This opinion will be unpublished and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

C0-02-234

 

 

In re:

 

Andrew Ross Topliff, petitioner,

Appellant,

 

vs.

 

Heather Warne Piehl,

Respondent.

 

 

Filed July 16, 2002

Affirmed

Harten, Judge

 

Dakota County District Court

File No. F5-00-50275

 

 

 

Ellen Bracken Wiese, Law Office of Ellen B. Wiese, 5101 Thimsen Avenue, Suite 200, Minnetonka, MN 55345 (for appellant)

 

John T. Burns, Jr., Burns Law Office, 115 Midway Bank Building, 14300 Nicollet Court,  Burnsville, MN 55306 (for respondent)

 

            Considered and decided by Harten, Presiding Judge, Willis, Judge, and Foley, Judge.*

 

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            The parties are the parents of a minor child.  Appellant argues that the district court abused its discretion by denying his motion to compel psychological testing of respondent and her husband, by awarding sole physical custody to respondent, and by awarding respondent attorney fees.  Because we see no abuse of discretion, we affirm.

FACTS

 

            Appellant Andrew Topliff and respondent Heather Warne Piehl are the parents of B.T., now age five.  B.T. has always lived with respondent; they now live with respondent’s husband, Jeff Piehl, and B.T.’s two half-brothers, ages three and one.  

            One night when B.T. was about 18 months old, respondent left her with Piehl. Piehl spanked B.T. hard enough to cause significant bruising.  Her face was also bruised from striking the floor or a piece of furniture.  The following day, B.T.’s daycare provider noticed the bruises and reported them to respondent.  B.T. was taken to the emergency room for treatment.  Respondent informed appellant of the incident and assured him that it would not be repeated. 

            Piehl was charged with and pleaded guilty to gross misdemeanor neglect of a child.  He completed the requirements of his sentence, which included a domestic abuse evaluation, an anger management course, and counseling. 

            Although appellant has contributed to B.T.’s support since her birth, he saw little of her for her first 18 months because he was completing his residency as a medical doctor and had little time off.  When he learned that respondent and her family were considering moving to Florida, appellant brought this action for an adjudication of paternity and for joint physical custody.

            The district court appointed a guardian ad litem to assist with the custody determination.  After interviewing B.T., both parties, Piehl, appellant’s fiancée, and members of both extended families, the guardian ad litem recommended that respondent have sole physical custody.

            Appellant opposed the recommendation partly on the ground that no mental health professional had been involved.  He hired a forensic psychologist to evaluate B.T., himself, and his fiancée.  Because respondent and Piehl declined to be evaluated by that psychologist, appellant moved the district court for an order requiring them to be evaluated.  The motion was denied.

            Following a trial at which the guardian ad litem, the psychologist, both parties, Piehl, and appellant’s fiancée all testified, the district court adopted the guardian ad litem’s recommendation and awarded sole physical custody of B.T. to respondent.  The district court also found that respondent was unable to pay attorney fees and ordered appellant to pay $5,000 of respondent’s attorney fees.

            Appellant moved for amended findings of fact and conclusions of law.  The district court denied that motion and increased the attorney fee award to $5,750.  Appellant now alleges that the district court abused its discretion in denying his motion to compel psychological testing and in awarding sole physical custody and attorney fees to respondent.[1]

D E C I S I O N

 

1.         Denial of Motion to Compel Psychological Testing

 

            The district court has great discretion in ordering a physical or mental examination.  Haynes v. Anderson, 304 Minn. 185, 188, 232 N.W.2d 196, 199 (1975).  Minn. R. Civ. P. 35.01 provides that a court may order a party to submit to a mental examination “only on motion for good cause shown.”  Appellant’s only basis for wanting a psychological evaluation of respondent and Piehl in June 2001 was the April 1998 incident in which Piehl spanked B.T.  However, Piehl fully complied with the district court’s sentencing requirements resulting from that incident, and there has been no evidence of any repetition during the four years that B.T. has lived with Piehl since the incident.  Notwithstanding the age of the incident and the judicial attention given it, appellant also moved the district court for an order requiring respondent and Piehl to undergo testing by the psychologist whom appellant had hired; the motion was denied.

We conclude that appellant failed to show that the district court’s denial of these motions was an abuse of discretion.[2]

2.         Physical Custody

            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).  Appellant contends that the district court abused its discretion in awarding sole physical custody to respondent. 

            The district court made findings on each of the 13 factors in Minn. Stat. § 518.17, subd. 1 (2000).   It found that (1) both parents want custody of B.T.; (2) B.T. is too young to express a preference; (3) respondent has been B.T.’s primary caretaker since her birth; (4) B.T. has close relationships with both parents but has spent more time with respondent; (5) B.T. is also close to Piehl and to her half-brother, and to her paternal grandmother and appellant’s fiancée; (6) B.T. is well integrated into respondent’s community; (7) she has lived in a stable environment with respondent since birth; (8) both parties appear to have permanent family units; (9) all involved appear to be in good physical and mental health; (10) neither cultural background nor religion presents an issue; (11) there has been no domestic abuse but that Piehl pleaded guilty to a charge of child neglect as a result of the incident with B.T. in 1998; and (12) each party is reasonably willing to allow contact with the other.  To summarize these factors, three are irrelevant, seven are neutral, and three (primary caretaker, close relationships, and stable environment) favor respondent.  The district court also found that giving appellant joint physical custody when B.T. had lived since birth with respondent would be uprooting B.T., which would not be in B.T.’s best interests.

We find no abuse of discretion in awarding sole physical custody of B.T. to respondent.

3.         Attorney Fees

            An award of attorney fees under Minn. Stat. § 518.14, subd. 1 (2000), will not be disturbed absent a clear abuse of discretion.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. 18 Feb. 1999).  Minn. Stat. § 518.14, subd. 1, provides for an award of the attorney fees necessary for a party to make a good-faith assertion of that party’s rights when that party does not have the means to pay attorney fees and the other party does.

            The district court found that respondent’s net monthly income is $300 and that she is unable to pay her attorney fees incurred in this action.  Appellant provided minimal evidence of his income, but that evidence showed that he earns far more than respondent.  We conclude that neither the attorney fee award of $5,000 in the original judgment nor the additional $750 awarded after appellant’s motion to amend was an abuse of discretion.

            Affirmed.



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

[1] Appellant does not challenge his child support obligation, but he challenges the district court’s finding as to his net income.  Respondent explained, and appellant did not dispute, that the $4,631.87 the district court found to be appellant’s biweekly net income is actually his biweekly gross income.

[2] Appellant also contends that the guardian ad litem did not fully investigate the incident because he spoke only with Piehl, respondent, and Piehl’s probation officer.  But by the time the guardian ad litem investigated the incident, it was three years old.