This opinion will be unpublished and

may not be cited except as provided by

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






In Re the Welfare of: S.K.M., minor child,

and Glen William Mosher, Respondent,

and Tiffany Marie Vacura, Appellant.


Filed September 19, 2000


Harten, Judge


Lake of the Woods County District Court

File No. F9-98-168


Steven M. Shermoen, 501 Fourth Street, P.O. Box 1152, International Falls, MN 56649 (for respondent)


Michael L. Jorgenson, Charlson, Marben & Jorgenson, P.A., 119 West Second Street, P.O. Box 506, Thief River Falls, MN 56701 (for appellant)


            Considered and decided by Toussaint, Chief Judge, Harten, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


Appellant challenges the award of physical custody of the parties’ child to respondent, alleging that the evidence does not support the district court’s findings.  Because we find no district court error, we affirm.



Respondent Glenn Mosher and appellant Tiffany Vacura cohabited from November 1995 to September 1998; their daughter, S.K.M., was born in January 1997. At the time of their separation, a temporary order provided that S.K.M. would spend alternate weeks with each parent.  But because appellant has moved to another town, the parties now agree that joint physical custody is no longer practical.  Both parties want physical custody of S.K.M., have homes suitable for raising her, have custody of children from previous marriages, and are involved in new relationships. 

 Appellant challenges the award of physical custody to respondent.



            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.  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

            The district court made the findings required by Minn. Stat. § 518.17, subd. 1 (1998).  Appellant challenges six of the 29 findings.

1.         Primary Caretaker

The district court found that after S.K.M. attained the age of “several months,” the parties cared for her equally and she had no primary caretaker.  Appellant contends that she was S.K.M.’s primary caretaker until the parties’ separation. 

Testimony supports the district court’s finding.  Respondent testified that in April 1997, when S.K.M. was four months old, appellant left her with respondent and went on a trip, and that after appellant returned, the parties shared responsibility for the care of S.K.M. and their other children.  S.K.M.’s guardian ad litem testified that neither party was the primary parent between appellant’s trip in April 1997 and the parties’ separation in September 1998.  The finding is supported.[1]

2.         Relationship of S.K.M. and Appellant’s Son 

            The district court found that the relationship between S.K.M. and appellant’s six-year-old son “is somewhat troubled when the three [i.e., S.K.M., the son, and appellant] are together.”   Again, testimony supports the finding.  The guardian ad litem testified that the relationship was not “warm [and] fuzzy” and that the licensed psychologist treating appellant’s son for attention deficit hyperactivity disorder and oppositional defiance disorder had reported that the boy had stolen and had started fires, that he had trouble sharing with S.K.M., and that he is difficult for appellant to manage.[2]  The daycare provider for appellant’s son and S.K.M. testified that appellant’s son had problems in the daycare setting.  Respondent testified that there are problems between appellant’s son and S.K.M.  Evidence supports the finding that the relationship is “somewhat troubled.”

3.         Respondent’s Use of Alcohol

            The district court found that “[appellant] has alleged that [respondent] has a drinking problem but neither the guardian ad litem nor the * * * social worker were able to verify any drinking problem * * *.”  Appellant contends that nevertheless, “the vast majority of the evidence suggested that such a drinking problem existed.”  We disagree.

A county chemical assessment showed that neither party has a drinking problem.  The guardian ad litem testified that she contacted 16 people who were likely to have been aware of any drinking problem respondent had and that none of them had observed or heard of a problem.  Respondent testified that he is a social drinker but that he does not have a drinking problem.  Again, testimony supports the district court’s finding.

4.         Appellant’s Mental Health

            The district court found that appellant has had mental health problems since 1991, that she sought treatment and medication, and that she discontinued using medication without consulting her doctor.  Appellant does not challenge the accuracy of this finding, but she contends that she sought counseling because of respondent’s drinking and other problems with the parties’ relationship. The evidence, however, showed that appellant’s problems had existed some years before her relationship with respondent began, and her testimony regarding her use of medication was inconsistent.   The finding was supported by the evidence.

5.         Appellant's Son's Effect on Appellant

The district court also found that the stress of appellant’s son’s problems “has had a negative effect on [appellant] because of the greater demands placed upon her.”  Appellant argues that this finding is “out of context” because it refers to problems several years ago and that her son has been much improved since he began taking medication.  But the evidence showed that in September 1999, after her son had been on medication for over a month, appellant sought psychological help for him because he had committed theft and had set a fire and that appellant was subject to emotional breakdowns when she took her son to the psychologist.  The finding that appellant’s son’s problems have had a negative effect on appellant is supported by the evidence.

6.         Report of Guardian Ad Litem

            The district court found:

The guardian ad litem testified that based upon her investigation that it would be in the best interest of the child for physical custody to be given to [respondent] because of [appellant’s] attempts to discredit [respondent] and to mislead the guardian ad litem and because [respondent] could provide a more caring and stable environment for the child. The Court believes the testimony of the Guardian ad litem and the information provided in her report * * *.


Appellant contends that the court should not have relied on the testimony and report of the guardian ad litem because she was inconsistent in providing some positive comments about appellant but nevertheless recommending that custody go to respondent.   The fact that the guardian ad litem made some positive comments about appellant, however, reflects the objectivity of the appraisal.  Moreover, “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”  Minn. R. Civ. P. 52.01. 

We conclude that the district court did not abuse its discretion by relying on the testimony and report of the guardian ad litem, and that the challenged findings are supported by the evidence.


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

[1] The district court’s finding pertained to three specific periods: (1) until S.K.M. was  “several months” old, appellant was the primary caretaker; (2) from then until the separation, there was no primary caretaker, and (3) from the separation until the time of the hearing, there was no primary caretaker.  Appellant contends that the district court should not have considered the period following the separation, citing Kangas v. Kangas, 406 N.W.2d 628, 631 (Minn. App. 1987) (“[A]ll prospective applications of the primary parent preference are to focus on circumstances before the date of separation”) (citation omitted).  But the district found that there was no primary caretaker for over a year before the separation, and appellant does not dispute that there was no primary caretaker afterwards.  Moreover, contrary to appellant’s implication, Kangas does not hold that the court must ignore the period following separation.

[2] The record does not include the psychologist’s report, nor did he testify in person.