In re the Matter of: Bernard L. Soyring, et al., petitioners, Appellants, vs. Bernard Soyring, II, Respondent, Michelle Ladue a/k/a Michelle Gettel, 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This opinion will be unpublished and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

A03-1812

 

In re the Matter of:

 

Bernard L. Soyring, et al., petitioners,

Appellants,

 

vs.

 

Bernard Soyring, II,

Respondent,

 

Michelle Ladue a/k/a Michelle Gettel,

Respondent.

 

Filed July 13, 2004

Reversed and remanded

Gordon W. Shumaker, Judge

 

Becker County District Court

File No. F8-02-583

 

 

 

Richard E. Ziegler, 1009 Lake Avenue, P.O. Box 1026, Detroit Lakes, MN 56502 (for appellants)

 

Bernard Soyring, II, 1608 Pleasant Avenue, Waubun, MN 56589 (pro se respondent)

 

Peter W. Cannon, P.O. Box 480, Mahnomen, MN 56557 (for respondent Gettel)

 

 

Considered and decided by Peterson, Presiding Judge; Shumaker, Judge; and Anderson, Judge.

 

U N P U B L I S H E D   O P I N I O N

                                   

GORDON W. SHUMAKER, Judge

 

            On appeal in this custody dispute, appellant grandparents argue that grave and weighty reasons show that it is in the best interests of the grandchildren to award custody to the grandparents rather than to respondent-mother.  Because this is an ostensible modification of a 1995 order granting custody to respondent-mother, the district court abused its discretion by deciding this matter as an original custody determination, and we reverse and remand.

FACTS

 

            Respondents Michelle Gettel and Bernard Soyring II (Bernie) are the natural parents of B.S., born February 9, 1993, and S.S., born June 3, 1994.  Appellants Bernard Soyring I (Bernard) and Lois Soyring are Bernie's parents. 

Gettel and Bernie were never married.  They lived together in South Dakota with B.S. and S.S. before moving to Minnesota.  On September 18, 1995, a South Dakota district court granted Gettel primary physical custody of B.S. and S.S.  Currently, all parties reside in Minnesota. 

B.S. and S.S. have lived with appellants since the end of February 2000.  At that time, Gettel brought the children to appellants' home because she was moving out of the school district and did not want to move the children during the school year.  A South Dakota district court issued temporary orders on June 9, 2000, and February 6, 2001, awarding appellants physical custody of the children until further order of the court, subject to reasonable visitation with Gettel and Bernie. 

On April 8, 2002, appellants petitioned in Minnesota for sole physical custody of the children.  Gettel served an answer and counterpetition asking the court to award her physical custody of the children subject to reasonable visitation with appellants and Bernie.  Bernie served an answer and counterpetition asking the court to award appellants physical custody of the children or, in the alternative, to award him physical custody subject to reasonable visitation with appellants and Gettel.  

            The district court heard testimony from all parties as well as from a guardian ad litem, a psychologist, the children's teacher, a pastor, and friends of each party.  The guardian ad lidem and the psychologist provided reports, and the children's school records were also made part of the record.  The district court found that appellants did not raise "grave or weighty" reasons why Gettel should not have custody of B.S. and S.S. and awarded custody to Gettel, subject to reasonable visitation with Bernie and appellants.  This appeal followed.

D E C I S I O N

 

Appellants argue that there are "grave and weighty" reasons why the district court should have awarded them physical custody of their grandchildren.  Our review of a district court's custody determination is limited to determining whether the district court abused its discretion by making findings that are unsupported by the evidence or by improperly applying the law.  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996).  An appellate court will not reverse a custody determination unless the district court abused its discretion.  Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn. 1990). 

At oral arguments, the parties agreed that the district court decided this matter as an original custody determination.  In so doing, the district court cited In re Custody of N.A.K., 649 N.W.2d 166, 175 (Minn. 2002) (holding that the presumption of awarding custody to a natural parent over a nonparent can be overturned if there are grave and weighty reasons to separate the children from the children's natural parent).  The district court also considered "all relevant factors in determining the best interests of the child."  See Minn. Stat. § 518.17, subd. 1 (Supp. 2003) (including the reasonable preference of the child; child's primary caretaker; the child's adjustment to home, school, and community; and the length of time the child has lived in a stable environment).[1]

However, because this is a modification of the 1995 South Dakota order awarding custody to Gettel, the district court is required to apply the modification factors, namely, whether (1) there has been a change in circumstances of the child or the parties since the last custody order; (2) a modification serves the best interests of the child; (3) the present environment endangers the child; and (4) the advantages of modification outweigh the harm caused by the change in custody.  Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981) (addressing application of Minn. Stat. § 518.18); see also Minn. Stat. § 518.17, subd. 1(a) (Supp. 2003) (listing 13 best-interests factors); Minn. Stat. § 518.18(d) (2002) (stating that the court should also consider the degree to which the child has integrated into the family of the petitioner with the consent of the other party); In re Weber, 653 N.W.2d 804, 809 (Minn. App. 2002) (stating that burden is on the moving party to establish the factors).  This court has also recognized that Minn. Stat. § 518.18 incorporates the two basic doctrines in determining custody between a parent and a third party: that a non-parent may show that a natural parent is unfit to have custody and overcome the presumption in favor of the natural parent by showing "grave and weighty" reasons and the "overriding consideration" of the child's best interests.  Westphal v. Westphal, 457 N.W.2d 226, 229 (Minn. App. 1990).  "Thus, . . . the importance of considering the child's best interest does not allow a court to remove custody from a parent to nonparents based only on the application of the best interest standard. The court must find that the child's custody endangers the child."  Id.[2]Accordingly, we reverse and remand for the district court to decide this matter on the basis of the factors that must be considered for a custody modification. 

Reversed and remanded.

 

[1] On August 1, 2002, Minnesota Statutes Chapter 257C, regarding custody petitions filed by "de facto custodians" and "interested third parties," became effective.  See Minn. Stat. § 645.02 (2002 (stating statutes effective on August 1 after enactment, unless different date is specified in act); 2002 Minn. Laws ch. 304 (enacting Chapter 257C and not specifying an effective date).  Generally, appellate courts address only questions presented to, and considered by, the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Here, the parties did not argue, and the district court did not address, theapplicability of Chapter 257C.  Therefore, we decline to address the possible applicability of Chapter 257C here.

[2]  In N.A.K., the supreme court recited the third-party custody standard set out in Wallin v. Wallin, 290 Minn. 261, 187 N.W.2d (1971), and the rule set out in In Re Hohmann, 255 Minn. 165, 168-69, 95 N.W.2d 643, 646-47 (1959), for cases involving custody disputes arising after the custodial parent has died.  N.A.K., 649 N.W.2d at 174-75.  In a footnote, the supreme court questioned the applicability of Minn. Stat. § 518.18 (1998) "where one party to the marital dissolution decree is deceased and a third party is now involved."  Id. at 177 n.10.  This case, however, does not involve a deceased parent.  On this record, we decline to expand the supreme court's specific concerns to cases that do not involve the death of a custodial parent.