This opinion will be unpublished and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

C0-01-854

 

 

Jason A. Boysen, petitioner

Respondent,

 

vs.

 

Bernice M. K. Betsinger,

Appellant.

 

Filed November 20, 2001

Affirmed

Lansing, Judge

 

Mower County District Court

File No. F900173

 

 

Bryan J. Baudler, Baudler, Baulder Maus & Blahnik, 107 North Main St., Austin, MN 55912 (for respondent)

 

Brandon V. Lawhead, Lawhead Law Offices, 301 Main St., Austin, MN 55912 (for appellant).

 

Considered and decided by Lansing, Presiding Judge, Stoneburner, Judge, and Hanson, Judge. 

U N P U B L I S H E D  O P I N I O N

LANSING, Judge 

Bernice Betsinger appeals a district court judgment placing primary physical custody of her nine-year-old child with the child's father, Jason Boysen.  The custody determination is based on findings addressing the statutory factors and is supported by the evidence.  The court correctly observed that both parents have demonstrated the ability to care for their child, but the court did not abuse its discretion by placing primary physical custody with Boysen.  We affirm.

F A C T S

Jason Boysen and Bernice Betsinger lived together from 1992—when their child was born—until October 1998.  Both parents actively participated in caring for their child and both participated in the care of Betsinger's child from an earlier relationship.  From the breakup of the household in October 1998 until August 2000, Betsinger and the two children moved at least five times.  As a result of these moves, the parties' child has been enrolled in three different elementary schools in the past three years.  

Despite the breakup of their household, Betsinger and Boysen have maintained a co-operative parenting relationship and Boysen has maintained a positive relationship with Betsinger's older child.  Both children spend time with Boysen and also with Boysen’s parents.  Betsinger has relied on Boysen's parents as back-up caretakers for the two children. 

In January 2000, Boysen brought a motion to establish custody, requesting sole physical custody and joint legal custody of the parties' child.  The court appointed a guardian ad litem and conducted a contested hearing.  Following the hearing, the court made fact findings applying the factors set out in Minn. Stat. § 518.17, concluded that the best interests of the child favored Boysen having primary physical custody with Betsinger having substantial parenting time.  The court further ordered that Betsinger pay $138 per month in child support to Boysen.  Betsinger moved for amended findings or a new trial.  The court denied the post-trial motions and Betsinger appeals. 

D E C I S I O N

A district court has broad discretion in resolving custody issues and appellate review is restricted to whether the court abused its discretion by incorrectly applying the law or by making findings that lack evidentiary support.  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  Fact findings that form the basis for the custody decision are not set aside unless clearly erroneous, and we review the custody decision in the light most favorable to the district court’s findings.  Minn. R. Civ. P. 52.01 (2001); Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn. 1993). 

The foremost consideration in custody determinations is the best interests of the child.  Minn. Stat. § 518.17, subd. 3(a)(3) (2000); Rutten v. Rutten, 347 N.W.2d 47, 51 (Minn. 1984).  The statutory factors that are applied to determine a child's best interests include consideration of who is the child’s primary caretaker; the intimacy of the relationship between each parent and the child; the interaction and interrelationship of the child with a parent or parents, siblings, or other significant persons; the child’s adjustment to home, school, and community; continuity in a stable, satisfactory environment; each parent’s capacity and disposition for love, affection, and guidance; the effect on the child of any domestic abuse; and each parent’s disposition to encourage the child’s contact with the other parent.  Minn. Stat. § 518.17, subd. 1.

The district court made specific findings addressing each of the relevant statutory factors and provided a memorandum explaining its reasoning.  The court found that many of the factors favored the parents equally, but several factors weighed in favor of Boysen because Boysen presents more stability in contrast to Betsinger’s frequent moves; Boysen’s extended family has close relationships with the child; Betsinger did not consistently demonstrate candor, judgment, and an ability to prioritize the children's needs; Betsinger allowed an unsuitable person to care for the child; Betsinger exposed the child to an environment of domestic abuse after her relationship with Boysen; and Betsinger has a history of substance-abuse problems. 

The court also found that some of the factors favored Betsinger.  The evidence on those factors included the recommendations of the custody evaluator and the guardian ad litem, Betsinger's ability to provide a home that would allow the child to remain with his half-brother, and the fact that Boysen's parents rather than Boysen provide a large amount of care when the child is in Boysen's custody.

Betsinger challenges the district court's findings that both Betsinger and Boysen were the child’s primary caretakers and contends that the court placed too little weight on separating the child from his half-brother; the effect of removing the child from the school environment in which he excelled; the recommendation of the guardian ad litem and the child-custody evaluator; and Boysen’s motives for seeking custody.  She also contends that the court placed too much weight on the character of the persons with whom she associated and the effect of possible domestic abuse.

On the primary-caretaker issue, the district court found that Boysen and Betsinger shared equally in the caretaking responsibilities for the child.  Although Betsinger disputes this issue and presented evidence demonstrating her substantial caretaking, the testimony and exhibits introduced at trial demonstrate joint caretaking and adequately support the court's finding that this factor should not favor either party.

In considering the effect of separating the child from his half-brother, the court made detailed findings.  To alleviate the possible effects of this separation, the district court provided that Betsinger would have liberal visitation rights and mandated that she have the child no less than 41 percent of the time.  The court pointed out that the parents had spent an equal amount of time with the child before the custody dispute arose and would likely continue to do so after the custody determination.  The court noted Boysen’s willingness to allow the child’s half-brother to spend time with the child while in Boysen’s care and to provide care for both of the children.  The district court's particularized findings demonstrate that it properly considered this issue.  See Lawver v. Lawver, 360 N.W.2d 471, 472-73 (Minn. App. 1985) (emphasizing need for particularized findings when custody determination splits primary residence of siblings).

In considering the child's change of schools, the court weighed the benefits of long-term stability.  The court noted that the child was excelling in his current school and had demonstrated resilience by doing well academically despite attending three different schools in three years.  The court appropriately weighed long-term stability against a possible short-term adjustment.

The district court's findings do not specifically address Betsinger's claim that Boysen sought custody only to avoid paying child support.  Betsinger's claim was, however, factually contested, and, in any event, the evaluation of the child's best interests must be made on the statutory factors not on imputed motives.  Because the court made its determination on the factors set out in the statute, we see no error in the court's declining to make a fact-finding on Boysen's motive and declining to consider it as a dispositive factor.

The recommendations of the guardian ad litem and the child-custody evaluator are important, but the court is not required to adhere to the evaluations if they are outweighed by other evidence.  Pikula, 374 N.W.2d at 712.  Although both reports recommended that Betsinger have sole physical custody, the custody evaluator's initial report recommended that Boysen have sole physical custody.  Both recommendations placed great weight on the value of the child remaining in the same home as his half-brother.  Because the court carefully evaluated this factor and explained its reasoning, the departure from the recommendations is not error.  Cf. Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991) (stating custody evaluation's recommendation may be rejected upon thorough best-interests analysis or explanation of rejection).

Betsinger contends that the court placed too much weight on the character of persons with whom she associated.  During trial, the district court admitted into evidence Boysen’s testimony that he had read an article that indicated that Betsinger’s cousin who often cared for the children had been involved in operating a methamphetamine laboratory and that the child had told Boysen that the child was in the car with Betsinger’s cousin during a successful attempt to avoid police officers.  The testimony apparently was admitted to prove the truth of the accusation, and thus we agree with Betsinger's claim that the statement about the cousin's involvement with illegal drugs should have been excluded as hearsay.  See Minn. R. Evid. 801(c) (2001) (defining hearsay); Minn. R. Evid. 802 (2001) (excluding hearsay as evidence unless permitted by exception).  We also agree that Boysen failed to show that the statement was within an exception to the hearsay rule.  We disagree, however, that admission of the statement requires a new trial.  The district court's reference to the cousin was only part of its overall findings.  The court's limited consideration of this evidence is not sufficient to overcome the affirmative evidence on the other factors that weighed in favor of Boysen having primary physical custody.

Betsinger also contends that the district court improperly weighed the possible effect on the child of an abusive relationship that followed her breakup with Boysen.  The district court noted that Betsinger may have exposed the child to an environment of abuse during this time when she resided with the abusive boyfriend and his sons.  Betsinger alleges that the child suffered no effects from his exposure to the discord between Betsinger and her former boyfriend.  The district court similarly concluded that the child had not been directly affected by the discord, but observed that the discord affected the stability of the child's residence.  Furthermore, the district court noted that Betsinger continued to have contact with her former boyfriend, thus potentially exposing the child to further circumstances in which he might witness abuse.  The court did not err in evaluating this circumstance as part of its overall consideration. 

The district court carefully evaluated the evidence and provided a detailed analysis of the best-interests factors in light of the evidence.  Appellate review does not allow us to reweigh the evidence; instead we determine whether the district court abused its discretion by making findings unsupported by the evidence or the applicable law.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).  We conclude that the district court did not abuse its discretion in making the custody decision.

Affirmed.