This opinion will be unpublished and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
Nathan A. Tabery, petitioner,
Filed August 1, 2000
Clay County District Court
File No. F598530
Timothy J. McLarnan, McLarnan, Hannaher & Skatvold, PLLP, 730 Center Avenue, Suite 202, P.O. Box Eight, Moorhead, MN 56560 (for respondent)
Howard M. Anderson, Jr., 133 Oak Manor Court, Fargo, ND 58103 (for appellant)
Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Anderson, Judge.
Appellant mother challenges the district court’s order modifying custody alleging (a) the district court failed to consider the custodial preferences of the children involved; (b) the district court’s findings are not supported by the record; (c) there was no change in circumstances regarding the relationship between the children and their mother; (d) there was insufficient evidence to show endangerment of the children while in mother’s custody; (e) modification of custody to respondent father will cause more harm to the children than good; and (f) the children’s best interests require that the children stay with mother. We affirm.
Respondent Nathan Tabery and appellant Diana Hofmann are the parents of two children, ages 12 and 10. Awarded physical custody in paternity proceedings, Hofmann has since maintained primary custody.
Since their relationship ended, Hofmann has lived in seven different locations in four different states. She has been married and divorced twice, and has had significant relationships with two other men (James Blankenship and James Moore). Hofmann is currently involved with Moore. Hofmann, Moore, and Blankenship each has been involved in alcohol-related incidents including domestic assaults, other domestic disturbances, and numerous DUIs. As a result, neither Hofmann nor Moore currently has a driver’s license. Hofmann obtained restraining orders against Blankenship, but continued to have contact with him. She also obtained a no-contact order against Moore but subsequently requested that it be withdrawn. Hofmann has been arrested on several occasions for driving without a valid license, sometimes with her children in the car. She was jailed for the offenses, but has continued to drive without a valid license. In many of these situations, the children were present. She has undergone treatment for alcohol abuse, but continues to drink.
Hofmann’s relationship with Tabery was laid waste by alcohol abuse and domestic violence. But since his relationship with Hofmann ended, Tabery has transfigured his life. Currently married, he has a permanent home, stable employment, and no longer drinks. Tabery has maintained this new lifestyle approximately ten years.
Upon Tabery’s motion for a change in custody, the district court conducted a three-day trial. At trial, the court-appointed guardian ad litem testified that custody should be awarded to Tabery. One of the examining doctors made parental capacity evaluations and psychological evaluations of the children. That doctor testified that Hofmann has a personality disorder involving impulsivity, poor judgment, failure to plan, and irresponsibility. Furthermore, she testified that Hofmann lacked insight, confided in the children about matters related to the custody proceeding, and because Hofmann thought it unnecessary, was unlikely to change.
The district court further found that there had been changes in the lives of the children resulting in the risk of physical danger or impaired emotional development and that any harm from the change in custody would be outweighed by the ultimate benefits in the custody change.
Applying the best interests of the child factors from Minn. Stat. § 518.17, the court made the following findings: (1) each parent seeks custody; (2) the children were too young to express a preference and had been improperly influenced by Hofmann to prefer her; (3) Hofmann has been the primary caretaker in the past, but Tabery has taken care of the children for extended periods of time; (4) Hofmann’s intimate relationship with the children results from an ineffective parenting philosophy and her attempt to sabotage their relationship with Tabery; (5) the best interests of the children, based on family-child interaction, favor Tabery because of the negative effect that Hofmann, Moore, and Blankenship have on the children; (6) while living with Hofmann, the children have had an unstable home and school life; while living with Tabery, their home and school lives have been stable; (7) there is no permanence in the family unit proposed by Hofmann in contrast to that proposed by Tabery; (8) Tabery is in better mental and physical health; (9) while both parents love their children, only Tabery has the capacity to properly guide and discipline the children; and (10) Tabery has been sober for ten years and has had no domestic abuse incidents since he stopped drinking, but Hofmann has been involved in numerous questionable incidents with Blankenship and Moore, which frequently exposed the children with incidents of alcohol abuse and physical abuse.
The district court awarded custody of the children to Tabery. This appeal followed.
D E C I S I O N
This 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. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). A district court’s findings will be sustained unless they are clearly erroneous. Id.
A party moving for a change in custody must establish four elements: (1) a change in the circumstances of the children or custodian; (2) that a modification would serve the best interests of the children; (3) that the children’s present environment endangers their physical or emotional health or emotional development; and (4) that the advantages in moving the children outweighs the likely harm. Giebe v. Giebe, 571 N.W.2d 774, 778 (Minn. App. 1997); Minn. Stat. § 518.18(d) (1998). Hofmann challenges the trial court’s findings regarding each of these requirements.
Change in Circumstances
“A change in circumstances must be significant and must have occurred since the original custody order; it cannot be a continuation of conditions existing prior to the order.” Id. Hofmann argues that there has been no change in circumstances because at the time of the original custody order, Tabery and Hofmann were also involved in an alcohol-fueled physically abusive relationship. Hofmann elaborates by suggesting Tabery’s ten-year sobriety and lifestyle change is irrelevant because it is not a change in the circumstances of the children or their current physical custodian.
There are several problems with this argument. First, it was recently argued that continued visitation disputes did not constitute changed circumstances because they were a continuation of conflicts pre-dating the custody award. Sharp v. Bilbro, ___ N.W.2d ___, ___, 2000 WL 979159, at *3 (Minn. App. Jul. 18, 2000). This court rejected that argument as “disingenuous,” declining to endorse an argument that would encourage parties to continue to act inappropriately in an attempt to prevail in a later custody dispute. Id. To adopt Hofmann’s argument here would produce a similarly unacceptable result. Moreover, the abuse and alcohol usage is not a “continuation” of the pre-custody determination conditions. These events embraced different people. No continuation of circumstances occurred because there was no continuation of the relationship between Tabery and Hofmann. Second, the statute does not expressly limit the change in circumstances to those in the life of the current custodial parent. Third, by her varied assignations and nomadic predilection, Hofmann has subjected her children to a life of instability driven by whim, alcohol, and passion. It would be absurd to hold that a parent may successfully defend against a custody change by noting that she has been consistent in subjecting her children to a chaotic, abusive and endangering lifestyle.
Hofmann next challenges the district court’s determination that an award of custody to Tabery would serve the best interests of the children. However, when the district court considers the statutory best interest factors and provides reasons for its conclusions, this court will not reverse absent an abuse of discretion. Gibson v. Gibson, 471 N.W.2d 384, 387 (Minn. App. 1991); see Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000) (stating “current law leaves scant, if any, room for an appellate court to question the trial court’s balancing of best-interest considerations”).
Hofmann, citing Sucher v. Sucher, 416 N.W.2d 182, 184 (Minn. App. 1987), argues that a child’s best interests are usually served by awarding custody to the primary caretaker. But Sucher pre-dates the 1989 and 1990 amendments to the custody statute that preclude using the primary parent factor as a presumption in awarding custody. 1989 Minn. Laws ch. 248, § 2; 1990 Minn. Laws ch. 574, § 13 (now codified at Minn. Stat. § 518.17, subd. 1a); see generally Vangsness, 607 N.W.2d at 475-77 (tracing development of custody statute). Additionally, Sucher involved an original custody determination, not a change of custody. A different statute governs custody change, and although that statute also requires the best interest of the child to be considered, the presumption in favor of the current custodial parent is vindicated by the requirements that the court make specific findings before changing custody.
Hofmann also challenges the district court’s conclusion that the children had been improperly influenced and were too young to express a preference. Although a “child's preference is one of a number of factors the court must consider in determining the ‘best interests’ of the child,” Hoffa v. Hoffa, 382 N.W.2d 522, 525 (Minn. App. 1986), this preference must be a reasonable one. Id. A court may conclude, as this one did, that the children's preference, tainted by manipulative conduct on the preferred parent’s part, was not reasonable. Id. Indeed, the district court made extensive findings supporting its conclusion that the children had been unduly influenced in their expression of which parent they preferred to have custody. Accordingly, the district court did not abuse its broad discretion in concluding that the children’s best interests were served by a change in custody.
Hofmann challenges the district court’s determination that the children “are in danger of physical harm and impaired emotional development by being in her custody.” She does not deny or defend her behavior, but instead advances her defense, citing other cases where courts did not find endangerment. None of these cases related to the issues presented here. The evidence of endangerment in this case is notorious and profound. Hofmann has consistently exposed her children to the dangers of alcohol abuse, violent relationships, drinking and driving, and wanton poor judgment. Many of these scenarios played out with the children in key roles either as audience or actors. Hofmann does not deny these facts, but objects to the court’s findings on two grounds. Giving new meaning to chutzpah, she argues that the court ignored the learning potential her children might realize from being exposed to the dangers of her poor decision-making. The more a child is endangered, the greater his or her learning opportunities would be. This would undoubtedly surprise the legislature. Reality intrudes, reminding us that any “learning” a child experiences from a parent’s endangering acts cannot negate the resulting risk of harm. If it did, Minnesota’s endangerment statute would be superfluous.
Second, appellant argues that many of these questionable situations are ones that were out of her control. This argument is unsupported by the record. Although she may not be the aggressor in her relationships, her repeated decisions to be engaged with such aggressors is evidence that she plays an active part in much of the endangerment. Furthermore, she alone is responsible for her problems with alcohol and DUIs. And finally, the statute does not require the endangerment to be the result of the custodial parent’s active decision-making. It is enough that the children are endangered in Hofmann’s custody.
Balance of Harms
Hofmann makes a conclusory denial that the balance of harms favors a custody change. She acknowledges that the children would receive some benefits from the custody change but concludes without elaboration, that the harm in modification would be “real, lasting and consistent.” The district court found that the children had good relationships with Tabery and his wife, and that they were prepared to provide a nurturing and stable home for the children. Furthermore, the district court wrote in particular detail about the potential harms faced by the children under their current living arrangement. Hofmann did not challenge those findings, but instead noted that conditions in a new home are always speculative. It is clear, however, that the present custody arrangement presents real and significant harm, not speculative at all. If courts found the speculative nature of a new environment to be dispositive, no custody changes would ever take place. Here, the district court carefully and properly weighed that possibility against the repeated dangers that Hofmann’s custody of the children occasioned. That choice, carefully documented, within statutory prescription, is no abuse of discretion.
 Perhaps Hofmann is only reflecting classical Nietzschean thought, but nothing in the record suggests this. Was mich nicht umbringt, macht mich stärker. Whatever experience which does not kill me makes me stronger. See Fredrich Nietzsche, Twilight of the Idols, or How One Philosophizes With a Hammer (1889), reprinted in The Portable Nietzche, 467 (Walter Kaufmann trans., Penguin Books, 1982). Wherein Nietzsche applauds Goethe, perhaps most lavishly by imitation of Goethe’s already established sentiment on this topic.