This opinion will be unpublished and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

C3-01-847

 

In re the Marriage of:

 

Steven Ronald Kohls, petitioner,

Appellant,

 

vs.

 

Janice Kathryn Kohls, et al.,

Respondents.

 

Filed December 18, 2001

Affirmed in part, Reversed in part, and Remanded

Kalitowski, Judge

 

Ramsey County District Court

File No. F5962949

 

Steven Ronald Kohls, 7076 Quinn Avenue Northwest, Southaven, MN 55382 (pro se appellant)

 

Ronald B. Sieloff, Kathy K. Hart, Sieloff and Associates, P.A., Yankee Square Office III, 3460 Washington Drive, Suite 214, Eagan, MN 55122 (for respondents)

 

Sharon Bronn, Ramsey County Guardian Ad Litem Program, Juvenile and Family Justice Center, 25 West Seventh Street, St. Paul, MN 55102 (guardian ad litem)

 

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


U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Steven Ronald Kohls challenges the district court’s order granting a change in custody of his minor children to the children’s maternal grandparents (intervenors).  Appellant contends (1) the district court abused its discretion in awarding custody to intervenors; and (2) the district court erred in awarding attorney fees to intervenors and respondent Janice Kohls because the district court did not make findings to support the award.  We affirm the custody determination but reverse and remand the award of attorney fees. 

D E C I S I O N

I.

A district court has broad discretion in determining child custody.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  A reviewing 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).  This court will sustain a district court’s findings unless they are clearly erroneous.  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). Moreover, this court gives deference to the district court’s opportunity to assess the credibility of witnesses, Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1998) (citation omitted), and this court examines the evidence in the light most favorable to the district court’s findings.  Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn. 1993).

Minn. Stat. § 518.18 (2000) governs motions to modify custody orders and provides that the court shall retain the custody arrangement previously ordered unless, among other things:  

(iv) the child’s present environment endangers the child’s physical or emotional health or impairs the child’s 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.

 

Once the party seeking a modification has established change in circumstances, under Minn. Stat. § 518.18(d)(iv), the party must establish four elements to make a prima facie case for modification: 

(1) circumstances have changed involving the child or custodial parent;  (2) the modification would be in the best interests of the child;  (3) the child’s physical or emotional health or emotional development is endangered by his or her present environment; and (4) that harm associated with the proposed change in custody would be outweighed by the benefits of the change. 

 

Frauenshuh, 599 N.W.2d at 157 (citing Minn. Stat. § 518.18(d)).  Additionally, “[p]roof of an unwarranted denial of or interference with duly established [visitation] * * * may be sufficient cause for reversal of custody.”  Minn. Stat. § 518.175, subd. 6(e) (2000).  But unwarranted denial of or interference with visitation “is only one factor that must be considered along with the standards set forth in Minn. Stat. § 518.18(d).”Dabill v. Dabill, 514 N.W.2d 590, 595 (Minn. App. 1994). 

Moreover, 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).  But this entitlement 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).  And current law “leaves scant if any room for an appellate court to question the trial court’s balancing of best-interests considerations.”  Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000). 

First, appellant argues that the facts do not support the court’s finding that the children were endangered in appellant’s care, and thus that no change in circumstance occurred to permit a change in custody.  We disagree.  The concept of endangerment is “unusually imprecise,” Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991), but the danger may be purely to emotional development.  See Eckman v. Eckman, 410 N.W.2d 385, 389 (Minn. App. 1987) (upholding sufficiency of evidence for modification based on child’s isolation in father’s home and preference for mother).  Also, consistent denial of visitation with the noncustodial parent can harm a child and impair a child’s emotional development.  Clark v. Bullard, 396 N.W.2d 41, 45 (Minn. App. 1986); Meier v. Connelly, 378 N.W.2d 812, 817-18 (Minn. App. 1985). 

Here, the district court found, and the record supports, that appellant engaged in a consistent pattern of denying respondent visitation and that the conflict occurring at the visitation exchanges endangered the children’s emotional health.  Moreover, the record contains evidence that the environment in appellant and his wife’s home was harmful to the children’s emotional development.  For example, appellant and his wife degraded the children’s mother in the children’s presence, appellant’s wife told J.K.’s teacher to humiliate J.K. to encourage better behavior, and appellant and his wife neglected J.K.’s hygiene by sending him to school several days in a row with pants smelling of urine.  In addition, the record shows that appellant and his wife took the children to the doctor before and after visitation with the mother, indicating to the children that they were not safe with their mother.  Because the record contains ample evidence in support of the district court’s finding of endangerment based both upon endangerment to the children’s emotional health and impairment of the children’s emotional development, we conclude the district court did not abuse its discretion by finding endangerment.  

Second, appellant argues that the facts do not support a finding that a change in custody is necessary to serve the best interests of the children.  The district court, however, made extensive findings regarding each of the 13 best-interests-of-the-child factors in Minn. Stat. § 518.17 (2000).  Eighteen witnesses testified at the seven-day trial, including the parties, psychologists and physicians, the guardian ad litem, the court services officer, and appellant’s independent custody evaluator.  Both the guardian ad litem and the court services officer recommended that the court award sole legal and physical custody to intervenors.  Because the extensive record supports the district court’s best-interests findings, we conclude the district court did not abuse its discretion in determining the children’s best interests would be served by a change in custody.

Third, appellant argues that intervenors failed to establish “grave and weighty” reasons needed to overcome the presumption that appellant was entitled to custody of the children and that the facts did not establish that appellant was unfit to have custody of his children.  But this presumption is subordinate to the best interests of the child and a court need not find a parent unfit in order to award custody to a third party.  Wallin, 290 Minn. at 265, 187 N.W.2d at 629-30.  Here, the district court carefully examined all of the best-interests-of-the-child factors and specifically listed 18 additional reasons supporting endangerment and why the best interests of the children are served by a change in custody.  Moreover, the intervenors are not strangers to the children; they are the children’s maternal grandparents, and the children lived with them for several months when child protective services removed the children from appellant and the mother’s home.

The function of this court is not to reweigh the evidence; rather, it is to determine if the evidence as a whole sustains the district court’s findings.  In re Salkin, 430 N.W.2d 13, 16 (Minn. App. 1988), review denied (Minn. Nov. 23, 1988).  Because the record, as a whole, supports the district court’s findings, we conclude the district court did not abuse its discretion in determining that a modification to sole custody in intervenors was in the best interests of the children.

II.

            Awards of attorney fees and costs are discretionary with the district court.  Whalen v. Whalen, 594 N.W.2d 277, 281-282 (Minn. App. 1999).  A district court shall award attorney fees, costs, and disbursements if it finds:

(1) that the fees are necessary for the good-faith assertion of the party’s rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;

(2) that the party from whom fees, costs, and disbursements are sought has the means to pay them; and

(3) that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.

 

Minn. Stat. § 518.14, subd. 1 (2000).  However, “there is neither a mandate nor discretion to award [need-based] fees without those findings and the evidence to sustain them.”  Mize v. Kendall, 621 N.W.2d 804, 810 (Minn. App. 2001), review denied (Minn. Mar. 27, 2001).  A district court may also award additional fees against a party who unreasonably contributes to the length or expense of a proceeding.  Minn. Stat. § 518.14, subd. 1.  But the district court must make findings regarding conduct-based fees “to permit meaningful appellate review” of the award.  Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1992). 

            Appellant argues that the district court erred in ordering him to pay $2,000 for respondent’s attorney fees and $7,500 for intervenors’ attorney fees because the district court failed to make specific findings to support either a need-based award or a conduct-based award.  We agree. 

            The district court did not indicate whether the attorney fees award was based on respondent’s and intervernors’ need or appellant’s conduct.  If the award was need-based, the district court’s order does not show or imply that the district court considered the parties’ financial records, assets, income, or ability to pay the fees.  See Geske v. Marcolina, 624 N.W.2d 813, 817 (Minn. App. 2001) (stating lack of specific findings not fatal where order reasonably implied court considered relevant factors and had access to parties’ financial records).  The district court made numerous references to appellant’s poor conduct, such as appellant’s “pattern of unwarranted denial of and interference with” the visitation schedule, appellant’s refusal to cooperate with the guardian ad litem and court services, and appellant’s refusal to comply with court orders.  But the district court failed to make findings that appellant’s conduct contributed to the length or expense of the proceedings or the extent that such conduct occurred before the litigation was commenced.  Even when the record supports the district court’s decision “it is nevertheless inadequate if that record fails to reveal that the [district] court actually considered the appropriate factors.”  Moylan v. Moylan, 384 N.W.2d 859, 865 (Minn. 1986).

We are unable to review the award of attorney fees because the district court failed to make findings to support the award.  Therefore, we reverse the district court’s award of attorney fees and remand to the district court to apply the statutory factors to determine the appropriateness of an award and, if fees are awarded, to make the findings required to support the award.

Affirmed in part, reversed in part, and remanded.