In re the Marriage of: Mark William Carroll, Respondent, vs. Desiree Lucille Boeltl, Appellant.

In re the Marriage of: Mark William Carroll, Respondent, vs. Desiree Lucille Boeltl, Appellant. A06-91, Court of Appeals Unpublished, August 29, 2006.

This opinion will be unpublished and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

A06-91

 

In re the Marriage of: Mark William Carroll,

Respondent,

 

vs.

 

Desiree Lucille Boeltl,

Appellant.

 

Filed August 29, 2006

Affirmed in part, reversed in part

Ross, Judge

 

Ramsey County District Court

File No. F2-00-310

 

Michael C. Black, Michael C. Black Law Office, Ltd., 265 West 7th Street, Suite 201, St. Paul, MN 55102 (for respondent)

 

John P. Guzik, Guzik Law Office, P.A., 2332 Lexington Avenue North, Roseville, MN 55113 (for appellant)

 

Considered and decided by Ross, Presiding Judge; Shumaker, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

 

ROSS, Judge

In this appeal in a parenting-time and custody dispute, appellant-mother argues that the district court abused its discretion by (1) modifying the parties' custody arrangement without making the proper or adequately supported findings; (2) rejecting a family-court officer's recommendation and imposing a parenting-time schedule; and (3) imposing a child-support obligation.  We affirm in part and reverse in part.

FACTS

Appellant Desiree Boeltl and respondent Mark Carroll were married on May 26, 1995.  They dissolved their marriage on March 14, 2000, pursuant to a marriage-termination agreement.  The agreement provided that their two minor children would live with Boeltl from June through September and with Carroll from September through June, and granted both parties "reasonable visitation."  The agreement granted neither party child support or spousal maintenance.  The district court awarded the parties joint legal and physical custody of the children.

The parties established an informal schedule whereby the children lived with Boeltl from the end of the school year until Labor Day and with Carroll from Labor Day until the end of the school year.  The children spent every other weekend and Tuesday nights with the parent they were not then living with.

Boeltl moved for fixed parenting time in 2002, and the district court memorialized the parties' established schedule except that it ordered that Boeltl must return the children to Carroll on Sunday evening during the school year.  This diverged from the parties' schedule in that Boeltl's practice had been to take the children to school on Monday morning after they stayed with her through the weekend.  The district court also directed court services to conduct a custody and parenting-time evaluation, and it ordered Boeltl to complete a chemical-dependency evaluation and to abstain from consuming alcohol when the children are in her care.

A Ramsey County family-court officer interviewed the parties, the children, and the parties' new relational acquaintances.  At the end of an extensive evaluation that provided a detailed analysis of the children's best interests, the family-court officer summarized that despite the parties' problems and concerns, the current legal and physical custody arrangement does not endanger "the children's physical or emotional health or impair[] the children's emotional development."  She recommended a parenting-time schedule consistent with the district court's order, except she recommended that when the children spend the weekend with Boeltl, Boeltl should continue to take the children to school on Monday morning.  She also recommended that Boeltl "maintain complete abstinence from the use of alcohol and non-prescription drugs."

Boeltl twice moved for an order implementing the recommendations of the family-court officer.  Carroll moved for a modification of physical custody.  The district court conducted an evidentiary hearing and issued an order denying Boeltl's request.  It granted Carroll sole legal and physical custody of the children and directed Boeltl to pay him $566 in monthly child support.

Boeltl challenged the district court's modification of custody and imposition of child support on appeal to this court.  We remanded to the district court for additional and more specific findings.  Carroll v. Boeltl, No. A04-1133, 2005 WL 288764, at *3-*6 (Minn. App. Feb. 8, 2005).  On remand, the district court made detailed findings and again denied Boeltl's motion to implement the recommendations of the family-court officer.  It again granted Carroll sole legal and physical custody of the children but reduced Boeltl's child-support obligation to $306 monthly.  Boeltl challenges that order on appeal.

D E C I S I O N

We first address Boeltl's challenge to the district court's modification of the parties' custody arrangement.  We review an order modifying a custody arrangement for an abuse of discretion.  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996).  The district court abuses its discretion when its findings are clearly erroneous or when it improperly applies the law.  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  This court will determine a finding of fact to be clearly erroneous when, viewing the record in the light most favorable to the district court's findings and considering this court's deference to the district court's credibility determinations, this court has "the definite and firm conviction that a mistake was made."  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).

To modify a custody order, the district court must find "that a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child."  Minn. Stat. § 518.18(d) (2004).  The facts supporting the change-in-circumstance finding must have come about after the prior order or have been unknown to the district court when the prior order was issued.  Id.; Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997).   Whether a change of circumstances has occurred is determined on a case-by-case basis.  Lilleboe v. Lilleboe, 453 N.W.2d 721, 723 (Minn. App. 1990).  "The guiding principle in all custody cases is the best interest of the child."  Pikula, 374 N.W.2d at 711.

Carroll's motion for custody modification was based on endangerment.  To modify custody based on endangerment, the district court must find that the "present environment endangers the child[ren's] physical or emotional health or impairs the child[ren's] emotional development" and that the harm likely to be caused by the custody modification is outweighed by the advantage to the children.  Minn. Stat. § 518.18(d)(iv).  The balancing factor may be implicit in the district court's consideration of the factors.  Geibe, 571 N.W.2d at 778.  Whether endangerment exists is determined on the particular facts of each case.  Sharp v. Bilbro, 614 N.W.2d 260, 263 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000).

Boeltl argues that the district court failed to make findings regarding a change of circumstances.  The district court must make detailed findings regarding the factors relevant to its custody determinations.  Minn. Stat. § 518.17, subd. 1(a) (2004); Rogge v. Rogge, 509 N.W.2d 163, 165 (Minn. App. 1994), review denied (Minn. Jan. 28, 1994).  The district court's findings are based on the best-interests factors listed in Minn. Stat. § 518.17, subd. 1(a).  Some of these findings address circumstances that have arisen since the original divorce decree, most notably Boeltl's relationship with and events involving her fiancé, Mitchell Mulligan.  But Boeltl correctly points out that the district court failed to make any specific finding regarding what change in circumstance renders modification necessary to serve the best interests of the children, as required by Minn. Stat. § 518.18(d), and as we directed in Carroll, 2005 WL 288764, at *3 ("Because the district court's findings are not sufficient for this court to conduct a meaningful review into whether a change in circumstances has occurred in this case, we remand to the district court for further findings on this issue.").

Boeltl also challenges whether the record supports the district court's findings regarding harm or endangerment.  The district court made several findings concerning Boeltl's use of alcohol and her volatile relationship with Mulligan, and it concluded that both her use of alcohol and the relationship endanger and impair the children's emotional health and development.  But the district court's finding of endangerment rests on insufficient factual support.  It refers to Boeltl as an alcoholic with chemical dependency that "continues to the present."  It refers to Mulligan as "an abuser" with an "explosive temper" toward Boeltl.  Boeltl challenges the district court's conclusion that she has continued to drink after being ordered to abstain completely.  The district court identified ample testimonial and documentary support for its conclusion that Boeltl has consumed alcohol on at least two occasions since being ordered to abstain on June 23, 2003.  But we see nothing in the record to suggest that the children have been in any danger on either occasion.  And as we indicated when this matter reached us on appeal in 2005, "[Boeltl's] chemical dependency is not a new development" so as to constitute a changed circumstance that justifies the modification.  Id. at *3.

That Mulligan has been intoxicated and angry is supported in the record.  But the district court found no evidence of any physical abuse, and the only "violence" noted in support of the references to his "rageful drinking" was a single 2002 argument in which motel neighbors complained because Mulligan was pounding on the motel-room door shortly after midnight in an effort to re-enter the room he was sharing with Boeltl and the children.  The district court's supposition that "in private his rage has to be terrifying to the boys" is countered directly by the supported finding that the children appeared comfortable with Mulligan during visits by the family-court officer.  Carroll points to no record evidence to support a finding of endangerment to the children.  Our review of the record reveals no evidence that Boeltl's conduct or the children's exposure to her fiancé rises to the level of endangerment.  The district court's own parenting-time arrangement, which allows the children to spend Tuesdays and every other weekend with Boeltl, undermines its finding that her conduct or Mulligan's presence endangers the children's emotional health and development.

Because the district court did not find a change in circumstances justifying a change of custody and because the record does not support the district court's findings regarding endangerment, we conclude that the district court abused its discretion by modifying the legal and physical custody of the children.  We decline to address Boeltl's other challenges to the district court's modification of custody.

Boeltl next challenges the district court's parenting-time schedule.  She argues that the district court abused its discretion by rejecting the family-court officer's recommendation and by requiring her to return the children to Carroll on Sunday nights during the school year.  A district court has broad discretion when determining a parenting-time schedule.  Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).  When requested by either parent, the district court must grant parenting time to "enable the child and the parent to maintain a child to parent relationship that will be in the best interests of the child."  Minn. Stat. § 518.175, subd. 1(a) (2004).  The district court may order a court-services officer to conduct a custodial or parenting-time evaluation and make a recommendation.  Minn. Stat. § 518.167, subd. 1 (2004).  But the district court may, in its discretion, reject the recommendation if it expresses its reasons for doing so or makes detailed findings that examine the same factors considered in the evaluation.  See Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991); Roehrdanz v. Roehrdanz, 410 N.W.2d 359, 362 (Minn. App. 1987), review denied (Minn. Oct. 28, 1987).

Here, the district court resolved the parenting-time dispute within this framework.  It made detailed findings on the same statutory factors considered by the family-court officer.  It also expressly rejected the family-court officer's recommendation and provided reasons.  We conclude that the district court did not abuse its discretion by rejecting the family-court officer's recommendation.

We also conclude that the district court acted within its broad discretion by ordering Boeltl to return the children to Carroll on Sunday nights when she has the children for the weekend.  The dissolution decree granted the parties "reasonable visitation" but did not specify a parenting-time schedule.  On Boeltl's motion requesting a fixed parenting-time schedule, the district court established a schedule that required her to return the children on Sunday evenings.  She has filed several unsuccessful motions requesting that the district court "restore" the parties' practice of having her take the children to school on Monday mornings.  These requests for restoration are essentially motions for modification of the parenting-time schedule ordered by the district court on Boeltl's original motion for a fixed schedule.  She has not supported her requests for "restoration" with argument or evidence that it is in the best interests of the children.  We find no abuse of discretion.

Boeltl argues finally that the district court abused its discretion by ordering her to pay to Carroll $306 of monthly child support.  The district court may modify a child-support order upon a showing of a substantial change of circumstances that renders the existing order unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2(a) (2004); Beck v. Kaplan, 566 N.W.2d 723, 726 (Minn. 1997).  The substantial change relied upon by the district court was its order modifying the legal and physical custody of the children.  Because we conclude that that custody modification was an abuse of discretion, the imposition of a child-support obligation based on that modification is also an abuse of discretion.

Affirmed in part, reversed in part.