In Re the Custody of: K. and W.S., minor children, by N.A.B., petitioner, Respondent, vs. W.W.S., Appellant.

In Re the Custody of: K. and W.S., minor children, by N.A.B., petitioner, Respondent, vs. W.W.S., Appellant. C5-01-1353, Court of Appeals Unpublished, May 7, 2002.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-01-1353

 

 

In Re the Custody of:

K. and W.S., minor children,

by N.A.B.,

petitioner,

Respondent,

 

vs.

 

W.W.S.,

Appellant.

 

 

Filed May 7, 2002

Affirmed
Foley, Judge*

 

Ramsey County District Court

File No. F4993105

 

John R. Kempe, McCullough, Smith, Wright & Kempe, P.A., 905 Parkway Drive, St. Paul, MN 55106 (for respondent)

 

Eric C. Nelson, Title Insurance Building, 400 Second Ave. S., Suite 700, Minneapolis, MN 55401 (for appellant)

 

            Considered and decided by Hanson, Presiding Judge, Schumacher, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Respondent petitioned the district court for custody of appellant's biological children and the district court transferred custody to her.  Appellant alleges the district court erroneously adopted respondent's proposed findings and conclusions verbatim and that neither the evidence, nor the factual findings and legal conclusions, supports the district court's custody determination or its award of attorney fees against appellant.  We affirm.

FACTS

            K.S., born in December 1985, and W.S., born in April 1988, are the children of appellant father W.W.S. and now-deceased mother J.S.  Respondent N.A.B. is the children's maternal aunt. 

            Appellant and J.S. were living in Michigan when they were divorced in April 1991.  J.S. was granted sole legal and physical custody of the children and moved with them to St. Paul in 1991; appellant remained in Michigan.

            After their move to St. Paul, respondent saw the children at least every other day, and every day after J.S. became ill with cancer.  She visited the children in their home, in her brother's home, shopped with them, and took vacations with them.  While J.S. was ill, respondent listed her house for sale, and moved in with J.S. and the children to care for them. 

            From the time J.S. and the children moved to St. Paul until J.S.'s death in December 1996, respondent recalled only two or three times when appellant visited his children.  Appellant planned trips with the children, but cancelled them before they took place.

            A month after J.S. died, appellant moved into the home with respondent and the children.  The living situation became tense, and approximately two weeks later respondent moved out of the home. 

            In her will, J.S. set up a trust for her children and placed her home in the trust for their benefit.  Appellant did not pay rent or contribute to the upkeep of the house.  When J.S.'s brother, the trustee, advised appellant that he would have to pay rent or move out of the house, appellant cut contact between J.S.'s family members and the children to the point that it was "virtually nonexistent."  Respondent attempted to call the children, but appellant would not allow her to speak to them.  Appellant then moved with the children to an apartment in the Highland Park neighborhood of St. Paul. 

            Deidre Kellogg began coaching K.S. in skating shortly after J.S.'s death and continued to be in contact with her through the trial date.  Kellogg testified that K.S. told her that she was "quite terrified" of her father.  She told Kellogg of appellant's verbal abuse, which occurred frequently at night when he would come into her bedroom, scream at her, and "run her though the mill" for several hours before he would go to sleep.  Kellogg stated that during the course of her coaching relationship, K.S. became a "very different child," and was frequently exhausted as a result of appellant's actions.  K.S. related to Kellogg that her father was very angry when she came in seventh at the Junior Olympics because that was "not good enough."  Kellogg stated that she observed instances when appellant "would get angry and kind of unleash his anger."  She testified that it was "more the norm" that K.S. reported there was nothing to eat at her house.  During one visit, Kellogg observed only beer, milk, and breakfast cereal in the refrigerator.  On another occasion, upon dropping off K.S. at the apartment, Kellogg and K.S. were met at the door by W.S. who reported that appellant and his girlfriend were having sex in the bedroom and that they had been having sex all day.  K.S. yelled to appellant that she was home.  He opened the door with his sweatpants around his knees, exposing himself to K.S., W.S., and Kellogg.

            Dana Brevig, a family friend, testified as well.  She related an incident after she gave K.S. a ride home one day.  When they entered the apartment, K.S. showed her pictures, including one that showed appellant posing with his penis erect.  Brevig also noticed that K.S. was often excessively tired.  K.S. told her that her father kept her up for hours at night, saying she did not need so much sleep and that she should "toughen up."  K.S. told Brevig that appellant would not let her lock the bathroom door when she took a shower or used the toilet and would walk in and begin laughing at her.  Brevig noticed that once K.S. began living with respondent, "every single thing about her [was] different" and that she had seen "extreme improvements."  Brevig also testified that W.S. appeared to be happier and healthier while in respondent's care, and that he seemed to have gained dignity that did not exist while in appellant's care.

            Dawn Spllittstoesser, a family friend, testified that W.S. told her that appellant once became angry and threw computers against the wall after W.S. kicked appellant in the groin accidentally.  Spllittstoesser also testified that she was concerned about the children's health and diet.  During the first four months in appellant's care, K.S. lost a lot of weight, and dropped two pant sizes.  The children also became isolated from Spllittstoesser and ceased to show any affection.  But since being in respondent's care, they have again become affectionate.

            Several witnesses testified that the children appeared frightened when they visited because appellant forbade the children from contacting J.S.'s family members or friends.  On one occasion, when long-time friend Kathy Schueller stopped by appellant's home unannounced, she noticed that the children were agitated and seemed frightened.  Schueller later learned that when appellant discovered she had visited, he sent K.S. to her room and told her to turn up her music so she could not hear what would happen.  While in her room, K.S. heard her brother screaming from the beating received at his father's hands.  W.S. stayed at Schueller's residence frequently during the summer of 1997.  Many times when she dropped W.S. off at his home around 11:00 p.m., no adult was there.  Schueller related an incident of appellant beating both children because the family dog had not been let out and had urinated on the floor. 

            Deborah Nagurski, a social worker, began working with K.S. on March 7, 2000.  K.S. reported to her that appellant had "huge reactions over little things."  He hit her with his fist and belt, kicked her, called her offensive names, chased her through the house trying to kick or hit her, and damaged the wall by throwing the television.  K.S. told Nagurski that appellant (1) described to her his sexual relations with both her mother and his girlfriend; (2) walked into rooms while she was naked or bathing; (3) ordered W.S. to take pictures of him while naked and instructed K.S. to select some to send to his girlfriend; and (4) had K.S. read a sexually explicit email.  Nagurski opined that K.S.'s home life with appellant was damaging in that he subjected her to physical and vague sexual abuse.  She stated that in her opinion respondent should be granted sole legal and physical custody of both children. 

            Marie Rose, the guardian ad litem subsequently assigned to the case, testified that K.S. told her about an instance when appellant beat her with a belt.  K.S. reported she did not want to see appellant or continue living with him.  She described times when appellant would come into the bathroom while she was showering or using the toilet; that there was seldom food in the refrigerator; that she was fearful of being awakened at night by her father who would scream at her "for hours"; and times when appellant would arrive home drunk and become abusive toward her and W.S.  K.S. also told Rose that appellant would not allow them to see their mother's family or friends, and of the time W.S. was told to take pictures of appellant while naked and K.S. being made to select the best nude picture of him to send to his girlfriend. 

            On May 20, 1999, K.S. ran away from home.  After that, appellant did not attempt to contact her.  On May 24, respondent obtained an ex parte order for protection, under which she was granted temporary custody of K.S. and W.S.  Subsequently, on May 28, a hearing was held at which time the parties were present with their attorneys.  At the hearing, appellant stipulated to a grant of custody to respondent until a further hearing set for September 10, 1999.

            On September 10, 1999, the district court entered an order for protection and awarded sole legal and physical custody to respondent, pending the filing of a petition for permanent custody that respondent had discussed filing.  Appellant was granted supervised visitation rights.  After receiving custody, respondent and the children moved to their old neighborhood in St. Paul where J.S. had lived with the children and where W.S. had friends and attended school.

            On December 2, 1999, respondent filed a separate petition for permanent custody under a different file number than the protection order.  Concurrently, appellant moved, pro se, to modify the terms of the September 10 protection order.  The district court denied that motion on December 14, 1999.  Respondent underwent a psychological evaluation in connection with the custody petition, which indicated no evidence that she was suffering from any serious mental health disorder.  She has been employed for over 27 years and is a homeowner. 

            In her June 26, 2000 report, the guardian ad litem stated that, in spite of letters to appellant advising him of visitation, he had not requested or followed up on his requests for visitation.  She also reported that K.S. had "no desire to see her father." 

            On July 3, 2000, the district court denied appellant's second motion to modify the September 10, 1999 order. 

            On December 21, 2000, January 12, March 1, 2, and 9, 2001, an evidentiary hearing was held on the petition for custody.  Subsequently, the district court filed its judgment and decree, concluding that respondent had met her burden of disproving the presumptive fitness of appellant as a parent and that it was in the best interests of the children that custody be granted to her.  The court ordered monthly supervised visitation, child support, and assessed appellant $7,500 in attorney fees.  Appellant filed a notice of motion to extend time in which to file a motion for a new trial.  Respondent opposed the motion; the motion was withdrawn.  This appeal followed.  

D E C I S I O N I.

            Appellant first contends that the district court's factual findings were not based on sufficient evidence and that the evidence was insufficient as a matter of law to transfer custody to respondent.  He also argues that the district court erroneously adopted respondent's proposed findings of fact verbatim.

            When deciding custody disputes between a parent and a third party, a biological parent is presumed to be entitled to custody of his or her own child unless it clearly appears that the biological parent is unfit or has abandoned the right to custody, or unless there are some extraordinary circumstances which would require that the biological parent be deprived of custody.  Wallin v. Wallin, 290 Minn. 261, 264, 187 N.W.2d 627, 629 (1971).  Third parties have the burden of presenting evidence to overcome the presumption of parental fitness.  Id. at 265, 187 N.W.2d at 630.  They must show "grave reasons" -- reasons approaching those required to terminate parental rights -- for preferring them to a natural parent for custody of the children.  In re Welfare of P.L.C., 384 N.W.2d 222, 225 (Minn. App. 1986). 

            However, the best interests of the child is our "paramount commitment" in all matters that involve court-established relationships of a child, LaChapelle v. Mitten, 607 N.W.2d 151, 158 (Minn. App. 2000), review denied (Minn. May 16, 2000), including disputes between a natural parent and a third party.  J.W. ex rel. D.W. v. C.M., 627 N.W.2d 687, 692 (Minn. App. 2001), review denied (Minn. Aug. 15, 2001).  If the basis for its conclusion is set forth with a high degree of particularity, the district court enjoys a broad discretion to provide for the custody of children, including cases between a natural parent and a third party.  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989).   

            Our review of a custody determination is limited to determining whether the district court abused its discretion by making findings unsupported by the evidence or by misapplying the law.  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  A district court's findings are not set aside unless clearly erroneous, and the record is reviewed in a light most favorable to those findings.  Frauenshuh v. Giese, 599 N.W.2d 153, 156 (Minn. 1999). 

            The testimony in the record here supports the district court's findings.  There was evidence that: (1) the children oftentimes were not provided with food while in appellant's custody; (2) the children suffered physical and verbal abuse; (3) the children were not permitted to have contact with their mother's family or friends, despite efforts by those family members and friends to maintain contact with the children after their mother's death; (4) there were several instances of appellant's sexually inappropriate behavior in front of the children; (5) while in appellant's custody, the children became afraid of him and were withdrawn and unhappy; (6) after removal from their father's home, the children regained their happiness and reconnected with their maternal family and old friends; and (7) K.S. told the guardian ad litem and a social worker that she did not wish to return to her father's home.  In sum, the district court's findings are supported by the evidence in the record and those findings are sufficient to support the court's conclusions both that appellant was unfit as a parent and that the children's best interests were served by transferring custody to respondent. 

            Appellant also argues that the district court erroneously adopted respondent's proposed findings of fact verbatim.  The verbatim adoption of a party's proposed findings and conclusions of law is not reversible error per se.  Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied  (Minn. Feb. 12, 1993).  Although we have recognized the acceptability of this practice, we have strongly cautioned that "the wholesale adoption of one party's findings and conclusions raises the question of whether the trial court independently evaluated each party's testimony and evidence."  Id (citation omitted).  The problem with adopting one party's findings verbatim is that it can be more difficult to determine whether a court exercised its own careful consideration of the evidence, witnesses, and the entire case.  Dukes v. State, 621 N.W.2d 246, 258 (Minn. 2001).  In reviewing such cases, we consider how the findings were prepared when searching the record.  Id.  If, after a careful and thorough review, we conclude that the findings are not clearly erroneous, the verbatim adoption, standing alone, will not provide sufficient grounds for reversal.  Id. at 259.        

            Here, appellant points to four findings that he states are conclusory and not supported by the record.  Regardless of whether these findings were clearly erroneous, they are relatively few in number and not crucial to supporting the district court's decision; they do not give grounds for reversal.  See Minn. R. Civ. P. 61 (harmless error is not grounds for reversal).

II.

            Appellant also argues that the evidence was insufficient to support the district court's award of attorney fees and that, even if the evidence was sufficient, the award was not justified as a matter of law.  The district court awarded both conduct-based fees and costs under Minn. Stat. § 518.14, subd. 1 (2000), and sanctions under Minn. Stat. § 549.211 (2000).  Under Minn. Stat. § 518.14, subd. 1, the district court may, in its discretion, award attorney fees, costs, and disbursements against a party who unreasonably contributes to the length or expense of the proceeding.  These conduct-based fees differ from need-based fees and may be awarded without regard to the recipient's need or the payor's ability to contribute to the fee award.  Geske v. Marcolina, 624 N.W.2d 813, 818 (Minn. App. 2001).  Additionally, under Minn. Stat. § 549.211, subds. 2, 3, 5, the district court may impose sanctions, including attorney fees, on a party for causing "unnecessary delay" in the proceedings.  Before awarding such fees, the court must describe the conduct determined to constitute the violation and explain the basis for the violation.  Id., subd. 5(c).  Whether to award fees and costs under Minn.Stat. § 549.211 is discretionary with the district court.  Whalen ex rel. Whalen v. Whalen, 594 N.W.2d 277, 281 (Minn. App. 1999). 

            Here, the district court's basis for awarding fees resulted from appellant's unreasonable delays.  Appellant had failed to provide notice to the guardian ad litem for a June 6, 2000, hearing and the matter was therefore continued.  On the morning of the scheduled December 21, 2000 evidentiary hearing, appellant notified the court and opposing counsel that Steven Soronow would be replacing Jeanne Bringgold as his attorney.  At the hearing, prolonged discussions about appellant's attorney situation took place, delaying the hearing.  At that hearing, and on the record, counsel for both parties indicated that their clients would be able to appear on January 12, 2001, for the second and final day of the evidentiary hearing.  On January 11, 2001, appellant's counsel notified the court and opposing counsel that appellant had made a calendaring mistake and would be unable to attend the hearing because he was in Europe.  There was some evidence that this assertion was not true and that appellant was at work on January 12.  On January 12, both parties' attorneys appeared and respondent moved for sanctions.  The evidentiary hearing was continued to March 1 and 2, 2001.  Appellant also failed to timely answer respondent's discovery requests regarding his financial information.  Because appellant was responsible for these delays, we conclude that the district court did not abuse its discretion in awarding the fees.[1]   

            Affirmed.

 

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] In one unsupported sentence, appellant also argues that awarding $7,500 in fees was excessive.  We need not consider that issue.  See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (assignment of error based on mere assertion and lacking in supporting argument or authorities is waived unless prejudicial error is obvious on mere inspection).