In re Lynn Renee Robinson, petitioner, Appellant, vs. Robert Dane Copic, 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This opinion will be unpublished and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

A03-101

 

 

In re Lynn Renee Robinson, petitioner,

Appellant,

 

vs.

 

Robert Dane Copic,

Respondent.

 

 

Filed December 23, 2003 Affirmed Randall, Judge

 

Sherburne County District Court

File No. F4-01-438

 

Rhonda J. Magnussen, First National Financial Center, 812 Main Street, Suite 102, Elk River, MN  55330 (for appellant)

 

Richard S. Eskola, 3989 Central Avenue Northeast, Suite 600, Columbia Heights, MN  55421  (for respondent)

 

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

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            On appeal from the district court's grant of custody to respondent-father, appellant mother argues that the district court (1) erred by not placing substantial weight on respondent's improper conduct; (2) erred by not considering appellant's role during the parties' separation; (3) erred by finding that she obstructed respondent's parenting time; (4) placed undue weight on the custody evaluator and GAL's findings; (5) should have granted appellant's request for a custody evaluation; and (6) erred by not giving this matter proper calendar priority.  We affirm. 

FACTS

            Appellant, Lynn Renee Robinson, and respondent, Robert Dane Copic were married on August 20, 1993.  The parties had two children during the marriage, namely Z.D.R., age nine (9) and A.B.R., age seven (7).  

            Appellant graduated from the University of Minnesota College of Pharmacy, and is now a licensed pharmacist.  After leaving pharmacy college, appellant began working at K-Mart as a pharmacist, and was soon promoted to pharmacy manager.  In 1996, appellant obtained a pharmaceutical position with Super Valu, and eventually worked her way up to district manager.  As district manager, appellant supervised fifteen (15) stores, but the position sometimes required overnight travel.  Appellant left Super Valu in 2002, and she is presently the pharmacy manager of the Target Greatland store in Rogers, MN.    

            Respondent graduated from Iowa State University with a BA in business, and has since been employed in various retail management positions.  At the time of trial, respondent was employed at Yocum Oil Company managing a convenience store.  Respondent currently attends a registered nurse program and hopes to pursue a career as a registered nurse.

            Appellant commenced this dissolution action on February 19, 2001, requesting sole physical custody and joint legal custody of the parties' two minor children.  Shortly thereafter, on February 26, 2001, appellant obtained an emergency order for protection against respondent following a dispute between the parties that appellant found disconcerting.  At the hearing on March 7, 2001, respondent agreed (upon counsel's advice) to the issuance of the order for protection (OFP) without testimony and without admitting any of the underlying facts alleged by appellant.  As part of its order, the district court appointed a guardian ad litem (GAL) to address respondent's parenting time in light of the best interests of the children.

            Initially, respondent's visitation was supervised, but the court granted respondent unsupervised visitation on April 4, 2001.  Following the April 4 hearing, respondent violated the OFP by entering the marital home at 4:00 a.m. to retrieve some items.  As a result, respondent pled guilty to a misdemeanor violation of an OFP and served a jail sentence.

            After the OFP violation, the district court modified the OFP again, ordering that respondent's visitation become supervised.  Respondent's visitation remained supervised until the district court modified the order yet again on September 26, 2001.  A custody study was ordered after the September 26, 2001, pretrial, and the study was completed on April 1, 2002.  The evaluator recommended that sole physical custody be awarded to respondent.  Appellant immediately moved for an independent custody study.  That motion was denied.           

            In July 2001, five months after the parties separated, appellant began a relationship with Eric Moore.  Mr. Moore has a residence in South Dakota, but he spent extended periods of time with appellant in Minnesota.  During these time periods, appellant displayed questionable conduct in the presence of the children, including an incident where the parties' seven-year-old daughter walked in on appellant and Mr. Moore "showering."  

            A court trial commenced on June 24, 2002, and concluded on September 26, 2002, being heard over several days and part days for a total of seven days.  The court concluded that appellant was not forthcoming with her testimony and was impeached on a number of points.  In addition, the court found that no domestic abuse had occurred during the marriage, and that appellant had abused the order for protection system by obtaining an OFP in order to gain an advantage in the marriage dissolution action. 

            The court also made detailed findings concerning the best interests of the children.  Although both parties were involved in the children's lives, the court determined that in the months leading up to the separation, respondent was more involved in the primary care-taking duties than appellant.  The court stated that appellant has a history of obtaining progressively more responsible employment positions with concomitantly increasing time demands.  The court noted that the GAL adopted the recommendation of the custody evaluator that respondent be granted physical custody of the children.  Based on the record and upon its findings of fact, the court awarded respondent sole physical custody of the children. 

            Following the issuance of the custody order, appellant moved the district court for amended findings and a new trial.  The district court issued an order granting in part and denying in part appellant's motion.  This appeal followed.        

D E C I S I O N

I.

            This court will not alter a finding of fact unless the finding is clearly erroneous.  Minn. R. Civ. P. 52.01.  Findings of fact are clearly erroneous only if the reviewing court is "left with the definite and firm conviction that a mistake has been made."  Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987).  "That the record might support findings other than those made by the trial court does not show that the court's findings are defective."  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).

            Appellant argues that the district court's application of the best interests factors, in light of its findings, leaves a definite and firm conviction that a mistake has been made because the court (1) erred by not placing substantial weight on respondent's improper conduct; (2) erred by not considering appellant's role during the parties' separation; (3) erred by finding that appellant obstructed respondent's parenting time; and (4) placed undue weight on the custody evaluator and GAL's findings. 

A.         Respondent's Conduct

            Appellant contends that the district court erred by not placing substantial weight on respondent's OFP violation and alcohol use.  We disagree.  Many of the district court's findings in this case were based on the testimony of the witnesses.  It is settled that "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses."  Minn. R. Civ. P. 52.01.  Reviewing courts generally affirm a district court's credibility determinations, since the district court is in the best position to assess the witnesses.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). 

            Here, the district court found the parties' testimony regarding the events surrounding the issuance of the OFP to be contradictory.  The court found that "respondent testified that [appellant] had admitted to him at one point in their marriage that she had obtained a questionable OFP against her first husband in order to induce him to divorce her, so she could marry respondent."  The court also found that "[appellant] admitted on cross-examination that she had represented to the court in her first marriage dissolution that she was not pregnant, but in fact, she was pregnant with [Z.D.R.]."  In addition, the court determined that appellant's assertions regarding the events of the "OFP" weekend were greatly exaggerated, and thus she abused the OFP process in order to gain a subsequent advantage in the custody proceeding.  The court stated that "although respondent was caught throughout trial in several inconsistencies, the Court finds his explanations of those inconsistencies to be credible."  The court acknowledged that even though respondent violated the OFP by entering the homestead at 4:00 a.m., respondent responsibly plead guilty to the OFP violation, and served his jail sentence.  Based upon credibility issues with appellant, the court found there had been no domestic abuse.

            After reviewing the record, we conclude that the district court did not abuse its discretion by declining to place substantial weight on respondent's OFP violation and alcohol use.  This is a close case, but the judge hit all the bases and made detailed findings.  The court specifically found that the events surrounding the OFP were greatly exaggerated and that the issuance of the OFP did not adversely affect the children.  Many of the district court's findings were based on the credibility determinations of the witnesses, and the district court is in the best position to make those determinations.  Finally, there is no support in the record for appellant's allegation that respondent has a problem with alcohol.

B.         Appellant's Role During the Separation

            Appellant also contends the district court erred by not considering her role as the primary caretaker during the parties' separation.  The relevant time for ascertaining which parent was the primary caretaker is at the time of the parties' separation.  LaValle v. LaValle, 430 N.W.2d 224, 228 (Minn. App. 1988) (citing Pikula v. Pikula, 374 N.W.2d 705, 714 n. 3 (Minn. 1985)).  "If there is lengthy litigation over custody, the events since the separation ‘are not only relevant, but indeed are crucial in determining the child's best interests.'"  Id. (quoting Sefkow, 427 N.W.2d at 212).

            The court found that appellant abused the domestic abuse process in order to gain an "advantage" in the dissolution proceedings.  The court also found that appellant obstructed respondent's parenting time.  The district court found that appellant was lax in her parental role by allowing the parties' daughter to "interrupt" appellant's "intimate behavior" with her new boyfriend.[1]  All of these events occurred after the separation.  After considering the facts and the testimony, the court determined that it was in the children's best interests to be in the custody of their father. 

            Again, the issue is close, but we conclude the district court did not incorrectly put appellant's moral standards at issue.  Rather, the court used factual determinations to assemble the parts of a best-interests-of-a-child test.  The district court's findings are supported by the record.

C.        Obstructionist to Parenting Time

            Next, appellant argues that the district court erred by finding that she obstructed respondent's parenting time.  The district court specifically found that that "[appellant] has shown a propensity to consistently interfere with and impede respondent's relationship with his children."  This finding is supported by the GAL's report that appellant was reluctant to allow the children to have a normal relationship with their father, and the GAL's assessment that appellant saw her boyfriend as an adequate replacement for respondent.  The district court's finding is further supported by the GAL's testimony that appellant would try to use babysitters when she was on out-of-town trips rather than permitting respondent to watch the children.  Once again, the district court's decision was heavily based on witness credibility; we conclude the court did not err in making its determinations.

D.        GAL and Custody Evaluator's Findings

            Finally, appellant argues that the district court placed undue weight upon the custody evaluator and GAL's findings.  The amount of weight to be given to the report of the GAL and the custody evaluator is within the sound discretion of the trial court.  Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991).  It is not an abuse of discretion to disregard either the report of the GAL or that of the custody evaluator, if the court makes its own independent findings on the statutory factors.  Id.  But it is certainly  not an abuse of discretion to look at, and give weight to the reports of GALs and custody evaluators when, by definition, they are supposed to be informed, objective, and of assistance to the district court.

            Here, the district court specifically referenced the GAL and the custody evaluator's backgrounds, concluding that both were "highly qualified, extremely professional and very credible."  The court relied in part on their reports in making its decision.  Put simply, although never binding, the district court has the power to regard custody recommendations as important and probative.  There is no evidence that the district court placed undue weight on the GAL and custody evaluator's findings.

II.

            Appellant argues that the district court committed reversible error by denying her request for an independent study evaluation.  Specifically, appellant argues that she was prejudiced by the results of the custody study conducted by Sherburne County Social Services because the GAL and the custody evaluator relied upon each others opinions and adopted respondent's untrue statements.  The decision whether to order a custody evaluation is with the discretion of the trial court and should not be reversed absent abuse of that discretion.  Meyer v. Meyer, 375 N.W.2d 820, 826-27 (Minn. App. 1985) review denied (Minn. Dec. 30, 1985). 

            Appellant got her day in court.  The district court allowed appellant to retain the services of Dr. James H. Gilbertson to conduct an independent evaluation.  The court did hear Dr. Gilbertson's testimony at trial.  Dr. Gilbertson had access to the reports and evaluations conducted by the GAL and the custody evaluator.  Dr. Gilbertson had access to the parties' children.  Interestingly, he declined to interview respondent or request an opportunity to observe respondent interact with his children.  With Dr. Gilbertson's testimony of record, we cannot conclude the court committed reversible error by denying appellant's request for what would be yet another custody evaluation.

III.

            Appellant claims that the district court committed reversible error by scheduling and hearing parts of the trial over the course of several months.  We disagree.  The lengthy split trial (not necessarily recommended) just happened that way because of scheduling.  It does not appear intentional on the part of any party or the court.  Both sides could claim equally they were helped or hindered by the split trial days.  There is no showing that it hindered one party more than the other in getting in their case.  There was a trial, it did take longer than normal, but on that alone, we cannot conclude there was reversible error.

            Affirmed.

 

 

 

 

 

           

[1]  The district court specifically noted that it was not making its determination solely based upon appellant's relationship with her new boyfriend, or the incident where the parties' daughter walked in on appellant and her boyfriend engaging in "intimate behavior."  See Hansen v. Hansen, 284 Minn. 1, 6, 169 N.W.2d 12, 15 (Minn. 1969) (stating that "the moral unfitness of the mother must be such as to have a direct bearing on the welfare of [the mother] child if she is to be deprived of custody").  However, the court stated that appellant's behavior specifically reflects on appellant's lack of empathy and lack of connection with her children.