This opinion will be unpublished and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-00-12

 

 

In Re the Guardianship of:  N.E.F.

 

 

Filed June 27, 2000

Reversed and remanded

Schumacher, Judge

 

Le Sueur County District Court

File No. F99124884

 

 

Todd W. Westphal, Mackenzie & Gustafson Ltd., 326 South Minnesota Avenue, Post Office Box 360, St. Peter, MN 56082-0360 (for appellant father)

 

Arthur E. Anderson, Anderson Law Office, 108 South Main Street, Le Sueur, MN 56058 (for respondent guardians)

 

Douglas J. Christian, Le Sueur County Attorney, Post Office Box 156, Le Center, MN 56057-0156 (for respondent Le Sueur County)

 

 

            Considered and decided by Schumacher, Presiding Judge, Shumaker, Judge, and Poritsky, Judge.*


U N P U B L I S H E D   O P I N I O N

SCHUMACHER, Judge

Appellant father filed a petition to remove respondent mother's brother and sister-in-law as guardians of N.E.F. (the child) and moved for custody.  The district court, after an evidentiary hearing, denied the petition, the motion, and father's subsequent motion for amended findings of fact and conclusions of law, or for a new trial.  We reverse and remand.

FACTS

The child was born September 13, 1990.  Mother was at least 15 years older than father and was a friend of his family.  The child was conceived following a "one time thing" between mother and father.  Before the child's birth, father joined the military; when the child was born, father was stationed in Germany.

In the fall of 1991, father returned from the service.  Although father denied paternity, he visited with the child two to three times a month.  Father was adjudicated the child's father on October 28, 1992.  Mother was granted physical custody, and mother and father shared legal custody.  Father continued visiting the child approximately on this schedule until about Thanksgiving of 1996. 

In July 1994 mother was diagnosed with melanoma; she died on October 24, 1995.  The child had lived with mother until approximately one month before her death, when the child moved in with mother's brother and sister-in-law.  Mother had asked her brother and sister-in-law to care for the child after her death and nominated them in her will to be the child's guardians.  After mother's death, her brother and sister-in-law petitioned for guardianship of the child.  In December 1995, they were appointed special guardians, and on March 1, 1996, were appointed the child's legal guardians.  Father attended the hearing on the guardianship proceedings, but did not object to the appointment because he thought that the child had become "established" in their home, and his circumstances were less settled at the time. 

In July 1997 father filed a petition to remove the guardians and for custody in the paternity matter.  Father contends that the motion was prompted by increasing difficulties in persuading mother's brother and sister-in-law to allow him visitation after they had been appointed the child's guardians.  On October 15, 1997, the court entered a stipulated order establishing a regular visitation schedule.  The court eventually appointed a guardian ad litem, who recommended that the child remain with the guardians. 

Testimony at trial established that both parties have close, affectionate relationships with the child.  The child knows father is his father and refers to him as "dad" but does not refer to the guardians as mom or dad.  The child has stated that he wants to live with his father.  He has not made similar statements about the guardians. 

D E C I S I O N

According to the Minnesota Supreme Court:

Our role in reviewing custody modification cases is limited.  See Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  An appellate court will not reverse a custody determination unless the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.  See id.  On appeal, a district court's findings of fact, whether based on documentary or oral evidence, are not set aside unless clearly erroneous, and the record is reviewed in a light most favorable to the findings. 

 

Frauenshuh v. Giese, 599 N.W.2d 153, 156 (Minn. 1999) (citations omitted).

Father first contends that the guardians were improperly appointed and that the appointment is void ab initio.  The statute governing the appointment of a guardian for a minor, provides that the "court may appoint a guardian for an unmarried minor if all parental rights of custody have been terminated or suspended by prior court order."  Minn. Stat. § 525.6165 (Supp. 2000).  Father contends that because his custody rights were not "terminated or suspended by prior court order" the court had no right to appoint guardians. 

But even if the district court erred in approving the guardianship, it is not void ab initio.  Father did not appeal the order appointing the guardians, and an appealable order that is not appealed within the time allowed becomes final even if it is wrong.  Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370, 147 N.W.2d 100, 103 (1966).  The jurisdiction to decide a case includes the jurisdiction to decide it wrongly.  Robinette v. Price, 214 Minn. 521, 527, 8 N.W.2d 800, 805 (Minn. 1943).  Because the district court had subject matter jurisdiction over the guardianship petition and the parties involved, its decision is not void, even if incorrect.

Father next argues that the district court erred by not considering the child’s wish to live with father.  The choice of children old enough to express a preference about custodial arrangements is entitled to significant weight in examining a child's best interests.  See, e.g., Gauthier v. Walter, 110 Minn. 103, 106, 124 N.W. 634, 635 (1910) ("[W]hen the minor has reached an age sufficient to have an intelligent and well-defined preference, * * * it is apparent that his inclination must be taken into consideration, if regard is to be had for his best interests."); Ross v. Ross, 477 N.W.2d 753, 756-57 (Minn. App. 1991) (when custody of child is placed with non-parent, the choice of an "older child" is of "predominant importance").  The preference of a minor child, however, is only one factor to consider in determining custodial placement, see Minn. Stat. § 518.17, subd. 1(a) (1998), and the decision whether to interview a child to ascertain a preference is within the trial court's discretion.  Uhl v. Uhl, 395 N.W.2d 106, 110 (Minn. App. 1986).

Father correctly points out that the district court does not explain its bare finding that "[t]he child is not of sufficient age to express a preference."  At the time of trial, the child was almost nine years old.  Father notes that other courts have found younger children to be of sufficient age to express a reasonable preference.  Mowers v. Mowers, 406 N.W.2d 60, 64 (Minn. App. 1987) (7 years, 10 months old); Petersen v. Petersen, 394 N.W.2d 586, 588 (Minn. App. 1986) (7 years old), review denied (Minn. Dec. 17, 1986).  In Steinke v. Steinke, 428 N.W.2d 579 (Minn. App. 1988), we observed that

[e]ven if the court otherwise properly applied the best interests standards, it failed to consider one very important factor:  the clearly expressed preference of the ten year old child.  The court gave no reasons why it found [the child's] testimony not credible.

 

Id. at 583.  Without any explanation for the district court's finding that the child was not of sufficient age to express a reasonable preference, we cannot adequately review that finding.  See In re Welfare of M.P., 542 N.W.2d 71, 75 (Minn. App. 1996) ("without findings on how the trial court considered M.P.'s preference, we cannot review M.P.'s claim that the trial court did not give her preference sufficient weight.").  In light of the importance of this factor, especially in cases where custody is given to a third party instead of a parent, Ross, 477 N.W.2d at 756-57, the district court erred by not making sufficient findings on this factor.  We reverse and remand to the district court to allow it to make additional findings on this factor and re-analyze the best interests of the child.

In light of this decision, we need not address father’s other arguments.  We do, however, note father's challenge to the district court’s finding that his relationship with the child "is clearly not of the intimacy of a custodial parent and child relationship."  We reject any inference that a non-custodial parent—especially a parent who has experienced difficulty obtaining visitation—"clearly" cannot establish a significant and intimate relationship with his or her children.  Numerous witnesses, including a neighbor not related to any of the parties, testified to the close and loving relationship father has with the child.  By contrast, the record does not contain evidence establishing that father's relationship with the child is somehow lacking, and it appears that the finding is unsupported.  If a similar finding is to be made on remand, it must be supported by specific evidence. 

Reversed and remanded.



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