This opinion will be unpublished and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

C9-00-745

 

In the Matter of:

Marjorie Ann Tuinstra, petitioner,

Appellant,

 

vs.

 

Raymond Lee Tuinstra,

Respondent.

 

Filed November 21, 2000

Affirmed

Harten, Judge

 

Olmsted County District Court

File No. F6-96-0850

 

Lawrence D. Downing, Lawrence Downing & Associates, 330 Wells Fargo Center, 21 First Street Southwest, Rochester, MN 55902 (for appellant)

 

David W. VanDerHayden, VanDerHayden & Ruffelo, P.A., 1915 Highway 52 North, #218, P.O. Box 6535, Rochester, MN 55903-6535 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge, Harten, Judge, and Anderson, Judge.


U N P U B L I S H E D   O P I N I O N

HARTEN, Judge

Appellant alleges that the district court abused its discretion by awarding physical custody of the parties’ child to respondent, by imputing income to her, and by denying her motion for attorney fees.  Because we see no abuse of discretion, we affirm.

FACTS

 

Appellant Marjorie Tuinstra and respondent Raymond Tuinstra were married for 26 years.  Their son and older daughter are no longer minors; the younger daughter, T.S.T., is 13.  When the parties separated, the two older children chose to live with respondent and T.S.T. lived with appellant. 

Appellant did not work outside the home for most of the marriage.  She has been diagnosed by different psychiatrists with bipolar disorder and obsessive-compulsive personality disorder.  Respondent has suffered from periodic depression since 1991; he is able to treat it with medication.  One isolated instance of physical abuse occurred in the marriage on the day the parties separated, when respondent hit appellant, who then obtained a domestic abuse restraining order against him. 

            The custody evaluation, done about 18 months after the parties’ separation, recommended that physical custody of T.S.T. and her older sister, then a minor, go to respondent.  The evaluator addressed all the “best interests” factors of Minn. Stat. § 518.17 (1998) and noted that: (1) both parents wanted sole physical custody of T.S.T.; (2) T.S.T. did not want to express a preference about custody; (3) appellant was the primary caretaker; (4) each parent loved T.S.T. and agreed that the other loved her; (5) each parent noted friction between T.S.T. and her sister, but felt the girls, who were then separated, should be kept together; (6) T.S.T. was having no problems in school; (7) both parents could make adequate child care arrangements; (8) both parents could provide the children with a stable home; (9) appellant had been diagnosed by different psychiatrists with bipolar disorder and adjustment disorder with depressed and anxious moods; (10) respondent was subject to bouts of depression but had no current symptoms; (11) both parents had adequate parenting skills and reported no major discipline problems with the children; (12) both parents had appropriate motives for seeking physical custody; (13) both parents agreed there was no history of abuse; (14) respondent seemed more willing to let the children have non-scheduled contact with appellant; and (15) the parents were unable to communicate and respondent felt that appellant was acting out of a desire to punish him, not to further the children’s best interests.

            The custody evaluation was updated a few days before trial.  It then incorporated the review of the deposition of another psychiatrist who had diagnosed appellant not as bipolar but tentatively as having an obsessive-compulsive personality disorder, evinced by her tendency to explain things in great detail and to want to control herself and the situation.  The psychiatrist noted that those with this condition are likely to be intolerant of disorder in others, to make others uncomfortable, not to experience distress themselves, to be rigid in making decisions and in viewing the world, and to have difficulty communicating.  The custody evaluation update concluded that there was no reason to change the recommendation that respondent have custody.

            The district court adopted the custody evaluator’s recommendation and awarded physical custody to respondent.  The court awarded appellant $500 monthly in spousal maintenance and denied her motion for attorney fees.

D E C I S I O N

 

1.         Custody

 

            A trial court has broad discretion to provide for the custody of the parties’ children.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  Current law “leaves scant if any room for an appellate court to question the trial court’s balancing of best-interests considerations.”  Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000).  The district court meticulously balanced the best-interests considerations and analyzed all relevant testimony and the custody evaluator’s report.  Nevertheless, appellant raises four challenges to the custody award.

            First, appellant contends that the district court gave insufficient weight to the fact that appellant was the primary caretaker and has had custody since the parties separated, now four years ago.  But,

[t]he court may not use one factor to the exclusion of all others.  The primary caretaker factor may not be used as a presumption in determining the best interests of the child.

 

Minn. Stat. § 518.17 subd. 1(a) (1998); see also Maxfield v. Maxfield, 439 N.W.2d 411, 415 (Minn. App. 1989) (holding that the parent with temporary physical custody between separation and trial is not allowed to argue that he or she is therefore the primary parent), aff’d,452 N.W.2d 219 (Minn. 1990).

            Second, appellant argues that the district court gave insufficient consideration to the length of time T.S.T. has been in a stable, satisfactory environment, as contemplated by Minn. Stat. § 518.17, subd. 1 (a)(7) (1998).  However, for the first two years after the separation, T.S.T. and appellant lived with appellant’s parents.  Appellant concedes this arrangement was unsatisfactory because of friction between her parents and T.S.T.  She and T.S.T. then moved to an apartment, where T.S.T. had lived for less than a year by the time of trial.

            Third, appellant argues that the district court gave insufficient weight to Minn. Stat. § 518.17 subd. 1(a)(13) (1998), which requires consideration

except in cases in which a finding of domestic abuse as defined in section 518B.01 has been made, [of] the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.

 

The district court found that there had been a finding of domestic abuse and therefore did not apply this factor, in accord with the statute’s directive.

            Fourth, appellant claims that she encourages contact between T.S.T. and respondent but that he would not facilitate contact between T.S.T. and herself.  Appellant offers no support other than her own testimony for this view, and the record reflects the opposite view.  The custody evaluator, having interviewed both parties and T.S.T., testified that one of her concerns was

[appellant’s] reluctance to allow contact, free contact, with [respondent].  I believe that [respondent] would encourage [T.S.T.] to have an ongoing relationship with [appellant] much more than [appellant] would encourage [T.S.T.] to have  an ongoing relationship with her father.

 

            There was no abuse of discretion in awarding custody to respondent.

2.         Spousal Maintenance

            For this court to conclude the district court abused its broad discretion with respect to an award of spousal maintenance, the district court’s fact findings must be “against logic and the facts on [the] record.”  Rutten, 347 N.W.2d at 50. 

 The district court made a careful, detailed application of the spousal maintenance factors set forth in Minn. Stat. § 518.552, subd. 2 (1998).  The district court reserved the issue of appellant’s child support and found that appellant’s monthly expenses for herself alone are $1,700, that respondent’s monthly expenses for himself and T.S.T. are $1,950, and that respondent’s monthly net income is $2,661.  The district court awarded appellant $500 monthly in permanent spousal maintenance.

The district court also found that working part-time gave appellant a monthly average income of $490 in 1996 and $605 in 1997 and that she could raise her monthly earned income to $828.68 by working full-time at a job paying about $6.50 an hour.

Appellant challenges the finding that she could work full-time.  But that finding was based on the report of a rehabilitation consultant who evaluated appellant’s employability in the Rochester area and enumerated several areas of potential employment, all providing a wage of at least $6.50 an hour.  Appellant offers no reason why she cannot work full time.

Appellant relies on Carrick v. Carrick, 560 N.W.2d 407, 410 (Minn. App. 1997) (trial court may not find bad-faith underemployment and impute earning capacity as income where party seeking maintenance continued to work same number of hours as before separation and employed in the same type of position as during marriage, there being no evidence of intent to reduce income).  But Carrick is distinguishable on three grounds.  First, the district court did not find bad-faith underemployment.  Appellant gave as a reason for her part-time employment the need to care for T.S.T., but T.S.T. will now be in respondent’s custody.  Because appellant will no longer be providing care for T.S.T., she will be able to work full-time.  There is no analogous change in circumstances in Carrick.  Second, there was no professional analysis of employability or of the job market in Carrick; here, the district court had the benefit of such analysis.  Third, the award in Carrick was $300 monthly for two years, based on an imputed income of $20,000 for the obligee and an actual income of $56,220 for the obligor.  Here, the temporary maintenance award of $500 monthly has become permanent, and the $500 is most of the $711 difference between respondent’s income and his expenses for himself and T.S.T.  Appellant will continue to receive the $500 as always even if she does not increase her employment.  The district court did not use the imputed income as a basis for either reducing or terminating maintenance.

            There was no abuse of discretion in the spousal maintenance award.

3.         Attorney Fees

            An award of attorney fees under Minn. Stat. § 518.14 (1998) “rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion.”  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied  (Minn. Feb. 18, 1999) (citation omitted).  The district court wrote:

Given the parties’ anticipated financial circumstances following the execution of this Order, the Court finds that the criteria for awarding attorneys’ fees have not been met.  Therefore, no attorneys’ fees are awarded in this matter.

 

There is no gross disparity in the parties’ respective incomes.  Appellant contends that she is entitled to attorney fees and to costs because of respondent’s false assertions and child custody claims.  However, the district court specifically noted that it found respondent credible and awarded him custody, so appellant lacks this basis for claiming attorney fees.

            We conclude that there was no abuse of discretion in the award of custody, in the award of spousal maintenance, or in the denial of attorney fees.

            Affirmed.