This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of: Jodi Rongstad,
n/k/a Jodi Phillips,
Filed October 22, 2001
Chippewa County District Court
File No. F8-95-358
Maureen Williams, P.O. Box 1895, Burnsville, MN 55337 (for appellant)
Gregory L. Holmstrom, Holmstrom & Kvam, PLLP, 685 Prentice Street, Granite Falls, MN 56241 (for respondent)
††††††††††† Considered and decided by Peterson, Presiding Judge, Amundson, Judge, and Anderson, Judge.
††††††††††† In the partiesí divorce decree, appellant-mother was granted sole physical custody of appellantís and respondentís children.† Upon respondent-fatherís motion, the district court found that a change in circumstances had occurred and granted respondent-father sole physical custody of the children.† We affirm.
††††††††††† Appellant Jodi Rongstad, n/k/a Jodi Phillips, and respondent Peter Rongstad are the parents of two minor children, A.M.R. and E.A.R.† The partiesí marriage was dissolved by decree on June 5, 1996.† At that time, the parties were granted joint legal custody, with appellant receiving sole physical custody subject to respondentís visitation rights.†
††††††††††† Following her separation from respondent, appellant became romantically involved with Jon Nerison.† Nerison and appellant lived together from 1996 until October 1999.† Appellant married Nerison in 1998 and divorced him in February 2000.† During that marriage, law enforcement officers were frequently dispatched to the residence appellant shared with Nerison for various reasons, including many domestic disputes.† Thirty-one initial complaint reports were received by the police during this period.† Appellant also filed and subsequently dismissed numerous petitions for orders for protection against Nerison.† In October 1997, child protection services notified appellant of its determination that maltreatment of the children had occurred while in her care, based in part on the childrenís observation of the violence between appellant and Nerison.† The couple separated and reunited on three occasions prior to their final separation in October 1999.†
††††††††††† Respondent-father filed a motion for change of custody.† After an evidentiary hearing, the district court found that there had been a substantial change in appellantís circumstances, the childrenís present environment threatened their physical and emotional health, a modification of custody was in the best interests of the children, and any harm likely to be caused by a change in environment was outweighed by the advantage of the change in custody.† This appeal followed.†
The district court has broad discretion to provide for the custody of the partiesí children.† Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).† We will reverse a custody determination only if the district court abused its discretion by either making findings unsupported by the evidence, or improperly applying the law.† Frauenshuh v. Giese, 599 N.W.2d 153, 156 (Minn. 1999).†
On appeal, we review a district courtís findings of fact in the light most favorable to those findings and will not reverse them unless they are clearly erroneous.† Id.† Our function as an appellate court is not to reweigh the evidence; rather it is to determine if the evidence as a whole sustains the district courtís findings.† In re Salkin, 430 N.W.2d 13, 16 (Minn. App. 1988), review denied (Minn. Nov. 23, 1988).† We also show great deference to a fact-finderís determinations of credibility and the weight given to testimony.† Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).
†Minn. Stat. ß 518.18(d) (2000), which governs motions to modify custody, provides that the court shall retain the previously-ordered custody arrangement unless, among other things:
(iv)† the childís present environment endangers the childís physical or emotional health or impairs the childís emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.
A party seeking to modify physical custody must establish that (1) the childís or custodial parentís circumstances have changed;† (2) the proposed modification is in the childís best interests;† (3) the present environment endangers the childís physical or emotional health or emotional development; and (4) the benefits of the proposed change in custody outweigh any harm associated with the change.† Frauenshuh, 599 N.W.2d at 157 (citing Minn. Stat. ß 518.18(d)).† The district court must find all four elements.† Leyh v. Stelzer, 398 N.W.2d 63, 66 (Minn. App. 1986).†
We understand fully any parentís natural desire to have custody of his or her children.† However, our state policy, strongly set forth by the legislature in statute and the courts in caselaw, is that the best interests of the child are of paramount importance in determining custody.† Here, the district court addressed all four of the statutory elements, balanced the best-interests considerations, and analyzed all relevant testimony and evidence.†
ďA change in circumstances must be significant and must have occurred since the original custody order; it cannot be a continuation of conditions existing prior to the order.Ē †Giebe v. Giebe, 571 N.W.2d 774, 778 (Minn. App. 1997).† The district court found that two changes in circumstances have occurred.† First, appellant has been using illegal drugs routinely and began tolerating the use of illegal drugs by others in the presence of her children.† Second, appellant has developed the personality trait of seeking out relationships with abusive individuals, thereby exposing her children to danger.† This personality trait has been exacerbated by her and Nerisonís illegal drug use.† Appellant argues that this is not a new development and that her victim-type personality trait and drug use were present when she was married to respondent.†
While we note that both appellant and respondent used illegal drugs during their marriage, there was testimony that respondentís drug use has been substantially reduced since 1997 and that a chemical use assessment in 1999 resulted in a finding that ďno problemĒ existed.† Furthermore, evidence adduced at the hearing showed that appellant continued her illegal drug use and did so in front of her children.† Thus, the district courtís findings that respondentís illegal drug use has been sharply reduced and that he does not use illegal drugs in front of his children, and that appellant does use illegal drugs in front of her children, in turn support the finding that there has been a change in circumstances.†††
We also note the evidence of some violence during appellantís and respondentís marriage.† But the record shows that the children were exposed to far greater levels of violence after that marriage ended and appellant became involved with Nerison.† The police were called to appellantís home numerous times because of domestic violence, including occasions when the children were present.† Nerison was also jailed for assaultive behavior towards appellant, which behavior occurred in front of the children.† It appears that the extent of law enforcement involvement during appellantís relationship with Nerison was far more extensive, and that also supports the finding that circumstances have changed.
Furthermore, a few months before trial and after a protective order was issued barring Nerison from contact with appellant, appellant allowed Nerison to spend a night with her while the children were present.† Also, evidence showed that long phone calls were made from appellantís fatherís phone to the home where Nerison was staying.† This evidence supports the district courtís finding that appellant continued her contact with Nerison, which, in turn, supports the findings that her personality trait had become worse during this period.
When the district court considers the statutory best-interests factors and provides reasons for its conclusions, this court will not reverse absent an abuse of discretion. Gibson v. Gibson, 471 N.W.2d 384, 387 (Minn. App. 1991).† Current law ďleaves scant if any room for an appellate court to question the trial courtís balancing of best-interests considerations.Ē† Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000).
Appellant contends that the modification is not in the childrenís best interests because: (1) the district court ďrefused to hear evidenceĒ of respondentís abusive nature and refused to consider the parenting habits of respondentís live-in girlfriend, and (2) if the childrenís home is changed, they will no longer live with their half brother and will not be able to visit their grandparents as easily.† But the district court found that the childrenís best interests would be served by granting respondent custody.† The court found that they would be shielded from appellantís lifestyle and that the children are
far more likely to experience a consistent and comforting home with [r]espondent, without [the] regular strife, fear, turmoil and fear of authority they experience with [appellant].
Furthermore, the district court found that although respondent has weaknesses, he has been nurturing toward and showed consistent interest in the children.† These factors are appropriate to consider when making a best interests analysis.† The courtís findings are amply supported in the record.†
The district court also found that the present environment of the children threatens their physical and emotional health and, in fact, has caused harm.† The children already show signs of being withdrawn, vacant, and unreasonably fearful of law enforcement officers.† As previously noted, there was ample evidence before the district court that appellant had continued her relationship with Nerison.† The evidence also shows that the children were exposed and will continue to be exposed to illegal drug use, severe family violence, and dishonesty.† Dr. Lyle Wagner, a psychologist, testified that the childrenís presence in a home where there is repeated ongoing fighting is detrimental to them and constitutes abuse.† Jennifer Moen, a social worker, testified that neglect had occurred while the children were living with appellant and that children without proper care can develop emotional disabilities.† Thus, the evidence supports the district courtís findings that the childrenís present environment threatens their physical and emotional health.
††††††††††† Appellant does not contest the district courtís finding that the advantage of the change in custody outweighs the harm likely to be caused by the change.
††††††††††† Appellant contends that the district court improperly excluded or ignored certain evidence.† We review a district courtís rulings to admit or exclude evidence under an abuse of discretion standard.† Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).† The district court is afforded broad discretion in weighing evidence and making findings of fact.† Minn. R. Civ. P. 52.01 (findings of fact by trial judge not set aside unless clearly erroneous).†
Here, appellant does not make a showing that the district court refused to hear any testimony adverse to respondent.† In fact, considerable evidence was presented at the hearing that was adverse to respondent.† Appellantís argument is that the district court did not give sufficient weight to this adverse evidence when it concluded that modification was in the best interests of the children.† The district court weighed the contradictory evidence presented, which is its function, and it made a reasonable determination that the childrenís best interests would be served by granting respondent sole physical custody.† We will not reweigh the evidence or disturb the district courtís credibility determinations.† Salkin, 430 N.W.2d at 16.†