This opinion will be unpublished and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

C4-01-1537

 

In re the Marriage of:
William Larry Protzek Jr., petitioner,
Appellant,

vs.

Arlene Marie Protzek,
Respondent.

 

 

Filed June 11, 2002

Affirmed

Peterson, Judge

 

 

Clay County District Court

File No. F7001311

 

 

Robert J. Schultz, Conmy Feste Ltd., 200 Wells Fargo Center, P.O. Box 2686, Fargo, ND, 58108-2686 (for appellant)

 

Todd W. Foss, Stefanson, Plambeck, Foss & Fisher, P.O. Box 1287, 403 Center Avenue, Suite 302, Moorhead, MN† 56561-1287 (for respondent)

 

 

††††††††††† Considered and decided by Halbrooks, Presiding Judge, Peterson, Judge, and Huspeni, Judge.*

U N P U B L I S H E D†† O P I N I O N

PETERSON, Judge

Appellant-father challenges the district courtís award of physical custody of the partiesí child to respondent-mother.† He argues that the record does not support the district courtís findings that (1) motherís act of domestic abuse and her mental condition were insignificant; (2) mother was the childís primary caretaker; and (3) the childís interaction with others in the family weighed in motherís favor.† Father also contends that the district courtís award of joint legal custody is inconsistent with motherís domestic abuse against father.† We affirm.

FACTS

††††††††††† The parties were married in 1997.† They have one minor child together, a son, born in October 1998.† Father has a minor daughter, S.P., from a previous marriage, and mother has a minor daughter, C.S., from a previous marriage.† Mother has physical custody of C.S.

††††††††††† When the parties got married, they lived in Oregon.† Fatherís mother, C.F., lived nearby and provided daycare for the partiesí son while the parties worked.† When the parties moved to Fargo, North Dakota, in October 1999, C.F. moved with them and began living in their home.† C.F. continued to provide daycare for the son while the parties worked.† The parties and C.F. later moved to Moorhead, Minnesota.

††††††††††† Mother testified that before the partiesí separation, as between her and father, she had primary responsibility for parenting tasks.† Mother testified that she handled all of the meal preparation until C.F. began living with them.† Afterwards, C.F. prepared meals, but mother testified that she fed the son.† Mother testified that she bathed the son almost every night, although father occasionally showered with him, and that she changed the sonís diaper every night as soon as she got home from work.† Mother testified that she was responsible for getting the son ready for bed and that she did the majority of his laundry and bought most of his clothes and toys.† Mother testified that she always took the son to the doctor when he was ill and for check-ups and immunizations.

††††††††††† Mother has a history of depression.† Her ex-husband, C.S.ís father, described mother as a fantastic parent and testified that her depression never interfered with her parenting ability.† Mother also testified that her depression had never interfered with her parenting ability.

To support his position that mother should not have been awarded physical custody, father relies in part on a July 4, 2000, altercation when he and mother got into a heated argument because father wanted C.S. to return to Oregon and live with her father.† The district court made the following findings regarding the incident:

[Father] told [mother] that she would not get custody of [son] and that [father] would see to it that her visitation with [son] was limited.† [Mother] was extremely upset by this, and threatened to take her own life.† She went to the partiesí gun cabinet in the basement of their home and started to pry the lock off with a crow bar.† [Father] came into the room to see what was going on and picked up a wooden stepladder to guard himself while he tried to force [mother] away from the gun cabinet.† [Mother] turned and struck at the ladder with the crow bar.† [Father] then pushed [mother] back with the ladder and ran upstairs, yelling to the rest of the family to call 911 and get out of the house.† [Father, C.F., C.S., S.P., and son] ran down the street to a neighboring house.† [Mother] followed and asked that [C.S.] and [son] come with her.† [Father] then ďbody blockedĒ [mother], knocking her to the ground.† Ultimately, a call was placed to 911.

 

††††††††††† Mother was arrested for second-degree assault.† On July 5, 2000, father petitioned the district court for an order for protection (OFP) against mother.† Following a contested hearing, the district court issued an OFP finding that mother had committed domestic abuse against father by assaulting him with a crowbar, striking him once on the left arm, and that the safety of father and son required that father be granted custody.† The court also found that the domestic abuse consisted of a single act that occurred during a heated argument regarding divorce and child-custody issues and that mother was entitled to unsupervised visitation with son because she had never committed an act of domestic abuse against him.

††††††††††† Following the partiesí separation, father and son resided in the family home in Moorhead with C.F.† C.F. testified that at some point, she does want a life of her own.† As a result of the OFP, mother lost her job.† She moved to Stillwell, Kansas in January 2001, where her father resides.

Mother made an Alford guilty plea to one count of misdemeanor domestic assault against father following the incident on July 4, 2000.† Jane Austinson and Peggy Merickel, licensed professional counselors, performed a domestic-violence assessment of mother for the Minnesota Department of Corrections.† Mother complied with their recommendations that she attend and complete an anger-management/conflict-resolution seminar to encourage positive interaction and reinforce respectful behavior in relationships and also undergo individual counseling to encourage her to take responsibility for her actions and help her make positive choices for her life.

Mary Forston, a counselor who evaluated mother in April 2001, concluded that mother had learned from the domestic-violence incident, was motivated to make personal changes, and had made very good progress.† Both Forston and Ellen Gugisberg, another counselor who evaluated mother, concluded that the domestic-violence incident was an isolated, situational incident, and neither had concerns about mother committing future acts of domestic violence.

Dee Larson, the guardian ad litem (GAL), opined that the domestic-violence incident occurred because mother was in a state of shock as a result of fatherís ultimatum that she must choose between her marriage and custody of her daughter.† The GAL testified that mother recognized that she had problems and sought necessary treatment.† The GAL believed that mother had learned a lot from the anger-management classes and would not allow herself to be placed in another situation like the one that occurred on July 4, 2000.

††††††††††† The GAL recommended awarding custody to mother.† The GAL observed that the son showed more love and affection and exhibited more interaction with mother than with father.† The GAL did not approve of fatherís method of disciplining the son.† Father admitted that he spanked the son and squeezed his foot as punishment.† The GAL also concluded that the son shared a stronger bond with C.S. than with C.F.

††††††††††† The district court made the following findings regarding the sonís best interests:† Both parties love the son, and the son has the same affection for each of his parents and has adjusted well to both parentsí homes.† As between mother and father, mother was the sonís primary caretaker during the partiesí marriage.† Although the son had a strong bond with C.F. and she had been a significant part of the sonís life, C.F. was unlikely to continue in her current caregiving role indefinitely.† A bond existed between the son and C.S., and it would be beneficial for the son to grow up in the same home as C.S.† Mother had situational depressive episodes in the past, but her depression had not made her unable to parent.† Mother had sought appropriate counseling and medication when needed for depression.† Motherís depression was not a significant factor in the custody determination.

††††††††††† The district court had concerns as to whether fatherís home was a stable, satisfactory environment that should be continued:

Stability is in question because the home is in foreclosure, and [fatherís] inability to manage his financial affairs makes it unlikely that he will be able to continue to live in the marital home.† More importantly, the Court has serious concerns about [fatherís] ability to provide care for [son].† If [C.F.] is not available to assist him, the day to day needs of [son] will suffer.† She testified that she wants a life of her own at some point in the future.

 

††††††††††† A greater concern is the use by [father] of inappropriate physical discipline.† While spanking is an acceptable form of discipline in our society, [fatherís] acts of hitting, pinching, hair pulling, excessive spanking, and spanking a child too young to understand the reason for the discipline are excessive and abusive forms of discipline.† [Father] appears to have unrealistic expectations of a childís behavior.† He would sit [son], an infant or toddler, at the table for family dinner and expect him to behave like an adult.† When [son] behaved like a child of his age, [father] would slap his hands or take him strapped in his high chair to his room and leave him unattended for several minutes.† [Father] described [C.S.] as some type of out of control child who needed to be spanked repeatedly or forced to run laps in the heat.† The behavior attributed to [C.S.] was not any different from the behavior that might be expected of a child of her age in her circumstances.† She was not the little monster that [father] tried to portray throughout the trial.† She was a typical 11 year old trying to adjust to a new family circumstance in a new community.

 

††††††††††† Regarding the July 4, 2000, incident, the district court found:

††††††††††† The Court takes allegations of domestic abuse very seriously in the context of custody disputes.† The Court does not condone the action of [mother] and believes she made very poor choices during that incident.† However, the Court is unwilling to place significant weight on the July 2000 event with regard to the determination of the best interests of [son] for the following reasons:† (1) It was an isolated event brought on in substantial part by the ultimatum made by [father].† There is no evidence that [mother] has ever engaged in this type of behavior in the past.† (2) Because of the childís age at the time of the July 2000 incident, it likely had little or no effect on [son].† (3) [Mother] is not inappropriately physical in terms of punishment and discipline, whereas [father] frequently uses physical discipline that is inappropriate and excessive to correct behavior.

 

††††††††††† [Mother] indicates that she never intended to put any of her family members in danger, nor that she planned to take her own life.† She explains the event as a ďthreatĒ brought on by the stress of being presented with an ultimatum.

 

D E C I S I O N

1.†††††††† Physical custody

††††††††††† The district court has broad discretion to determine custody matters.† Wopata v. Wopata, 498 N.W.2d 478, 481 (Minn. App. 1993).† An appellate court may not reverse a custody determination unless the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.† Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).† A district courtís findings must be sustained unless they are clearly erroneous.† Minn. R. Civ. P. 52.01.† When the evidence supports the conclusions reached by the district court, the appellate court must affirm, even if the evidence supports other conclusions as well.† Sefkow v. Sefkow, 427 N.W.2d 203, 211 (Minn. 1988).† The ultimate consideration in determining custody is the best interests of the child.† Pikula, 374 N.W.2d at 711; see Minn. Stat. ß 518.17, subd. 1 (listing best interests factors).

††††††††††† Father argues that the district court assigned insignificant weight to motherís actions in the domestic-abuse incident.† We note that the cases relied on by father requiring careful or serious consideration of abuse allegations involved child abuse.† See Nazar v. Nazar, 505 N.W.2d 628, 633 (Minn. App. 1993), review denied (Minn. Oct. 28, 1993); Uhl v. Uhl, 395 N.W.2d 106, 111 (Minn. App. 1986).† Minn. Stat. ß 518.17, subd. 1(12) (2000), expressly requires consideration of domestic abuse between parents only to the extent it affected the child.

The district court did not ignore the domestic-abuse incident but rather declined to accept fatherís characterization of it.† The district court found that the incident was an isolated incident, brought on in substantial part by fatherís ultimatum that mother choose between her marriage and custody of her daughter.† That finding is supported by the evidence, including the testimony of counselors who evaluated mother following the incident and had no concerns that she would commit a future act of domestic abuse.† There is no evidence that mother ever committed any other acts of domestic abuse, and there is no evidence that she ever committed child abuse.† The district court also considered the evidence that mother did not intend to take her own life or put any of her family members in danger.† Mother testified that she pried the lock off of the gun cabinet for effect, to demonstrate to father how upset she was, and that she walked away from the gun cabinet without ever touching a gun.

The district court complied with the statutory requirement to consider the effect of the domestic-abuse incident on the son.† The evidence supports the district courtís finding that due to the sonís young age, the incident likely had little or no effect on him.† The isolated nature of the incident and the fact that the son was not placed in physical danger also support the finding of little or no effect on the son.† In deciding the weight to assign to the domestic-abuse incident, the district court balanced that incident against its concerns about fatherís frequent use of inappropriate and excessive physical discipline.

The district courtís findings show that it carefully considered motherís actions in the domestic-abuse incident.† The district court did not abuse its discretion in declining to assign significant weight to the incident.† See Uhl, 413 N.W.2d at 217 (affirming a custody award to a mother who had been accused of child abuse when (1) abuse was not repetitive; (2) mitigating factors were present, including mother being under a great deal of stress, partially caused by father, and cultural differences in child-rearing practices; and (3) mother was open and amenable to therapy and flexible and willing to make habit changes).

Father next contends that the evidence does not support the district courtís finding that motherís mental-health problems are not significant.† Father cites motherís previous suicide attempts as showing that the district court failed to recognize the seriousness of motherís mental-health problems.† There were two incidents, one when mother slit (described by mother as nicked) her wrist and one when she took four or five sleeping pills.† Mother testified that those incidents were not serious suicide attempts but rather attempts to get attention.† Both of the incidents occurred more than ten years ago, before mother understood that she suffered from clinical depression.† The record contains evidence that since then, mother has sought appropriate treatment for episodes of depression.

† The evidence supports the district courtís findings that motherís depression problems have been situational and have not made her unable to parent and that mother has sought appropriate treatment for depression when necessary.† The district court did not abuse its discretion in declining to assign significant weight to motherís history of depression in making its custody determination.

Father next challenges the district courtís finding that mother was the sonís primary caretaker.† The evidence supports the district courtís finding that before the partiesí separation, as between mother and father, mother was the sonís primary caretaker.† Father argues that the district court should have considered the fact that he has been the primary caretaker since the partiesí separation.† Generally, in an initial custody determination, the primary caretaker is determined as of the time of the separation of the parties.† Sefkow, 427 N.W.2d at 211.† When there is a lengthy period of time between the date of the partiesí separation and the date of the custody hearing, however, the intervening events are not only relevant, but crucial in determining the childís best interests.† Sefkow, 427 N.W.2d at 212.† On the other hand,

the parent with temporary physical custody prior to trial is not allowed to ďbuild a caseĒ by arguing that ďI must be the primary parent as I had sole physical custody of the children the last few months.Ē

 

Maxfield v. Maxfield, 439 N.W.2d 411, 415 (Minn. App. 1989), affíd, 452 N.W.2d 219 (Minn. 1990).

In this case, less than one year had elapsed between the partiesí separation and the divorce trial.† The district court did not err in determining the sonís primary caretaker as of the time of the partiesí separation.† Compare Sefkow, 427 N.W.2d at 212 (custody litigation lasted four and one-half years).

††††††††††† Father next argues that the district court erred in assigning more weight to the sonís relationship with C.S. than to his relationship with C.F.† The district courtís findings do not indicate that it assigned greater weight to one relationship than the other.† Rather, the court recognized that the son has close relationships with both C.S. and C.F. and considered both relationships in making its ultimate custody determination.

††††††††††† The district court made detailed findings on the relevant best-interests factors.† The court carefully considered motherís mental-health problems and the domestic-abuse incident.† The court had very serious concerns about fatherís inappropriate discipline of children.† The evidence supports the district courtís findings of fact on the physical custody issue, and the findings are sufficient to support the award of physical custody to mother.

2.†††††††† Legal custody

In addition to the factors listed in subdivision 1 [best-interests factors], where either joint legal or joint physical custody is contemplated or sought, the court shall consider the following relevant factors:† (a) The ability of parents to cooperate in the rearing of their children; (b) Methods for resolving disputes regarding any major decision concerning the life of the child, and the parentsí willingness to use those methods; (c) Whether it would be detrimental to the child if one parent were to have sole authority over the childís upbringing; and (d) Whether domestic abuse, as defined in section 518B.01, has occurred between the parents.

 

††††††††††† The court shall use a rebuttable presumption that upon request of either or both parties, joint legal custody is in the best interests of the child.† However, the court shall use a rebuttable presumption that joint legal or physical custody is not in the best interests of the child if domestic abuse, as defined in section 518B.01, has occurred between the parents.

 

††††††††††† If the court awards joint legal or physical custody over the objection of a party, the court shall make detailed findings on each of the factors in this subdivision and explain how the factors led to its determination that joint custody would be in the best interests of the child.

 

Minn. Stat. ß 518.17, subd. 2(a)-(d) (2000).

††††††††††† Father argues that the district court did not make sufficient findings to support the award of joint legal custody.† The district court did not make findings on the factors listed in Minn. Stat. ß 518.17, subd. 2(a)-(c).† But because we have affirmed the award of physical custody to mother, permitting an award of sole legal custody to father would be untenable.† Therefore, because mother does not challenge the award of joint legal custody to father, there is no reason to disturb the award of joint legal custody.

††††††††††† Affirmed.



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