In re the Marriage of: Kim Gail Capra, petitioner, Respondent, vs. Mario R. Capra, Appellant.

In re the Marriage of: Kim Gail Capra, petitioner, Respondent, vs. Mario R. Capra, Appellant. A07-851, Court of Appeals Unpublished Decision, October 30, 2007.

This opinion will be unpublished and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

A07-851

 

In re the Marriage of:
Kim Gail Capra, petitioner,
Respondent,
 
vs.
 
Mario R. Capra,
Appellant.

 

Filed October 30, 2007

Affirmed

Wright, Judge

 

Hennepin County District Court

File No. 27-FA-000295667

 

 

Mario Capra, 632 Ninth Avenue North, South St. Paul, MN  55075 (pro se appellant)

 

Phillip Gainsley, Suite 527, 701 Fourth Avenue South, Minneapolis, MN  55415 (for respondent)

 

 

            Considered and decided by Stoneburner, Presiding Judge; Toussaint, Chief Judge; and Wright, Judge.
 

U N P U B L I S H E D  O P I N I O N

WRIGHT, Judge

            Appellant-father challenges the district court's decision to modify the custody provision in the dissolution judgment and decree and grant respondent-mother sole legal and sole physical custody of the children, arguing that the district court abused its discretion by (1) making findings that are unsupported by the evidence, and (2) declining to follow the recommendations of independent professionals.  We affirm.

FACTS

            The district court entered a judgment and decree dissolving the marriage of appellant-father Mario Capra and respondent-mother Kim Capra on October 19, 2005.  In the judgment and decree, the district court granted the parties joint legal and joint physical custody of their three children.  On June 16, 2006, father moved to modify the custody provision in the judgment and decree to grant him sole physical custody of the children.  In response, mother moved to dismiss father's motion or, in the alternative, to modify the custody provision to grant her sole physical custody.[1]  While these motions were pending, the district court appointed a guardian ad litem and ordered the department of court services to complete a custody evaluation.  Although this order and others in these proceedings were prepared by the family court referee, they became orders of the district court when countersigned and filed by the district court judge.  See Minn. Stat. § 484.70, subd. 7(c), (e) (2006) (stating that recommended findings and order of referee become district court's when countersigned by district court judge).  Therefore, we hereinafter refer to the findings as those of the district court.

After a hearing, the district court granted mother sole legal and physical custody of the children and granted father supervised parenting time.  This appeal followed.

D E C I S I O N

A district court has broad discretion in making child-custody and parenting-time determinations.  Matson v. Matson, 638 N.W.2d 462, 465 (Minn. App. 2002).  Our review of those determinations is limited to deciding whether the district court abused its discretion by making findings that are unsupported by the evidence or by improperly applying the law.  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996).  Unless the district court's findings are clearly erroneous, we will not disturb them.  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  To determine whether the district court's findings are clearly erroneous, we view the record in the light most favorable to the findings and give deference to the district court's credibility determinations.  Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).

I.

Father argues that the district court abused its discretion by awarding mother sole physical custody because it based its decision on findings that are clearly erroneous.  When, as here, a motion to modify custody is based on allegations of child endangerment, the district court may not grant the motion unless it finds that (1) a significant change in the circumstances of the children or the parent has occurred; (2) a modification of custody would serve the best interests of the children; (3) the children's present environment endangers their physical and emotional health or emotional development; and (4) the harm to the children that likely will be caused by the change of custody is outweighed by the advantage of the change.  Minn. Stat. § 518.18(d)(iv) (2006); Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997); see Leyh v. Stelzer, 398 N.W.2d 63, 66 (Minn. App. 1986) (holding that district court must find all four elements before it may modify previous custody order).

A.

To modify a custody order, a district court must find that a significant change in circumstances has occurred since the previous custody order was issued.  Tarlan v. Sorensen, 702 N.W.2d 915, 922-23 (Minn. App. 2005).  Whether a significant change in circumstances has occurred must be determined on a case-by-case basis.  Sharp v. Bilbro, 614 N.W.2d 260, 263 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000).

Here, the district court found that father's

efforts to alienate the parties' children from [mother] and from members of both parties' families represents a change in circumstances since the entry of the Decree herein.  While during the course of the parties' marriage [father] was hostile, angry, belligerent and dishonest, his efforts at alienation did not begin until after the entry of the Decree.

 

Record evidence supports this finding.  For example, mother testified, "Following the divorce, the boys were pulled away from me.  They were not as affectionate with me.  They did not particularly want to be near me."  She also testified that father made demeaning comments to her in the children's presence, such as, "Look at your mom, boys, look at her cry" and "You're a horrible mother."  A licensed psychologist testified that comments of this sort constitute "alienating behavior."  Several members of mother's and father's families also testified that father has harmed their relationships with the children.

The district court's determination that this change in circumstances warrants a custody modification also is legally sound, as "Minnesota courts[ ] agree[ ] that a sustained course of conduct by one parent designed to diminish a child's relationship with the other parent is unacceptable and may be grounds for . . . modifying custody."  Lemcke v. Lemcke, 623 N.W.2d 916, 919-20 (Minn. App. 2001) (citing Henrikson v. Henrikson, 288 Minn. 532, 532-33, 179 N.W.2d 284, 285 (1970) (holding that conduct designed to alienate children from father justified custody modification)), review denied (Minn. June 19, 2001). 

B.

A custody modification also requires a finding that "modification is necessary to serve the best interests of the child."  Minn. Stat. § 518.18(d) (2006).  To determine whether modification is necessary to serve the child's best interests, the district court must consider "all relevant factors," including: (1) the parents' wishes; (2) the child's preference; (3) the child's primary caretaker; (4) the intimacy of the parent-child relationship; (5) the child's relationships with parents, siblings, and other persons who significantly affect the child; (6) the degree to which the child has adjusted to home, school, and the community; (7) the length of time the child has lived in a stable environment and the desirability of maintaining continuity; (8) the permanence of the existing or proposed custodial home; (9) the mental and physical health of those involved; (10) the parties' abilities to give the child love, affection, and guidance, and educate and raise the child in the child's culture and religion; (11) the child's cultural background; (12) the effect of the actions of an abuser on the child; and (13) the ability of each parent to encourage contact between the other parent and the child.  Minn. Stat. § 518.17, subd. 1(a) (2006).  "[C]urrent law leaves scant if any room for [us] to question the [district] court's balancing of best-interests considerations."  Vangsness, 607 N.W.2d at 477. 

Father argues that the evidence does not support the best-interests findings, but a thorough review of the record demonstrates otherwise.  Regarding the first factor, Minn. Stat. § 518.17, subd. 1(a)(1) (parents' wishes), the finding that both parties wish to have sole physical custody is supported by the parties' respective motions requesting as much.  As to the second factor, Minn. Stat. § 518.17, subd. 1(a)(2) (child's preference), the finding that the children wish to live with father is supported by record evidence, including, for example, the court-services evaluator's report, which states that the children expressed their wishes to live with father.  Regarding the third factor, Minn. Stat. § 518.17, subd. 1(a)(3) (primary caretaker), the finding that mother was the children's primary caretaker before the dissolution is supported by mother's testimony that she made the children's meals, did their laundry, bathed them, and arranged their daycare, schooling, and play dates.  The finding that father's current caretaking responsibilities are the result of parental alienation is supported by mother's testimony that, since the dissolution, father has employed several techniques to alienate her from the children, such as demeaning her and insulting her parenting skills in the children's presence and preventing her from talking to the children on the telephone. 

As to the intimacy of the parent-child relationship, Minn. Stat. § 518.17, subd. 1(a)(4), the district court relied on the court-services evaluator's observation that, during home visits, father had an "intimate rapport with the children," and mother "was not as intimate."  Regarding the fifth factor, Minn. Stat. § 518.17, subd. 1(a)(5) (child's relationships with parents, siblings, and other persons who significantly affect child), the district court found that father "obstructed any interaction and interrelationship between the children and their mother, her brother, her sister-in-law, her mother, her father, and all of [father's] family, all of whom had formerly enjoyed a healthy and warm relationship with the three children."  This finding is supported by substantial record evidence, including the maternal grandfather's testimony that father "made good on [his] promise" that the maternal grandfather would "never see[ ] [his] grandchildren again," a maternal uncle's testimony that he and his family stopped seeing the children when father "decided that he didn't want any contact with [the maternal uncle's] family," and the maternal grandmother's, paternal stepgrandfather's, and paternal grandmother's testimony that they have been "cut off" from the children.

Regarding the degree to which the children have adjusted to their home, school, and community, Minn. Stat. § 518.17, subd. 1(a)(6), the district court found that the children are familiar with both parents' homes and have good connections with teachers and friends in their schools.[2]  These findings are supported by the court-services evaluator's reported observations, mother's testimony that she resides in the home that the parties shared prior to the dissolution, and a maternal aunt's testimony that the children and father currently reside in her home.  As to the seventh and eighth factors, Minn. Stat. § 518.17, subd. 1(a)(7) (length of time child has lived in stable environment and desirability of maintaining continuity), (8) (permanence of existing or proposed custodial home), the finding that the children have not lived in a stable environment since dissolution but rather have moved between mother's residence in the family's pre-dissolution home; father's prior residence in Waconia; and father's current residence in a maternal aunt's home also are supported by the report of the court-services evaluator and the testimony of mother and her sister.

As to the ninth factor, Minn. Stat. § 518.17, subd. 1(a)(9) (health of those involved), the paternal stepgrandfather's testimony supports the finding that father has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD).  Although the finding that mother completed treatment for a physical addiction to migraine medication is inconsistent with mother's testimony that she completed detoxification, not treatment, the finding that mother no longer uses this medication is consistent with mother's testimony.  The findings that the older children have been diagnosed with ADHD is supported by the court-services evaluator's report, which relies on a letter from the children's pediatrician; and mother's testimony supports the finding that, at age 7, the youngest child is not toilet trained.

Regarding the tenth and eleventh factors, Minn. Stat. § 518.17, subd. 1(a)(10) (parties' ability to give love, affection, and guidance, and educate and raise child in child's culture and religion), (11) (child's cultural background),[3] the district court found that mother "has the capacity and disposition to provide love and affection"; that father's attempts to do so have been destructive; and that father "has taken no action" to raise the children in the Jewish religion, while mother and her family have included and will continue to include the children in Jewish celebrations.  These findings are supported by record evidence, including the maternal grandfather's testimony that mother is a creative, loving, and warm mother; mother's testimony that father has guided the children to replicate his violent behavior; mother's testimony that father has taken no steps to "rear these boys in the Jewish religion" and, instead, has made comments to the children such as, "Your [maternal grandfather's] a f**king Jew weasel" and "Your mother is a fat Jew b*tch"; and the maternal grandmother's testimony that she and the children celebrated Jewish holiday traditions.

As to the twelfth factor, Minn. Stat. § 518.17, subd. 1(a)(12) (effect of abuser's actions on child), the district court found that father committed domestic abuse, as defined in Minn. Stat. § 518B.01, subd. 2(a) (2006), and is rearing the children to believe that domestic abuse is acceptable.  This finding is supported by mother's extensive testimony regarding father's willingness to act violently and use violent words in the children's presence.  Finally, the district court found that the thirteenth factor, Minn. Stat. § 518.17, subd. 1(a)(13) (parent's ability to encourage contact between other parent and child), "overwhelmingly" weighs against father because father has "not encouraged or permitted frequent continuing contact by [mother] and the . . . children" and "has made determined efforts to discourage and deny contact."  This finding supports this conclusion with record evidence, including mother's testimony regarding father's demeaning comments and the testimony of the licensed psychologist that those comments constitute "alienating behavior."

C.

            Next, to modify a custody order, the district court must find that the children's present environment endangers their physical and emotional health or emotional development.  Minn. Stat. § 518.18(d)(iv).  The district court found that father has engaged in alienating behavior that "is at such a level as to be regarded as harmful such that [the children's] present environment endangers their emotional health and impairs their emotional development."  After a thorough review of the record, including the evidence discussed above, in the light most favorable to this finding and with deference to the district court's credibility determinations, we conclude that this finding is not clearly erroneous.  It, therefore, should not be disturbed.

D.

Finally, before it may modify a custody order, a district court must find that the harm to the children that may result from a change of custody is outweighed by the benefits of a change.  Minn. Stat. § 518.18(d)(iv).  Here, the district court found that

[a]ny harm that may be caused [to] the parties' children because of a change [of] custody is substantially outweighed by the benefits of a change.  Those benefits include, among others, the children's healthy exposure to both parents, a return to the family homestead close to their respective schools, an absence from [father's] violence, and a reintegration or reunification with the children's aunts, uncles, cousins and grandparents, on both sides of the family.

 

These findings are supported by substantial evidence in the record.  For example, mother testified that she continues to live in the marital home and the children continue to attend the local schools.  She has allowed the children to see their father because she "believed that it was important for [them] to be reassured that they could have a relationship with their father."  Regarding father's violent behavior, mother testified that his discipline methods included "a slap on the leg, a grab by the back of the neck, empty threats of things such as ‘I'll kick you in the head', ‘I will toss you around', ‘I'll kick you in the mouth.'"  Similarly, mother's former brother-in-law testified that father warned, "[L]ook for the bruises on your daughter's a** the next time you're at your cabin."  And a community/family liaison for the Eden Prairie Schools testified that she observed father "nearly r[u]n over" mother with a vehicle.  As discussed above, several family members testified that father has caused their relationships with the children to deteriorate. 

The district court's decision to modify the custody determination in the judgment and decree is not an abuse of discretion because substantial record evidence supports the district court's findings that there has been a substantial change in circumstances since the original custody determination was made, a modification would serve the children's best interests, the children are endangered in their present environment, and the harm that may result from the change of custody is outweighed by the benefits of the change.

The district court also made the requisite findings when joint legal custody or joint physical custody is contemplated or sought.  See Minn. Stat. § 518.17, subd. 2 (2006) (specifying required findings).  Section 518.17, subdivision 2, identifies four factors for consideration: (1) the parents' ability to cooperate; (2) the methods available to the parents to resolve disputes and their willingness to use those methods; (3) whether it would be detrimental to the children if one parent had sole authority over their upbringing; and (4) whether domestic abuse between the parents has occurred.  The district court found that father "has evinced a disposition against any cooperation, and . . . has, for all intents and purposes, cut the children's mother out of their lives"; that evidence regarding the parties' methods for resolving disputes was not presented; that it would not be detrimental for mother to have sole authority over the children's upbringing; and that father has domestically abused mother.  These findings are supported by mother's testimony that father employs several means to alienate her from the children, including demeaning her, acting violently toward her, and preventing her from talking to the children.  These findings also are supported by record evidence.  Accordingly, the district court did not abuse its discretion when it modified the joint-legal and joint-physical custody determination and awarded mother sole legal and sole physical custody of the children.

II.

Father argues that the district court abused its discretion when it declined to follow the custody and parenting-time recommendations of the court-services evaluator, the children's guardian ad litem, a parenting consultant, and a social worker/therapist.[4]  The court-services evaluator recommended modification of the custody order to award father sole physical custody of the children and mother parenting time.  The guardian ad litem agreed with this recommendation.  In her report, the parenting consultant averred that "[t]he relationship between the parents is such that the joint physical custody situation is not workable" and that, "[s]ince [father] is able to parent the boys with relative ease, it seems obvious that he would become primary parent."  The social worker/therapist also advised that she "do[es] not believe joint custody is feasible."

A district court is not bound by an independent evaluator's custody recommendations.  Pikula, 374 N.W.2d at 712; Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991); Mowers v. Mowers, 406 N.W.2d 60, 64 (Minn. App. 1987).  Whether to accept a recommendation is a discretionary decision of the district court.  Rutanen, 475 N.W.2d at 104.  The decision not to follow the independent evaluator's recommendation does not constitute an abuse of discretion, provided that the district court (1) makes detailed findings regarding the best-interests factors set forth in Minn. Stat. § 518.17, subd. 1, and those findings support the conclusion that the district court's custody determination is in the child's best interests; or (2) explains its reasons for the rejecting the recommendation.  See Rogge v. Rogge, 509 N.W.2d 163, 166 (Minn. App. 1993) (requiring district court to explain its rejection or provide findings that examine same factors as evaluator's study), review denied (Minn. Jan. 28, 1994); see also Minn. Stat. § 518.167, subd. 2(b) (2006) (requiring evaluator to consider each factor under Minn. Stat. § 518.17, subd. 1).

As discussed above, the district court made detailed findings regarding the best-interests factors, which are supported by record evidence and, together, support the conclusion that a custody modification is in the children's best interests.  Therefore, the district court did not abuse its discretion when it declined to follow these recommendations.  Furthermore, although the district court was not required to do so after making detailed best-interests findings, it also stated its reasons for rejecting the recommendations of the court-services evaluator, the guardian ad litem, and the social worker/therapist. 

            The district court did not abuse its discretion when it declined to follow the recommendations of independent professionals, granted the motion to modify the custody determination in the judgment and decree, and awarded mother sole legal and sole physical custody of the children.

            Affirmed.

[1] Although a motion to modify custody ordinarily may not be brought within one year after the entry of a dissolution judgment and decree, Minn. Stat. § 518.18, subd. (a) (2006), the parties' motions were properly before the district court because it found that there was reason to believe that the children were endangered based on each party's allegations that the children were endangered in the other party's environment, id., subd. (c) (2006) (stating that custody-modification motion may be brought within one year if district court "has reason to believe that the child's present environment may endanger the child's physical or emotional health or impair the child's emotional development").

[2] Regarding his ability to educate the children, father maintains that there is no evidence to support the finding that father is illiterate.  But there is not a finding that father is illiterate; rather, there is a finding that mother claimed that father "is barely literate," which is consistent with mother's testimony that father cannot read or write.

[3] The order modifying custody contains separate sections for every best-interests factor but Minn. Stat. § 518.17, subd. 1(a)(11).  Although the district court did not include a separate section for this factor, there are findings relevant to this factor.

[4] In his reply brief, father avers that the district court also declined to follow the recommendations of Dr. Carole Mannheim, a forensic psychologist; Dr. Mary Zasada, a chemical-health specialist; Dr. Thomas Stealy, the children's pediatrician; Julie Weeden, a school social worker; and Timothy Beekmann, a teacher.  But this argument was not raised or argued in father's initial brief and, therefore, cannot be introduced in his reply brief.  McIntire v. State, 458 N.W.2d 714, 717 n.2 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990).  Moreover, none of these individuals made formal recommendations to the district court, and the district court excluded many of their reports on hearsay grounds.