This opinion will be unpublished and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

C8-01-1007

 

In Re the Marriage of:

George Albert Hankerson,

petitioner,

Appellant,

 

vs.

 

Jodi Lynne Hankerson,

Respondent,

 

and

 

Debra Daniels Julius,

Guardian ad Litem.

 

Filed April 2, 2002

Affirmed
Klaphake, Judge

 

Dakota County District Court

File No. F5007975

 

Marilyn J. Michales, Rebekah M. Brown, Honsa & Michales, P.A., 5500 Wayzata Boulevard, Suite 1075, Minneapolis, MN  55416 (for appellant)

 

Lynette M. Bledsaw, Chadwick & Mertz, P.S.C., P.O. Box 623, 600 West 79th Street, Suite 210, Chanhassen, MN  55317 (for respondent)

 

            Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Klaphake, Judge.


U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant George Albert Hankerson and respondent Jodi Lynne Hankerson, n/k/a Jodi Lynne Neutz, were married in December 1996.  In January 1998, respondent moved out of the home, but divorce proceedings were not commenced until May 2000.  Following an eight-day trial, the district court awarded physical custody of the parties’ four-year-old child to respondent, valued the marital property as of the date of the parties’ separation, and denied respondent’s request for temporary spousal maintenance.

            On appeal from the amended judgment and decree, appellant challenges the district court’s custody decision, failure to incorporate a parenting plan under Minn. Stat. § 518.1705 (2000), and denial of his motion for a new trial based on alleged misconduct by respondent’s attorney.  Respondent has filed a notice of review, challenging the summer visitation schedule, the valuation date chosen for marital assets, the denial of her request for spousal maintenance, and the denial of her request for attorney fees.  Because the district court’s findings are not clearly erroneous and because the district court did not err or otherwise abuse its discretion in any of its rulings, we affirm.

D E C I S I O N

I.

            Our review of a district court’s custody decision is narrow and “limited to whether the * * * 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); see Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).  The overriding concern in custody determinations is the best interests of the child, which requires consideration of the factors listed in Minn. Stat. § 518.17, subd. 1(a) (2000). 

            Appellant criticizes the district court’s decision because it is contrary to the opinion of the guardian ad litem, who recommended that appellant receive sole physical custody of the child.  While a court must consider an expert’s custody recommendation, it has discretion to reject such a recommendation without explanation, if it makes detailed findings that reflect a complete analysis of the same best interest factors discussed by the expert.  Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991); see also Rogge v. Rogge, 509 N.W.2d 163, 166 (Minn. App. 1993), review denied (Minn. Jan. 28, 1994).

            The district court made detailed findings on each of the best interests factors.  On almost every factor, the court found the parties equally qualified, but the one factor that appeared to tip the balance in respondent’s favor was her relationship with her extended family.  The district court was obviously impressed with the testimony of respondent’s mother and others who are involved in respondent’s life and with the support and stability that these people provide to respondent.

            Appellant further criticizes the court’s findings as failing to fully consider respondent’s depression and lack of stability, particularly as demonstrated by her changing residences four times during the parties’ separation.  Again, the court found that respondent has the ability to function and parent, despite her depression.  This finding is supported by the opinion of the court-appointed psychologist, who testified that respondent has the ability to function normally and to parent the child, and by the testimony of respondent’s family members, who have observed her during her episodes of depression and who believe she can continue to parent the child. 

            Even if the record might also support an award of custody to appellant, we cannot conclude that the district court’s findings are defective or clearly erroneous.  See Vangsness, 607 N.W.2d at 474.  The district court was in the best position to evaluate the credibility of witnesses.  See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).  We therefore affirm the district court’s award of physical custody to respondent.

II.

            Appellant argues that the district court abused its discretion by failing to consider implementation of a “parenting plan” under Minn. Stat. § 518.1705 (2000).  We disagree.  This statute did not become effective until January 1, 2001, after trial in this case began.  See 2000 Minn. Laws ch. 444, art. 1 § 3.  In addition, implementation of such a plan is optional, not mandatory.  See Minn. Stat. § 518.1705, subd. 3(e) (“If the parents do not agree to a parenting plan and the court does not create one on its own motion, orders for custody and parenting time must be entered under section[ ] 518.17”).  Finally, the district court’s decision incorporates elements similar to those necessary to a parenting plan, including a schedule for each parent, designation of decision-making responsibilities, and establishment of a method for dispute resolution.  See Minn. Stat. § 518.1705, subd. 2(a).

III.

            Appellant argues that he is entitled to a new trial due to misconduct by respondent’s counsel, who obtained an allegedly prejudicial statement from appellant’s former psychologist, Dr. Lea Hogan, and inappropriately filed this statement with the court.  Because appellant never gave consent, the release of this statement may have violated patient-physician privilege.  See Minn. Stat. § 595.02, subd. 1(d) (2000).

            Nevertheless, the release appears relatively harmless.  When appellant objected to the statement, it was stricken from the record and the court assured appellant that it would not influence the court’s decision.  The district court’s findings do not rely on Dr. Hogan’s statement and are adequately supported by other evidence in the record.  Further, because appellant did not make an offer of proof, this court can only guess at the contents of the document and its possible prejudicial effect.  Thus, we may assume that the district court did not base its decision on this evidence and that appellant has not been prejudiced.  See Minn. R. Civ. P. 61 (requiring harmless error to be ignored); Vangsness, 607 N.W.2d at 472 (refusal to grant a new trial will be reversed only if misconduct of the court or a prevailing party is “so prejudicial that it would be unjust to allow the result to stand”).

IV.

            By notice of review, respondent argues that the district court exceeded its discretion by granting appellant four weeks of visitation with the parties’ four-year-old child during the summer.  Respondent has offered no evidence to establish that the child is too young to spend this amount of time with her father, and this schedule is similar to the schedule recommended in the guardian ad litem’s report.  We observe no abuse of discretion in the district court’s fashioning of this visitation schedule.  See Olson v. Olson, 534 N.W.2d 547, 550 (Minn. App. 1995).

V.

            By notice of review, respondent argues that the district court abused its discretion when it selected the date of the parties’ separation for the valuation and division of the marital assets.  A court is required to value marital assets as of the day of the initially scheduled prehearing settlement conference, unless a different date is agreed on by the parties or unless the court makes specific findings that another valuation date is fair and equitable.  Minn. Stat. § 518.58, subd. 1 (2000).

            Here, the date of the initially scheduled prehearing conference was in November 2000.  The district court found that the proper date of valuation was January 15, 1998, the date of the parties’ separation, because “this marriage effectively ended when [r]espondent moved out of the family home and had a male friend move into her apartment in a matter of a few weeks.”  Respondent argues that the court improperly based its decision on perceived misconduct on her part, including her living with other men during the parties’ separation.  The court may not consider marital misconduct when dividing marital property.  Minn. Stat. § 518.58, subd. 1 (2000).

            While some of the court’s language suggests disapproval with respondent’s choices during this period, the court’s findings indicate that it considered other factors appropriate to a “just and equitable” division of property.  Id., subd. 3(b) (2000).  Those factors include:  (1) the short length of the marriage; (2) the majority of the parties’ assets originated as appellant’s premarital or nonmarital property; (3) appellant’s age and future plans to reduce his work load as he nears retirement; (4) respondent’s youth and ability to acquire future assets; (5) respondent’s potential for employment and increased earnings, particularly given the additional educational opportunities given her by appellant, who paid her tuition and expenses for several years prior to the marriage; (6) respondent’s ability to work, despite her unsubstantiated claim that she was disabled in a December 1998 car accident; (7) respondent’s lack of contribution to the acquisition or preservation of the parties’ assets; and (8) the parties’ sharing of labor to maintain the home.  Because these findings are not clearly erroneous and because the district court has broad discretion in dividing property, we conclude that its division of property was not an abuse of discretion.  See Rutten v. Rutten, 347 N.W.2d 47, 50-51 (Minn. 1984).

VI.

            By notice of review, respondent argues that the district court abused its discretion when it denied her request for an award of spousal maintenance of $2,500 per month for four years.  She claims that she needs spousal maintenance because she is no longer able to work as a dental assistant due to the car accident and because she has remained out of the work force for several years to care for the parties’ child.

            A district court may grant maintenance upon finding that the spouse lacks sufficient property to provide for reasonable needs or is unable to provide adequate self-support through employment.  Minn. Stat. § 518.552, subd. 1 (2000).  The issue is, in essence, a balancing of the recipient’s need against the obligor’s ability to pay.  Erlandson v. Erlandson, 318 N.W.2d 36, 39-40 (Minn. 1982).  Here, appellant, who is a pediatric dentist with his own practice, undisputedly has the ability to pay spousal maintenance, and the only issue involves respondent’s need.

            The district court found that respondent is currently employed at her parents’ business, earning $12 per hour, but that she has the ability and skills to earn approximately $2,100 net per month and to be self-supporting.  Although the court failed to make a finding assigning a dollar amount to respondent’s reasonable monthly expenses, it did find that her “currently claimed monthly expenses are not realistic” and that her reasonable monthly expenses “are well within [her] present means.”

            The district court made numerous, additional findings to support its decision that respondent has the ability to support herself.  Those findings include:  (1) respondent’s standard of living should not be “elevate[d]” beyond what she experienced prior to the marriage, given the parties’ short-term marriage; (2) respondent has not “put forth her best effort to be self-supporting”; (3) respondent is capable of earning even more if she finished two more semesters of classes; (4) respondent has admitted that she can work full-time and expects to increase her earning ability; (5) respondent has failed to present any medical evidence that she can no longer work as a dental assistant; and (6) respondent is young and has demonstrated an ability to work full time and to excel in school.  These findings are not clearly erroneous and support the court’s ultimate conclusion that respondent has not demonstrated a need for maintenance.  We therefore conclude that the district court has not abused its discretion.  See Erlandson, 318 N.W.2d at 38; Prahl v. Prahl, 627 N.W.2d 698, 702 (Minn. App. 2001) (abuse of discretion exists only when district court has resolved question in a manner “that is against logic and facts on record”).

VIII.

            Respondent argues that the district court abused its discretion by failing to award her attorney fees under Minn. Stat. § 518.14, subd. 1 (2000).  The district court found that respondent has already been able to pay $25,000 in attorney fees and expenses.  The court further found that the claimed fees and expenses were not reasonable, given the issues in dispute and the fact that appellant facilitated respondent’s access to information and took actions to reasonably minimize the costs and expenses to both parties.  These findings are supported by the record and adequately support the district court’s denial of both need and conduct-based fees.  Haefele v. Haefele, 621 N.W.2d 758, 767 (Minn. App. 2001) (district court’s decision regarding attorney fees will be reversed only for an abuse of discretion), review denied (Minn. Feb. 21, 2001).

            Respondent also requests attorney fees on appeal, but has failed to submit her request in a motion under Minn. R. Civ. App. P. 139.06.  In any event, we agree with the district court that respondent has demonstrated an ability to pay her own fees.  Moreover, because half of the issues were raised by respondent in her notice of review and given our affirmance of the district court in all respects, we deny respondent’s request for fees on appeal.  Case v. Case, 516 N.W.2d 570, 574 (Minn. App. 1994) (“An award of attorney fees on appeal rests within the discretion of this court.”).

            Affirmed.