This opinion will be unpublished and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

C9-01-1114

 

 

R.A.H.,

Respondent,

 

vs.

 

K.E.H.,

Appellant,

and

M.L.H., a minor child,

Defendant.

 

 

Filed February 26, 2002

Affirmed in part,

reversed in part, and remanded.

Toussaint, Chief Judge

 

Clay County District Court

File No. F09650411

 

 

Bonnie J. Askew, 118 Broadway, Suite 213, Fargo, ND 58107-0227 (for respondent)

 

Susan L. Ellison, Ellison Law Office, P.C., 4610 Amber Valley Parkway, Suite E, Fargo, ND 58106-9097 (for appellant)

 

             Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Stoneburner, Judge.


U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

Respondent R.A.H. filed for modification of custody of M.H., his biological child.  The district court found that appellant K.E.H., M.H.’s mother, was endangering the child by subjecting her to unnecessary medical visits and granted R.A.H. sole legal and physical custody of M.H. and ordered supervised visitation with K.E.H.  The court also modified K.E.H.’s monthly child-support payments. 

On appeal, K.E.H. alleges that modification of custody is not in the best interests of M.H., the harm of removing M.H. from K.E.H.’s custody is not outweighed by the benefits of a change in custody, supervised visitation is not required, and K.E.H.’s monthly net income for child-support purposes is $1,439.95.  We affirm in part, reverse in part, and remand.  

FACTS

M.H. was born on June 29, 1995.  Her biological parents, K.E.H. and R.A.H., never married.  K.E.H. and R.A.H. lived together until April 1996.  In January 1997, the district court granted both parties joint legal and physical custody of M.H. The arrangement provided that M.H. would be in R.A.H.’s care three days a week and in K.E.H.’s care four days a week.  In November 1997, R.A.H. filed a motion to modify custody on the belief that K.E.H. was subjecting M.H. to unnecessary medical attention.

In November 1998, the district court amended the custody arrangement and placed M.H. four days with R.A.H. and with K.E.H. three days per week.  The parties also agreed on a primary physician for M.H., Dr. Linda Getz-Kleiman.  In November 2000, the county filed a child in need of protection or services (CHIPS) petition after receiving a letter from Dr. Getz-Kleinman indicating concern for M.H.’s welfare as a result of K.E.H.’s repetitive medical inquiries and appointments.  M.H. was placed in R.A.H.’s care, and K.E.H. was allowed supervised visits.  In December 2000, the court appointed Joan Kolhmeyer guardian ad litem. 

In February 2001, R.A.H. brought a motion for sole physical and legal custody of M.H., and in March 2001, K.E.H. did the same.  In April 2001, the district court modified custody granting R.A.H. sole legal and physical custody with continued supervised visits with K.E.H.  The court also ordered K.E.H. to make $360 monthly child support payments.  The county suspended the CHIPS proceeding , believing the family court could address the issue.  K.E.H. appeals from the district court’s order modifying custody, visitation, and child support.

D E C I S I O N

I.

 

Appellate review of a custody determination is limited to whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996); (citing Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985)).  A district court’s findings will be sustained unless they are clearly erroneous.  Id. at 710. 

The court may modify custody on finding that “(1) a change in circumstances has occurred; (2) a modification is necessary to serve the child’s best interests; and (3) the child’s present environment endangers the child’s health or compromises her emotional development and the harm likely to be caused by the change is outweighed by the advantages of the change.”  Meier v. Connelly, 378 N.W.2d 812, 816 (Minn. App. 1985) (citation omitted), see Minn. Stat. § 518.18 (d) (2000) (addressing custody modification).

Changed Circumstances         

The district court found that changed circumstances existed based upon K.E.H.’s repeated doctor visits for M.H. and reports of sexual abuse.  K.E.H. agrees with R.A.H. and the district court that there are substantially changed circumstances in this case. 

Best Interests of the Child

            When the district court considers the statutory best-interest factors and provides reasons for its conclusions, this court will not reverse absent an abuse of discretion.  See Gibson v. Gibson, 471 N.W.2d 384, 387 (Minn. App. 1991), review denied (Minn. Aug. 12, 1991).  Current law “leaves scant if any room for an appellate court to question the [district] court’s balancing of best-interests considerations.”  Vangness v. Vangness, 607 N.W.2d 468, 477 (Minn. App. 2000).  To evaluate what is in the child’s best interest, many factors, while none exclusive, are considered in the balance including “the mental and physical health of all individuals involved.” Minn. Stat. § 518.17, subd. 1 (9) (2000). 

            K.E.H. argues that modification of custody is not in M.H.’s best interest and that the evidence does not support the district court’s finding that a change of custody is needed.  K.E.H. points to the district court’s findings that prior to this action both parents (1) shared primary responsibilities for the care of M.H.; (2) had a close relationship with M.H.; (3) had provided M.H. with an appropriate long-term custodial home, and (4) are capable of providing M.H. with love and affection. 

            The district court found that M.H.’s emotional and physical health was endangered by K.E.H. because K.E.H. sought excessive medical care for M.H. including requests for unnecessary and painful procedures, and inappropriate photographing and videotaping of M.H.  The court based its findings on the concerns of M.H.’s primary physician’s and the guardian ad litem’s observation that K.E.H. failed to make progress toward modifying her behavior. 

            After testing both K.E.H.’s and R.A.H.’s parental capacity, psychologist Dr. Witte-Bakken indicated that her main concern was the “lack of civility by both parents and both parties putting M.H. in the middle of their dispute.”  Dr. Witte-Bakken made no medical diagnosis of K.E.H. and found no evidence of a mental illness but concluded that K.E.H. was not able to understand the ramifications of her allegations against R.A.H.  Dr. Getz-Kleinman expressed concern that M.H. has been subjected to several genital examinations and that at such a young age M.H. exhibits little modesty, and further that K.E.H. expressed little apprehension about the possibility of M.H. undergoing a very painful procedure.  Guardian ad litem Kohlmeyer indicated that K.E.H. lacks insight into her behavior and does not grasp how it may place M.H. in danger. 

            The record shows that K.E.H. took M.H. to the doctor at least 77 times, over complaints of painful urination and physical and sexual abuse.  None of K.E.H.’s complaints of abuse were ever substantiated and Dr. Getz-Kleinman testified that M.H. is a healthy well-adjusted five year-old child.  The record amply supports that a modification of custody was in M.H.’s best interests in light of K.E.H.’s repetitive behavior. 

Harmful environment

The district court may modify a previously ordered custody arrangement on a finding that 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.”  Minn. Stat. § 518.18 (d) (iv).  Endangerment “must be based on the particular facts of each case.”  Lilleboe v. Lilleboe, 453 N.W.2d 721, 724 (Minn. App. 1990).  “Allegations of abuse, physical or emotional, have been held to endanger a child’s well-being.” Id.  Subjecting children to unnecessary abuse-related physical examinations also supports a finding of endangerment.  See Sharp v. Bilbro, 614 N.W.2d 260, 263-64 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000).  While a showing of endangerment is necessary, a showing of emotional endangerment is sufficient.  See Meier at 816 (Minn. App. 1985). 

The district court found that keeping M.H. in an environment where she is constantly subjected to medical examinations has the potential to harm her emotionally and psychologically.  K.E.H. argues that the harm found by the district court must constitute “serious danger” to the child and that there must be a showing of “actual endangerment.”

K.E.H. admitted that she did not really believe that R.A.H. had sexually abused M.H., rather, she suspected “inappropriate” behavior.  The record shows that K.E.H. subjected M.H. to sexual-abuse examinations, while admitting she never believed M.H. was abused, that K.E.H.. used inappropriate methods to document the alleged abuse, and that K.E.H. continually steered focus to M.H.’s genital area.  Therefore, the record supports the district court’s finding that K.E.H. endangers M.H. while in her custody.

Harm likely to be caused by the change is outweighed by the advantages of the change

 

The district court must also determine, as it did here, that the advantage of the change in custody outweighs the harm likely to be caused by the change.  K.E.H. argues that the separation from M.H. will cause more harm than benefits.  Based upon the evidence that K.E.H. does not grasp how her repetitive medical visits and abuse allegations affect M.H., the district court did not clearly err in finding that a change of custody was in M.H.’s best interests and that the advantage to M.H. outweighed the harm of changing the custody arrangement.

II.

 

      A district court’s fact-findings, upon which a visitation decision is based, will be upheld unless they are clearly erroneous.  Griffin v. Van Griffin, 267 N.W.2d 733, 735 (Minn. 1978); Crosby v. Crosby, 587 N.W.2d 292, 295 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).

      Modification of visitation is governed by Minn. Stat. § 518.175, subd. 5 (2000).   The court may modify visitation if the modification is in the best interests of the child and the court finds “parenting time is likely to endanger the child’s physical or emotional health or impair the child’s emotional development.”  Id., subd. 5 (1).  Endangerment must be significant, but the danger may be “purely to the emotional development.”  Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997) (citation omitted). 

      The evidence of emotional endangerment is sufficient for the district court to find harm to the child.  K.E.H. has continually shown that she is unwilling to change her behavior as evidenced by her breaking the rules during supervised visits.  Dr. Getz-Kleinman and guardian ad litem Kohlmeyer testified that K.E.H.’s behavior presents a prospective danger to M.H.’s emotional health and development.  The harm of disruption by the change in visitation arrangement is outweighed by benefits to M.H. to be protected from K.E.H.’s repetitive behavior and focus on M.H.’s genital area.  Dr. Getz-Kleinman, Dr. Witte-Bakken, and Joan Kohlmeyer indicated that M.H. would be safer in the custody of R.A.H.  Supervised visits are thus appropriate.

            The district court did not clearly err in finding that supervised visits are in the best interests of M.H. and the potential danger presented by K.E.H.’s conduct outweighs the potential disruption caused by a transfer of custody.

III.

 

            This court will reverse a district court’s order regarding the modification of child support “only if we are convinced that the court abused its broad discretion” by reaching a “conclusion that is against the logic and the facts on [the] record.”  Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999) (alteration in original) (quotation omitted).  A district court’s determination of net income for purposes of calculating child support will be affirmed if it has a reasonable basis in fact and is not clearly erroneous.  Duffney v. Duffney, 625 N.W.2d 839, 843 (Minn. App. 2001); see Vangsness 607 N.W.2d at 472 (stating this court considers evidence in the light most favorable to findings and defers to the district court’s credibility decisions).

Child-support orders may be modified under certain circumstances, including a showing of substantially changed circumstances of one of the parties. Minn. Stat. § 518.64, subd. 2 (2000).  The court must calculate child support by multiplying the obligor’s net income by a statutory percentage.  Minn. Stat.§ 518.551, subd. 5 (b) (2000 & Supp. 2001).  The determination of net income is defined as total monthly income minus several statutory deductions, including union dues and the cost of dependant health insurance.  Id., subd. 5 (b) (v), (vi). 

K.E.H. argues that the district court failed to subtract her union dues and costs of dependant health care, and to consider the periods of lay-offs.  R.A.H. admits that it is unclear how the district court arrived at its obligation figure and argues that K.E.H.’s net income should be $1,757.84 leading to a monthly obligation of $440. 

The district court found that substantially changed circumstances existed as a result of the modification-in-custody order.  The court determined K.E.H.’s net income using her pay stub for the first three months of 2001 and her 2000 tax returns.  The court did not include any detail about how it calculated the numbers in the findings. 

Because the district court’s findings are not evidenced in the record, and because the parties dispute the calculations, the district court’s findings as to K.E.H.’s income are clearly erroneous.  We reverse and remand for appropriate findings.[1] 

Affirmed in part, reversed in part and remanded.



[1] Upon remand for recalculation of support payments, both parties are allowed to present evidence in support of their position to the district court.  As such, the district court is not precluded from finding that an amount higher or lower than the $360 monthly payment is appropriate if the amount is supported by the evidence.