This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-99-1749

 

 

In Re the Marriage of:

Donna P. Johns, petitioner,

Respondent,

 

vs.

 

Bradley H. Johns,

Appellant.

 

 

Filed March 21, 2000

Reversed and remanded
Foley, Judge
*

 

Lyon County District Court

File No. F2-97-585

 

Robert L. Gjorvad, Runchy, Louwagie & Wellman, PLLP, P.O. Box 1043, 533 West Main Street, Marshall, MN  56258  (for appellant)

 

Patrick J. Leary, Quarnstrom, Doering, Pederson, Leary & Murphy, P.A., P.O. Box 1235, 109 South Fourth Street, Marshall, MN  56258 (for respondent)

 

Considered and decided by Toussaint, Chief Judge, Harten, Judge, and Foley, Judge.


U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            The trial court denied a motion by appellant Bradley Johns to modify custody, despite finding that a change had occurred in the circumstances and that modification was necessary to serve the children’s best interests and the children’s present environment endangered them.  We reverse and remand with direction to award custody to appellant subject to reasonable visitation rights of respondent Donna Johns.

FACTS

            The parties were married in June 1991 and had two minor children.  Their marriage was dissolved in July 1997.  The trial court awarded joint legal custody and granted respondent physical custody.  Respondent has been the children’s primary caretaker since they were born.  In February 1998, the children moved with respondent from Marshall to Little Falls and lived with respondent and her companion, Dennis Long.

            Appellant and Long have an adversarial relationship.  In August 1997 they fought with each other at a bar and were both charged with disorderly conduct.  The police report indicated that a verbal argument turned physical when Long threatened to kill appellant and then charged at him.  There is also evidence that Long swears in front of the children, calls appellant a “mental case,” and believes the children should be afraid of adults.

            On March 27, 1998, respondent became intoxicated and told appellant over the telephone that she was considering suicide.  When the police arrived, the children were asleep in front of the television and respondent informed the police that she had been drinking alcohol and took two Ibuprofen pills.  Her blood alcohol concentration was .257. A chemical dependency assessment indicated respondent was not chemically dependent, but that there was a possibility of chemical abuse on her part.  Medical personnel recommended counseling for depression, but respondent has not yet received any depression counseling.

            Appellant has lived in the same home and been employed by the same company for more than 10 years.  Because he has an alcohol problem, he has been attending Alcoholics Anonymous since October 1997.  Appellant also received counseling to assist him in parenting and to deal with the divorce. 

            Appellant brought a motion to modify custody and grant him physical custody of both children, alleging that a change in circumstances occurred when respondent and the children moved in with Long in Little Falls.  Appellant states that it is not in the children’s best interests to reside with respondent and Long claiming that living situation endangers their emotional and physical well-being.  The trial court agreed, but determined that the benefits of modifying custody did not outweigh the harm that might be caused by changing the children’s environment.

D E C I S I O N

            We will not reverse a custody determination unless the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.  Frauenshuh v. Giese, 599 N.W.2d 153, 156 (Minn. 1999); see also Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (sustaining trial court findings unless clearly erroneous).  This court gives deference to the trial court’s opportunity to assess the credibility of witnesses.  Sefkow, 427 N.W.2d at 210; Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).

            To warrant modification of custody, the party seeking modification must first establish that (1) a change in the children’s circumstances or their custodians has occurred, (2) custody modification is necessary to serve the best interests of the child, and (3) the children's present environment endangers their physical or emotional health and the advantage of modification outweighs the harm likely to be caused by the change.  Minn. Stat. § 518.18(d) (1998); State ex. rel Gunderson v. Preuss, 336 N.W.2d 546, 548 (Minn. 1983); Bettin v. Bettin, 404 N.W.2d 807, 808 (Minn. App. 1987).

            Appellant bases his claim for custody modification on allegations that (1) respondent and the children have moved several times; (2) respondent has an alcohol problem; (3) respondent attempted to commit suicide; (4) respondent once came to pick up the children in a vehicle without appropriate child restraints; (5) Long swears at the children and believes children should be afraid of adults; (6) Long calls appellant a “mental case” in front of the children; (7) Long threatened to kill appellant during a fight outside a bar in 1997; and (8) the court-appointed guardian ad litem recommended modification.

            The trial court found that respondent’s action in moving in with Long was a change in circumstances.  The guardian ad litem reported that Long has a criminal history, lied to her, swears at the children, and refers to appellant as a “mental case.”  The trial court determined that the animosity between appellant and Long endangers the children’s emotional development.  The trial court also found that respondent has an alcohol problem and has refused to seek counseling for depression or alcohol abuse.  In light of these findings, the trial court determined that custody modification was necessary to serve the best interests of the children.

            The trial court then decided that the advantage of changing custody of the children to appellant is outweighed by the harm that might be caused by a change of environment. The trial court found harm in changing custody to appellant because respondent was the primary caretaker and she was a good parent.  That finding is insufficient to constitute harm in changing custody to appellant; the trial court also found him to be a good parent. Significantly, the guardian ad litem reported that appellant is more stable than respondent and, unlike respondent, appellant promotes the children’s relationships with his extended family and consistently takes them to church.  The trial court found appellant has held the same job and has lived in the same house for 10 years.  He received parenting counseling, attends Alcoholics Anonymous meetings, and participates in divorce support groups.

            The trial court’s balancing decision is inconsistent with its own determination that the children’s current environment endangers them and its positive findings concerning appellant’s home environment.  See Gustafson v. Gustafson, 376 N.W.2d 290, 293 (Minn. App. 1985) (noting evidence tending to prove children’s best interests should be used to weigh harm of change against benefit of modification).  Because the evidence does not support the trial court’s finding that the benefit of the change does not outweigh the harm, the trial court abused its discretion in refusing to modify custody.  See Pikula, 374 N.W.2d at 710 (reversing custody determinations if trial court abused its discretion by making findings unsupported by evidence).  We reverse and remand with direction to award custody to appellant subject to reasonable visitation rights by respondent.

            Reversed and remanded.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.