This opinion will be unpublished and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

C3-00-658

 

 

In Re the Marriage of:

 

Mary K. Epps, f/k/a

Mary K. Kohloff, petitioner,

Respondent,

 

vs.

 

Michael G. Kohloff,

Appellant.

 

 

Filed December 12, 2000

Affirmed

Holtan, Judge*

 

Scott County District Court

File No. 199905905

 

Dennis J. Felix, Felix Law Offices, P.A., 12400 Portland Avenue South, Suite 120, Burnsville, MN 55337 (for respondent)

 

Sally K. Mortenson, 15025 Glazier Avenue, Suite 230, Apple Valley, MN 55124 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge, Randall, Judge, and Holtan, Judge.

U N P U B L I S H E D   O P I N I O N

HOLTAN, Judge

After respondent moved from Tennessee to Minnesota with the parties’ children, a Tennessee court transferred their custody from respondent to appellant.  Respondent asked a Minnesota court to assume jurisdiction and moved to have custody transferred back to her.  Appellant challenges Minnesota’s jurisdiction.  Because the purpose of the Uniform Child Custody Act  is having the state which can best decide the case in the best interests of the children render the custody decree, because the children are thriving in Minnesota, and because both Tennessee and Minnesota child-care professionals agree that they should reside with respondent, we affirm.

FACTS

 

            Appellant Michael Kohloff and respondent Mary Epps, f/k/a Mary Kohloff, are the parents of two minor children, a daughter, A.K., now 15, and a son, N.K., now 13.[1]  During their 17-year marriage, the parties moved about 40 times.  There were several periods of separation during which the children always remained with respondent.  The parties were divorced in Tennessee, where they then lived, when the children were 10 and 12.  Respondent was granted custody.

Respondent remarried.  After her husband’s business failed, she moved with him and the children to Minnesota.  Appellant then sought a change of custody from the Tennessee court, citing interference with his visitation.  The Tennessee court, following an evidentiary hearing at which neither the children nor any experts testified, changed custody to appellant on the sole ground that respondent had interfered with appellant’s visitation.

Respondent moved first to stay, then to amend, the order awarding custody to appellant.  She also had a licensed psychologist do an evaluation of the children.  After interviewing and testing respondent and interviewing the children, the psychologist concluded:

A review of all the information gathered, including the interviews and testing, overwhelmingly indicates that it is in the best interests of [A.K.] and [N.K.] to continue to live with their mother [respondent], step-father, and siblings.  The children are mature, open with their feelings, and quite articulate.  The intensity of their desire to remain with their mother was extraordinary.  They genuinely feel much closer to their mother who has apparently always been their primary caretaker and their anchor.  They consistently, yet differently, described their father [appellant] as being a physically and emotionally abusive person that has abandoned them and their mother.  No evidence was found to suggest that [respondent] unduly influenced or manipulated the children against their father.  Rather [appellant’s] behavior, as reported by the children, has seemingly been the source of the children’s hurt and anger towards him.  To force the children to live with their father would certainly be damaging to their emotional well-being.

                                    * * * There is no evidence at all to suggest that [respondent] should not continue to have full physical custody of her children.

 

 The psychologist’s report was included with respondent’s motion papers.   

The children, then 14 and 12, returned to Tennessee in December 1998 and remained there with appellant until March 1999.  This was the only period when they have not resided with respondent.  They testified that during part of this period they shared a bedroom and had no beds, that they did not attend school, and that their meals were largely irregular snacks.

Respondent, still in Minnesota, notified the Tennessee Department of Children’s Services in January 1999.  A Tennessee social worker went to appellant’s home and met with him and the children.  The social worker reported that there was substantial evidence of emotional abuse of both children by appellant and that both children hated appellant, did not want to live with him, and did want to live with respondent. The social worker also reported that appellant “stated that he is aware that the children hate it at his house [and that] they will learn to deal with this,” and “portrayed himself as the victim in this situation.”

The social worker was prepared to testify about her report at the hearing on respondent’s motion to amend.  The court, however, did not hear her testimony. Respondent’s motion to amend was denied because it contained no “specific post judgment facts which were neither known nor capable of being ascertained” at the time appellant was awarded custody, even though neither the report of the Tennessee social worker nor the report of the Minnesota psychologist had been available at that time.

In March 1999, the children returned to Minnesota for a three-week visitation with respondent.  At the end of the visit, she decided not to return them to Tennessee and brought this action in Scott County District Court, seeking to have Minnesota assume jurisdiction and custody returned to herself.  In support of her motion, she submitted the psychologist’s April 1999 updated version of his original December 1998 report.

At the conclusion of the updated version, the psychologist reiterated his view.

                                    [I]t is in [N.K.’s] and [A.K.]’s best interest to be able to live with their mother, step-father, and siblings in Minnesota.  In fact, it would likely be quite psychologically damaging to them to be forced to continue to reside where they clearly do not want to live.  Their emotional and psychological needs are not being met by [appellant].  They view him as being harsh, unreasonable, distant, uninvolved, and not loving or understanding. * * * [Their] recent stay with their father and grandmother over the last several months has only added more compelling evidence that they strongly need to be with their mother and her family.

 

 The psychologist also testified at the hearing, as did the children.  Their testimony corroborated the psychologist’s report.  A.K. testified that her grandmother made breakfast but that there was no lunch or dinner, that appellant discussed sexual matters with her, and that their home schooling was limited to reading magazines and watching National Geographic on television.  N.K. testified that he did not get enough to eat and that his father was physically threatening and abusive. Appellant testified that he believes it is appropriate to grab the children by the ear to get their attention and to slap them to discipline them and that the disadvantage to the children remaining in Minnesota is that he will not assist them financially after they are 18 and they will not inherit from his family.

             The district court ordered that the Tennessee court be notified of respondent’s request that Minnesota assume jurisdiction.  Respondent’s counsel did this and asked Tennessee to decline jurisdiction.

The Tennessee court wrote back saying that because there was no pending appeal, its order awarding custody to appellant was “final and concludes this court’s jurisdiction of this case” and that its letter was not “a determination that the Tennessee court declines jurisdiction” but rather an affirmation that it had “already exercised jurisdiction over this case” and was res judicata for all issues occurring before judgment was rendered.

            Minnesota assumed jurisdiction and the district court awarded physical custody of the children to respondent.  Appellant contends that Minnesota was not entitled to assume jurisdiction and that the district court abused its discretion because it did not obtain testimony from witnesses in Tennessee.

D E C I S I O N

 

1.         Jurisdiction

This court has de novo review of jurisdiction determinations.  McLain v. McLain, 569 N.W.2d 219, 222 (Minn. App. 1997), review denied (Minn. Nov. 18, 1997).

            Minn. Stat. § 518A.01, subd. 1(a) (1998), provides that a “general purpose” of the Uniform Child Custody Jurisdiction Act is

to promote cooperation with the courts of other states so that a custody decree is rendered in the state which can best decide the case in the best interest of the child * * *.

 

We believe that, for A.K. and N.K., Minnesota is that state. 

Minnesota indisputably has jurisdiction.  First, Minn. Stat. § 518A.03, subd. 1(b) (1998), provides that a Minnesota court has jurisdiction over a child custody determination if it is in the child’s best interest because the child and at least one parent have significant connections with Minnesota and there is substantial relevant evidence in Minnesota.  Both the children and respondent have significant connections with Minnesota, and there is substantial relevant evidence, in the form of the psychologist’s report and update and the children’s school records, in Minnesota.  Second, Minn. Stat. § 518A.03, subd. 1(c) (1998), provides that Minnesota has jurisdiction over a child who is physically present in Minnesota and either has been abandoned or is in an emergency situation.  The children are physically present in Minnesota and could legitimately be described as in an emergency situation because of the Tennessee court’s order that their custody be with appellant in Tennessee.

            We acknowledge that Minn. Stat. § 518A.14, subd. 1 (1998), provides that a Minnesota court will not modify the custody decree of another state unless that state either does not now have jurisdiction or has declined to assume jurisdiction.  The Tennessee court stated that its letter was “not to be construed as a determination that the Tennessee court declines jurisdiction,” and Tennessee has jurisdiction pursuant to Minn. Stat. § 518A.03, subd. 1(a) (1998), because it was the children’s home state at the time the proceeding commenced.  Therefore, Tennessee, as well as Minnesota, has jurisdiction over the custody of A.K. and N.K.           

In light of the purpose of the Uniform Child Custody Jurisdiction Act of having custody determined in the state that can best determine it in the best interest of the child, we assume jurisdiction over the custody of A.K. and N.K.  There is overwhelming evidence that these children are better off in Minnesota, and the Tennessee court did not make its decision in the light of this evidence.

            Both the psychologist’s report, based on interviews with respondent, the children, and their older brother, and his testimony provided unrefuted and unequivocal recommendations that the children live with respondent in Minnesota.  The report of the Tennessee social worker indicates that A.K. and N.K. “hate[] living with [appellant] and stated that [they] would be happy if [they] never saw him again.”

            The children themselves, then 14 and 12, testified.  The district court found them

articulate and intelligent.  This Court found their testimony to be entirely candid and emotionally powerful.  Both were adamant in their wish to remain with [respondent], and both gave detailed support for their conclusion that it would be detrimental to live with [appellant.]

 

  A.K. testified that she likes it in Minnesota, that she loves respondent and doesn’t get along with appellant at all, that he is not consistent, that she doesn’t believe he wants custody, that “he bragged to people about how he was going to get custody money from [respondent],” that appellant had told her he did not want her around, that appellant had described his sexual activities to her and that she told him she did not like it, that while she lived with appellant and his mother in Tennessee the only regular meal was breakfast, that she slept on the floor with her brother, that she had attended school only five days out of three months in Tennessee, that she was not enrolled in a home school program there, and that she feared appellant was planning to move again. 

N.K. testified that he is now in school and doing well, that his family situation is happy, that he likes his stepfather [respondent’s new husband] “a lot,” that appellant made him feel “[t]errible, depressed, sad,” that respondent does not tell him bad things about his father, that his grandmother in Tennessee used foul language and “didn’t wear clothes that would cover all of her,” that appellant talked to the children about having sex with his girlfriend, that he did not get enough to eat, that he got a bed only after a government worker said he had to have one, that he feared appellant’s violence because appellant had been violent with him, and that he wants to live in Minnesota with respondent.

            There was no evidence to rebut this testimony.  It is clearly in these children’s best interests to remain in Minnesota and to have Minnesota assume jurisdiction of their custody.

            Appellant also contends that the action of the Minnesota court violated the purpose of the UCCJA, i.e. deterring abductions, and the Federal Parental Kidnapping Prevention Act, but this argument fails because there is no indication that the children were abducted or kidnapped.  And, as the Tennessee court stated in its letter, there was no pending action when it was notified of the Minnesota action, so appellant’s argument that a pending action precluded Minnesota’s assumption of jurisdiction fails.  The district court did not err in assuming jurisdiction.

2.         Evidence from Tennessee

 

            Minn. Stat. § 518A.18 (1998), provides that a court “on its own motion may direct that the testimony of a person be taken in another state”; Minn. Stat. § 518A.19, subd. 1 (1998), provides that a court may request a court of another state to hold a hearing or have a custody study done; Minn. Stat. § 518A.19, subd. 2 (1998), provides that a court may request a court of another state to order a party to appear in custody proceedings.  Appellant claims that the district court abused its discretion by not ordering on its own motion further evidence from Tennessee.  Appellant offers no support for this argument.

Moreover, appellant himself testified at the hearing and the report of the Tennessee social worker who investigated the children was submitted.  The children also testified extensively on their life in Tennessee with appellant and his mother.  Appellant’s own testimony confirmed the report of the Tennessee social worker.  

The Minnesota hearing took place in October 1999; the children moved here in April 1998.  Except for the first three months of 1999, which they spent with appellant, they have lived in Minnesota since that time.  There is no current information on them in Tennessee.[2]  Because the children did not attend school in Tennessee, no one from a school there could testify about them. The only other witness would have been appellant’s mother, the children’s grandmother, and appellant does not suggest that her testimony would be dispositive.  Even if the district court had abused its discretion in not obtaining her testimony, appellant would not be entitled to another hearing.  See Uselman v. Uselman, 464 N.W. 2d 130, 138 (Minn. 1990) (“Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error.”) (citation omitted).

            The Minnesota court properly assumed jurisdiction, and its award of custody to respondent is affirmed.

            Affirmed.



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

[1] The parties have an older son, J.K.  Because he is no longer a minor, his custody is not an issue.

[2] We note that they have now been in Minnesota for well over two years, so testimony on their situation in Tennessee would be even less relevant.