In re the Marriage of: James Daniel Mitsche, petitioner, Respondent, vs. Sarah Ann Mitsche, Appellant.

This opinion will be unpublished and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

COURT OF APPEALS

A03-1601

 

In re the Marriage of:

 

James Daniel Mitsche, petitioner,

Respondent,

 

vs.

 

Sarah Ann Mitsche,

Appellant.

 

Filed April 27, 2004

Affirmed

Gordon W. Shumaker, Judge

 

McLeod County District Court

File No. F8-02-731

 

 

Michael R. Savre, Gavin, Olson, Savre & Winters, Ltd., 1017 Hennepin Avenue, Glencoe, MN 55336 (for respondent)

 

Peter J. Kasal, Keefe and Kasal, 720 Century Avenue S.W., Suite 101, Hutchinson, MN 55350 (for appellant)

 

            Considered and decided by Shumaker, Presiding Judge; Kalitowski, Judge; and Schumacher, Judge.             U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER, Judge

 

            Appellant argues that (1) the district court did not make adequate findings to provide a sufficient basis for appellate review, (2) the district court abused its discretion when it awarded sole physical custody of the parties' two children to respondent because the evidence does not support the district court's findings as to who was the primary caregiver, (3) the record does not support the finding that respondent is more supportive of the children's parental access, (4) the district court did not give adequate weight to the children's health problems in considering the best interests of the children, and (5) that the district court's findings do not support its conclusions of law.  Because the district court's findings are sufficient for meaningful review, the record supports the findings, the children's health problems were weighed, and the findings support the conclusions of law, we affirm.

FACTS

 

          Appellant Sarah Mitsche and respondent James Mitsche were married on August 13, 1994.  During the marriage, the appellant was a stay-at-home mother while respondent's employment required him to work twelve-hour shifts on an alternating schedule of three days on and two days off.  Both parents and other family members took care of the children. 

The marriage was dissolved by judgment and decree on October 14, 2002, with custody reserved pending a custody evaluation and hearing.  On August 25, 2003, the parties were awarded joint legal custody and respondent was awarded sole physical custody.  This appeal followed.

D E C I S I O N

 

The district court has broad discretion when determining custody of children.  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989).  Our review of a custody determination is limited to whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996).  The district court's findings of fact will not be set aside unless clearly erroneous and due regard shall be given to the opportunity of the district court to judge the credibility of the witnesses.  Minn. R. Civ. P. 52.01.  In deciding whether a district court's findings are clearly erroneous, we must view the record in the light most favorable to those findings.  Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn. 1993).  Current law "leaves scant if any room for an appellate court to question the trial court's balancing of best-interests considerations" when it awards custody.  Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000). 

1.         Findings

Appellant argues that the findings are inadequate and insufficient for appellate review because they are "replete with instances where the court simply recited what a party had ‘reported' or ‘maintained' or ‘testified'" and there are at least nine findings that have no support in the record.  Appellant also argues that because the district court's conclusion differs from the custody evaluator's recommendation, there is an enhanced need for particularized findings.  When a district court prefaces its statements with phrases such as "petitioner claims," "according to petitioner's application," and "respondent asserts," it is not making true findings but merely reciting the parties' claims. Dean v. Pelton, 437 N.W.2d 762, 764 (Minn. App. 1989).  And where, as here, a district court's custody determination is contrary to the recommendation of a custody study, there is an enhanced need for particularized findings.  Lawver v. Lawver, 360 N.W.2d 471, 473 (Minn. App. 1985).  But when a district court conducts a thorough best-interest analysis, it does not abuse its discretion when it awards custody contrary to the recommendation of custody report without specific findings explaining its rationale for rejecting the recommendation.  Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991).

Although the district court must consider all the factors listed in Minn. Stat. § 518.17, subd. 1(a) (2002), the court need not make specific findings on each and every factor.  Schultz v. Schultz, 358 N.W.2d 136, 138 (Minn. App. 1984).  Furthermore, a district court may cite testimony to show what it considered in making its affirmative findings.  Dean, 437 N.W.2d at 764.  Here, the district court did not cite the parties' claims at all in factors 1, 2, 7, 11, and 12.  In factors where the district court did cite the parties' claims, the references to those claims support affirmative findings.  For example, in factor 3 the district court stated:

There was conflicting evidence presented as to who was the primary caretaker of the children….the child investigator concluded from her investigation that the [appellant] had been the primary caretaker of the children.  However, the [respondent] presented substantial evidence that when he was home from work, he would spend considerable amounts of time caring for the children.  Also there were periods of time during the parties' marriage when the [appellant] was neglectful of the children and would spend long hours on the Internet or phone communicating with other persons.  The custody evaluator reports that the unreasonable Internet and phone usage was due to situational depression that the respondent is now treating with a counselor.  This court concludes that both parties have at times during the marriage have been primary caretaker depending on the availability or willingness of each parent to take on their parental duties.  The court does not find that only one party was the primary caretaker during the marriage.

 

This was typical of the essential findings, and we conclude that the district court made sufficient affirmative findings for appellate review. 

2.         Primary Caretaker

            Appellant argues that the record does not support the district court's finding "that neither party was the primary caretaker."  The primary caretaker is the parent who has taken primary responsibility for the child's care since birth.  Pikula v. Pikula, 374 N.W.2d 705, 713 (Minn. 1985).  Which parent was the primary caretaker is to be determined as of the time of the separation of the parties.  Sefkow v. Sefkow, 427 N.W.2d 203, 211 (Minn. 1988).  The factors in making this determination include in relevant part, consideration of which parent (1) prepared meals; (2) provided baths, grooming, and dressing of the child; (3) purchased, cleaned, and cared for children's clothes; (4) provided medical care, including trips for medical treatment; (5) arranged for social interaction among the child's peers after school; (6) arranged alternative care for the child; and (7) put the child to bed at night, attended to the child in the middle of the night, and woke the child in the morning,  Pikula, 374 N.W.2d at 713.  When the facts demonstrate that both parents shared responsibility for and performance of childcare in an entirely equal way, then no preference arises.  Id. at 710. 

Here the record includes a custody evaluation which states that (1) respondent was "an active parent," (2) the parties shared household tasks, including cleaning, cooking, and laundry, (3) in addition to both parents, numerous other adults were care givers for the children, and (4) respondent "enjoys outdoor activities and fishing with his son."  The custody evaluation and other evidence in the record also show that appellant suffered from "situational depression" and "spent a lot of time on the computer… [and] was depressed and slept excessively . . . and that [appellant's] quality of child care diminished temporarily."  Respondent and appellant's family testified that respondent had assumed a number of child-care duties when he was not working, and appellant concedes in her brief that while the evidence at trial shows that she was the stay-at-home mother while respondent worked two jobs, "there was also evidence that [respondent] helped provide care-taking for the children when he wasn't working." 

Appellant does not challenge the respondent's testimony that he provided

care for the children when he wasn't working, and that a majority of the time after he got off of work he would make supper, do the dishes, and maybe start a load of laundry . . . that bathing the children was shared, that he would put the children to bed a majority of the time if he wasn't working, and that he would put the children to bed on his days off of work.

 

Working parents have been found to be primary or equal caretakers in a number of cases, even where the mother has been a traditional homemaker.  See Pekarek v. Pekarek, 384 N.W.2d 493, 496 (Minn. App. 1986) (stating that an equal parenting situation was found where the father claimed to have cooked meals, washed dishes, done laundry, transported the children to activities and shared an equal role in "babysitting"); see also Regenscheid v. Regenscheid, 395 N.W.2d 375, 379 (Minn. App. 1986) (awarding custody to the father where father testified that he provided help with school work, discipline, recreation and arranging day care and babysitting), review denied (Minn. Dec. 23, 1986)  Here, and contrary to appellant's assertion, the district court stated "[t]here was conflicting evidence presented as to who was the primary caretaker of the children."  The district court noted that the custody investigation determined that "the [appellant] had been the primary caretaker of the children."  But the court weighed this with the "substantial evidence that when he was home from work, [respondent] would spend considerable amounts of time caring for the children" and that "there were periods of time during the parties' marriage when the appellant was neglectful of the children and would spend long hours on the Internet or phone." 

Because due regard shall be given to the opportunity of the district court to judge the credibility of the witnesses and a review of the record in the light most favorable to the findings shows that the record supports the district court's findings, we conclude that appellant has not carried her burden to show that the findings are clearly erroneous on this issue.  Thus, we affirm the district court's ruling as to primary caretaker.

3.         Supportiveness of Parent/Child Relationship

Appellant argues that the record does not support the district court's finding that she would not be as supportive of the children's access to respondent as he would be of their access to her.  Appellant contends that (1) she is willing to cooperate with respondent, (2) she thinks the children need to see their father and acknowledges the children love their father, and (3) that since May of 2002 while the parties shared custody, there was not a "single incident where [she] interfered with [respondent's] right to communication or visitation with the children."  Appellant concedes that she refuses to allow respondent's wife to be present at school conferences.  Appellant also contends that she should not be penalized for appellant's father's conduct when he would not allow respondent to pick up the children.  When making custody determinations under Minn. Stat. § 518.17 (2002), the district court is to consider several factors including "the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child."  Minn. Stat. § 518.17, subd. 1(13).  However, the district court may not rely on "one factor to the exclusion of all others."  Minn. Stat. § 518.17, subd. 1(a). 

The record supports the district court's findings that (1) in December 2002, respondent secured a restraining order against appellant that was currently in place at the time of the trial (2) in February 2003, appellant refused to allow the children's step-mother to participate in a parent/teacher conference on respondent's behalf, and (3) in December of 2002, appellant's father refused to allow the respondent to pick up the children and threatened to call the police.  The district court concluded that these circumstances indicate that appellant and members of her family are not as supportive of the respondent's relationship with the children as respondent is supportive of the appellant's relationship.

Appellant does not point to any evidence to show that respondent's disposition is other than as the court found, and the record does not show that appellant discourages her father from not allowing respondent to pick up the children.  Thus, we conclude that appellant has not carried her burden to show the district court's findings are clearly erroneous.  Because the district court's findings are supported by the record and are not clearly erroneous, we affirm the district court.

4.         Children's Physical Health Problems.

Appellant argues that the district court should have accorded more weight to the children's numerous health issues and the effect respondent's smoking may have on their health.  The health issues include common childhood ailments such as "ear infections, asthma, allergies, sinus problems and eye problems . . . colds, infections, and coughs" and are experienced primarily by the oldest child.  The custody evaluation notes that respondent is a heavy smoker.  Appellant concedes that her claim that respondent's smoking is the cause of the children's health issues is not medically established.  Here, the district court did consider the respondent's smoking and stated in its memorandum of law that

there was evidence that the [respondent] and his new wife are smokers.  [Respondent] testified that he always smokes outdoors and that this was his habit when the family lived with [appellant's] parents.  The Court presumes that the children are subjected to second hand smoke from time to time.  While there was no specific evidence on this presented at trial, the Court is aware and believes that second hand smoke can be harmful to others, especially children.

 

The court also correctly noted that this jurisdiction has not yet addressed the subject of considering parental smoking and looked to other jurisdictions for guidance.  The court concluded "the negative aspect of the [respondent's] smoking is more than offset by the positive things he has to offer the children by having them in his physical custody."  

However, even if this factor weighed in favor of an award of custody to appellant, the district court may not rely on "one factor to the exclusion of all others."  Minn. Stat. § 518.17, subd. 1(a).  Given there is "scant if any room" for an appellate court to question the trial court's balancing of best-interests considerations, the absence of evidence to indicate respondent's smoking directly caused or contributed to the children's health issues, and the detailed statements considering and discussing respondent's smoking, we conclude that the appellant has not carried her burden to show that the district court failed to appropriately weigh the effect of respondent's smoking with respect to the best interests of the children.

5.         Conclusion of Law

Appellant argues that the findings fail to support the conclusion of law that respondent should be awarded full physical custody.  In addition to the findings already discussed, the district court made the following findings in support of its conclusion.  Specifically, the district court found that (1) "[s]on [N.M.], especially prefers to be with the [respondent], because  [respondent] does things with him," (2) "[respondent's] new wife . . . has already established a strong bond with both N.M. and [A.M.] . . . and the children's [maternal] grandmother is amazed how close [the stepmother] and the children already are," (3) respondent's "marriage partnership appears to be a close and loving arrangement that will be an ongoing benefit for the children," (4) appellant "has been dating a man for the past year, but little is known about him or how he relates to the children," and noted that appellant failed to provide the court with any detailed information about her male friend other than to provide his name and maintain he is not living with her, (5) respondent's "new job no longer requires him to work night shifts or Sundays," (6) appellant is "unemployed since January 2003," (7) appellant "has a demonstrated history of compulsive use of the telephone and Internet . . . and in addition to the use of Internet chat rooms . . . staying up to 3 AM chatting . . . chronically too tired to get up in the morning to take care of the kids . . . fail[ing] to get [the son] off to school in the morning," (8) no evidence was presented to the court from appellant's counselor regarding her progress, (9) appellant's mother . . . found [the baby] crawling in dog feces . . . [while appellant] was still sleeping following a long night on the computer," (10) appellant's sister-in-law also found appellant on more than one occasion "sleeping on the couch" with "a dog mess on the floor, the door locked" when she went to pick her own child up from appellant's care, (11) appellant was convicted in 2002 of theft and in 1996 for falsely reporting that she was a victim of a robbery, (12) appellant has had a difficult time getting along with her parents, (13) appellant "has exhibited an inability to hold a job or to stay current with her bills" during the marriage and is presently behind on two credit cards, (14) although appellant "is currently unemployed and the phone company has been threatening to discontinue service, the [appellant] continues to spend over $250 per month, on average, on telephone calls and Internet access," and (15) respondent "was employed throughout the marriage, earning a reputation for never missing work . . . [and] now works a more family friendly 40 hour per week schedule  His workday ends at 6 PM, allowing him to spend his evenings with his family."  Because the record supports the findings, which are detailed and numerous, and the findings provide a sufficient nexus to establish and support the district court's conclusion that respondent be awarded full physical custody, we affirm. 

Affirmed.