In the Matter of: Gayle Cardinal, Petitioner, Respondent, vs. Paul G. Cardinal, Appellant.

In the Matter of: Gayle Cardinal, Petitioner, Respondent, vs. Paul G. Cardinal, Appellant. A06-1307, Court of Appeals Unpublished, June 5, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1307

 

In the Matter of: Gayle Cardinal,

Petitioner, Respondent,

 

vs.

 

Paul G. Cardinal,

Appellant.

 

Filed June 5, 2007

Affirmed in part, reversed in part, and remanded

Ross, Judge

 

Ramsey County District Court

File No. F5-06-300372

 

Kristine J. Zajac, Roderick N. Hale, 301 Fourth Avenue South, Suite 270, Minneapolis, MN 55415 (for respondent)

 

Kimberly M. Ferrier, Ferrier Law Offices, P.A., 310 Fourth Avenue South, Suite 950, Minneapolis, MN 55415 (for appellant)

 

 

Considered and decided by Ross, Presiding Judge; Kalitowski, Judge; and Halbrooks, Judge.

 

U N P U B L I S H E D   O P I N I O N

ROSS, Judge

Paul Cardinal appeals from an order for protection in which the district court found that he had engaged in domestic abuse, awarded his wife Gayle Cardinal sole legal and physical custody of the couple's minor children, and directed him to pay child support and spousal maintenance.  Because we conclude that the district court did not abuse its discretion by issuing the order for protection or by ordering sole custody to Gayle Cardinal, we affirm on those issues.  We reverse and remand the order as it regards child support and spousal maintenance for additional findings.

FACTS

Gayle Cardinal petitioned the district court in April 2006 for an order for protection, alleging that her husband, Paul Cardinal, had abused her and their 17-year-old daughter, M.M.C.  The petition requested sole custody of the Cardinals' three minor children, child support, and spousal maintenance.  The district court considered the petition ex parte and ordered Paul Cardinal to stay away from the marital home and from M.M.C.'s school, granted Gayle Cardinal temporary custody of the three minor children, and scheduled a hearing on the petition.

At the hearing on May 3, 2006, Paul Cardinal denied Gayle Cardinal's domestic abuse allegations, but he agreed to consent to an order for protection with respect to both Gayle Cardinal and M.M.C. if the order would not contain a finding of domestic abuse.  Consistent with that agreement, the court found that "[Paul Cardinal] does not object to an Order for Protection and understands that the order will be enforced as if there was an admission or finding of domestic abuse."  It forbade Paul Cardinal from contact with Gayle Cardinal or M.M.C. and again granted Gayle Cardinal temporary sole legal and physical custody of the minor children.  The court issued a separate order scheduling an evidentiary hearing on the outstanding issues, including custody, parenting time, support, and maintenance.

At the evidentiary hearing on May 25, the district court heard testimony from Paul and Gayle Cardinal and their 19-year-old daughter.  The parties submitted evidence regarding custody.  Gayle Cardinal testified that she had been the children's primary caretaker.  She acknowledged that Paul Cardinal has a good relationship with the two youngest children and that she believes the Cardinals can cooperate in raising their children.  But she contended that joint custody would be disruptive to the children's neighborhood friendships and alleged that Paul Cardinal would not assist them with homework and school projects.  Paul Cardinal requested joint custody and testified that he was active in parenting the two youngest children.  He acknowledged a strained relationship with M.M.C.  He contended that because he lives only six miles from the marital home, he lives only three miles from the younger children's school, and his home has three bedrooms, joint custody would not disrupt the children's lives.  The Cardinals' 19-year-old daughter testified that Paul Cardinal is a very good father.

The parties also introduced financial evidence.  They stipulated to the admission of records pertaining to Paul Cardinal's business, a sole proprietorship, and offered the parties' tax returns for 2004 and 2005.  Gayle Cardinal has not been employed outside the home during the prior two years.  She testified that she is in excellent health but that she could not return to work because she needs to assist M.M.C. in caring for M.M.C.'s baby.  The baby was born the month before the hearing and has health problems that require frequent medication.  Gayle Cardinal testified that Paul Cardinal's tax returns do not accurately reflect his income, asserting that he earned more than he reported.  She testified that to support herself she had to borrow money and may have to liquidate investments.  She requested $2,500 to $3,000 for monthly spousal maintenance.  Paul Cardinal testified that his tax returns reflect all of his income.  He challenged Gayle Cardinal's assertion that she could not work, testifying that she previously worked thirty-two hours a week and that M.M.C. receives public financial assistance for her child and her child's medical needs.

The parties presented conflicting testimony regarding Gayle Cardinal's domestic abuse allegations.  Gayle Cardinal testified that Paul Cardinal had "raped" her "a number of times," threw a purse at her, and pushed her into a counter once.  But she then recounted that Paul Cardinal's alleged abuse was "mostly just verbal, mental, emotional abuse."  The record does not suggest that she ever reported the alleged rapes.  But in support of her testimony that Paul Cardinal has threatened her for sex, she presented a note that he had left for her saying, "If you want you[r] car be naked and ready for real sex.  No argu[]ments.  Don't take my van!"  She testified that he had placed a lock on the steering wheel of her car to prevent her from using it and that he threatened not to remove it until she acquiesced.  She testified that she was "very frightened of him, of what he might do next."  Paul Cardinal denied ever abusing or threatening Gayle Cardinal or the children.  He admitted writing the note but stated that he never had or tried to have sex with Gayle Cardinal against her will.  He testified that they argued about their sexual relationship and about the fact that she was not employed.  Their 19-year-old daughter testified that her parents scream at each other but that she never witnessed her father physically abuse her mother.

The parties testified about the strained relationship between Paul Cardinal and M.M.C.  Paul Cardinal stated that "[M.M.C.] is the kind of kid that you don't have a lot to do with."  He believed that "it was just better for all of us to stay away from her."  He stated that he had agreed to the order for protection only because he feared losing his children.

The district court issued an amended order for protection based on the evidence at the hearing.  It found that "domestic abuse has occurred and that [Gayle Cardinal] has established a reasonable, imminent fear of [Paul Cardinal]."  It granted Gayle Cardinal sole legal and physical custody of the three minor children.  The court noted that it had considered Paul Cardinal's "rocky relationship" with M.M.C. and Gayle Cardinal's care for M.M.C. and her child, the parties' inability to communicate, Gayle Cardinal's intimacy and caretaking as related to the children, and the presumption against joint legal and physical custody when an order for protection is in place or when domestic abuse has occurred.  The court also ordered Paul Cardinal to pay $1,500 a month for temporary child support and $1,000 a month for temporary spousal maintenance.  It concluded that Gayle Cardinal needs spousal maintenance because she is unemployed and has been a homemaker for at least the past two years.  In determining the amounts for child support and spousal maintenance, the court cited the 2005 profit-and-loss statement for Paul Cardinal's business and his 2006 bank deposits, finding that he had gross income of $127,527 and concluding that he had the ability to pay the spousal maintenance and child support as ordered.  The district court left undisturbed its original order forbidding Paul Cardinal from contact with M.M.C.

Paul Cardinal now appeals.  He challenges the district court's order forbidding him from contact with M.M.C., its domestic-abuse finding, and its determinations regarding custody, child support, and spousal maintenance.

D E C I S I O N

I

Paul Cardinal argues that the district court abused its discretion by entering a domestic-abuse finding after he agreed to an order for protection without findings.  An appellate court reviews a district court's decision to grant an order for protection under the Minnesota Domestic Abuse Act, Minn. Stat. § 518B.01 (2006), for abuse of discretion.  Braend ex rel. Minor Children v. Braend, 721 N.W.2d 924, 926-27 (Minn. App. 2006).

Paul Cardinal's argument rests on a significant misstatement.  He erroneously asserts that the district court made a finding that he engaged in domestic abuse in its order issued just after the May 3 hearing:

When the [district court] entered the May 3, 2006 Order for Protection After Hearing, the [district court] checked the box that domestic abuse had occurred, the Order expressly contradicted the agreement and stipulation of the parties on record.  By checking the box that domestic abuse had occurred, the [district court] effectively labeled [Paul Cardinal] a "domestic abuser."

 

The assertion directly misrepresents the district court's order.  The district court drew a line through the pre-printed finding that "[a]cts of domestic abuse have occurred," and it therefore expressly rejected the alleged finding that Paul Cardinal challenges.  The court actually found that Paul Cardinal "does not object to an Order for Protection and understands that the order will be enforced as if there was an admission or finding of domestic abuse."  As Paul Cardinal's counsel admitted during oral argument in this court, this finding accurately summarizes the parties' agreement at the May 3 hearing.  And not only did the district court accurately state the agreement, Paul Cardinal failed to object after the district court issued the order.

It is clear from the record that the district court made its finding that Paul Cardinal had engaged in domestic abuse only after the court received evidence and argument from the parties concerning the disputed abuse accusations.  At the May 25 evidentiary hearing, custody was at issue, and the domestic abuse act allows awards of temporary custody based on the considerations used in awarding custody in a marital dissolution.  Minn. Stat. § 518B.01, subd. 6(a)(4) (2006).  And the consideration used in awarding custody in a marital dissolution include the effect of domestic abuse between the parents.  Minn. Stat. § 518.17, subd. 1(12) (2006).  Here, Gayle Cardinal testified without objection in support of her allegations that Paul Cardinal had abused her, while Paul Cardinal testified against the allegations and offered the testimony of the parties' 19-year-old daughter to support his testimony that no domestic abuse had occurred.  In light of the abuse accusations, and the relevance of abuse to the outstanding custody question, receiving the competing testimony offered by both parties regarding domestic abuse was appropriate, as was the district court's making of a finding with respect to domestic abuse.  Further, Paul Cardinal's contention that the district court denied him the opportunity for a full hearing is not supported by the record:  He acknowledges that he did not object to the district court's time restrictions and he made no request to introduce additional evidence.  We also hold that the district court's finding that abuse occurred is supported by the record.  A domestic-abuse finding requires either a showing of present harm or an intention to do present harm.  Andrasko v. Andrasko, 443 N.W.2d 228, 230 (Minn. App. 1989).  The district court's finding will not be set aside unless it is clearly erroneous, which is established only if an appellate court is left with the definite and firm conviction that a mistake has been made.  Chosa ex rel. Chosa v. Tagliente, 693 N.W.2d 487, 489 (Minn. App. 2005).

Gayle Cardinal testified that Paul Cardinal "raped" her "a number" of times.  She also testified that she fears him.  She supported her allegation with his hand-written note, which, under the circumstances, could be construed as threatening.  The district court was in the best position to weigh Gayle Cardinal's testimony against the competing testimony.  See Minn. R. Civ. P. 52.01 (stating that appellate courts must give due regard to the district court's opportunity to assess witness credibility).  We recognize that this record might also support a different finding in light of the denials.  But because we defer to the district court's credibility determinations, we cannot conclude that its finding that "domestic abuse has occurred and that [Gayle Cardinal] has established a reasonable, imminent fear of [Paul Cardinal]" is clearly erroneous.

II

Paul Cardinal next challenges the district court's decision to grant Gayle Cardinal sole legal and physical custody of the parties' three minor children.  Our review of custody determinations is limited to whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  We see no abuse of discretion.

In an order-for-protection proceeding, the district court may grant temporary custody of minor children based on the safety of the victim and the children.  Minn. Stat. § 518B.01, subd. 6(a)(4) (2006).  Gayle Cardinal's petition for an order for protection alleged that Paul Cardinal abused her and M.M.C.  The district court's April 6 order appropriately granted temporary custody to her based on those allegations.  See id., subd. 7(a) (2006) (stating that when a petition for an ex parte order for protection alleges an immediate and present danger of domestic abuse, the district court may fashion relief as the court deems proper).  At the May 3 hearing, Paul Cardinal agreed to an order for protection with respect to both Gayle Cardinal and M.M.C.  The district court's orders of May 3 and May 4 continued the conditions of the original order for protection, including temporary custody, until the court could hold a full evidentiary hearing.

Paul Cardinal argues that the district court erred by not making findings with respect to the children's best interests before initially ordering temporary custody.  The argument overlooks the change in the statute, which no longer requires the district courts to make best-interest findings in domestic-abuse cases.  See id., subd. 6(a)(4) (stating that findings with respect to best-interests factors are not required to support temporary custody order issued under domestic-abuse act).

Paul Cardinal also contends that the district court erred by reconfirming its order granting Gayle Cardinal sole custody based only on her testimony, because, he asserts, the testimony of Paul Cardinal and the parties' 19-year-old daughter established that Mr. Cardinal is the better parent and the children's primary caretaker.  He contends that the court should have ordered joint custody because the parties are able to cooperate.  But we cannot reweigh the evidence.  We recognize from the record that both parents actively parent the younger two children, with Gayle Cardinal being primarily involved with dinner and homework and Paul Cardinal involved at bedtime and during trips to the cabin.  But the district court explained that it considered the factors set forth in Minn. Stat. § 518.17 as applied to Paul Cardinal's rocky relationship with his daughter, M.M.C., Gayle Cardinal's intimacy with the minor children and her caretaking of them, and the parents' inability to communicate with each other.  The record supports these findings.  Although Gayle Cardinal acknowledged that Paul Cardinal has a healthy relationship with the two youngest children, she maintained that he verbally abused M.M.C., calling her names.  Paul Cardinal substantially confirmed that testimony.  And although Paul Cardinal's testimony and the testimony of the parties' 19-year-old daughter contradicted Gayle Cardinal in some respects, we defer to the district court's ability to decide witness credibility.

The essential component of the district court's sole-custody order is its domestic-abuse finding, because the presumption against joint custody arises when domestic abuse has occurred.  See id. § 518.17, subd. 2 (2006) (stating that joint custody is presumed not in children's best interests if domestic abuse has occurred) see also Minn. Stat. § 518B.01, subd 6(a)(4) (stating temporary custody under the domestic abuse act is to be awarded based on considerations similar to those for awarding custody in a dissolution).  We have already determined that the court's finding of abuse was supported by testimony.  On balance, we conclude that district court did not abuse its discretion by awarding sole custody to Gayle Cardinal based on abuse and relational findings that are supported in the record.

III

Paul Cardinal argues that the district court abused its discretion by allowing the May 3 hearing to proceed on behalf of M.M.C.  His brief acknowledges that "it may appear that Mr. Cardinal agreed to the Order for Protection as it relates to [M.M.C.] on its face and therefore [this] is a moot point."  We agree.  Paul Cardinal's argument is in essence not a substantive challenge to the now superseded original order for protection, but a complaint that he "would not have been placed in the position of having to defend [Gayle Cardinal's allegedly] false claim against him" that he engaged in abusive behavior.  But his decision to stipulate to the issuance of the order for protection waives his contention that it should never have been considered.

IV

Paul Cardinal contends that the district court abused its discretion by ordering him to pay child support and spousal maintenance without first determining his net income and his ability to pay.  He also argues that the spousal-maintenance award was improper because the record shows that Gayle Cardinal is in good health, has worked during most of the parties' marriage, and is now voluntarily unemployed.  The district court has broad discretion with respect to its child-support and spousal-maintenance determinations.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  Effective review of the district court's exercise of that discretion is possible only when it issues sufficiently detailed findings of fact to demonstrate its consideration of all factors relevant to maintenance.  Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989).  Paul Cardinal is self employed.  For child-support purposes, a self-employed person's income consists of gross receipts minus ordinary and necessary expenses.  Minn. Stat. § 518.551, subd. 5b(f) (2004).[1]

We are unable to determine the bases upon which the district court ordered Paul Cardinal to pay Gayle Cardinal $1,500 a month for child support and $1,000 for spousal maintenance.  The record consists of the parties' financial records, including the parties' tax returns and bank statements.  It also includes competing testimony from the parties, as well as post-hearing submissions, discussing whether Paul Cardinal's tax returns accurately reflect his income and expenses.  But the district court did not analyze Paul Cardinal's ordinary and necessary business expenses.  See Davis v. Davis, 631 N.W.2d 822, 827-28 (Minn. App. 2001) (reversing and remanding for findings regarding business expenses and net income).  The district court stated that it had considered the gross receipts of $127,527 from Paul Cardinal's 2005 Profit and Loss Statement (IRS Form 1040 Schedule C) for his business, as well as his 2006 bank deposits.  But it did not reduce the gross-receipt amount by any portion of the $97,354 in business expenses shown on the tax return or make any finding as to why it did not subtract expenses.  The district court also did not make a finding with respect to Paul Cardinal's net income or explain its ruling.  The court concluded that Paul Cardinal has the ability to pay both child support and spousal maintenance, but neither the order nor the record indicates how it reached this conclusion.  Absent a finding of Paul Cardinal's net income or analysis of his ability to pay the amounts ordered, we are unable to determine whether the district court abused its discretion when deciding Paul Cardinal's monthly child-support and spousal-maintenance obligations.

The district court's only findings with respect to spousal maintenance were that Gayle Cardinal is unemployed, had been a homemaker for at least the past two years, and needed "family support," and that Paul Cardinal has the ability to pay both spousal maintenance and child support.  We therefore reverse the district court's order as it concerns the basis for and the amount of these obligations and remand for additional findings.[2]

Affirmed in part, reversed in part, and remanded.

[1]   This statute was repealed and replaced by Minn. Stat. § 518 A. 30 (2006), but that statute became effective after the district court's decision, and the changes in the statute would not impact our analysis.

 

[2]   For this reason we need not address Paul Cardinal's legally and factually unsupported assertion that M.M.C. is emancipated and beyond his responsibility simply because she has a child of her own.