In re the Custody of: E.V.N., DOB 5/18/1993 Rigmor Malmskold, et al., petitioners, Appellants, vs. Randal Olson, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-03-381

 

In re the Custody of:
E.V.N.,
DOB 5/18/1993
Rigmor Malmskold, et al., petitioners,
Appellants,
 
vs.
 
Randal Olson,
Respondent.

 

Filed October 14, 2003

Affirmed

Wright, Judge

 

Hennepin County District Court

File No. MF271707

 

 

Wright S. Walling, Kimberly A. Weinacht, Walling & Berg P.A., 121 South Eighth Street, Suite 1100, Minneapolis, MN  55402 (for appellants)

 

Linda R. Allen, Butler, Huson & Allen, P.A., 2330 U.S. Bank Center, 101 Fifth Street East, St. Paul, MN  55101 (for respondent)

 

 

            Considered and decided by Harten, Presiding Judge, Anderson, Judge, and Wright, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

In this third-party child-custody dispute, appellants, the child's maternal grandmother and her husband, argue that (1) the district court failed to apply the proper legal standard when it awarded custody to respondent father and (2) the district court's findings of fact are not supported by the record.  We affirm.

FACTS

 

E.V.N., born on May 19, 1993, is the biological child of Mona Nystadius and respondent Randal Olson.  Appellants Rigmor and Peter Malmskold are married; and Rigmor Malmskold is E.V.N.'s maternal grandmother.

            During a relationship with Olsonthat commenced in the United States, Nystadius, a native of Sweden, became pregnant.  Nystadius returned to Sweden to have the baby.  E.V.N. resided with Nystadius in Sweden for six years.  During this period, Olson and Nystadius remained in contact with each other.  Although Olson visited Nystadius and E.V.N. only once during their six years in Sweden, Nystadius kept Olson apprised of E.V.N.'s progress.  Nystadius and E.V.N. visited Minnesota annually.  During these visits, the Malmskolds and Olson spent time with E.V.N.

            In 1999, Nystadius and E.V.N. returned to Minnesota and resided in the Malmskolds' home.  Nystadius and Olson agreed to implement a parenting-time schedule, and Olson's parenting time gradually increased from short visits to overnight visits.  Eventually, E.V.N. spent every other weekend with Olson. 

            In October 2001, Nystadius suffered fatal injuries from a car accident during a trip to Sweden.  Shortly thereafter, Olson proposed changes to the parenting-time schedule.  The Malmskolds did not respond to Olson's request.  Olson later observed suitcases at the Malmskolds' residence.  Fearing that the Malmskolds were planning to leave the country with E.V.N., Olson picked up E.V.N. from school, brought her home with him, and informed the Malmskolds that he was asserting his custodial rights to E.V.N.

            Both parties filed motions for ex parte relief and petitioned for custody.  On November 21, 2001, the parties agreed that Olson would retain temporary custody and that the Malmskolds would have substantial and liberal visitation pending trial.  A stipulated order awarding temporary custody to Olson was entered on February 8, 2002.  The district court subsequently issued a temporary order awarding physical custody to the Malmskolds and granting Olson visitation on alternate weekends.  The district court also ordered mediation and a custody evaluation. 

Following a three-day trial, the district court granted sole legal and physical custody to Olson.  This appeal followed.

D E C I S I O N

 

District courts have broad discretion in custody matters.  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989).  A district court's custody determination will not be reversed absent an abuse of discretion.  Frauenshuh v. Giese, 599 N.W.2d 153, 156 (Minn. 1999).  Our review of a custody determination "is limited to whether the district court abused its discretion by making findings unsupported by the evidence or improperly applying the law."  In re Custody of N.A.K., 649 N.W.2d 166, 174 (Minn. 2002); Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  In doing so, we view the evidence in the light most favorable to the trial court's findings.  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999).  We review questions of law de novo.  N.A.K., 649 N.W.2d at 174.

I.

 

The right of a parent to custody is "paramount and superior to the right of a third person."  In re Hohmann, 255 Minn. 165, 170, 95 N.W.2d 643, 647 (1959).

[F]ollowing the death of a custodial parent, a surviving, noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature, indicating that the best interests of the child require that the surviving parent be denied custody. 

 

N.A.K., 649 N.W.2d at 175. 

            The Malmskolds argue that the district court failed to apply the proper legal standard when it awarded custody to Olson.  Citing N.A.K., the Malmskolds contend that (1) the district court is required to consider both the parental presumption in favor of custody and the best interests of the child, and (2) the district court "prematurely concluded its analysis with the parental presumption and an examination of [Olson's] character and actions."  N.A.K., however, does not require a best-interests analysis.  Indeed, the supreme court noted that

[w]hile the best interests analysis can be very helpful in illuminating the reasoning of the district court, the essential question to be answered by the court is whether extraordinary circumstances of a grave and weighty nature exist to support the grant of permanent custody to a third party and not to the surviving parent.

 

Id. at 176. 

Moreover, contrary to the Malmskolds' argument, the district court addressed both the parental presumption and the best interests of the child in concluding that custody of E.V.N. should be awarded to Olson.  In addressing the parental presumption, the district court observed:

There is now an established legal presumption that a natural parent has the right to raise his or her own child, and that such a presumption shall only be overturned upon a showing of incapacity or inability, and upon evidence of a grave and weighty nature.  In the instant case, [the Malmskolds] have only shown vague concerns regarding the impact of a change in environment (an environment that was already massively changed by the death of the child's mother, but one into which the child has begun to integrate successfully), and a fear that the child's Swedish heritage will be insufficiently included in her life to come.  No concerns have been legitimately raised and proven regarding [Olson's] ability to parent.  In fact, all of the evidence presented demonstrates [Olson] is a good parent who cares for all of his children. . . . [The Malmskolds'] concerns lack the gravity necessary to overcome the legal presumption of a natural parent's right to raise his or her own child. 

 

After addressing the parental presumption, the district court found, "Even if [Olson] did not have the legal presumption for custody in his favor, the analysis of the best interests factors favor an award of custody to [Olson]."  The district court then discussed in detail the 13 best-interests factors outlined in Minn. Stat. § 518.17, subd. 1 (2002).

In support of their argument that extraordinary circumstances of a grave and weighty nature override the parental presumption in favor of Olson, the Malmskolds advance several positive aspects of their relationship and their shared culture with E.V.N., which the district court considered.  They contrast the active role they have played in the early years of E.V.N.'s life and E.V.N.'s love for them with what they characterized as Olson's "lack of involvement" until E.V.N. moved to the United States.  In addition, they point to Olson's decision to remove E.V.N. from the Malmskolds' home and the school E.V.N. attended[1] while living with the Malmskolds as grave and weighty circumstances that rebut the parental presumption.  These factors, however, do not support a conclusion that the district court abused its discretion when it determined that the presumption in favor of the natural parent has not been rebutted.  We, therefore, conclude that the district court did not abuse its discretion when it determined that there are no extraordinary circumstances of a grave and weighty nature indicating that E.V.N.'s best interests require that Olson be denied custody.

II.

 

The Malmskolds also argue that, by adopting Olson's proposed findings of fact and conclusions of law nearly verbatim, the district court made factual findings that are not supported by the record.  In reviewing the record to determine whether the district court abused its discretion by making findings unsupported by the evidence, we view the evidence in the light most favorable to the district court's findings.  Rogers, 603 N.W.2d at 656.  A finding is "clearly erroneous only if the reviewing court is ‘left with the definite and firm conviction that a mistake has been made.'"  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quoting Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987)).  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). While this practice has been recognized as acceptable, 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.  If, after a careful review of the record, we conclude that the findings are not clearly erroneous, the verbatim adoption, standing alone, will not provide sufficient grounds for reversal.  Id.

Upon careful review, we conclude that the record adequately supports the district court's findings.  Many of the challenged findings do not relate to Olson's parenting ability or the issue of whether grave and weighty circumstances overcome the parental presumption in custody matters.  As to those findings, any errors would be harmless and not grounds for reversal.  Minn. R. Civ. P. 61.  A review of the record establishes that those challenged findings that are material to the district court's custody determination are supported by the record.  For example, the record supports the district court's findings that "[n]o concerns were raised by the evaluator regarding [Olson's] ability to meet primary care giving responsibilities," that "E.V.N. continues to successfully adjust to her life with her father," and that Olson "has unequivocally stated that he intends that his daughter retain her relationship with her grandparents and extended relatives."  As to the latter finding, Olson testified that, if he were granted physical custody, he proposed a visitation schedule in which E.V.N. would spend one week night and every other weekend the Malmskolds.

Accordingly, the district court did not abuse its discretion by basing its custody determination on clearly erroneous factual findings.

            Affirmed. 

 

 

[1]  Olson subsequently allowed E.V.N. to continue attending this school.