This opinion will be unpublished and

may not be cited except as provided by

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






In Re the Marriage of:

Loren Leroy Koenen, petitioner,





Barbara Jean Koenen,



Filed January 30, 2001


Mulally, Judge*



Douglas County District Court

File No. F199346



Michael J. Dolan, Thornton, Hegg, Reif, Dolan & Bowen, P.A., 1017 Broadway, P.O. Box 819, Alexandria, MN  56308 (for appellant)



Susan R. Anderson, Swenson Lervick Syverson Anderson Trosvig & Jacobson, P.A., 710 Broadway, P.O. Box 787, Alexandria, MN  56308 (for respondent)



            Considered and decided by Toussaint, Chief Judge, Anderson, Judge, and Mulally, Judge.

U N P U B L I S H E D   O P I N I O N


            Without having made a motion for a new trial, appellant-father Loren Koenen challenges the judgment dissolving his marriage to respondent-mother Barbara Koenen.  While the judgment awarded the parties joint legal custody of their child, father alleges it: (a) should have awarded the parties joint physical custody and lacks adequate findings as to the child’s best interests; (b) failed to put sufficient weight on the recommendations of a custody study; and, (c) alternatively, should have placed physical custody of the child with the father during the school year.  Because the evidence supports the district court’s findings of fact, and because those findings of fact support the district court’s decision, we affirm. 


            Custody awards are based on a child’s “best interests.”  Minn. Stat. § 518.17, subd. 3(a)(3) (2000); see Minn. Stat. § 518.17, subd. 1(a) (2000) (listing best-interests-of-the-child factors).  Review of custody awards is limited to “whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law * * * [D]e novo review of the entire record * * * is inappropriate.”  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985); see Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993) (same). Where there has been no motion for new trial, review is limited to whether the evidence supports the findings and whether the findings support the conclusions and the judgment.  Erickson v. Erickson, 434 N.W.2d 284, 286 (Minn. App. 1989).  Findings of fact are not set aside unless clearly erroneous.  Minn. R. Civ. P. 52.01. 

A finding is “clearly erroneous” if the reviewing court is “‘left with the definite and firm conviction that a mistake has been made.’”  When determining whether findings are clearly erroneous, the appellate court views the record in the light most favorable to the trial court's findings.  Also, appellate courts defer to trial court credibility determinations. 


Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000) (citations omitted).  Moreover, “[t]hat the record might support findings other than those made by the trial court does not show that the court's findings are defective.”  Id. at 474 (citations omitted).  Under the rules and case law summarized in Vangsness, to successfully challenge a district court’s findings of fact,

[t]he party challenging the findings must show that despite viewing [the] evidence in the light most favorable to the trial court’s findings (and accounting for an appellate court’s deference to a trial court’s credibility determinations and its inability to resolve conflicts in the evidence), the record still requires the definite and firm conviction that a mistake has been made.  Only if these conditions are met, that is, only if the findings are “clearly erroneous” does it become relevant that the record might support findings other than those that the trial court made.


Id. at 474.


            Joint physical custody is not a preferred custody arrangement and is not generally in a child’s best interests.  Rosenfeld v. Rosenfeld, 529 N.W.2d 724, 726 (Minn. App. 1995).  It is appropriate “only” in exceptional cases.  Wopata v. Wopata, 498 N.W.2d 478, 483 (Minn. App. 1993).  When deciding whether to award joint physical custody, the district court must address statutory factors that “center on the ability of the parents to cooperate in making parenting decisions[.]”  Bateman v. Bateman, 382 N.W.2d 240, 249 (Minn. App. 1986), review denied (Minn. Apr. 24, 1986); see Minn. Stat. § 518.17, subd. 2 (2000) (listing considerations for awarding joint physical custody).

The crux of father’s argument is that the parties can cooperate and that the district court should have awarded joint physical custody.  But the prerequisites for joint physical custody do not require an award of joint physical custody.  To adopt such an argument would eliminate the district court’s discretion not to make a disfavored custody award.  See Brauer v. Brauer, 384 N.W.2d 595, 598 (Minn. App. 1986) (noting district court has discretion to award joint physical custody).  Moreover, here, the district court found that the parties could not cooperate regarding the child.  Father had the child baptized without consulting mother.  See Minn. Stat. § 518.003, subd. 3(b) (1998) (defining “[j]oint legal custody” as both parents having equal rights and responsibilities in making “major decisions” for a child, including “religious training”).  Also, the district court noted that the parties cannot cooperate “on even the simplest of matters” as shown by their arguing about the child’s haircut so vehemently that the child was reduced to tears. Viewed in the light most favorable to this finding, the record does not show the finding to be clearly erroneous.


Father cites the custody study’s recommendation of joint physical custody to support his allegation that the district court should have awarded joint physical custody.  A custody award contrary to that recommended by experts can be affirmed if the district court explains why it rejected the recommendation or makes detailed findings on the child’s best interests.  Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991).  Here, the district court acknowledged the recommendation, made findings addressing the facts of the case, found that the parties could not cooperate regarding the child, and stated that it had considered the child’s best interests in making its custody award.  Because the central element of a joint physical custody arrangement, the parties’ ability to cooperate regarding the child, is missing here, and because the district court satisfied Rutanen by making adequate findings, we affirm the district court’s refusal to award joint physical custody[1]. 


Father challenges the award of physical custody to mother during the school year, alleging that the district court did not address the best-interests factors requiring consideration of the custodial wishes of the parents and child, the child’s relationship with others, and the length of time child was in a stable environment.  See Minn. Stat. § 518.17, subd. 1(a) (2000) (listing best-interests factors).  But the district court’s findings do address these concerns.  Similarly, because the district court found mother more able to give the child needed stability, we reject father’s allegation that the district court did not address the evaluator’s statements that allowing the child to stay with father during the school year would not harm the child.  We also note that the evaluator testified that even if father lacked the flexibility he claimed to have, she would not have altered her recommendations.  Thus, the district court’s ruling and the evaluator’s testimony show that neither the district court nor the evaluator gave father’s flexible schedule dispositive weight in determining the custodial schedule.

            Father argues that the district court failed to consider facts reflecting positively on him and negatively on mother.  Father also argues that the district court improperly disregarded the custody evaluator’s recommendation, therefore, the custody award and schedule are defective under Weatherly v. Weatherly, 330 N.W.2d 890 (Minn. 1983).  While father accurately describes Weatherly, we must disagree with father’s characterization of the district court’s findings; the findings discuss the parties’ relative merits as potential custodians.  Also, as noted above, the district court did not abuse its discretion by putting limited weight on the custody evaluator’s recommendation.  We will not re-balance the custody factors to arrive at a different resolution of the custody issue.  See Vangsness, 607 N.W.2d at 477 (stating “current law leaves scant if any room for an appellate court to question the trial court’s balancing of best-interests considerations [in awarding custody]”).


* 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] Father cites Maxfield v. Maxfield, 439 N.W.2d 411 (Minn. App. 1989), to support his

argument regarding the weight to be given the custody study.  But Maxfield did not involve joint physical custody.  Moreover, while this court remanded Maxfield for a guardian ad litem to be appointed for one of the children involved, the supreme court’s affirmance of this court’s decision did not address the recommendation of a guardian ad litem.  452 N.W.21d 219 (Minn. 1990).  Therefore, we cannot say Maxfield weighs heavily in father’s favor here.  See Nadeau v. Melin, 260 Minn. 369, 375, 110 N.W.2d 29, 34 (1961) (stating “[a] decision must be construed in the light of the issue before the court”).