This opinion will be unpublished and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

C4-00-2144

 

 

In Re the Marriage of:

Lori Ann Totman, petitioner,

Respondent,

 

 

vs.

 

 

Michael Ronald Totman,

Appellant.

 

 

Filed June 12, 2001

Affirmed

Toussaint, Chief Judge

 

Blue Earth County District Court

File No. F4982229

 

 

Garry D. Barnett, 226 North Broad Street, P.O. Box 3008, Mankato, MN 56002-3008 (for appellant)

 

Jon G. Sarff, Jon G. Sarff, P.L.C., 100 East Walnut Street, Mankato, MN 56001 (for respondent)

 

 

            Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Lindberg, Judge.*

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

            Appellant Michael Totman and respondent Lori Ann Totman are the parents of four children: R.J.T. (d.o.b. October 9, 1984), J.L.T. (d.o.b. September 26, 1986), R.M.T. (d.o.b. February 18, 1991), and L.M.T. (d.o.b. September 28, 1992).  As a part of a divorce decree, the parties were awarded joint legal custody of the children and split physical custody.  Respondent was awarded sole physical custody of J.L.T., R.M.T., and L.M.T., subject to visitation by appellant.  Appellant was awarded sole physical custody of R.J.T., subject to visitation by respondent.  Some findings were amended , but a new trial was denied.

In this custody dispute, appellant alleges that the (1) evidence does not support the district court’s findings regarding the children’s primary caretaker, the parties’ ability to cooperate, and the reasons for the award of split custody; (2) award of split custody is contrary to the law; and (3) failure to award child support was error.  Because the district court’s findings are supported by the evidence and its conclusions are supported by the law, we affirm.

D E C I S I O N

I.

 

            Appellant challenges several findings of fact made by the district court as being without support in the record.  Custody determinations are based on the children's best interests.  Minn. Stat. § 518.17, subd. 3(a)(3) (1998).  A trial court's findings of fact that form the basis for the custody determination are not set aside on appeal unless the findings are clearly erroneous.  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn.1985).  A finding is clearly erroneous if it is manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.  Tonka Tours, Inc. v. Chadima, 372 N.W.2d 723, 726 (Minn. 1985).

Appellant first claims that the trial court’s finding that “no preference was determined for the 9 and 7 year old children” was not supported by the evidence. Children as young as seven years old can be found to be old enough to express a valid preference. See, e.g., Mowers v. Mowers, 406 N.W.2d 60, 64 (Minn. App. 1987) (holding that the district court acted within its discretion in determining seven-year-old child was of sufficient age to express her preference and did so without prior coaching or persuading).

Neither party requested that the younger children be interviewed by the trial court. The guardian ad litem reported “I believe [J.L.T.], [R.M.T.], and [L.M.T.] do not prefer one parent over the other.”  The guardian ad litem and R.J.T. testified that all of the younger children wanted to leave things as they were, i.e., split custody.   Because the trial court made an ultimate finding of fact that was consistent with the evidence that the younger children did not prefer one parent to the other, its decision was not clearly erroneous.

Appellant next challenges the trial court’s finding that “it appears that Petitioner, Ms. Lori Ann Totman, was the children’s primary care taker.”  Appellant argues that this finding was error because for the last two years of split custody, he shared equally in the parenting.  Contrary to his assertions, the focus of the inquiry in determining the primary caretaker is the time during the marriage.  Hemingsen v. Hemingsen, 393 N.W.2d 414, 417 (Minn. App. 1986), review denied (Minn. Nov. 17, 1986).   

Further, there is sufficient evidence to support the district court's findings that respondent was the primary caretaker.  She provided greater affection and guidance to the children than appellant did.  She was the “on-call parent,” did all the shopping, and prepared the meals while the children were growing up.  Finally, appellant often depended on respondent, and later R.J.T. to cook, clean, and care for the children.  Examining the entire record in a light favorable to the trial court's findings, the court did not clearly err in finding that respondent was the primary parent.  See Ozenna v. Parmelee, 407 N.W.2d 428, 431-32 (Minn. App. 1987) (affirming district court determination that father was primary caretaker where both parties initially shared equally in caretaking but mother had been inconsistent in providing care and had an alcohol problem for many years), review denied (Minn. Aug. 12, 1987).

Appellant also challenges the finding that “there appears to be an equal intimacy of interrelationship between both parents and the children.”  This finding of fact is supported by the uncontradicted guardian ad litem’s report and is, therefore, not clearly erroneous. 

Appellant challenges the trial court finding “that there is some concern on the ability of the parties to cooperate.” The trial court’s finding that there is “some concern” regarding the parents’ ability to cooperate is supported by the evidence.  But the trial court concluded “though there is some friction, both parents appear to allow contact with the other parent with the children with minimum interference.”  Because there is evidence in the record supporting the trial court’s ultimate finding of fact, the district court did not clearly err.

Finally, appellant argues that the trial court’s finding of fact that (1) R.J.T. was bitter towards her mother; and (2) that it would be detrimental to the three younger children to subject them to the continuous disagreement between R.J.T. and her mother was erroneous.  The parties agree that R.J.T.’s present relationship with her mother is strained.  There is also evidence that the younger children witnessed R.J.T.’s arguments with her mother and that they were upset by their interactions.  Because there is evidence in the record to support the trial court’s ultimate finding of fact that respondent and R.J.T. had a bitter relationship that negatively impacted the other children, this finding is not clearly erroneous.

II.

Appellant asserts that a proper application of the law requires that sole physical custody of all of the children be awarded to him, not respondent.  This court will not reverse a trial court’s custody determination absent a showing that the trial court abused that discretion by improperly applying the law.  Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000).

In deciding to split custody, the trial court did not accept the custody recommendations of the guardian ad litem, who recommended that respondent be awarded sole physical custody of all four children.  The trial court noted that respondent provided the more stable environment and that for this reason it would be desirable to place all children in her care.  However, it further noted that “it would be detrimental to the three younger children to require them to witness the bitterness which exists in R.J.T. * * * this would not be best for either R.J.T. or her three siblings * * *.”  “Where * * * other factors outweigh the need for siblings to reside together, split custody may be appropriate.”  Doren v. Doren, 431 N.W.2d 558, 561 (Minn. App. 1988). Furthermore, the determination was also consistent with the stated preference of R.J.T., age 16, who expressed a preference to live with appellant.  See Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991) (stating that custodial preference of “older teenager” is an “overwhelming consideration” in custody proceedings).  Because the findings support the district court’s conclusion that it was in the children’s best interests to award split custody, the district court did not abuse its discretion in determining custody. 

III.

            Appellant argues that the trial court erred in establishing the amount of child support.  A trial court's determination of child support is subject to review under an abuse of discretion standard.  Malecha v. Malecha, 386 N.W.2d 292, 294 (Minn. App. 1986).  Any departure from child support guidelines must be supported by express findings of fact.  Wende v. Wende, 386 N.W.2d 271, 275 (Minn. App. 1986).

The trial court deviated from the guidelines by not awarding appellant any child support.  The stated reason for the deviation—that appellant would not incur a financial hardship if support were not awarded, is supported by the evidence.  Therefore, the trial court did not abuse its discretion in making its child support determination.

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.