This opinion will be unpublished and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

C3-01-170
C6-01-678

 

In the matter of the Custody of:

N.A.K., DOB 4/10/92

 

Christopher Rodgers, et al., petitioners,

Respondents,

 

vs.

 

Robert J. Knauff,

Appellant.

 

Filed December 11, 2001

Affirmed

Willis, Judge

 

Hennepin County District Court

File No. MF250180

 

Gary A. Debele, Walling & Berg, P.A., 121 South Eighth Street, Suite 1550, Minneapolis, MN  55402 (for respondents)

 

Mark A. Olson, 2605 E. Cliff Road, Burnsville, MN  55337 (for appellant)

 

Deborah Randolph, P.O. Box 19590, Minneapolis, MN  55419 (guardian ad litem)

 

            Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Mulally, Judge.*


U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            In this consolidated appeal from a child-custody award and a posttrial order, appellant contends that the district court abused its discretion by (1) awarding permanent sole physical and legal custody of his child to respondents and (2) ordering him to pay respondents’ attorney fees incurred in bringing their motion for restricted visitation.  Appellant also challenges the constitutionality of statutory best-interests-of-the-child factors.  See Minn. Stat. §§ 257.025, 518.17, subd. 1 (2000).  Because we conclude that the district court did not abuse its discretion and that the constitutional issue is not properly before us, we affirm.

FACTS

            The marriage of appellant Robert J. Knauff and Renee Montpetit was dissolved in February 1994.  The district court awarded them joint legal custody of their child, N.A.K., now age nine, and awarded sole physical custody to Montpetit.

Montpetit began to experience serious health problems in 1996.  Over the next two years, during which Montpetit was hospitalized for long periods, N.A.K.’s daily care was provided by members of Montpetit’s family, including her sister and brother-in-law, respondents Robin and Christopher Rodgers.  Appellant also cared for N.A.K. during appellant’s few short visits to Minnesota from his out-of-state residence.  In 1998, as Montpetit’s health continued to decline, N.A.K. lived with respondents and attended a school near their home.

 Montpetit died on July 15, 1999.  Appellant did not contact N.A.K. or attend the funeral.  On July 24, appellant arrived unexpectedly at respondents’ home at 2:00 a.m. with a private investigator and police officers, to whom appellant had shown a “joint-custody agreement.”  Appellant intended to take N.A.K. immediately back to appellant’s California residence.  Respondents showed the officers a copy of a district court order, issued in 1996 after a visitation evaluation, which stated that appellant’s exercise of visitation rights must occur only in supervised settings.  After determining that N.A.K. was safe, the officers left N.A.K. with respondents.

Two days later, respondents initiated child-custody proceedings under chapter 518 of Minnesota Statutes by filing an emergency motion for temporary third-party custody.  The district court issued an ex parte order granting respondents temporary sole legal and physical custody of N.A.K. and scheduled a temporary-custody hearing.  The hearing was continued, by stipulation of the parties, to allow appellant more time to respond to the motion.  After the hearing, the district court granted respondents temporary sole legal and physical custody of N.A.K., appointed a guardian ad litem, ordered a custody evaluation, and established a visitation schedule for appellant.

In August 2000, a custody trial was held.  The district court awarded permanent sole physical and legal custody of N.A.K. to respondents.  The district court concluded that although appellant was not unfit to parent and did not have a history of abandoning N.A.K., “[s]o many of the best interests factors favor [respondents], some convincingly,” that an award of custody to appellant would be an abuse of its discretion.  The district court also issued a visitation order conditioning appellant’s in-person visitation rights on his participation in an alcohol-treatment program and a parenting class.

Appellant moved for amended findings, a new trial, or reopening of the dissolution decree, arguing, for the first time, that the district court’s award of custody to respondents violated his fundamental right to raise his child.  The district court denied the motion on procedural grounds.  Appellant then filed a notice of appeal with this court, challenging the award of custody to respondents and the constitutionality of Minnesota’s best-interests-of-the-child statutes.

Shortly before the notice of appeal was filed, respondents moved for an order limiting appellant to supervised visitation and for attorney fees, in part because appellant did not participate in the required alcohol-treatment program and parenting class.  The district court granted the motion.  Appellant then filed another notice of appeal, disputing only the award of attorney fees.  This court consolidated the appeals.

D E C I S I O N

The district court has broad discretion to determine matters of child custody.  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989).  This court will not reverse a custody determination “unless the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.”  Frauenshuh v. Giese, 599 N.W.2d 153, 156 (Minn. 1999) (citation omitted).

I.

            Appellant contends that the district court made findings on the best interests of N.A.K. that are unsupported by the record.  In a child-custody proceeding under chapter 518, the district court is required to make findings on 13 non-exclusive statutory best-interests factors.  Minn. Stat. § 518.17, subd. 1(a) (2000).  These factors include determinations of (1) the child’s primary caretaker; (2) the child’s adjustment to home, school, and community; (3) the length of time the child has lived in a stable environment and the importance of continuity; and (4) the mental and physical health of the individuals involved.  Id., subd. 1(a)(3), (6), (7), (9).

A.         Primary Caretaker

The district court found that during the “better portion of the last year” preceding Montpetit’s death, respondents were N.A.K.’s primary caretakers.  Appellant asserts that they were not.  The record shows that N.A.K. began living with respondents in 1998, before Montpetit’s death, and that N.A.K. identified respondents as providing the majority of physical care.

B.         Adjustment to Home, School, and Community

The district court found that N.A.K. had numerous close friends in school and in the community.  Appellant claims that this finding was based on N.A.K.’s integration into respondents’ home after the district court’s ex parte order.  A temporary child-custody order may not prejudice the rights of the parties that are to be “adjudicated at subsequent hearings in the proceeding.”  Minn. Stat. § 518.131, subd. 9(a) (2000).  But the record shows that N.A.K. attended and completed kindergarten at a school near respondents’ home before the ex parte order.

C.        Stable Environment and Continuity

The district court found that respondents provided a stable and satisfactory environment for N.A.K.  Appellant contends that this finding was based on N.A.K.’s post-temporary-order integration into respondents’ home.  See id.  But the record shows that N.A.K. entered a stable environment when N.A.K. started to live with respondents in 1998, before the ex parte order.

D.        Mental and Physical Health

The district court found that appellant did not have a proper understanding of child development because of his decision to involve N.A.K. as a “tool in his pursuit of custody,” his failure to attend Montpetit’s funeral to support N.A.K., and his 2:00 a.m. attempt to “grab N.A.K.”  Appellant describes these events as “nothing more than perceived indiscretions or lack of judgment.”  On this record, however, we cannot conclude that appellant has shown the district court’s findings to be clearly erroneous.

            Appellant also contends that the district court did not address the required factor of the disposition of each party “to encourage and permit frequent and continuing contact” between the other party and N.A.K.  See Minn. Stat. § 518.17, subd. 1(a)(13).  The district court found that although there was a “total lack” of communication and cooperation between the parties, respondents did not interfere with appellant’s exercise of his visitation rights.  The district court also questioned appellant’s understanding of child development and cited examples of his inappropriate behavior that raised doubts regarding whether he would permit continuing contact between respondents and N.A.K.  We conclude that the district court adequately considered the disposition of each party to encourage and permit contact between N.A.K. and the other party.

            Finally, appellant argues that the district court erroneously concluded that the best interests of a child is the primary consideration in a custody dispute between a parent and a third party.  In such disputes, a parent is entitled to custody of the child unless the parent is unfit or has abandoned the right to custody, or unless “there are some extraordinary circumstances which would require that [the parent] be deprived of custody.”  Wallin v. Wallin, 290 Minn. 261, 264, 187 N.W.2d 627, 629 (1971).  First, the district court’s findings demonstrate extraordinary circumstances.  Second, a parent’s custodial right is “distinctly subordinate to the controlling principle that the overriding consideration in custody proceedings is the child’s welfare.”  Id. at 265, 187 N.W.2d at 630; see In re Custody of N.M.O., 399 N.W.2d 700, 703 (Minn. App. 1987) (applying Wallin standard to custody disputes between parent and third party).  Here, the district court properly concluded that the primary consideration in its determination of custody is N.A.K.’s best interests.

Because the district court made findings that are supported by the record and properly applied the law, we conclude that the district court did not abuse its discretion by awarding custody to respondents.

II.

            The district court, in its discretion, may award attorney fees against a party “who unreasonably contributes to the length or expense of the proceeding.”  Minn. Stat. § 518.14, subd. 1 (2000).  Appellant argues that respondents unnecessarily moved for supervised visitation because his failure to participate in the required alcohol-treatment program and parenting class would automatically result in the loss of unsupervised visitation.

            But, despite his failure to participate, appellant continued unsupervised visitations.  The district court found that the visitations were “endangering [N.A.K.’s] emotional health and impairing [N.A.K.’s] emotional development” because appellant discussed adult issues with N.A.K. and used N.A.K. as “the spokesperson for his agenda,” behavior that the parenting-class requirement was intended to address.  Appellant’s violation of the visitation order and the harm he caused to N.A.K. forced respondents to move for supervised visitation, which would provide a structured setting in which the harm could be mitigated.  The district court did not abuse its discretion by awarding to respondents their attorney fees incurred in bringing the motion.

III.

Appellant argues that Minn. Stat. § 257.025 (2000) and Minn. Stat. § 518.17 (2000), which set forth best-interests-of-the-child factors that a court must consider when determining custody under chapter 257 or chapter 518, violate due process of law as applied to custody disputes between a parent and a third party because the statutes do not adequately protect the right of the parent to raise the child.

            A reviewing court “must generally consider only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.”  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quotation omitted).  Although the district court addressed the merits of appellant’s constitutional challenge in its order, it specifically based its denial of his motion on procedural grounds.  Because the district court was not required to consider appellant’s constitutional challenge to deny his motion on procedural grounds, and because appellant makes no claim on appeal that this basis for denial was erroneous, we conclude that this issue is not properly before us.

            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.