This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).





Katherine Marie Stolt,
n/k/a Katherine Marie Larsen, petitioner,


Bradley Allen Stolt,


Filed January 23, 2001


Holtan, Judge*


Stearns County District Court

File No. F193383



John E. Mack, Mack & Daby P.A., 26 Main Street, P.O. Box 302, New London, MN 56273 (for respondent)


Timothy R. Reuter, Kelm Law Offices, P.A., 1287 Second Street North, Suite 101, P.O. Box 368, Sauk Rapids, MN 56379 (for appellant)


            Considered and decided by Crippen, Presiding Judge, Foley, Judge,** and Holtan, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges the district court’s denial of his motion to modify custody despite its finding of abuse and the court-appointed evaluator’s contrary recommendation.  Because we see neither abuse of discretion nor error of law, we affirm.


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.  Frauenshuh v. Giese, 599 N.W.2d 153, 156 (Minn. 1999) (sustaining district court findings unless clearly erroneous).  This court gives deference to the district court’s opportunity to assess the credibility of witnesses.  Minn. R. Civ. P. 52.01.  We examine the evidence in the light most favorable to the district court’s findings.  Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn. 1993). 

            To warrant modification, appellant must first establish that (1) a change in the circumstances of the children or their custodian has occurred, (2) custody modification is necessary to serve the best interests of the children, (3) the children’s present environment endangers their physical or emotional health, and (4) the advantage of modification outweighs the harm likely to be caused by the change.  See Minn. Stat. § 518.18(d) (1998); Bettin v. Bettin, 404 N.W.2d 807, 808 (Minn. App. 1987).

Appellant disputes the finding that the children’s present environment does not endanger them within the meaning of the statute.  While the concept of endangerment is “unusually imprecise,” this court has interpreted the modification statute to require a “significant degree of danger.”  Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991).  To establish danger to a child’s welfare, however, a parent’s conduct must result in an actual adverse effect on the child.  Dabill v. Dabill, 514 N.W.2d 590, 595-96 (Minn. App. 1994).  Thus, whether endangerment exists is a fact-based inquiry.

Appellant contends that there was substantial evidence that the children’s present environment endangers their physical and emotional health and development.  It is true that there is testimony in the record tending to support a finding of endangerment, but there is also evidence to the contrary.  First, in support, both the court-appointed evaluator and a nurse-psychologist, who met with the child reporting the abuse, testified that respondent’s home endangered the children because of their perception of respondent’s negative attitude toward counseling, her reaction to one child’s report of abuse, and the possibility of future harm if respondent were to react in the same manner if presented with another situation of abuse.  For these reasons, the evaluator recommended modification of custody.

If the district court’s findings reflect consideration of the relevant statutory factors, the district court need not state specifically why it rejected an evaluator’s recommendation.  Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991); see also Rogge v. Rogge, 509 N.W.2d 163, 166 (Minn. App. 1993), review denied (Minn. Jan. 28, 1994).  Here, the court acknowledged the contrary recommendation, respondent’s initial disbelief of the child’s report, and appellant’s initiative in reporting the allegation and providing the child with counseling.  It also demonstrated, through its findings and conclusions, that it carefully considered the statutory factors for custody modification.  In particular, it focused on whether the present environment endangered the children, as required by Minn. Stat. § 518.18(d).

A clinical psychologist, who treated both children previously and met with the one child following her report of abuse, believed there was no present endangerment.  Even the evaluator and the nurse-psychologist agreed that the child who reported the abuse was presently doing well in school and in her relationships with others.  In fact, both of them base their conclusion of endangerment in part on the possibility of future sexual abuse and their perception of a possible negative response by respondent.  Both admitted they could not predict what may happen if such an event were to occur in the future.  The dispositive inquiry in custody modification, however, is whether the present environment endangers the children.  The district court found it did not. 

Further, the record indicates that, while respondent did not initially believe the child, she eventually did and took her to the psychologist.  The district court’s conclusion is also supported by an order in response to appellant’s initial ex parte order for protection after he learned of the abuse.  It found that, while the abuse had occurred, the safety of the children did not require modification of custody.

Finally, appellant argues that the court improperly denied modification because the evaluator found the best-interests-of-the-child factors weighed in appellant’s favor.  The court found, and appellant does not dispute, that respondent has always been the primary caretaker of the children, and that the children have formed significant bonds with their half-sister and children in their school and surrounding area.  It also found that the children would experience significant disruption in their educational and extracurricular activities if custody were modified.  The evidence in the record, including the psychologist’s report, supports these findings.  The district court’s findings demonstrate a careful analysis of the statutory factors adequate to meet the particularity requirements articulated by this court and the Minnesota Supreme Court.  Thus, we find there is ample evidence in the record to justify the denial of modification.



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


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