In re the Marriage of: David Kent Bruechert, petitioner, Respondent, vs. Lisa Jane Bruechert, Appellant.

In re the Marriage of: David Kent Bruechert, petitioner, Respondent, vs. Lisa Jane Bruechert, Appellant. A04-1566, Court of Appeals Unpublished, December 6, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1566

 

In re the Marriage of:

 

David Kent Bruechert, petitioner,

Respondent,

 

vs.

 

Lisa Jane Bruechert,

Appellant.

 

Filed December 6, 2005

Affirmed

Gordon W. Shumaker, Judge

 

Ramsey County District Court

File No. F3-01-1458

 

 

Edward F. Kautzer, Ruvelson & Kautzer, Chartered, 1600 University Avenue West, Suite 510, Spruce Tree Centre, St. Paul, MN 55104; and

 

Beau D. McGraw, 600 Inwood Avenue North, Suite 200, Oakdale, MN 55128 (for appellant)

 

            Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Shumaker, Judge.

 

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

            Appellant-mother challenges the district court's order awarding joint legal custody of the parties' minor children and the valuation of the parties' marital assets.  Respondent challenges the district court's grant of sole physical custody to appellant.  Because the court's findings are adequately supported by the record and appellant failed to raise the property-valuation issue below, we affirm.

FACTS

By an amended judgment and decree of marriage dissolution entered June 25, 2004, the district court, through a referee of family court, awarded sole physical custody of the parties' three minor children to appellant Lisa Jane Bruechert; granted joint legal custody of the children; and divided the parties' real and personal property, including an award to respondent of a $59,436 nonmarital interest in the parties' homestead and $36,321 of nonmarital stock.

Among the court's findings of fact was that respondent had committed domestic abuse against appellant by physically assaulting her and had violated an order for protection on more than one occasion.

Appellant challenges the court's award of joint legal custody because of respondent's history of domestic abuse and disputes the court's valuation and division of property.  Respondent contends that the court abused its discretion by awarding sole physical custody of the children to appellant. 

 

D E C I S I O N

1.         Standard of Review

The district court has broad discretion in awarding custody of minor children.  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989).  On appeal of a custody award, review is limited to determining whether the 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).  This court will not reverse a custody award unless the findings are clearly erroneous.  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  And we view the evidence in a light most favorable to the district court's findings.  Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn. 1993).

2.         Joint Legal Custody

            At the commencement of the dissolution proceedings, each party sought joint legal custody of the children.  During the pendency of the matter, each decided instead to request sole legal custody.  Appellant's change of mind was precipitated largely because of respondent's domestic abuse that occurred on several occasions and ranged from terroristic threats to physical assault.  When domestic abuse has occurred between the parents of minor children, the district court "shall use a rebuttable presumption that joint legal or physical custody is not in the best interests of the child . . . ."  Minn. Stat. § 518.17, subd. 2 (2004).  Furthermore, when a court awards joint legal or physical custody over the objection of a party, it must make detailed findings on three statutory factors to show how and why it reached its determination that joint custody would be in the child's best interests: (1) the parents' ability to cooperate, (2) their methods for resolving disputes about matters that affect the child, and (3) whether it would be detrimental to the child if one parent had sole authority over his upbringing.  Id.    Although the court noted misgivings about respondent's attitude and behavior toward appellant, the court determined that, during the marriage, the parties agreed as to medical decisions regarding their son, who "has had significant multi-faceted medical problems since his birth"; that early in the dissolution process "both parents expressed a strong desire to share joint legal custody, and both parents emphasized the importance of their mutual involvement in decision-making"; that they did not have significant disagreements about the children during the marriage; that they have indicated their willingness in the past to work with a parenting-time expeditor and were doing so at the time of the trial; that they have in the past been able to "make a plan for the moral/religious rearing of the children"; that they have a history of willingness to work with neutral third parties in resolving disputes; that the parties' son's medical condition requires decision-making by both parents so that sole authority in one parent would be detrimental to the child; and that both parties have been very much involved in making decisions that affect the children's welfare, upbringing, and nurturing so that sole authority in only one parent would not serve the children's best interests.  All of these findings on the statutory factors that must be considered for an award of joint legal custody are supported by testimony and other evidence in the record that the court found credible.

            In essence, the court found that the parties historically have been agreeable decision-makers who have kept the best interests of the children foremost in their minds and whose communications lapsed only in the context of the acrimony of the dissolution.  But even then the court found that the parties recognized the importance of serving the children's best interests through cooperation and that they had successfully used the services of neutral third parties to resolve many of their conflicts.

            We find that the court meticulously considered and evaluated all factors pertinent to the joint legal custody award, based its evaluation on evidence in the record, and did not abuse its discretion in awarding joint legal custody.

3.         Sole Physical Custody to Appellant

Respondent does not dispute any of the district court's specific factual findings regarding physical custody but rather asserts that the district court abused its discretion by not explaining why it did not find the testimony and evaluation of Dr. Phipps-Yonas, an expert witness, credible. 

The caselaw is clear that this court is deferential to the district court's determination of witness credibility.  "We give district courts broad discretion precisely because they are in the best position to determine which witnesses are credible and to weigh the evidence."  Haefele v. Haefele, 621 N.W.2d 758, 763 (Minn. App. 2001) review denied (Minn. Feb. 21, 2001); see also County of Nicollet v. Haakenson, 497 N.W.2d 611, 615 (Minn. App. 1993) (stating that the appellate court must "defer to the [fact-finder's] assessment of credibility of witnesses and the weight to be given to their testimony") (quotations omitted).

Respondent argues that the district court was required to express its reasons for rejecting Dr. Phipps-Yonas's recommendations or to make detailed findings that examine the same factors contained in the custody report.  Respondent misapplies the law. 

In Rutanen v. Olson, 475 N.W.2d 100 (Minn. App. 1991), the district court did not follow the custody recommendation and it did not make findings regarding its rationale for rejecting the custody study.  Id.at 104.  This court affirmed, nonetheless, because the district court did provide detailed findings that reflected a complete analysis of the same factors concerning the children's best interests as the custody study had raised.  Id. 

The district court here has done even more than the court in Rutanen.  It provided a detailed analysis of all twelve factors required under Minn. Stat. § 518.17, subd. 1 (2004), and it analyzed the additional three factors under Minn. Stat. § 518.17, subd. 2, and it explicitly found Dr. Phipps-Yonas's testimony not credible.  The district court was not required to articulate why it did not find Dr. Phipps-Yonas's testimony credible; it was only required to provide detailed findings on the best-interest factors. 

Because this court gives broad deference to the district court's credibility determinations, and because the district court made specific findings as to why sole physical custody was appropriate, the court did not abuse its discretion in the sole physical custody award. 

4.         Property

Appellant argues that the district court clearly erred when it overvalued the homestead by including appellant's nonmarital equity contribution, and it undervalued the marital shares of 3M stock.  With regard to the homestead, appellant asserts that the court erred because it failed to take into account the monthly mortgage payments that appellant had been making since the separation on September 29, 2001.  On appeal, she argues that since that time she had been paying $861.46 per month towards the mortgage, and the district court divided the equity in the home as it existed on August 4, 2003, without giving her credit for those payments. 

Yet, appellant failed to raise this issue below.  The record is devoid of any evidence that would show appellant presented the issue of her mortgage payments to the district court.  Generally, this court will not consider matters not argued and considered in the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Because appellant failed to raise this issue below, and because the record is insufficient for a meaningful review of the issue, we decline to review the district court's division of property. 

Appellant next contends that the district court erred by improperly awarding respondent more premarital shares of 3M stock than he rightfully owns.  Appellant alleges that respondent sold 3M stock during the marriage and after the separation, but before the valuation date of September 26, 2002.  In her brief, she cites to the parties' 1998, 1999, and 2001 tax returns, which are not in the record.  Papers filed in the trial court, the exhibits, and the transcript of the proceedings constitute the record on appeal.  Minn. R. Civ. App. P. 110.01.  Because the documents to which appellant refers are not part of the record, we decline to review this issue.

            Affirmed.