This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-00-788

 

Jerry Burnside,

Appellant,

 

vs.

 

Tami Paulson,

Respondent.

 

Filed January 23, 2001

Affirmed

Randall, Judge

 

Clay County District Court

File No. DC-246652

 

L. Patrick O'Day, Jr., 1024 3rd Avenue South, P.O. Box 1727, Fargo, ND 58107 (for appellant)

 

Robert J. Schultz, Conmy, Feste, Hubbard, Corwin & Brust, Ltd., 200 Wells Fargo Center, 406 Main Avenue, P.O. Box 2686, Fargo, ND 58108-2686 (for respondent)

 

            Considered and decided by Randall, Presiding Judge, Crippen, Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            Appellant challenges the district court's judgment awarding sole physical custody of the parties' child to respondent.  Appellant contends the court erred by finding that (a) appellant's testimony that he had stopped using drugs not credible, (b) appellant's capacity and disposition to give the parties' child love and affection is doubtful because appellant is still abusing drugs and alcohol, (c) respondent is physically and mentally healthy, (d) the guardian ad litem's testimony was not based on the statutory guidelines and was not persuasive, and (e) the best-interests-of-the-child factors set forth in Minn. Stat. § 518.17, subd. 1(a) (2000), favored respondent.  Based on these arguments, appellant contends the district court abused its discretion by awarding respondent sole physical custody of the parties' child.  Appellant also argues that the court erred by not allowing him visitation at the time of the first hearing on his motion for interim relief, which he asserts prejudiced him from gaining physical custody of the parties' child. Finally, appellant asserts the district court erred by requiring him to pay child support. We affirm.

FACTS

Appellant Jerry Burnside and respondent Tami Paulson met in 1992 and began dating shortly thereafter.  The parties were never married, but they have one child, L.M.B., who was born on December 13, 1997.  During the first year of L.M.B.'s life, the parties lived together, but they ended their relationship in December 1998.

            After the parties separated, they attempted to share custody of L.M.B.  Initially the parties exchanged L.M.B. on a daily basis, but this arrangement was later changed to a weekly basis.  When it was Burnside's turn to have L.M.B., Paulson would still watch L.M.B. while Burnside was at work.  This arrangement lasted until March 1999. From March 1999 until June 1999, during the weeks Burnside had L.M.B., he provided outside daycare while he was at work.

            On July 8, 1999, Burnside filed a complaint to establish paternity of L.M.B. On the same day, Burnside filed a motion for interim relief requesting sole physical custody of L.M.B. or, in the alternative, unrestricted and reasonable visitation.  Shortly thereafter, the district court appointed a guardian ad litem, Theresa Quam, to the case. At the August 25, 1999, hearing on Burnside's motion for interim relief, the district court continued the motion until a DNA test could be conducted to establish paterity.[1] Paulson, however, allowed Burnside supervised visitation until paternity was established.  After paternity tests, the parties stipulated that Burnside is L.M.B.'s father, and on December 7, 1999, a district court order was filed, which granted Burnside unrestricted visitation of L.M.B. until the permanent-custody issue was resolved.  Following a trial on February 2 and 4, 2000, the district court awarded sole physical custody of L.M.B. to Paulson.  This appeal followed.


D E C I S I O N

I.                   Custody of the Child

The district court has broad discretion in making custody determinations.  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989).  An appellate court will not disturb such determinations unless the district court abused its discretion by making factual findings unsupported by the evidence or by improperly applying the law. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996). An appellate court must uphold a district court's findings of fact unless clearly erroneous.  Minn. R. Civ. P. 52.01.  Findings of fact are clearly erroneous if an appellate court is "left with the definite and firm conviction that a mistake has been made."  Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000) (quotation omitted).  Under this standard, an appellate court views the record in the light most favorable to the district court's findings.  Id.

Burnside argues the district court's findings of fact are not supported by the record.  Burnside contends the court erred by finding (a) Burnside's testimony that he had stopped using drugs not credible, (b) Burnside's capacity and disposition to give L.M.B. love and affection is doubtful because Burnside is still abusing drugs and alcohol, (c) Paulson is physically and mentally healthy, (d) the guardian ad litem's testimony was not based on the statutory guidelines and was not persuasive, and (e) the best-interests-of-the-child factors set forth in Minn. Stat. § 518.17, subd. 1(a) (2000), favored Paulson. Based on these arguments, Burnside contends the district court abused its discretion by awarding Paulson sole physical custody of L.M.B.

A.     Burnside's Drug or Alcohol Use

An appellate court will defer to the district court's credibility determinations. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).  The district court is given broad discretion because it is in the best position to determine which witnesses are credible and to weigh the evidence.  See In re D.L., 486 N.W.2d 375, 380 (Minn. 1992) (citation omitted) (stating district court retains broad discretion because of its opportunity to hear witnesses and observe parties).

The district court found that Burnside's testimony that he had stopped using drugs was not credible.  The court based its finding on Burnside's past drug use and his current alcohol consumption.  The court found that the greater weight of the evidence suggested that Burnside was still abusing drugs and alcohol.

At trial, Burnside testified that he had smoked marijuana and experimented with other drugs on a recreational basis in the past.  He also stated that he still drank an occasional beer and had not used drugs in the six months preceding trial.  Burnside testified that he has held a steady job for years and has never had to undergo a drug or alcohol treatment program.  Further, the guardian ad litem found Burnside's statements concerning his drug and alcohol use credible.

John Chase, a former friend of Burnside's, testified that when they had worked together, he and Burnside drank and used drugs almost daily from the summer of 1998 until April 1999.  Chase had only spoken to Burnside twice in the year preceding trial, once over the phone and once in person, but he testified that he believed Burnside is still using drugs and that Burnside would be unable to stop using drugs without professional help.

Burnside argues that Chase's testimony was not credible because the two had not seen each other in over a year.  In addition, Burnside asserts that Chase's testimony was not credible because Chase is a convicted drug felon, a probation violator, and a liar.  Further, Burnside contends that there was no testimony by a licensed chemical dependency counselor or medical doctor that Burnside is an alcohol or drug abuser.

The district court had the opportunity to hear the testimony and observe the parties.  While helpful, there is no requirement that Paulson had to offer testimony by a licensed counselor or doctor that Burnside is a drug or alcohol abuser; Burnside did not offer such persons to support his contention that he is not a drug or alcohol abuser. Instead, the parties presented conflicting testimony regarding Burnside's drug and alcohol use.  The district court made a credibility determination and found that Burnside's testimony was not credible.  Because of the credibility determination, the court found that the weight of the evidence did not favor Burnside; there is evidence in the record to support the court's finding that Burnside is a drug or alcohol abuser.  Accordingly, based on the deference this court gives to a district court's credibility determinations, the district court's finding was not clearly erroneous.

B.    Burnside's Capacity to Give Love and Affection

Although Burnside challenges the district court's finding that Burnside is unlikely to provide L.M.B. with love and affection, the district court never made such a finding.  Instead, the court found that Burnside

has the capacity and disposition to give [L.M.B.] love and affection, however his ability to give [L.M.B.] guidance and to continue educating and raising [L.M.B.] in his culture and religion or creed is doubtful based upon the fact that [Burnside] is still abusing drugs and alcohol.

 

            The court's determination that Burnside would be unable to provide L.M.B. with proper guidance and education is based on its finding that Burnside is still abusing drugs and alcohol.  As stated above, based on the district court's credibility determination, the evidence supports this finding.  

C.    Paulson's Mental and Physical Health

            Burnside argues the district court erred by finding Paulson is physically and mentally healthy.  Burnside asserts that Paulson has shown signs of psychological instability, suicidal behavior, manic depression, physical aggression, and drug and alcohol abuse.  Burnside contends there was no evidence to suggest that Paulson had any of her behavior under control.

            Once again, the district court made a credibility determination on this issue. Paulson testified that she had been clean and sober for the nine months preceding trial.  She was in a twelve-step program, attended Alcoholics Anonymous meetings regularly, and met with a psychologist.  Because we defer to the district court on credibility determinations, we conclude the district court's finding was not clearly erroneous.

D.    Guardian ad Litem's Recommendation

            Burnside argues the district court erred by finding that Quam did not base her decision on the statutory factors of Minn. Stat. § 518.17, subd. 1(a), that Quam was unfamiliar with the factors, and that Quam's opinion was unpersuasive.

It is not clear from Quam's testimony whether she based her recommendation on the requisite statutory factors.  Contrary to the court's finding that Quam testified she was unfamiliar with the statutory factors, Quam merely stated that she could not name them off the top of her head.  When asked, she stated that she was familiar with the factors, but her report did not specifically address them.

Here, the district court ruled, contrary to the guardian ad litem's recommendation, that Paulson will have sole physical custody of L.M.B.  In making its finding, the court addressed the statutory factors for determining the best interests of L.M.B., which are discussed more fully below.  The district court is afforded broad discretion in custody determinations.  LaChapelle, 607 N.W.2d at 158.  Also, while guardian ad litem recommendations are helpful, and at times persuasive, district courts are not required to adhere to the guardian ad litem's recommendations.  See Sydnes v. Sydnes, 388 N.W.2d 3, 7 (Minn. App. 1986) (concluding district court not bound to adhere to guardian ad litem's testimony, especially when it is outweighed by other evidence).  We conclude that the court's finding on this issue was not erroneous.

E.     Best-Interest-of-the-Child Factors

            In awarding physical custody of a child, the district court must consider the best interests of the child in light of the statutory factors set forth in Minn. Stat. § 518.17, subd. 1(a).  Silbaugh, 543 N.W.2d at 641.  The district court

must make detailed findings on each of the factors and explain how the factors led to its conclusions and to the determination of the best interests of the child.

 

Minn. Stat. § 518.17, subd. 1(a).  Currently the law "leaves scant if any room for an appellate court to sustain the [district] court's balancing of best-interest considerations." Vangsness, 607 N.W.2d at 477.

            Here, Burnside argues the district court erred by finding that the best-interests-of-the-child factors favored Paulson.  Specifically, he challenges the findings under Minn. Stat. § 518.17, subd. 1(a)(3)-(10), and (12).  Burnside contends that, based on these erroneous findings, the district court abused its discretion by awarding sole physical custody to Paulson.

                                           i.       Primary Caretaker

            Burnside argues the district court erred by finding that Paulson was the primary caretaker of L.M.B.  Contrary to Burnside's argument, the record supports the district court's finding.  After the parties separated, they shared physical custody of L.M.B. From December 1998 until February 1999, on the days when Burnside had custody, he would still rely on Paulson to watch L.M.B. while Burnside was at work.  From March 1999 until June 1999, Burnside sought outside daycare for L.M.B.  From June 1999, when Burnside instigated paternity proceedings, until trial, Paulson had sole physical custody of L.M.B., but she allowed Burnside supervised visitation.  Accordingly, the record supports the district court's finding that Paulson was the primary caretaker.

                                        ii.       Intimacy Between Parent and Child

Burnside argues that the court erred by finding Paulson had a more intimate relationship with L.M.B. than Burnside.  The record demonstrates that for the first year of L.M.B's life, while the parties were co-habitating, Paulson stayed home with L.M.B. while Burnside went to work.  Since then, Paulson has spent more time with L.M.B., teaching him to count and say the alphabet.  Hence, the record supports the district court's finding that Paulson had a more intimate relationship with L.M.B. than Burnside.

                                     iii.       Interaction with Child and Those Who Affect his Best Interest

            Burnside asserts that the district court erred by finding that L.M.B. did not have a close relationship with Burnside's family and Burnside's girlfriend, Anita Swanson, and by finding that L.M.B. did have a close relationship with Paulson's family. Although Burnside testified that L.M.B. had a close relationship with Burnside's extended family and with Swanson, the record demonstrates that Burnside's girlfriend has physically disciplined other people's children inappropriately.  She also admitted that she used drugs, although she had been clean for the six months preceding trial.  If Burnside were to gain sole physical custody of L.M.B., he planned to use Swanson for daycare.  In contrast, the record shows that L.M.B. has a healthy relationship with Paulson's sister and her children, whom he visits several times a week.  The record also demonstrates that L.M.B. has a healthy relationship with Paulson's fiancé.  Hence, the record supports the district court's finding regarding L.M.B.'s relationship with the parties' extended families and significant others.

                                       iv.       Adjustment to Home, School, and Community

            Burnside does not argue that L.M.B. has not adjusted to Paulson's home. Instead, he argues that he will provide L.M.B. with a more stress free environment than Paulson.

            The district court found that L.M.B. has adjusted well to Paulson's home in the Fargo-Moorhead community.  The record shows that L.M.B. is happy and well adjusted under Paulson's care.  In contrast, the record demonstrates that L.M.B. has only been to Burnside's home in Big Lake, MN a few times.  Accordingly, the record supports the district court's finding.

                                          v.       Stable Environment & Maintaining Continuity

            Burnside argues that he was the one who provided stability for L.M.B. because he had a steady job, which allowed him to economically support L.M.B.  Burnside also contends that Paulson cannot maintain a long-term residence, cannot control her psychological problems, and is not financially stable.

            Paulson testified that she has changed residences three times since she and Burnside ended their relationship in December 1998, but she and her fiancé intend to make their current residence their permanent home.  The record demonstrates that L.M.B. has been with Paulson for the predominant portion of his life.  The district court found that such continuity was desirable for L.M.B.'s development.  Hence, the district court did not err by concluding Paulson provided L.M.B. with a stable environment.

                                       vi.       Permanence of the Family Unit in Custodial Home

            Burnside argues that he will provide a more stable home for L.M.B. because Paulson is unemployed and dependent on her significant other for economic security. He also argues that Paulson's extended family is dysfunctional, whereas his family is a supportive unit upon which L.M.B. can rely.

            As stated above, the district court found that L.M.B has a healthy relationship with Paulson's sister and her family.  Further, the record demonstrates that both parties have significant others with whom they desire to maintain long-term relationships.  The district court found that this factor did not favor either party.  The court did not err in making this finding.

                                    vii.       Mental and Physical Health of All Individuals Involved

            Because Burnside believes Paulson has psychological problems and problems with alcohol and drug use, Burnside disputes the district court finding that Paulson is mentally and physically healthy.  He also disputes the court's finding that he suffers from chronic alcohol and drug abuse.

            The record shows that both parties abused drugs and alcohol in the past.  The record also demonstrates that Paulson had been clean and sober for the nine months preceding trial, she was participating in an Alcoholics Anonymous program, and she had a positive change in personality once she began sobriety.  Further, the record shows that Burnside did not seek any treatment for his alcohol or drug use, and although he had not used drugs in the six months preceding trial, he continued to drink. As stated above, it seems the district court made a credibility determination regarding Burnside's drug and alcohol use.  Accordingly, the record supports the district court's findings on both parties' drug abuse and degree of recovery.

                                 viii.       Parties' Capacity to Give Child Love, Affection, and Guidance

            Burnside argues the district court erred by finding that his ability to give L.M.B. guidance and education is doubtful because of his drug and alcohol use.  Burnside asserts he is fit to provide L.M.B. with love, affection, and guidance, while Paulson will be unable to provide L.M.B. with the same love, affection, and guidance because of her mood swings and psychological instability.

            The record demonstrates that Paulson's parenting has allowed L.M.B. to become a bright, well-adjusted child.  By the age of two, L.M.B. is able to count and recite the alphabet.  As stated previously, the court did not find Burnside's testimony that he did not abuse drugs or alcohol to be credible.  The court found that Burnside's drug and alcohol use would hinder his ability to provide L.M.B. with the same guidance and education.  Therefore, the district court did not err by finding that Paulson is better able to provide L.M.B. with love, affection, and guidance.

                                       ix.       Effect on the Child of the Actions of an Abuser

            The district court found that Burnside had physically abused Paulson.  Burnside challenges this finding by arguing that Paulson instigated the physical confrontations between the parties and that Paulson was also physically abusive to Burnside.

            Paulson testified that Burnside physically abused her on several occasions.  She also testified that many times she did not report the abuse out of fear of retaliation from
Burnside.  Thus, the district court did not err by finding Burnside physically abused Paulson.

We understand Burnside's arguments on appeal.  We conclude that his fitness as a custodial parent is a close call.  This case is not one-sided.  But based on the authority under which we review child custody cases, and on this record, we conclude the district court properly used its discretion.  There is evidence in the record to support the district court's findings that the best interests of L.M.B. favored Paulson as the custodial parent.

II.                Interim Relief

Burnside argues that the district court erred by "not at least allowing [him] visitation at the time of the first hearing on [his motion for interim relief], which tarnished his later case for custody."  This argument is unclear; we cannot discern whether Burnside is alleging he should have been awarded visitation during the period that his motion for temporary relief was pending or is alleging that a lack of visitation during that period prejudiced him when permanent custody was awarded.

            To the extent Burnside is arguing that the district court erred by not awarding him visitation while his motion for temporary relief was pending, we not that he is functionally alleging that the district court should have awarded him visitation before it had resolved his motion for visitation.  We cannot now award him visitation during that period, and he did not request compensatory visitation.  Therefore, any challenge to the lack of visitation between the hearing and the order for temporary relief is moot.  See In re Inspection of Minnesota Auto Specialties, Inc., 346 N.W.2d 657, 658 (Minn. 1984) (stating if award of effective relief is impossible, appeal "will be dismissed as moot").

            On appeal, Burnside argues that, by the time of his hearing on his request for temporary relief, he had entered a recognition of parentage under Minn. Stat. § 257.75, subd. 1 (2000) and was therefore entitled to visitation.  It is unclear whether this argument was made to the district court.  If it was not, the question is not properly before this court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Alternatively, if it was presented to the district court at the hearing on Burnside's motion for interim relief, the district court either implicitly denied visitation while the motion was pending, in which case the argument is moot (as noted above), or it did not address the question, in which case the issue is not properly before us.  See Frank v. Illinois Farmers Ins. Co., 336 N.W.2d 307, 311 (Minn. 1983) (concluding where omitted conclusion or finding is not brought to district court's attention, there is nothing for appellate court to review).

Alternatively, if Burnside is arguing that the lack of visitation limited his contact with the child and prejudiced his ability to obtain permanent custody, the argument lacks merit.  Burnside's allegations are conclusory; he failed to show how the additional contact with L.M.B. would have entitled him to permanent custody.  See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (stating, to prevail on appeal, party must show error and that error caused prejudice).  Moreover, a review of the district court's findings made on the permanent-custody issue shows that the court (a) was aware that, while Burnside's motion was pending, Paulson actually allowed Burnside supervised visitation of L.M.B; and (b) properly relied on the best-interests-of-the-child factors to award custody.  Absent some indication that the alleged error of which Burnside complains actually prejudiced his ability to gain custody, any error is harmless.  See Minn. R. Civ. P. 61 (stating harmless error ignored).

III.             Child Support

            Based on the best interests of the child factors enumerated in Minn. Stat. § 518.17, subd. 1(a), Burnside argues that he should be awarded sole physical custody of L.M.B.  As such, he argues Paulson should be paying child support.  Because the district court did not abuse its discretion by awarding sole physical custody of L.M.B. to Paulson, this issue is moot.

            Affirmed.



[1] The record contains neither a hearing transcript nor a district court order confirming this action.  Because both parties' briefs state that the district court continued Burnside's motion for interim relief until paternity could be established, we accept the assertion.  See Zuehlke v. Independent Sch. Dist. No. 316, 538 N.W.2d 721, 724 n.1 (Minn. App. 1995) (stating uncontroverted statement in party's brief may be accepted as true).