state why it rejected an evaluator's recommendation if the findings as a whole reflect that the district court has considered the relevant factors in determining custody. Rosenfeld v. Rosenfeld, 311 Minn. 76, 83, 249 N.W.2d 168, 171-72 (1976); Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991).

The district court explained that it rejected the custody recommendation because it disagreed with the evaluator that Darlin Kister's expression of her religious beliefs would have a negative impact on the child and the child's relationship with Jeremy Kister. Essentially, the district court disagreed with the weight that the custody evaluator placed on this factor and instead placed more weight on the child's strong bonding with Darlin Kister. The decision to reject the custody evaluator's final recommendation was directly addressed in the district court's findings and memorandum. See, e.g., Roehrdanz v. Roehrdanz, 410 N.W.2d 359, 362 (Minn. App. 1987) (affirming custody determination when court provided reasons for rejecting evaluator's recommendation), review denied (Minn. Oct. 28, 1987). In addition to the direct explanation, the district court's other findings demonstrate a careful analysis of the statutory best-interests factors. The findings are more than adequate to meet the particularity requirements imposed by this court and the Minnesota Supreme Court. See Wallin, 290 Minn. at 267, 187 N.W.2d at 631; Rogge, 509 N.W.2d at 166-67.