This opinion will be unpublished and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

CX-01-1574

 

 

In re the Marrige of:

Brin L. Nicholson, petitioner,

Respondent,

 

vs.

 

Jeffrey M. Nicholson,

Appellant.

 

Filed February 12, 2002

Affirmed

Robert H. Schumacher, Judge

 

Scott County District Court

File No. 9813361

 

 

John G. Westrick, Tammy L. Merkins, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for respondent)

 

Carla C. Kjellberg, 333 West Parkdale Plaza, 1660 South Highway 100, St. Louis Park, MN 55416 (for appellant)

 

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


U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant Jeffrey M. Nicholson (father) challenges the district court's supplemental findings regarding the award of permanent sole physical custody to respondent Brin L. Nicholson (mother). Father contends that (1) the supplemental findings are in error; (2) the supplemental finding regarding his mental health violates Minn. Stat. 518.17, 363.01, 363.03, subd. 4 (2000); (3) the district court erred by denying his motion for supplemental findings; and (4) the district court abused its discretion by denying his motion for recusal. We affirm.

FACTS

Mother filed for dissolution of marriage. After a trial, the district court awarded temporary physical custody of the parties' minor child to mother. The district court later awarded mother permanent sole physical custody. Father appealed, and this court remanded, holding that further findings of fact were necessary to explain the district court's custody determination. See generally Nicholson v. Nicholson, No. C8-00-946, 2001 WL 118567 (Minn. App. Feb. 13, 2001) (Nicholson I). On May 17, 2001, the district court issued supplemental findings of fact. Thereafter, father moved for, among other things, amended findings and for the district court judge to remove himself. The district court denied both motions. Father again appeals.

D E C I S I O N

1. Father contends that the district court's supplemental findings are erroneous. Appellate court 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) (quotation omitted). A district court's findings will be sustained unless they are clearly erroneous. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). Appellate courts review the evidence in the light most favorable to the district court's findings. Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn. 1993). Also, this court defers to the district court's credibility determinations. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). A district court's construction of its own decree is given great weight on appeal. Palmi v. Palmi, 273 Minn. 97, 104, 140 N.W.2d 77, 82 (1966)

In Nicholson I, this court remanded the matter for further findings, stating:

Appellant does not challenge the district court's best interests findings; but rather, challenges the district court's conclusion of law based on those findings, asserting that a proper application of the law requires that sole physical custody be awarded to [father], not [mother].

 

* * * *

 

While the findings and conclusions of the district court clearly address a variety of factors, the district court failed to draw a nexus between its findings on custody factors and its conclusions. The district court made detailed findings of fact on each of the statutory best interests factors; yet, absent from the district court's explanation of its decision is any demonstration that it balanced and attributed weight to each custody factor in making its final determination regarding custody. Nor is there any discussion as to how any of the best interests factors weighed in favor of, or against, either party. Furthermore, the district court failed to explain its reasons for rejecting the recommendation of the guardian ad litem, who asserted that it would be detrimental to [the child] for the mother to have sole physical custody.

 

* * * *

We cannot speculate as to how the district court reached its determination on the issue of custody; rather, the district court must explain how the factors led to its conclusions and to the determination of the best interests of the child. Because the district court did not sufficiently explain its conclusion on the custody determination, we must remand the case for further findings. On remand, the district court may hold an evidentiary hearing and take additional evidence, as it deems necessary.

 

Nicholson I, 2001 WL 118567, at *4-*6 (quotation and citations omitted).

After remand, the district court made supplemental findings. Father now argues that the supplemental findings are in error because they are inconsistent with the court's previous findings and are unsupported by the record. Our examination of the record indicates that the supplemental findings do not contradict the original findings. Rather, the supplemental findings demonstrate how the district court balanced and attributed each particular "best interest of the child" factor when making its final custody determination. The supplemental findings also explain how each particular factor weighs in favor of or against each party. The supplemental findings draw a nexus between the original findings and the ultimate custody award, thereby fulfilling the mandate of this court on remand. Additionally, our review of the record shows that the supplemental findings are indeed supported by the record.

2. Father also contends that the district court's supplemental finding regarding his mental health violates Minn. Stat. 518.17, 363.01, 363.03, subd. 4 (2000). The court stated:

The mental/physical health factor * * * has significant bearing on the Court's decision. Because [father] is dependent upon medication for treating clinical depression and suffers from a sleep disorder, the Court finds that this factor weighs against awarding physical custody to [father]. According to the Guardian ad Litem, [father's] therapist felt that [father's] condition posed no adverse effects to the minor child. However, the therapist did not testify and no other evidence about [father's] progress or present condition was presented. Under these circumstances, the Court is not convinced that [father's] condition poses no threat to the child.

The Guardian ad Litem's report noted that [father's] condition became so serious that a form of "intervention" was necessary for [father] to get help. Although there is no evidence in the record that [father's] condition would cause him to act out against the child, people who suffer from depression can exhibit unpredictable behavior. In addition, there is evidence that, during the marriage, [father] tended to isolate himself and withdraw from actively participating in daily life as a result of his condition. For example, [father] chose to work nights and sleep during the day. The Court lacks sufficient information to determine whether or not this tendency is ongoing; however, such behavior is consistent with depression. While the risk to the child due to [father's] condition may be small, the potential negative consequences to the child if problems were to arise could be great. The Court is not willing to take such a risk without more reliable information that [father] is indeed stable.

 

The Court is aware that the risk does not vanish simply because [father] only has visitation rather than physical custody. However, the risk is minimized because the time together is less. In addition, [father] has shown that he is able to handle the stress of caring for the child during these visitation times. Thus, the Court finds that when it comes to visitation, the benefits to the child outweigh the risks. However, it is one factor that, at this time, weighs against awarding custody to [father].

Father argues that the supplemental finding violates the Minnesota Statutes because the district court is "holding that a previous diagnosis of depression creates a presumption that the party is an unfit parent and requires the party to rebut the presumption." Section 518.17 allows the district court to consider an individual's mental and physical health when deciding to whom to award custody. The statute, however, also states that

a disability, as defined in section 363.01, of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interest of the child[.]

 

Minn. Stat. 518.17, subd. 1(a)(9).

Section 363.01 defines a disability as

any condition or characteristic that renders a person a disabled person. A disabled person is any person who (1) has a physical, sensory, or mental impairment which materially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment.

 

Minn. Stat. 363.01, subd. 13. Even if father's depression qualifies as a disability under the statute, the district court did not err by taking the depression into consideration. The court simply considered the depression as part of determining the best interests of the child. No presumption was created.

Also, the record does not indicate that the existence of the condition was the determinative factor in awarding custody to mother. The district court weighed and balanced all the factors under Minn. Stat. 518.17, subd. 1(a). Among other things, the court found that the mother's role as primary caretaker and the strength of her relationship with the child weighed strongly in her favor. The court also found that father's lack of hands-on parenting time and experience, along with his mental health problems, weighed against him. While father's depression was considered by the district court, it is clear that the court also balanced and weighed other factors, and that father's depression was not the determinative factor regarding the custody award. The supplemental finding does not violate section 518.17 or section 363.01.

Father argues that the district court's supplemental finding violates section 363.03, subd. 4 because it adopts "bias generalizations with regard to people who have depression" and applies them to father. Even if this particular section is applicable to the facts of this case, the district court did not improperly discriminate against father. Father characterizes the court's finding as broadly stating that persons diagnosed with depression are not good for the children. This is not correct. The court simply considered father's depression when balancing all factors relevant to the custody award. This is clearly allowed under section 518.17 and case law. See Schumm v. Schumm, 510 N.W.2d 13, 15 (Minn. App. 1993) (stating that mother's depression was properly considered because it was considered "only to the extent it was relevant to the best interests of the children"); Sinsabaugh v. Heinerscheid, 428 N.W.2d 476, 479-80 (Minn. App. 1988) (stating that district court properly considered evidence of mother's depression under section 518.17 and that it's findings regarding mother's mental health were not an abuse of discretion).

3. Additionally, father apparently challenges the denial of his motion to amend the supplemental findings. Motions to amend findings are brought under Minn. R. Civ. P. 52.02. This court reviews denials of such motions under an abuse of discretion standard. See Stroh v. Stroh, 383 N.W.2d 402, 407 (Minn. App. 1986) (purpose of rule is "to permit the trial court a review of its own exercise of discretion").

To justify the reversal of a refusal to make amended findings, it is not enough to show that there was evidence to justify the proposed amended findings * * *.

 

Nielsen v. City of St. Paul, 252 Minn. 12, 29, 88 N.W.2d 853, 864 (1958). Instead, the moving party must "show that there is no substantial evidence reasonably tending to sustain the trial court's findings." Id. at 29, 88 N.W.2d at 864. This court will not disturb findings of fact supported by the evidence as a whole. Id. The record supports the supplemental findings.

4. Father further contends that the district court abused its discretion in denying his motion for the district court judge to remove himself based on his bias shown in his supplemental findings. Denial of a recusal motion is within the district court's discretion and should not be reversed absent a clear abuse of discretion. Carlson v. Carlson, 390 N.W.2d 780, 785 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986); cf. State v. Pero, 590 N.W.2d 319, 326 (Minn. 1999) (stating, in criminal case, that because there was no claim that recusal was absolutely required by applicable rule, "we must only determine if the trial court abused its discretion in not granting the motion for recusal"). "Whether to honor a request for removal based on allegations of actual prejudice is a matter for the trial court's discretion." Durell v. Mayo Found., 429 N.W.2d 704, 705 (Minn. App. 1988) (emphasis omitted) (citation omitted), review denied (Minn. Nov. 16, 1988).

Father argues that he has proven that the district court held prejudice and actual bias, which was

demonstrated through the court's finding that [father] could be a danger to his child and could act out toward his child solely based on the fact that he had previously been diagnosed with depression and the court's conclusion that "people with depression act unpredictably."

 

The record, however, shows that the district court did not demonstrate bias or prejudice, but simply considered how father's depression had affected his life while balancing and considering other factors relevant to the best interest of the child when determining the custody award. Such consideration is allowed and required by section 518.17. The district court did not abuse its discretion in denying father's recusal motion.

Affirmed.



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