In re Patricia Ann Colten Biagi, petitioner, Appellant, vs. Alfred Clifford Biagi, Jr., 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This opinion will be unpublished and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

C5-03-384

In re Patricia Ann Colten Biagi, petitioner,

Appellant,

vs.

Alfred Clifford Biagi, Jr.,

Respondent.

Filed August 26, 2003

Affirmed; motions denied

Robert H. Schumacher, Judge

Ramsey County District Court

File No. FX992783

Mark A. Gray, 1422 West Lake Street, Suite 320, Minneapolis, MN 55408 (for appellant)

Timothy W.J. Dunn, 101 East Fifth Street, Suite 1150, St. Paul, MN 551010 (for respondent)

            Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

            In this dissolution matter, appellant Patricia Ann Colten Biagi, now known as Patricia Colten, challenges the district court's amended judgment modifying custody, setting child support, ordering resolution to certain property issues, and awarding attorney fees.  The findings of fact are supported by the evidence and sustain the district court's conclusions.  We affirm. 

FACTS

            The September 13, 2000 stipulated judgment dissolving the marriage of Colten and respondent Alfred Clifford Biagi, Jr., awarded the parties joint physical and legal custody of their minor children, N.B. and A.B.  Shortly after the dissolution, Colten's health deteriorated and Biagi undertook the greater portion of responsibility for the children.  During this time, Colten, who has been diagnosed with fibromyalgia, became convinced that both children suffered from the same illness, despite assurances of the children's primary physicians to the contrary.  Over Biagi's objections, Colten began to take the children to various medical practitioners and to medicate them with an over-the-counter medication, guaifenisen.

            In 2001, Biagi sought to enforce certain financial terms of the dissolution judgment and to curtail Colten's medical treatments for the children.  Shortly thereafter, Colten accused him of physically and emotionally abusing the children and moved for a modification of custody, asking for sole physical custody of both children.  Biagi filed a countermotion for sole physical custody of the children.  

            In the course of the evidentiary hearing on these motions, which was held between December 2001 and November 2002 on five different hearing dates, Colten accused Biagi of physical and emotional abuse of the children and sexual abuse of A.B. and of the daughter of the children's childcare provider.  She prompted the children to make abuse allegations to their childcare providers and a therapist, all of whom believed the allegations were groundless, but all of whom were required to make mandatory reports.  In each instance, the investigating authority declined to investigate.  The district court granted Biagi temporary custody during the pendency of the hearing and permanent physical custody at the conclusion of the hearing.

            In addition to custody, the parties raised the issues of health insurance, tuition reimbursements, distribution of personal property, health care reimbursements, and tax refunds.

D E C I S I O N

            1.         In a contested custody matter, the district court may, in its discretion, appoint a guardian ad litem or order a custody investigation.  Minn. Stat. §§ 518.165, subd. 1, .167, subd. 1 (2002).  The district court must appoint a guardian ad litem if "the court has reason to believe that the minor child is a victim of domestic child abuse or neglect."  Minn. Stat. § 518.165, subd. 2 (2002).  However, if the allegations of abuse are insubstantial or rebutted, the court may refuse to appoint a guardian ad litem.  Abbott v. Abbott, 481 N.W.2d 864, 870 (Minn. App. 1992); Baum v. Baum, 465 N.W.2d 598, 600 (Minn. App. 1991), review denied (Minn. Apr. 18, 1991).  Based on this record, the district court did not abuse its discretion by refusing to appoint a guardian ad litem; the allegations of abuse were both insubstantial and rebutted by testimony the district court found to be credible. 

            The district court has the discretion to decide whether a custody investigation is necessary and whether to consider any custody recommendations that are made.  Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991).  Here, the district court refused to order an investigation because of concerns about delaying the evidentiary hearing and the effect a delay would have on the children.  The district court's concern about delay is a reasonable basis for its ruling in this case.  See Sefkow v. Sefkow, 427 N.W.2d 203, 212 (Minn. 1988) ("emphasiz[ing] that it is truly in the best interests of the child to have permanent custody fixed as quickly as possible"); see also Minn. Stat. § 518.168(a) (2002) (requiring custody proceedings to be given hearing priority). 

            We note that Colten raises the issue of priority for child custody matters under Minn. Stat. § 518.168(a) and argues that the district court erred by failing to give this case priority.  We agree that the drawn-out nature of this hearing, which the district court itself described as "a disgrace to the court system," ignored the statutory directive to give custody proceedings priority.  Although Colten claims the district court failed to give priority to this case on the court calendar, she makes no claim for relief or claim that she was prejudiced.  See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (stating that, to prevail on appeal, party must not only show error but also that error caused prejudice).  On this record, it appears that Colten herself may have caused some of the delays.

            2.         This court cannot grant relief to Colten as to the terms of the temporary order, which no longer governs the custody of the minor children.  This is a moot issue, which cannot be appealed.  Sharp v. Bilbro, 614 N.W.2d 260, 262 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000).  We observe, however, that in the final analysis it is the responsibility of the trial judge to assure that the statutory and case-law directives for prompt resolution of custody questions are satisfied. 

            3.         The district court's custody determinations will not be reversed absent an abuse of discretion.  Frauenshuh v. Giese, 599 N.W.2d 153, 156 (Minn. 1999).  An abuse of discretion occurs when the district court's findings are unsupported by evidence or its decision is a misapplication of the law.  Id. 

            Modification of a previous custody order is governed by Minn. Stat. § 518.18 (2002).  A decision to modify custody requires consideration of four elements:  (1) a change in circumstances; (2) the best interests of the child; (3) endangerment to the child's physical or emotional health; and (4) a weighing of the advantage of the change against the harm to the child.  Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997).

            Changed circumstances are evaluated on a case-by-case basis.  Sharp, 614 N.W.2d at 263.  The change in circumstances must be significant and not just a continuation of the situation as it was before the custody order.  Geibe, 571 N.W.2d at 778.  The district court found that Colten's health had deteriorated after the dissolution, she was unable to work much of the time, her fears for the children's health appeared to have escalated, and she was bringing the children to medical practitioners and giving them medication over Biagi's objections.  These findings, which are supported by the record, describe a change in circumstances.

            The best interest factors are those listed in Minn. Stat. § 518.17, subd. 1.  Id.  The district court did not explicitly label best-interest factors in the findings, but found that Biagi provided most of the daily care since the dissolution and, more importantly, that the effects of Colten's physical and mental health were physically and emotionally damaging to the children. 

            Endangerment requires a showing of a "significant degree of danger."  Id. (quotation omitted).  The district court specifically found physical and emotional endangerment based on (1) Colten's "lack of supervision and her permissive parenting style;" (2) Colten's permitting the children to read pleadings in the custody matter; and (3) Colten's insistence, contrary to medical advice, that the children suffer from fibromyalgia.  The court made further findings about inappropriate use of medical practitioners, administration of guaifenisen, Colten's emotional outbursts, using the children to create abuse allegations, and the children's frequent ill health when in Colten's care.  The court summarized by stating that it "finds that the present joint legal and physical custody under the Judgment and Decree has endangered the children's physical and emotional health."

            The weighing of relative advantage and harm to the child may be "implicit in the other factors."  Id.  The district court made an explicit finding that any harm from a change in custody was outweighed by the advantage of the change.  The record supports all of these findings.

Colten argues that the district court's adoption of Biagi's proposed findings shows that the court did not independently review the evidence.  "[T]he verbatim adoption of * * * proposed findings * * * is not reversible error per se."  Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).  Even Colten agrees that the findings are not a wholesale adoption of Biagi's proposed findings and conclusions.

Colten also argues that the findings are improper because the district court cites the testimony of witnesses rather than making affirmative findings.  Although a court must make affirmative findings, it may cite testimony to show what it considered in making its affirmative findings.  Dean v. Pelton, 437 N.W.2d 762, 764 (Minn. App. 1989).  We conclude that the district court did not abuse its discretion by modifying custody.

            4.         The district court ordered Colten to pay support in the amount of "30% of her net disposable non-social security income" and stated that her support obligation shall continue until the youngest child reaches "18 years of age and graduate[s] from high school, is emancipated, dies or until further order of this court."  On appeal, Colten admits that her non-social security monthly income is $836 in disability payments and challenges the district court's support determination.  A district court has broad discretion in setting support.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  The crux of Colten's challenges to her support obligation seems to be that it will require her to pay support in an above-guideline amount both if her net monthly income exceeds the $5,000 figure mentioned in the guidelines contained in Minn. Stat. § 518.551, subd. 5(b) (2002), and when the older child is emancipated.  These arguments are unpersuasive.  The current cap on the amount of net monthly income subject to the child support guidelines is $6,751.  Cost of Living Adjustment to Child Support Guidelines, No. C9-85-1134 (Minn. Mar. 18, 2002) (setting guideline cap at $6,751 for July 1, 2003 to June 30, 2004).  And an increase in Colten's net monthly income from $836 to an amount exceeding $6,751 would constitute a basis for Colten to move for modification of her support obligation.  See Minn. Stat. § 518.64, subd. 2(a)(1) (2002) (stating support may be modified based on party's "substantially increased or decreased earnings").  Similarly, emancipation of a child is a basis for moving to modify an existing support order.  Minn. Stat. § 518.64, subd. 4a(c) (2002).  Thus, we reject Colten's arguments challenging her support obligation.

            Colten also challenges the district court's rulings regarding tuition payments, health insurance coverage, reimbursements for health costs and tax refunds, and personal property.  None of these matters is a true amendment of the dissolution judgment; each represent an aspect of the original dissolution judgment that Colten has failed to perform, with the exception of the tuition reimbursement.  The district court excused Colten from responsibility for future tuition payments until she is financially able to make those payments.  As such, the district court did not err in clarifying these provisions.  Moreover, to the extent that Colten argues that there was no testimony addressing whether she fulfilled her obligation to pay half of the children's 2001-02 private school tuition, we note that the district court's findings of fact address tuition due for fall 2002 (i.e., the 2002-03 school year), that the district court explicitly referenced Exhibit 52 as supporting its ruling, and that, on this record, the $75 that is at issue is not an amount that would cause Colten an undue financial hardship.  Cf. Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (refusing to remand for de minimus error).

            5.         The district court may award attorney fees where a party has unreasonably contributed to the length or expense of a proceeding.  Minn. Stat. § 518.14, subd. 1 (2002).  Conduct-based fee awards are discretionary with the court and may be awarded regardless of a party's ability to pay.  Sharp, 614 N.W.2d at 264.  The district court must make adequate findings to support an award for attorney fees.  Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1992). 

            Here, the district court found that Colten delayed the resolution of the matter and contributed to its expense by changing her attorneys three times.  The court also mentioned an award of attorney fees as a deterrent to "such another factually unsupported claim to the Court."  In separate findings, the district court found that appellant was untruthful in her testimony, and had disobeyed the court's temporary orders.  Given the discretion vested in the district court, this is sufficient to sustain an award of attorney fees to respondent.

            Colten has moved for attorney fees incurred on appeal, alleging that Biagi has unreasonably contributed to the length and expense of the proceeding.  She also argues that an award of fees would be appropriate based on need.  Biagi has filed a counter-motion, requesting conduct-based attorney fees of $655 and denying that Colten has established grounds for need-based attorney fees. 

            Colten has not provided this court with the amount of fees incurred, the hourly rate claimed or the work attributable to Biagi's failure to provide citations to the record.  See Minn. R. Civ. App. P. 139.06, subd. 1 (requiring motions for fees to "include sufficient documentation to enable the appellate court to determine the appropriate amount of fees")  Nor can we say that Colten's conduct on appeal has unreasonably contributed to the length and expense of the proceeding.  We therefore deny both motions.

            Affirmed and motions denied.