In re the Marriage of: Nuro B. Dedefo, petitioner, Appellant, vs. Bontu Bullo Gada, Respondent.

In re the Marriage of: Nuro B. Dedefo, petitioner, Appellant, vs. Bontu Bullo Gada, Respondent. A05-1905, Court of Appeals Unpublished, May 16, 2006.

This opinion will be unpublished and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

A05-1905

 

 

In re the Marriage of:

Nuro B. Dedefo, petitioner,

Appellant,

 

vs.

 

Bontu Bullo Gada,

Respondent.

 

 

Filed May 16, 2006

Affirmed

Dietzen, Judge

 

Hennepin County District Court

File No. DC 287695

 

 

Nuro B. Dedefo, 11819 Fillmore Street Northeast, Blaine, MN 55434 (pro se appellant)

 

Constance S. Baillie, Central Minnesota Legal Services, 430 First Avenue North, #300, Minneapolis, MN 55401 (for respondent)

 

            Considered and decided by Worke, Presiding Judge; Dietzen, Judge; and Collins, Judge.*

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

Appellant challenges the district court judgment awarding respondent sole physical and legal custody of the parties' younger children and establishing his child-support obligation, arguing that the district court abused its discretion by (1) failing to consider the best interests of the children; (2) refusing to depart downward from the child-support guidelines; and (3) adopting respondent's proposed order verbatim.  We affirm.

FACTS

            Appellant Nuro Bedaso Dedefo and respondent Bontu Bullo Gada married in November 1988 in Ethiopia.  In 1998, the parties moved to Minnesota and had two children, M.B., born March 6, 2003, and A.B., born February 25, 2004.  Appellant has two minor children from a previous relationship, J.B., born January 26, 1989, and F.B., born March 12, 1990, who respondent adopted.  The parties separated after respondent, pregnant with A.B., left the marital home with five-month old M.B.  In October 2003, appellant filed for dissolution. 

            Prior to the dissolution proceeding, the parties agreed that appellant would have sole legal and physical custody of the two older children.  Based on interviews and home visits with each party, the custody evaluator analyzed the "best interests" factors in Minn. Stat. § 518.17 and recommended that respondent be granted sole legal and physical custody of M.B. and A.B.  Appellant moved for a second custody evaluation, arguing that the custody evaluator was personally biased against him.  The district court denied the motion, finding that the first evaluation was "lengthy and detailed[,]" and that appellant failed to demonstrate personal bias in the evaluation.  

On the first day of trial, the parties stated their intent to call additional witnesses.  The district court refused to allow additional witnesses because the parties, without good cause, failed to submit witness lists pursuant to a pretrial order.  Only appellant, respondent, and the custody evaluator were permitted to testify during the parties' cases-in-chief. 

Appellant's testimony emphasized his accomplishments, including his position as a High Court President in Ethiopia and his receipt of a law degree in the United States.  Appellant testified that he was the primary caretaker of M.B. and A.B., but admitted that his mother "mostly" took care of M.B. prior to the parties' separation and did not testify to performing any tasks associated with child care.  Appellant also testified to a gross income of $85,000, a net monthly income of $4,000; and to his household expenses, which included a personal allowance, a recreation and entertainment allotment, and extracurricular activity funds for the two older children. 

Respondent testified that, consistent with the parties' Oromo culture, she was the primary caretaker of M.B. and A.B.  Respondent admitted that appellant's mother cared for M.B. during the day for a few months while respondent worked, but testified that the children have attended daycare since the separation.  She testified that no one else from appellant's family provided care for M.B., and that A.B. never lived with appellant or the older siblings.  Respondent stated that she intended to teach the children Oromo religion and culture.  Respondent documented that she earned $1,985.16 in 2004. 

For rebuttal, appellant requested that his mother be allowed to testify that she was the primary caretaker for M.B. and that his two older children be allowed to testify regarding respondent's poor parenting abilities.  Respondent requested that she be allowed to call her friends to testify to her parenting skills.  The district court permitted appellant's mother to testify that she cared for M.B. while the parties were residing together, but she admitted that respondent assumed the care of M.B. when respondent returned from work.  The district court denied appellant's request to call his two older children and denied respondent's request to call other witnesses to testify on the basis that the testimony would be cumulative. 

Following trial, the district court granted appellant sole legal and physical custody of the two older children pursuant to the parties' agreement, granted respondent sole legal and physical custody of M.B. and A.B. subject to appellant's parenting time, and ordered appellant to pay $1,200 per month for the support of M.B. and A.B.  The district court denied appellant's motions for amended findings, a new trial, and review.  This appeal follows. 

D E C I S I O N

I.

Appellant challenges the district court's determination that granting respondent sole legal and physical custody of M.B. and A.B. is in the children's best interests.  

A.        Best Interests

            A district court has broad discretion to provide for custody of the parties' children.  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989).  An appellate court's review of custody determinations is narrow and "limited to whether the [district] court abused its discretion by making findings unsupported by the evidence or improperly applying the law."  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996) (quotation omitted). 

            The district court's determination must be primarily based on the best interests of the child.  See Pikula v. Pikula, 374 N.W.2d 705, 711 (Minn. 1985) (observing that "[t]he guiding principle in all custody cases is best interests of child").  "[C]urrent law leaves scant if any room for an appellate court to question the [district] court's balancing of best-interests considerations."  Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000).  When considering the best interests of the child, the district court must make detailed written findings that reflect the court's consideration of factors set forth in Minn. Stat. § 518.17, subd. 1(a).  Rogge v. Rogge, 509 N.W.2d 163, 165 (Minn. App. 1993), review denied (Minn. Jan. 28, 1994).  A district court's findings of fact will be sustained unless they are clearly erroneous.  Pikula, 374 N.W.2d at 710.  A district court's finding of fact is clearly erroneous if the reviewing court is "left with the definite and firm conviction that a mistake has been made."  LaChapelle v. Mitten, 607 N.W.2d 151, 160 (Minn. App. 2000), review denied (Minn. May 16, 2000) (quotation omitted). 

            Here, the district court considered each of the statutory factors for determining the best interests of the children under Minn. Stat. § 518.17, subd. 1 (2004).  On appeal, appellant challenges the district court's findings on three of the factors. 

            Primary Caretaker

 

            Appellant claims that the record does not support the district court's finding that respondent is the primary caretaker of the two younger children, contending that respondent did not have a "bigger role" in caretaking than the rest of his family.  Appellant argues that, consistent with Oromo custom and tradition that "it takes a village to raise a child," it is the family that is the primary caretaker. 

Minnesota law provides that the primary caretaker is "the person who provides the child with daily nurturance, care and support."  Pikula, 374 N.W.2d at 711.  "[A] primary caretaker finding is still expected unless performance of child care is shared in ‘an entirely equal way.'"  Id. at 713-14.  Here, the district court found that respondent was the primary caretaker because she performed the physical care and supervision of M.B. and A.B.  The record supports the district court's finding.  Respondent's testimony and the custody evaluation indicated that respondent was responsible for direct daily care of the younger children, and appellant's testimony did not indicate that he performed any daily child-care tasks. 

Interaction and Interrelationship of the Siblings

Appellant next argues that the district court abused its discretion by finding that a split-custody arrangement between the older and younger siblings was in their best interests.  Although split custody is not generally favored,the supreme court has approved split custody in appropriate circumstances.  E.g., Sefkow v. Sefkow, 427 N.W.2d 203, 215 (Minn. 1988).  "Other factors, such as bonding to a parent and stability of the home environment, outweigh the need for [sibings] to reside together."  Id. at 215; see also Kennedy v. Kennedy, 403 N.W.2d 892, 898 (Minn. App. 1987) (holding no abuse of discretion where court chose not to separate infant child from his mother, but found it best for the older children to be together in their father's custody). 

The district court concluded that it was in the younger children's best interests to have contact with their older siblings, but that these interests would be satisfied by contact during appellant's parenting time.  The court found "no testimony or offer of proof that showed the older siblings had any closer relationship to the younger children than aunts or uncles might have."  The record supports the district court's finding.  Respondent testified that the older siblings were not actively involved in M.B.'s care for the limited time that they resided together, and that A.B. never lived with the older siblings.  And the custody evaluation noted that both sibling groups were settled and established in their respective homes. 

Cultural and Religious Background

Appellant argues that the record does not support the district court's finding that respondent is better able to teach the younger children about their culture and religion.  The district court found that both parties value their Oromo culture and Muslim religion, but that respondent is "the better parent for the children to teach them their Oromo culture and to guide them in their American life."  These findings are supported by the record.  Respondent testified to her desire to teach the children about Islam and Oromo culture; and the custody evaluation indicated that appellant is less able to teach his children both Oromo and American traditions.  

In summary, the district court's 18-page order addressed each of the statutory factors and is adequately supported by the record.  Consequently, the district court did not abuse its discretion by awarding sole physical and legal custody of M.B. and A.B. to respondent. 

B.        Evidentiary Rulings

            Appellant contends that the district court abused its discretion by refusing to order a second custody evaluation because the custody evaluator was personally biased against him.  The decision whether to order a custody evaluation is discretionary with the district court.  Meyer v. Meyer, 375 N.W.2d 820, 826 (Minn. App. 1985), review denied (Minn. Dec. 30, 1985).  Custody evaluations must consider and evaluate the best-interests factors in section 518.17, subdivision 1, and include a detailed analysis of all information considered in each factor.  Id., subd. 2 (2004). 

            Here, the district court concluded that the custody evaluation in question was thorough and did not show evidence of personal bias against appellant.  The record supports this determination.  The custody evaluator addressed each of the statutory factors in Minn. Stat. § 518.17, subd. 1.  The evaluator was subject to cross-examination, which afforded appellant the opportunity to respond to any adverse findings or expose any biases in the evaluation.  Cf. Scheibe v. Scheibe, 241 N.W.2d 100, 100 (Minn. 1976) (stating that party is entitled to a new hearing if custody decision is based in part upon a custody-evaluation report without an opportunity to cross-examine the author).  And although the evaluator's recommendations are adverse to appellant, any bias that appellant reads into the report is not apparent from the record.  See Ag. Servs. of Am., Inc. v. Schroeder, 693 N.W.2d 227, 236-37 (Minn. App. 2005) (adverse rulings are not a basis for imputing bias).  Consequently, the district court did not abuse its discretion in denying appellant's request for a second custody evaluation. 

            Appellant contends that the district court abused its discretion by refusing to allow the older children to testify as rebuttal witnesses about their relationship with the younger siblings.  "Procedural and evidentiary rulings are within the district court's discretion and are reviewed under an abuse-of-discretion standard."  Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001), review denied (Minn. Oct. 24, 2001).  Broad discretion must be left to the district court to enforce calendar rules and deadlines.  Hous. & Redev. Auth. v. Kotlar, 352 N.W.2d 497, 499 (Minn. App. 1984). 

            In his offer of proof, appellant stated that the older siblings would testify against respondent by confirming her parental unfitness.  It is self-evident that allowing children to testify against one parent to bolster the claims of another parent is antithetical to the "best interests" focus of custody proceedings.  See Minn. Stat. § 518.166 (2004) (judges may interview children about their custodial preference); 9A Uniform Laws Annotated, Comment to Uniform Marriage and Divorce Act § 404 cmt. (purpose of interview is to let judge learn custodial preference without "subject[ing] the child to the formality of the courtroom and the unpleasantness of cross-examination").  Because appellant failed to disclose the older children as witnesses on the witness list, it was within the discretion of the district court to deny appellant's request to call them as rebuttal witnesses.  On this record, it was not an abuse of discretion to exclude the older siblings' testimony. 

II.

            Appellant argues that the district court abused its discretion when it refused to depart downward from the child-support guidelines despite appellant's expenses related to the two older children.  A district court has broad discretion to provide for the support of the parties' children.  Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002).  A district court abuses its discretion when it sets support in a manner that is against logic and the facts on the record or misapplies the law.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). 

            Minn. Stat. § 518.551 (2004) sets out guidelines for child support based on the net monthly income of the non-custodial parent.  When setting support in a split-custody arrangement, the district court is required to determine the child-support obligation of each party for the children in the other party's physical custody; and calculate a net support payment for the party with the higher obligation by offsetting the obligations against each other.  Sefkow, 427 N.W.2d at 216-17.   

            Here, the district court found that appellant has the ability to pay guideline child support, but respondent does not.  The district court did not deviate from the guidelines in applying the split-custody formula, finding appellant's monthly child support payment to be $1,200.  The record supports this determination.  Appellant testified that his net monthly income is $4,000; thus, as the non-custodial parent of two children, he is obligated under the guidelines to allocate 30% of his net monthly income, or $1,200, to child support.  Minn. Stat. § 518.551, subd. 5(b).  Respondent had an annual income of $1,985.16, or a monthly income of $165.  Based on this monthly income, the district court had discretion under the guidelines to set respondent's child support obligation at $0.  Id.  Offsetting respondent's guidelines child-support obligation of $0 with appellant's obligation of $1,200 results in a child-support payment of $1,200 under the split-custody formula.

           

Appellant, nonetheless, argues that he was entitled to a downward departure from the child-support guidelines based on the expenses he incurs supporting the two older children.  Appellant relies on two cases to support this argument.  Mancuso v. Mancuso, 417 N.W.2d 668, 673 (Minn. App. 1988) (reversing child support award strictly applying the statutory guidelines where it resulted in a substantial monthly shortfall and caused hardship for obligor's four custodial children); see Linderman v. Linderman, 364 N.W.2d 872, 875-76 (Minn. App. 1985) (declining to award child support to either party in a split-custody arrangement because of adequate resources of each parent).  But these cases are distinguishable.  Here, unlike Linderman, the district court found that respondent did not have adequate resources to support M.B. and A.B. without appellant's child support, and this finding is supported by the record.  And in contrast to Mancuso, the district court did not find, and there is no evidence in the record, that appellant's child support payment created a monthly shortfall between his necessary expenses and income. 

Because the record supports the district court's finding that application of the child support guidelines was appropriate and deviation from the guidelines was unwarranted, the court did not abuse its discretion in setting the child-support award. 

III.

            Appellant also argues that the district court abused its role as an impartial fact-finder by adopting respondent's proposed findings of fact, conclusions of law, and order.  "[V]erbatim adoption of a party's proposed findings and conclusions of law is not reversible error per se."  Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review
denied (Minn. Feb. 12, 1993).  If the record supports the findings and shows that the district court considered all of the issues, such findings are not improper.  Bersie v. Zycad Corp., 417 N.W.2d 288, 292 (Minn. App. 1987), review denied (Minn. May 5, 1988).  Here, the record supports the district court's findings and conclusions.  Thus, the district court did not err by adopting respondent's proposed order.

            Affirmed.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.