This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






In re:


Michael G. Hemish, petitioner,





Mary Sue Hemish,



Filed May 7, 2002

Affirmed; motion denied

Hanson, Judge


Lyon County District Court

File No. F9-00-532



Sara J. Runchey, Runchey, Louwagie & Wellman, P.L.L.P., 533 West Main Street, P.O. Box 1043, Marshall, MN 56258 (for respondent)


Patrick J. Leary, Quarnstrom, Doering, Pederson, Leary & Murphy, P.A., 109 South Fourth Street, P.O. Box 1235, Marshall, MN 56258 (for appellant)


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


U N P U B L I S H E D  O P I N I O N


On appeal from an amended judgment of dissolution, appellant-mother argues the district court abused its discretion (a) by awarding custody of the parties’ minor children to respondent-father, and (b) by its division of the parties’ marital and nonmarital property.  Appellant-mother also requests attorney fees for this appeal.  We affirm the district court’s custody award and division of the parties’ property, and deny the request for attorney fees. 


Appellant-mother Mary Sue Hemish and respondent-father Michael G. Hemish were married for approximately seven years.  The parties have two minor children: A.H., who is now nearly six years old; and L.H., who is now nearly four years old.  This was the second marriage for both parties, and each has a child from his or her previous marriage.  Father’s child is an emancipated adult and mother’s daughter, J.L., is 13 years old and lived with the parties while they were married.  J.L. now lives with her mother and her custody is not an issue in this case.

During most of their marriage, the parties lived next to father’s parents on a farm that belongs to father’s parents, and on which father worked for three years.  Approximately one year before they separated, the parties moved to a home in Marshall.

When the parties separated, they both sought physical custody of their minor children.  The district court appointed a guardian ad litem, dissolved the parties’ marriage, and issued a temporary custody order granting the parties joint legal custody and mother sole physical custody of the children. 

Approximately one year after issuing its temporary custody order, the district court issued an amended judgment in which it awarded the parties joint legal custody and father sole physical custody of the children, subject to mother’s liberal visitation.  The district court also awarded father the parties’ home, subject to a lien in favor of mother for one-half the amount of the parties’ equity, and ordered father to contribute $2,500 toward mother’s attorney fees.  Mother appeals. 




Mother argues that the district court abused its discretion by awarding custody to father because the record does not support its findings. 

            A district court has broad discretion to provide for the custody of the parties’ children.  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989).  “[A]ppellate review of custody determinations 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) (citation omitted).  An appellate court reviews the record in a light most favorable to the district court’s findings and will not reverse the findings unless they are clearly erroneous.  Minn. R. Civ. P. 52.01; Frauenshuh v. Giese, 599 N.W.2d 153, 156 (Minn. 1999).  A finding is clearly erroneous if the reviewing court is “left with the definite and firm conviction that a mistake has been made.”  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted). 

Custody decisions must be based on a child’s “best interests.”  Minn. Stat. § 518.17, subd. 3(a)(3) (2000).  A child’s best interests are determined according to the factors listed in Minn. Stat. § 518.17.  Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997).  In considering a child’s best interests, the district court must make findings to show it considered all relevant factors, including those listed in Minn. Stat. § 518.17, subd. 1(a).  Rogge v. Rogge, 509 N.W.2d 163, 165 (Minn. App. 1993), review denied (Minn. Jan. 28, 1994).  Currently the law “leaves scant if any room for an appellate court to question the [district] court’s balancing of best-interests considerations.”  Vangsness v. Vangsness, 607 N.W. 2d 468, 477 (Minn. App. 2000). 

Here, the district court set forth detailed findings based on the factors listed in Minn. Stat. § 518.17 and meticulously balanced the best-interests considerations.  Mother asserts the record does not support the district court’s findings, but, for the most part, mother’s challenges are aimed at credibility issues and the weight the district court gave certain testimony.  While mother’s arguments emphasize that conflicting evidence was presented at trial, the fact that the record could support findings other than those made by the district court does not make the district court’s findings defective.  See Vangsness, 607 N.W.2d at 474.  As for the other findings mother challenges, we conclude that they are not sufficiently material to affect the outcome of this case.  See Minn. R. Civ. P. 61 (stating that harmless error is to be ignored).


Mother also argues that the district court abused its discretion by its division of the parties’ marital and nonmarital property.  Mother claims she is entitled to a property settlement in excess of what was awarded because father’s parents owed the parties $62,500 in lease rentals for farm machinery, and that a $13,000 certificate of deposit received from father’s mother was an installment payment on those rentals.  The district court found that the parties gave father’s parents the farm machinery in exchange for rent the parties owed father’s parents, and that the $13,000 certificate of deposit received from father’s mother was a non-marital gift to father.

“District courts have broad discretion over the division of marital property, and we will not disturb the division on appeal absent a clear abuse of discretion.”  Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (Minn. App. 2000) (citation omitted), review denied (Minn. Oct. 25, 2000).  For an appellate court to conclude the district court abused its discretion, the district court’s factual findings must be “against logic and the facts on [the] record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (citation omitted). 

Mother’s challenges to the district court’s findings are again aimed at credibility issues and the weight to be given to conflicting testimony.  We defer to the district court’s broad discretion and conclude that its findings are not clearly erroneous.  See Minn. R. Civ. P. 52.01; Rutten, 347 N.W.2d at 50.


In her brief, mother requests an award of her attorney fees and costs for this appeal. 

Where a party has failed to make a motion for attorney fees, an appellate court “may grant on its own motion an award of reasonable attorneys’ fees to any party.”  Minn. R. Civ. App. P. 139.06.  On this record, however, we decline to exercise our discretion to award fees on our own motion.  Accordingly, we deny mother’s request for attorney fees on appeal. 

            Affirmed; motion denied.



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