In re the Marriage of: Randall M. Johnson, petitioner, Respondent, vs. Deidre C. Johnson, Appellant.

In re the Marriage of: Randall M. Johnson, petitioner, Respondent, vs. Deidre C. Johnson, Appellant. A06-60, Court of Appeals Unpublished, August 29, 2006.

This opinion will be unpublished and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

A06-60

 

 

In re the Marriage of:

 

Randall M. Johnson, petitioner,

Respondent,

 

vs.

 

Deidre C. Johnson

Appellant.

 

 

Filed August 29, 2006

Affirmed

Randall, Judge

 

Hennepin County District Court

File No. DC 291684

 

 

Kathleen M. Picotte Newman, Joani C. Moberg, Larkin Hoffman Daly & Lindgren, 1500 Wells Fargo Plaza, 7900 Xerxes Avenue South, Minneapolis, MN 55431(for appellant)

 

Robert W. Due, Susan A. Daudelin, Katz, Manka, Teplinsky Due & Sobol, Ltd., 225 South Sixth Street, Suite 4150, Minneapolis MN 55402

 

 

Considered and decided by Lansing, Presiding Judge; Randall, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

In this dissolution appeal, appellant-mother challenges the district court's determination on custody, arguing that the court-appointed custody evaluator's report reflected impermissible bias and that the district court improperly adopted respondent-father's proposed findings on custody.  Appellant also argues that the district court erred in its findings on the duration and amount of maintenance and should have awarded her attorney fees.  We conclude the record does not reflect improper bias on the part of the custody evaluator, the district court did not abuse its discretion in determining custody and maintenance, and did not abuse its discretion in denying attorney fees.  We affirm.  

 

FACTS 

 

            The district court dissolved the ten-year marriage of appellant Deidre C. Johnson, n/k/a Deidre C. Corniea, and respondent Randall M. Johnson in 2005.  The parties have one child, who was nearly three at the time of the dissolution.  Respondent also has two sons, now older than 18, from his previous marriage.  Respondent works in the building-construction business and receives additional income from a non-marital ownership interest in three subchapter S, family-owned, building-materials corporations.  Appellant, who earned credentials as a certified public accountant, worked part-time for seven years during the marriage but has been a full-time parent since the birth of the parties' child.  

            The parties submitted for trial issues of child custody and parenting time, maintenance, property division, and attorney fees.  The district court received expert evidence from a court-appointed custody evaluator, a neutral accounting expert, and a vocational expert.  The court ordered, consistent with the custody evaluator's report, joint legal and physical custody, with a gradually increasing parenting-time schedule for respondent until the child reached school age.  The district court also ordered maintenance to appellant of $2,065 per month for three years, as corrected by an amended judgment.  The district court denied appellant's need-based attorney-fee request.  This appeal of custody, maintenance, and attorney-fees issues followed. 

D E C I S I O N

 

I.

 

Custody awards are based on a child's best interests.  Minn. Stat. § 518.17, subd. 3(a) (3) (2004).  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).  This court's review of custody determinations is limited to determining 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).  Findings of fact are not set aside unless clearly erroneous.  Minn. R. Civ. P. 52.01.  

            The district court, in ordering custody, must make detailed findings on the best-interests factors listed in Minn. Stat. § 518.17, subd. 1 (2004), and explain how its consideration of those factors led to its conclusions and the determination of the best interests of the child.  The judgment contains specific findings on the thirteen best-interests factors considered by the district court in its allocation of joint legal and physical
custody of the minor child.  Appellant challenges these findings as improperly based on the report of the custody evaluator, who, appellant asserts, demonstrated bias during the evaluation process. 

            Custody evaluations are governed by Minn. Stat. § 518.167 (2004), which authorizes the district court to order a custody evaluation in a contested custody proceeding.  The decision 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).    

            The custody evaluator addressed in her report each of the statutory best-interests factors for determining custody.  See Minn. Stat. § 518.17, subd. 1.  Appellant maintains that in her report, which formed the basis of the district court's custody determination, the custody evaluator improperly focused exclusively on negative parenting references to appellant and ignored negative references to respondent's parenting.  We disagree.  The custody evaluator followed a thorough process of meeting separately with both parents, observing them separately interacting with the child, and performing psychological testing.  Although we recognize that the evaluator may have interjected unnecessary references to events that were not directly relevant to determining custody, we do not find that these references impaired the evaluator's recommendation.  And the recommendation was supported by testimony at trial.  Appellant's consulting psychologist, although expressing a concern with bias in the custody report, testified, consistent with her notes, that appellant was acting as a "gatekeeper" and attempting to
control respondent's relationship with the child.  The recommendation, adopted by the district court, for a gradually-increasing parenting-time schedule for respondent until the child reached school age recognized appellant's significant role as the parent of a young child. 

Both parties stipulated before trial to the selection of the custody evaluator, who was subject to cross-examination by both attorneys.  Cf. Scheibe v. Scheibe, 308 Minn. 449, 450, 241 N.W.2d 100, 100 (1976) (stating that party is entitled to new trial if custody decision is based in part on custody-evaluation report without opportunity to cross-examine the author).  An adverse determination to appellant, without adequate support in the record, does not by itself provide a basis for imputing bias.  See Ag. Servs. of Am., Inc. v. Schroeder, 693 N.W.2d 227, 236-37 (Minn. App. 2005) (stating that adverse rulings are not a basis for imputing bias).  

            Appellant also specifically challenges the district court's order of joint physical custody on the basis that the district court clearly erred in finding that the parties could cooperate in raising the child.  See Minn. Stat. § 518.17, subd. 2(a) (stating that when joint custody is contemplated, court shall consider ability of parents to cooperate in child-raising).  The district court found that the communication between the parties was better than appellant had asserted and noted a response from respondent to a parenting questionnaire indicating that communication had improved.  The district court noted that no disputes had occurred since the court implemented the custody evaluator's recommended parenting plan, using a parenting consultant, on a temporary basis.  The
district court also ordered the parties' use of a parenting consultant, which was proposed in appellant's parenting plan, as a method of resolving disputes.  This court has cited parents' ability to work with a parenting consultant in upholding a joint-custody award.  See Schallinger v. Schallinger, 699 N.W.2d 15, 21 (Minn. App. 2005), review denied (Minn. Sept. 28, 2005).  The record supports the district court's finding that the lack of cooperation and communication does not rise to a level precluding joint physical custody.  We agree with the district court that any incidental conflict experienced by the child is outweighed by the benefit of a full and normal relationship with both parents.  

Appellant claims that the district court's verbatim adoption of respondent's proposed findings warrants reversal.  "Adoption of a party's proposed findings by a district court is generally an accepted practice."  Id. at 23.  Nonetheless, verbatim adoption of proposed findings raises the question of whether the district court "independently evaluated each party's testimony and evidence."  Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).  The district court did adopt, with minor exceptions, respondent's proposed findings.  The record shows the district court heard extensive testimony during a two-day trial from both parties, the custody evaluator, and appellant's counseling psychologist.  The district court's findings reflect its determination of witness credibility.  See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (appellate courts defer to district court credibility determinations).  On this record, the district court did not err in adopting respondent's proposed findings.  

II.

Appellant challenges the district court's determination on the duration and amount of maintenance.  To reverse the district court's maintenance determination, this court must conclude that the district court abused its discretion by resolving the issue in a manner "against logic and the facts on record."  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  To determine whether findings are clearly erroneous, this court views the record in the light most favorable to the district court's findings and defers to the district court's credibility determinations.  Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).  "That the record might support findings other than those made by the [district] court does not show that the court's findings are defective."  Id. at 474.

A district court may order maintenance if a party is unable to provide self-support through adequate employment or lacks sufficient property, including marital property apportioned in the dissolution, to provide for that party's reasonable needs.  Minn. Stat. § 518.552, subd. 1(a), (b) (2004).  In making this determination, the district court considers "all relevant factors," including available financial resources, the probability of self-support, the contributions of each party to marital property, marital property apportioned to the spouse requesting maintenance, the standard of living established during the marriage, the duration of the marriage, and the proposed obligor's ability to meet his or her needs.  Minn. Stat. § 518.552, subd. 2(a)-(h) (2004).  Doubts about the duration of a maintenance award are to be resolved in favor of a permanent award.  Minn. Stat. § 518.552, subd. 3 (2004); Nardini v. Nardini, 414 N.W.2d 184, 196 (Minn. 1987). 

Appellant argues that she is entitled to permanent maintenance because she lost skills, retirement benefits, and workplace experience during her absence from the workforce when she stayed home to care for the parties' child.  The district court found that appellant was able to provide adequate self-support in her occupation as a certified public accountant, based on her report to the vocational expert that she earned approximately $41,000 per year as an independent contractor performing accounting services from 1988 to 1995.  The district court cited the vocational expert's report that appellant could, with minimal effort, take the required continuing-education courses to become recertified as a CPA.  Based on the record, the district court's finding that appellant was capable of self-support to the extent of working part-time until the child entered kindergarten, and full time thereafter, is not clearly erroneous.  See Lyon v. Lyon, 439 N.W.2d 18, 22 (Minn. 1989) (stating that "maintenance depends on a showing of need"). 

Appellant also argues that the district court's maintenance allocation to her of $2,065 per month for three years was insufficient to meet her reasonable needs, based on the standard of living established during the marriage.  See Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (Minn. App. 2000) (stating that marital standard of living is part of spousal-maintenance analysis), review denied (Minn. Oct. 25, 2000).  Appellant presented differing monthly budgets throughout the course of the proceeding; her ultimate budget of $8,121 per month was 82% of the previous household budget for four to five people.  The district court did not err by attributing to appellant a reasonable
budget of $5,500 per month, based on her testimony at trial.  The district court did not err in basing the amount of maintenance on the neutral accounting expert's testimony that appellant's reasonable needs could be met with maintenance of $2,065 per month in combination with child support of $1,744 and earnings from her employment.  Appellant failed to cite authority for her proposed standard of "income equalization," which would strip the district court of its discretionary power to award maintenance according to the particular circumstances of each case.  See Nardini, 414 N.W.2d at 199. 

III.

 

Appellant challenges the district court's denial of her request for additional attorney fees.  A district court in a dissolution action "shall" order attorney fees when necessary for the good-faith assertion of a party's rights if the party seeking fees lacks the ability to pay the fees and the party from whom the fees are sought is capable of payment.  Minn. Stat. § 518.14, subd. 1 (2004).  The district court may also order attorney fees if a party has unreasonably contributed to the length or expense of the proceeding.  Id.  This court reviews a determination on attorney fees for abuse of discretion.  Gully v. Gully, 599 N.W.2d 814, 825 (Minn. 1999).

Appellant requests that respondent pay a portion of her attorney fees, based on a comparison of the parties' ability to pay, citing a discrepancy between the valuation of her apportionment of marital property and respondent's apportionment of marital property, as well as his additional nonmarital assets.  We find the district court properly denied this request.  The record supports the district court's finding that a significant
portion of respondent's nonmarital assets are illiquid and will not produce immediate income.  The district court was entitled to weigh respondent's previous contribution of $5,000 to appellant's attorney fees, as well as his payment of expert-witness fees for the court-appointed neutral custody evaluator and economic expert.  Finally, the district court appropriately questioned whether the fees were necessary for the good-faith assertion of appellant's rights in the factual context of this proceeding.  

            Affirmed.