This opinion will be unpublished and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

C2-01-1231

 

In re the Marriage of:

Jeannine Olson, petitioner,

Respondent,

 

†v.

 

Dale Olson,

Appellant.

 

Filed February 19, 2002

Affirmed

Hanson, Judge

 

Freeborn County District Court

File No. F7-94-04

 

 

Ellen Weinberg, Southern Minnesota Regional Legal Services, Inc., 132 North Broadway, Albert Lea, MN 56007 (for respondent)

 

Glenn P. Bruder, Mitchell, Bruder & Johnson, 4005 West 65th Street, Suite 200, Edina, MN 55435 (for appellant)

 

Considered and decided by Schumacher, Presiding Judge, Hanson, Judge, and Poritsky, Judge.*

U N P U B L I S H E D† O P I N I O N

HANSON, Judge

In this custody modification proceeding, appellant-father alleges that (a) the record requires a finding that the two children remaining in respondent-motherís physical custody are endangered; and (b) the district courtís denial of fatherís motion to modify physical custody improperly produced a split-custody arrangement without adequate justification.† We affirm.

FACTS

During their marriage, appellant-father Dale Olson and respondent-mother Jeannine Olson had four children:† H.O., J.O., R.O., and M.O.† The original dissolution decree granted the parties joint legal custody and granted mother sole physical custody of the children, subject to fatherís visitation rights.†

R.O. has pervasive developmental disorder, an autism-like condition, which causes emotional, intellectual, and behavioral difficulties.† Mother is employed by a nursing home, where she originally worked the 7 a.m. to 3 p.m. shift.† While at work, mother received frequent telephone calls from R.O.ís school, and at times had to leave work to attend to him.† Eventually, the constant interruptions caused by the contacts from R.O.ís school to mother during work hours endangered motherís job.† In July of 2000, she changed to the 11 p.m. to 7 a.m. shift.† Mother left H.O. in charge of the other children while she worked. †However, two months after mother changed shifts, H.O. moved out of motherís house and in with father, his wife and their two-year-old child.†

In the fall of 2000, father complained to R.O.ís caseworker that mother maintained an unsanitary household.† The caseworker visited motherís home and found dog feces in the attic and a strong odor of cat urine in the basement.† Mother got rid of the pets and cleaned the house.† A few months later, father complained about a freezer filled with rotting meat.† A child protection assessment worker visited the home and found it to be clean and neat, with no pet odors.† While she observed a small chest freezer in the basement that had stopped working, with rotting meat in it, she testified that there was no odor, and that the meat, the freezer and the homeís condition did not present a health hazard or constitute maltreatment of the children.† She advised mother to clean the freezer and when the worker returned the following week, mother had done so.† Mother also disposed of the freezer.

Shortly after H.O. moved in with father, father brought a motion to modify custody of all four children.† In his affidavit, father alleged that mother subjected R.O. and J.O. to mental and emotional abuse and neglected all the children.† The district court awarded father temporary sole physical custody of H.O. and awarded mother temporary sole physical custody of the other three children.† The district court also appointed a guardian ad litem who conducted an investigation and issued a report in which she recommended that the childrenís physical custody be changed to father.†

At the evidentiary hearing on fatherís motion, father and mother stipulated to change the physical custody of H.O. and R.O. to father, but submitted the issue of J.O. and M.O.ís physical custody to the court.† The district court granted father sole physical custody of H.O. and R.O., but left physical custody of J.O. and M.O. with mother.† This appeal followed.

D E C I S I O N

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).† An appellate court will reverse a custody determination only if it concludes that 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).†

An appellate court reviews 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.† Further, this court does not reweigh the evidence; rather, it determines whether 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).† Appellate courts also show great deference to a fact-finderís determinations regarding the weight and credibility of a witnessí testimony.† Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).†

I

Father argues that the district court abused its discretion by failing to modify the physical custody of J.O. and M.O.† Father asserts that there is a legal presumption against splitting the physical custody of the children between the two parents and this presumption required the district court to either grant physical custody of J.O. and M.O. to father, or explain in detailed findings why it did not.

We do not agree with fatherís premise that the district court split the physical custody of the children.† The parties agreed to modify physical custody of H.O. and R.O. and asked the district court to decide only the physical custody of J.O. and M.O.† In deciding to maintain physical custody of J.O. and M.O. with mother, the district court actually followed the legal presumption that physical custody should not be modified unless specific grounds are shown.†

According to Minnesota law, the district court must retain the previously ordered custody arrangement unless, among other things:†

††††††††††† 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.

 

Minn. Stat. ß 518.18(d)(iv) (2000).† A party who seeks to modify physical custody under this provision 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) (1998)).† Before changing custody, ď[t]he [district] court must find all four elements.Ē† Leyh v. Stelzer, 398 N.W.2d 63, 66 (Minn. App. 1986) (citation omitted).† Thus, the burden was on father to establish grounds for modifying custody.†

Father asserts that he established all four factors set forth in Frauenshuh.† While it is true that father presented evidence on each of these factors, the evidence was not so overwhelming as to compel modification.† See Prahl v. Prahl, 627 N.W.2d 698, 702† (Minn. App. 2001) (stating that this court will rule that the district court abused its discretion only if the district court ďresolved the question in a manner that is against logic and the facts on recordĒ (quotation omitted)).†

††††††††††† Significant Change in Circumstances

The moving party must show that a change in circumstances has occurred since the original custody order, and the change must be significant.† Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997).† ďFactors constituting a significant change in circumstances are determined on a case-by-case basis.Ē† Lilleboe v. Lilleboe, 453 N.W.2d 721, 723 (Minn. App. 1990) (citations omitted).

Father argues that his circumstances have changed significantly since 1994 because he is now married, employed and has a home.† This information is not relevant because the focus of the changed-circumstances factor is on the child and the custodial parent.† See Frauenshuh, 599 N.W.2d at 157.†

Father also argues that motherís circumstances have changed significantly since the original custody order because mother is working the night shift; the sanitary conditions in motherís home have declined; mother has failed to involve herself in the childrenís academic progress, especially with respect to R.O.; and mother neglects the childrenís hygenic and medical needs.†

The district court considered these arguments.† It found that mother had changed to the night shift to better respond to R.O.ís needs.† It viewed the sanitary conditions in motherís home as isolated incidents of negligent housekeeping that had been corrected and had not resulted in any child-protection action.† The court concluded that ď[n]o endangerment to the children exists in [motherís] home.Ē†

Because there is evidentiary support in the record for the district courtís findings and conclusions, father has not shown that the district courtís findings were clearly erroneous.† See In re Salkin, 430 N.W.2d at 16 (stating that a reviewing court must not reweigh the evidence but need only determine whether the evidence supports the district courtís findings).††

Childrenís Best Interests

A childís best interests are determined according to the factors listed in Minn. Stat. ß 518.17.† Geibe, 571 N.W.2d at 778; see also Rogge v. Rogge, 509 N.W.2d 163, 165 (Minn. App. 1993) (stating that when considering a childís best interests, the district court must make findings to show that it considered all relevant factors, including those listed in Minn. Stat. ß 518.17, subd. 1(a)), review denied (Minn. Jan. 28, 1994).†

The district court concluded that ď[t]here are no grounds for modification of custody of [J.O.] and [M.O.].Ē† This conclusion is supported by the evidence, mainly because of the stable environment J.O. and M.O. have with mother, with whom they have lived for the past nine years.† See Frauenshuh, 599 N.W.2d at 158 (stating that usually, stability of custody is in the childís best interests); McCabe v. McCabe, 430 N.W.2d 870, 872 (Minn. App. 1988) (recognizing that the importance of the childís emotional and psychological stability underlies the factors listed in Minn. Stat. ß 518.17, subd. 1(a)), review denied (Minn. Dec. 30, 1988).† While we would prefer that the district court make explicit findings on the factors listed in Minn. Stat. 518.17, subd. 1(a), we are satisfied that the findings are sufficient to support the decision to deny a motion to modify custody, given the presumption in favor of maintaining the stability of existing custody.

Endangerment

Father argues that remaining in motherís home endangers J.O. and M.O. physically, emotionally and developmentally.† Most of fatherís assertions, however, are exaggerations of minor incidents, or do not relate to J.O. and M.O.† See Geibe, 571 N.W.2d at 779 (stating that isolated, borderline-neglectful or abusive incidents are insufficient to constitute endangerment for custody modification purposes); Hassing v. Lancaster, 570 N.W.2d 701, 702-03 (Minn. App. 1997) (stating that the district court must consider recent improvements in motherís parenting skills when determining whether childís present environment posed such danger as would warrant custody modification); Rogge, 509 N.W.2d at 165 (stating that the childís present environment must endanger).

As for the concern that J.O. and M.O. will be unsupervised while mother is working, there is no authority setting forth a bright-line rule or clarifying at what age children may be left alone overnight.† Cf. Lilleboe, 453 N.W.2d at 723 (stating that what constitutes changed circumstances sufficient to warrant custody modification is determined on a case-by-case basis).† J.O. and M.O. are now 14 and 10 years old and appear able to remain unsupervised on the three to four nights per week that mother works.† There is no evidence that J.O. and M.O. have suffered any physical, emotional or developmental harm as a result of motherís absence from the home at night.† See Dabill v. Dabill, 514 N.W.2d 590, 595-96 (Minn. App. 1994) (stating that for the purpose of child-custody modification, normally, the parentís conduct or circumstances does not establish danger to the children without evidence of actual adverse effects).† Also, mother indicated that now that R.O. is with father, she will be able to return to day shifts and, if she cannot change shifts immediately, she will take advantage of county-provided daycare until she can do so.†

The district court concluded that ď[n]o endangerment to the children exists in [motherís] home.Ē† Because the incidents alleged by father are isolated and have been adequately explained, the district court did not abuse its discretion by concluding the children were not endangered in their present situation.†

Balance of Harms

To modify custody, father must also show the advantages of the change in custody outweigh the harms of the change.† Minn. Stat. ß 518.18(d)(iv).† The district court concluded that

[i]n this particular case the benefits of transferring custody of [R.O.] and [H.O.] to [father] are outweighed by any harm likely.† The benefit of keeping the four children together does not outweigh harm that would be caused to [J.O.] and [M.O.] by such a transfer of custody.

 

Because J.O. and M.O. do not appear endangered by remaining with mother, and because they have spent most of their lives in motherís custody, the district court did not clearly err by finding that the benefits of changing J.O. and M.O.ís custody to father do not outweigh the harm they would suffer by the proposed change.† Therefore, the district court did not abuse its discretion in denying fatherís motion to modify custody.

††††††††††† Affirmed.

 

 

 



††††††††††††††† *Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ß 10.