In re the Marriage of: Cole Dylan Petersen, petitioner, Appellant, vs. Angie Lee Petersen, Respondent.

In re the Marriage of: Cole Dylan Petersen, petitioner, Appellant, vs. Angie Lee Petersen, Respondent. A06-1801, Court of Appeals Unpublished, May 1, 2007.

This opinion will be unpublished and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

A06-1801

 

In re the Marriage of: 

Cole Dylan Petersen, petitioner,

Appellant,

 

vs.

 

Angie Lee Petersen,

Respondent.

 

Filed May 1, 2007

Affirmed

Halbrooks, Judge

 

 

Dakota County District Court

File No. FX-05-14519

 

John T. Burns, Jr., Melissa C. Kantola, Burns Law Office, 200 American Bank Building, 14300 Nicollet Court, Burnsville, MN 55306 (for appellant)

 

Jori L. Whitehead, Ronald L. Whitehead, 1345 Corporate Center Curve, Suite 210, Eagan, MN 55121 (for respondent)

 

 

            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

HALBROOKS, Judge

            In this appeal from a dissolution judgment, appellant argues that the district court abused its discretion by denying his motion for amended findings when it (1) awarded respondent sole physical custody of the parties' child because the parties could not agree to joint physical custody; (2) failed to discuss how its factual findings on the statutory best-interests and joint-custody factors weighed either for or against each party and failed to draw a nexus between such findings and its conclusions, and (3) failed to sufficiently explain its reasons for rejecting the custody evaluator's recommendation for joint physical custody.  Because we conclude that the district court acted within its discretion, we affirm.   

FACTS

            Appellant Cole Dylan Petersen and respondent Angie Lee Petersen were married on May 8, 2004.  The couple's son, D.L.P., was born on March 22, 2005.  The parties separated in May 2005, and appellant subsequently petitioned for dissolution. 

The parties agreed to share joint legal custody of D.L.P.; but while appellant also sought joint physical custody of D.L.P., respondent sought sole physical custody.  After trial, the district court issued an order on May 26, 2006, granting respondent sole physical custody of D.L.P., subject to appellant's parenting time.  Approximately one month later, the district court issued a dissolution judgment and decree, incorporating the May 26, 2006 order and memorandum, thereby granting respondent sole physical custody of D.L.P.  The judgment provided appellant with parenting time every Wednesday evening from 5:00 to 7:30 p.m. and on alternating weekends and holidays.  The district court also ordered appellant to pay respondent $496.21 per month in child support.[1] 

Appellant moved the district court for, among other things, amended findings so as to allow for joint physical custody of D.L.P.  Appellant argued that the district court's finding that it was in D.L.P.'s best interests to be in the sole physical custody of respondent failed "to accurately reflect the testimony of the Guardian Ad Litem, David A. Jaehne, and other witnesses."  But the district court denied appellant's motion, and this appeal follows.[2]

D E C I S I O N

"A district court has broad discretion to provide for the custody of the parties' children."  Schallinger v. Schallinger, 699 N.W.2d 15, 18-19 (Minn. App. 2005), review denied (Minn. Sept. 28, 2005).  Therefore, appellate review of a custody determination is limited to determining whether the district court abused its discretion by making findings unsupported by the evidence or improperly applying the law.  Lenz v. Lenz, 430 N.W.2d 168, 169 (Minn. 1988).  A district court's findings of fact are set aside only if clearly erroneous, and the record is viewed in the light most favorable to the findings.  Frauenshuh v. Giese, 599 N.W.2d 153, 156 (Minn. 1999).  If "there is evidence to support the [district] court's decision, there is no abuse of discretion."  Doren v. Doren, 431 N.W.2d 558, 561 (Minn. App. 1988). 

"When considering a motion for amended findings, a district court ‘must apply the evidence as submitted during the trial of the case' and ‘may neither go outside the record, nor consider new evidence.'"  Zander v. Zander, 720 N.W.2d 360, 364 (Minn. App. 2006) (quoting Rathbun v. W.T. Grant Co., 300 Minn. 223, 238, 219 N.W.2d 641, 651 (1974)), review denied (Minn. Nov. 14, 2006).  This court also reviews a denial of a motion for amended findings under an abuse-of-discretion standard.  Id. 

When making child-custody determinations, the district court must base its decision on the best interests of the child.  Id. at 366.  To that end, the district court must consider and balance the relevant statutory best-interests factors.  Minn. Stat. § 518.17, subd. 1(a) (2006).  In considering the factors, "[t]he court must make detailed findings on each of the factors and explain how the factors led to its conclusions and to the determination of the best interests of the child."  Id.  These factors may not be used to the exclusion of all others.  Id.  In addition, when a party seeks joint physical custody, the district court is also required to consider and balance four additional factors, including: (1) the parents' ability to cooperate, (2) the parents' methods of resolving disputes, (3) whether it would be detrimental to the child for one parent to have sole authority over the child's upbringing, and (4) whether domestic abuse has occurred between the parents.  Minn. Stat. § 518.17, subd. 2 (2006).

I.

Appellant first argues that the district court abused its discretion when it awarded respondent sole physical custody of D.L.P., contending that the district court improperly applied the law when it concluded that joint physical custody is "never appropriate unless the parties stipulate to joint physical custody."  Appellant's argument is based on the following statements made by the district court prior to trial:

I just want to tell you folks, here is what will happen.  I will hear testimony on [the physical custody issue] and I am going to end up making a decision with respect to custody of the child.  And I'm going to tell you folks exactly what I have told your attorneys in my office with respect to that issue.

 

                        I am not King Solomon, we will not cut this kid in half.  And, as far as I am concerned, unless the parties agree, there is not going to be a joint physical custody arrangement.  And, I say that because to raise a child and to have joint physical custody, the parents have to get along with one another and talk to one another and communicate.  If they can't do that, then I am spinning my wheels.  I am wasting your time and wasting mine. 

 

                        As far as physical custody is concerned, you are rolling the dice.  I'll make a decision whether you will have physical custody or you will have physical custody.  As far as I am concerned I don't know anything about either one of you and so it's a, it's a fair ball game as far as I am concerned and I will make that decision. . . .

 

                        . . . .

 

                        . . . And, all I am telling you up front, before we even start this, is unless you people agree, I'm not going to award joint physical custody.  I am not going to do it.  But, if you want to agree on it then I encourage you to do so and we can go from there.

 

                        So, I am telling you up front, that is where I am coming from.  I don't want you to have any surprises about it.  And, that is a decision that you have, that you have to make.

 

            While we agree with appellant that joint physical custody may be awarded over the objection of one of the parties when such an arrangement is in the best interests of the child, see Zander, 720 N.W.2d at 366 (affirming the district court's award of joint physical custody despite mother's request for sole physical custody), we disagree with appellant's argument that the district court denied a joint-physical-custody award solely because the parties did not agree to it.  In its order dated May 22, 2006, the district court addressed the relevant statutory best-interests and joint-custody factors and did not indicate that it was awarding sole physical custody to respondent simply because the parties did not stipulate to joint physical custody.  Instead, the district court found that "[t]hese parties have not demonstrated an ability to cooperate to the extent necessary for joint physical custody."  In addition, at the August 9, 2006 hearing on appellant's motion to amend, the district court stated in response to appellant's contention that the district court had prejudged the custody issue:

            I will take the matter under advisement and issue a written decision but I will make a couple of comments with regard to prejudging the case.  I meet with the attorneys before the case starts and they relate certain facts to me.  I reviewed the custody evaluation and reviewed the file.  I was asked, and am asked, what do I think and I told them what I thought.  And, if that is improper well, so be it.  But, when this case started I told both of you that in my opinion there is not going to be joint custody.  I don't deny saying that, I said that.  And, the reason that I said that are, a couple.  One, the two of you don't get along.  If you can't get along and talk to each other how are you going to jointly raise a child together?  It ain't going to happen, period.  And I made it very clear, unless the two of you can communicate with one another, which you couldn't and I am not pointing the finger that it's your fault or your fault, the fact is that you people can't communicate with one another. . . .

 

                        . . . .

 

                        . . . You can't cut the child in half, so I have to make a decision one way or the other and I made that decision.  And, I based my decision on my, I mean, on the testimony that came through at the trial, on everything. . . .  And exactly the reasons that I said before apply now, you know, there is, there is lack of communication between the parties. 

 

We conclude, based on our review of the whole record, that the district court's decision to deny joint physical custody and award respondent sole physical custody was based on the parties' inability to communicate and cooperate with each other (a factor to be considered under section 518.17, subdivision 2), and not because the parties did not stipulate to joint physical custody.   

II.

Appellant also argues that the district court's failure to discuss how its factual findings on the relevant best-interests and joint-custody factors weighed in favor of or against each party and to draw a nexus between such findings and its ultimate conclusions also warrants reversal.  Although "[t]he law leaves scant if any room for an appellate court to question the [district] court's balancing of best-interests considerations," Schallinger, 699 N.W.2d at 19 (quotation omitted), failure by the district court to sufficiently explain the tie between its findings on custody and its conclusion requires a remand.  Rogge v. Rogge, 509 N.W.2d 163, 166 (Minn. App. 1993), review denied (Minn. Jan. 28, 1994).  But a district court "need not make a specific finding for each of the statutory factors, nor must each factor be specifically addressed by the [district] court."  Berthiaume v. Berthiaume, 368 N.W.2d 328, 332 (Minn. App. 1985).  Instead, "[i]t is sufficient if the findings as a whole reflect that the [district] court has taken the relevant statutory factors into consideration in reaching its decision."  Id.      

Here, the district court made the following relevant May 2006 findings related to custody:

(1)       The wishes of the child's parent or parents as to custody.  The [appellant] is seeking joint physical custody or, in the alternative, sole physical custody.  The [r]espondent objects to joint physical custody and is seeking sole physical custody.

 

                        . . . .

 

(3)       The child's primary caretaker.  [D.L.P.] was two months old at the time of the parties' separation.  Until a few days before the separation, the [r]espondent was at home on maternity leave, taking care of [D.L.P.].  The [appellant] worked the night shift and slept during the day. 

 

Immediately following the parties' separation, on May 26, 2005, the [r]espondent obtained an Order for Protection, which was entered without findings.  The OFP awarded the [r]epondent herein sole legal and physical custody and awarded parenting time to the [appellant] as follows:

·    Every Sunday at noon through Monday at 5:00 p.m.

·    Every Thursday from 5:00 p.m. to 8:00 p.m.

The parties continue to operate under this schedule. 

 

The [appellant] has been diligent in exercising all of his parenting time with [D.L.P.].  He described their relationship as "inseparable" and enjoys doing fun activities with [D.L.P.], such as going to the zoo and Camp Snoopy and reading books. 

 

The [r]espondent has been [D.L.P.'s] primary caretaker since he was born.  She has been the primary parent involved in taking [D.L.P.] to the doctor.  She has followed through with recommendations from doctors regarding special formula requirements for [D.L.P.].  She has made efforts to get [D.L.P.] to sleep through the night.  By and large, the [r]espondent has been [D.L.P.'s] primary caretaker. 

 

(4)       The intimacy of the relationship between each parent and child.  Both parties are quick to point out the strengths that each other has as a parent.  To this point, both parents have played a major role in [D.L.P.'s] life, and both parents have a strong desire to maintain and build upon that bond.

 

The [r]espondent appears to be a very caring, nurturing and attentive parent who makes every effort to put her child's best interests at the forefront.

 

The [appellant] is also very closely bonded with his child, but, unfortunately, the [appellant] has had occasion to put his own issues with anger ahead of his child's best interests.  He has engaged in raging outbursts in front of his infant son, showing little regard for his son at that moment.  To the [appellant's] credit, he has recognized a need to change that behavior, and he has nearly completed an anger management course with . . . a licensed psychologist.

 

(5)       The interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's bet [sic] interests.  Both parties have parents, siblings and nieces and nephews in the metro area.  They have close relationships with their extended family, and they interact with each other frequently. 

 

The [r]espondent's sister . . . provides daycare for [D.L.P.], making it possible for [D.L.P.] to spend time with his aunt and cousins on a daily basis.  The [r]espondent also takes [D.L.P.] with her to her grandparents' cabin in Iowa.  Much of the [r]espondent's extended family spends time at the cabin, giving [D.L.P.] a unique opportunity to bond with those family members.

 

[D.L.P.'s] involvement with the [appellant's] extended family, particularly his parents, is equally beneficial to [D.L.P.'s] upbringing.  [D.L.P.] is very fortunate to have an extremely loving, caring and involved extended family on both his mom and dad's side of the family. 

 

                        . . . .

 

(7)       The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.  Aside from the separation of his parents, [D.L.P.] has maintained a stable living environment.  The [appellant] has exercised all of his parenting time, which is extremely important for [D.L.P.'s] sense of consistency and stability.  He has lived with the [r]espondent since the parties separated, and he has remained in daycare with his aunt . . . .

 

At just thirteen months of age, a change in this schedule would not be overly disruptive to [D.L.P.].  In fact, change is inevitable in these young parents' lives.  Nevertheless, maintaining stability and continuity in [D.L.P.'s] life, to the extent possible, would be beneficial to him.

 

                        . . . .

 

(9)       The mental and physical health of all individuals involved.  Both parties appear to be in good physical health.

 

Through the testimony of the [r]espondent, her sister and her brother-in-law, it appears that the [appellant] has some fairly serious problems with controlling his anger.  The smallest of things can set him off.  He has taken his rage out on the [r]espondent, which has been witnessed by others, including their child, [D.L.P.].  The [appellant] has taken steps toward controlling his anger.  He has nearly completed an anger management course, and he has changed his work schedule to day shifts rather than night shifts, effective August 1, 2006, allowing him a more normal sleep schedule.  There is no doubt that the [appellant] makes every effort to be a great parent, but until he gets a handle on his angry outbursts, he cannot fully meet his potential. 

 

It is also concerning to the [c]ourt that the [r]espondent has allowed the [appellant] to engage her in such a threatening way in front of the child.  To her credit, she did remove herself and the child from a very volatile situation at the time of separation.  It will be important for the [r]espondent to gain the self confidence necessary to deal with the [appellant] so that the parties can jointly make decisions for their son in a non-defensive, non-threatening manner. 

 

(10)     The capacity and disposition of the parties to give the child love, affection, and guidance to continue educating and raising the child in his culture and religion or creed, if any.  Both parties are extremely dedicated to [D.L.P.] and love him fully.  They agreed to have him baptized in the Lutheran Church, and there does not appear to be any conflict between the parties with respect to [D.L.P.'s] religion. 

 

                        . . . .

 

(13)     Except in cases in which a finding of domestic abuse as defined in § 518B.01 has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.  Both parties believe that it is important for their child to have frequent and regular contact with the other parent.  However, due to the poor communications between the parties and the fact that the [r]espondent is intimidated by the [appellant], it is somewhat concerning to the [c]ourt that the [r]espondent may avoid contact with the [appellant], thereby limiting [D.L.P.'s] ability to visit with his dad.  It will be important for both parties to learn how to deal with each other in a non-threatening manner so that the child can have frequent contact with both parents.

 

                        . . . .

 

(1)       The ability to cooperate in the rearing of their children.  Thus far, the parties have demonstrated an inability to cooperate in raising their child.  While they were together, they had lengthy and volatile arguments over many subjects, including where they would live Minnesota or Iowa, and whether or not the child should be permitted to use a pacifier. 

 

After their separation, the existence of an Order for Protection kept communications and arguments between the parties to a minimum.  The parties communicated via a notebook, which was exchanged with the child at parenting time drop-offs and pick-ups.  However, even with this mean of communication in place, the [appellant] provided little information to the [r]espondent regarding [D.L.P.'s] weekend how he was feeling, how he slept, whether the [appellant] had continued to use [D.L.P.'s] special formula, etc.  The [r]espondent repeatedly asked the [appellant] to provide her with this information in the notebook, but, instead, the [appellant] would communicate about insignificant things, such as which shoes and jacket the child should wear during the [appellant's] parenting time.  The [appellant's] lack of communication indicates an inability to cooperate in the rearing of [D.L.P.].

 

(2)       Methods for resolving disputes regarding any major decisions concerning the life of the child, and the parents' willingness to use those methods.  The parties have agreed that communicating about the child via email, rather than through the parenting time notebook, would be more efficient.  The [appellant] has also proposed that the parties retain (at the [appellant's] expense) a mediator to help resolve their parenting disputes.  It is obvious that the long-term solution for these parties is to learn how to communicate in a non-threatening manner.  It is not practical and not affordable for these parties to rely on a paid, professional, third-party to resolve their disputes for them.  Until such time as the parties learn to communicate with each other verbally, they will have to rely on email to resolve their disputes. 

 

Based on these findings, the district court concluded:

                        These parties have not demonstrated an ability to cooperate to the extent necessary for joint physical custody.  Therefore, the [c]ourt must award sole physical custody to the parent who best represents [D.L.P.'s] best interests.  For the reasons outlined above, the [r]espondent is the best person to fill this role.  It will continue to be important for the [appellant] to play a major role in [D.L.P.'s] life, without causing too much disruption to his daily routine.  The [appellant] should have reasonable and liberal parenting time with [D.L.P.] so that he may continue to be a guiding force in [D.L.P.'s] life. 

 

            The district court made lengthy and detailed findings on the statutory best-interests factors and joint-custody factors that are supported by the record.  Moreover, the district court sufficiently explained the connection between its findings and its decision to award respondent sole physical custody, concluding that the "parties have not demonstrated an ability to cooperate to the extent necessary for joint physical custody." 

Appellant, citing the testimony and recommendation of the custody evaluator and the testimony of appellant and respondent, argues that the record does not support the district court's determination that the parties lack the ability to cooperate.[3]  But respondent clearly testified that the parties were unable to cooperate in raising D.L.P. due to their frequent arguments during the marriage over a number of issues and an inability to effectively communicate after being separated.  In addition, both respondent's sister and her brother-in-law testified to the same effect.  While the record may arguably support a different custody award, "this court may not substitute its judgment for that of the district court when reviewing custody determinations."  Zander, 720 N.W.2d at 368.  Therefore, we conclude that the record adequately supports the district court's finding that the parties lack the ability to effectively communicate and cooperate in the rearing of D.L.P. 

III.

            Finally, appellant argues that the district court failed to sufficiently explain its reasons for rejecting the custody evaluator's recommendation for joint physical custody.  When the district court rejects the recommendations of the custody evaluator, the district court is required to either: (1) "express its reasons for rejecting the custody recommendation," or (2) "provide detailed findings that examine the same factors the custody study raised."  Rogge, 509 N.W.2d at 166; see also Roehrdanz v. Roehrdanz, 410 N.W.2d 359, 362 (Minn. App. 1987) (affirming custody determination where district court set forth its reasons for rejecting the custody-study recommendation), review denied (Minn. Oct. 28, 1987); Lawver v. Lawver, 360 N.W.2d 471, 473 (Minn. App. 1985) (concluding that the decision of the district court may contradict the recommendations of the child-custody evaluator when the district court makes particularized findings). 

Here, the custody evaluator recommended joint physical custody, concluding that the parties have the ability to communicate and cooperate in raising D.L.P.  Specifically, the evaluator found that much of the parties' communication problems and disagreements were the result of difficulties stemming from respondent's pregnancy, the fact that appellant was often tired after working overnight shifts, and the fact that the parties had not worked out ways to disagree with one another in a nonoffensive manner.  But the evaluator opined that the parties' ability to cooperate could be improved if they agreed to communicate through email and if appellant took an anger-management class and switched to daytime work shifts. 

The district court disagreed, finding that "the parties have demonstrated an inability to cooperate in raising [D.L.P.]" and that appellant's "lack of communication indicates an inability to cooperate in the rearing of [D.L.P.]."  While the district court did not make findings regarding its rationale for rejecting the custody-study recommendation, the district court did, as discussed above, provide detailed findings and analysis of the same best-interests factors that the custody study raised, demonstrating that it "conscientiously and thoroughly considered the best interests of the child[] consistent with all factors set forth in [section 518.17] before it granted custody to respondent."  Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991).  Therefore, we conclude that the district court did not abuse its discretion by rejecting the custody evaluator's recommendation for joint physical custody.  See id. (concluding that the district court did not abuse its discretion when it awarded custody without making reference to the custody-study report and without a specific finding explaining its rationale for rejecting the recommendation because it conducted a thorough best-interests analysis).

            Affirmed.

[1] In addition, appellant was ordered to pay respondent child care costs of $148.50 per month from June 1, 2006 through January 31, 2007, and $118.50 per month beginning on February 1, 2007. 

[2] The district court also denied respondent's motion for attorney fees. 

[3] Notably, appellant does not argue that the record failed to sufficiently support the district court's findings with regard to any of the other statutory best-interests or joint-custody factors.