This opinion will be unpublished and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
In re: Julianne Markiewicz Fiedler,
Jeffrey Alan Fiedler,
Filed July 30, 2002
Anoka County District Court
File No. F7-99-7472
David F. Herr, Melissa M. Weldon, Maslon, Edelman, Borman & Brand, LLP, 3300 Wells Fargo Center, 90 South Seventh Street, Minneapolis MN 55402-4140 (for appellant)
Debra E. Yerigan, Rider, Bennett, Egan, & Arundel, LLP, 333 South Seventh Street, Suite 2000, Minneapolis, MN 55402 (for respondent)
Considered and decided by Randall, Presiding Judge, Stoneburner, Judge, and Foley, Judge.
In this dissolution proceeding, appellant father challenges the district court’s award of sole legal and physical custody of the parties’ children to respondent mother. Appellant alleges that the district court’s award of sole legal custody to respondent was improperly based on the court’s (1) failure to abide by the presumption favoring joint legal custody; (2) failure to consider the record evidence favoring joint legal custody; and (3) verbatim adoption of respondent’s proposed findings. Appellant also alleges that he should have been awarded sole physical custody of the children because he was their primary caretaker; contrary to the district court’s views, his mental health does not adversely impact the children; and he encourages the children’s relationship with respondent. Because we hold that the district court did not abuse its discretion in awarding sole legal and physical custody to respondent, we affirm.
Respondent Julianne Markiewicz Fiedler and appellant Jeffrey Alan Fiedler were married in 1989 and divorced in 2001. They have two children: J.M.F., born May 27, 1990, and J.G.F., born September 14, 1995. The parties’ seven-day divorce trial took place over a five-month period in 2001, with the sole issues being those of the legal and physical custody of the minor children.
In 1982, before the parties’ marriage, appellant was referred to a psychiatrist for treatment for depression. He experienced a period of agitated depression in early 1983, which was treated on an outpatient basis. In February 1984, appellant was hospitalized as a result of a breakdown at work, and in April 1984, he was hospitalized for 70 days and given electroshock treatment, with a diagnosis of schizophrenia, catatonic and subchronic, with acute exacerbation. Appellant apparently had no further mental health issues until 1998, when his depressive symptoms began to recur. From August 8-16, 1999, he was hospitalized at Regions Hospital, diagnosed with a major depressive disorder.
On August 26, 1999, respondent petitioned to dissolve the marriage and shortly thereafter, moved in with her present partner. On September 17, 1999, appellant was admitted to Regions Hospital because he had taken an overdose of antidepressants and antihistamines, put weights in his pockets, and walked into Cedar Lake. He was rescued by his brother. After a two-week hospitalization, appellant was discharged under the care of Dr. Diane Dahl, who prescribed for him Paxil, Trazodone, and Vistaril. Appellant saw Dr. Dahl for a follow-up appointment in February 2000. Although Dr. Dahl recommended a subsequent appointment in two months, appellant did not return to see her until September 2000; he also failed to follow his medication schedule.
At trial, the court considered the report and testimony of Marcia Young, who prepared a neutral custody evaluation for the Human Services Division of the Anoka County Department of Corrections. Young stated in her report that she was unable to come to a conclusion about which parent was the primary caretaker. She reported that from about 1990 to 1994, appellant was the primary parent because he was more available when respondent was working long hours at a law firm. Respondent, however, left her employment in 1994 and spent the summer with her family. She worked at another law firm from September 1994 to March 1995, and during that time the parties shared equally in child-rearing duties. From March 1994 to August 1996 she performed legal work out of her home. When J.G.F. was born in 1995, respondent took off three months from work; appellant took off one month. Respondent spent another several months working part-time. J.G.F. was home with her until August 1996, when she began working full time. From then until the parties’ separation, the report stated that the parties shared roughly equally in parenting.
Young reported observing appropriate parenting skills of both parents in her visits to their homes. She also stated that the children were reported doing well at elementary and pre-school, and that both parents appeared to provide a reasonably satisfactory and stable home environment for the children. Additionally, Young reported that although the parents had adhered to the parenting schedule ordered by the court at the temporary hearing, difficulties had arisen in communication and with regard to issues concerning raising the children.
When Young interviewed both parties, she found respondent to be an assertive, well-adjusted person, with good ego strengths and a very loving attitude towards her children. Young found that appellant was also extremely loving towards his children, albeit more shy, struggling a bit with self-esteem, likable, and showing some ongoing bitterness at times towards respondent. Young noted that she had an overall sense that appellant was minimizing his depression. Appellant led Young to believe that he was still seeing Dr. Dahl and failed to tell her about his suicide gesture. Young testified that she believed the mental health issue was a risk factor with appellant, and that respondent appeared emotionally healthy and well adjusted with no background of mental health problems. Young concluded that the parties’ communication since the separation had been poor, and that they each had mistrustful and angry feelings, with appellant’s anger more evident based on her observations. She noted that this divorce seemed more heated than those she normally saw, with both parties locked in an intense power struggle. Young recommended that respondent be awarded sole physical custody of the children. Young initially reported that it would be best if the parties could share permanent legal custody, with the caveat that if the power struggling continued, she would strongly recommend mediation. At trial, however, Young testified that she was “beginning to have doubts whether joint legal custody would just be putting the children in the middle.”
The district court also considered as evidence the report of Dr. James Gilbertson, appellant’s expert psychologist, who declined to give a specific opinion as to which parent should be granted custody. Gilbertson opined that appellant was the primary parent and had been responsible for most of the day-to-day care of the children. He noted, however, that appellant was vulnerable to repeat episodes of depression unless he developed a vigilant and compliant attitude toward his treatment. Gilbertson determined that the children had sound and good attachments to both parents and that they had adequately adjusted to their home, school, and community. Gilbertson opined that the parties were in a dynamic polarity in their marriage and agreed with Young that communication between the parties had been fairly strained during the latter part of the marriage. At trial, Gilbertson testified that, in his opinion, after appellant’s second hospitalization in 1999, he believed that appellant was not capable of taking care of the children, but qualified that statement by saying that even if appellant suffered from major depression, it would not automatically affect his ability to parent.
Dr. Susan Phipps-Yonas testified for respondent on the issue of appellant’s mental health. Never having examined appellant, she testified that oftentimes a first episode of a major depressive disorder is associated with a stressful event, but no apparent stressor exists just prior to subsequent decompensations.
At trial, testimony revealed several specific conflicts that had occurred between the parties over parenting issues. For instance, respondent, against appellant’s wishes, had J.G.F. tested for accelerated admission to kindergarten. The issue became moot when the testing personnel found that J.G.F. was not developmentally ready for kindergarten. Also, when respondent wanted enroll J.G.F. in a Montessori school instead of daycare, appellant objected. J.G.F. attended Montessori school only on the days when she was at respondent’s house. Eventually, because of appellant’s objection and pursuant to court order, J.G.F. returned to daycare. Appellant wanted J.G.F. to become involved in dance, but apparently refused to inform respondent of any of the specifics as to time and place. On one occasion, during the exchange of a bicycle between the parties, appellant allegedly jerked J.G.F. out of respondent’s arms when J.G.F. was not feeling well and was half asleep, and appellant refused to return Jade’s bicycle when appellant requested it before going on vacation.
During trial, after extensive testimony concerning the conflicts between the parties, the district court stated:
It’s evident, and you don’t need to prove, these two folks don’t get along. They can’t communicate. And there isn’t going to be any joint legal custody. That has been established in the previous 20 hours of testimony that I’ve heard so far. I haven’t heard anything that has changed my mind in that regard. If you have it, please bring it forward.
The court issued its findings of fact, conclusions of law, order for judgment and judgment and decree on October 9, 2001. The court awarded respondent sole legal and sole physical custody, with specific findings concerning the amount and nature of parenting time spent by each party over the course of the marriage. The court found that because of the parties’ shared caretaking duties, the statutory factor of which parent served as the primary caretaker would not play a role in the custody determination.
The court addressed the issue of appellant’s earlier and more recent mental health problems, finding that his pattern of long-term mental health problems, failure to follow after-care recommendations, failure to recognize his mental health problems, secretive behavior about these issues, and his attempts to hide his mental health issue from respondent and the court, all raised “serious concerns about his ability to raise the children in a safe environment.” Of significant concern to the court was the possibility that if another major depressive episode arose, appellant would not recognize the symptoms of the onset and deal with them appropriately. The court stated that the children were too young to recognize the symptoms and report them to someone who could intervene and that they should not be burdened with such a responsibility.
The district court determined that both parties obviously love the children and that, overall, each used appropriate methods of discipline and set reasonable limitations and expectations. Although respondent was able to acknowledge appellant’s involvement with the children, appellant was not able to do the same regarding respondent. In fact, the court found that appellant’s “negative attitude toward [respondent] wears on the children and has a negative effect on their demeanor.” In contrast, respondent spoke positively about appellant.
The district court adopted most of respondent’s proposed findings. However, the court drafted several other findings, including a lengthy one in which it cited specific events supporting the proposition that appellant was interested in controlling respondent and making life difficult for her, sometimes at the children’s expense. The court further noted appellant’s demeanor on the stand and his reluctance to answer questions that might tend to cast respondent in a positive light. The court found that “[w]hile it is clear that [appellant] loves the children, he has not been able to elevate their best interests above his resentment of [respondent].” The court indicated a concern that if granted physical custody, appellant would continue in an immature style of game-playing.
The Court has no doubt that [appellant] has every intention of making the best interest of the children his primary concern. However, an environment such as this, where the best interests of the children are necessarily compromised by one parent’s bitterness toward the other parent, is not healthy for the children.
As to legal custody, based on testimony and Young’s report, the court found that the parties’ ability to cooperate in raising the children was poor and not likely to improve. Little communication or cooperation existed between the parties and no method of resolving disputes was in place. For instance, appellant testified that his only method of resolving disputes had been to ask for the aid of the court. The parties disagreed about counseling for the children and an appropriate preschool environment for J.G.F..
The district court found that giving respondent sole authority over the children’s upbringing would not be detrimental to the children, and that she is capable of making sound decisions regarding the children’s education, medical needs, and religion. Conversely, the district court found that it would be detrimental to the children if the parties were ordered to make joint decisions, because appellant’s mental health issues and anger cloud his judgment regarding the children’s best interests.
Following the district court’s decision, appellant moved for amended findings or a new trial. The court denied the motion, and this appeal followed.
Appellant is challenging the judgment and decree, as well as the district court’s denial of a motion for a new trial and a motion for amended findings. Generally, this court defers to the broad discretion of the district court in deciding whether to grant a new trial. Id. at 472; see Maloney v. Ketter, 408 N.W.2d 865, 868 (Minn. App. 1987) (stating that “[d]enial of a new trial based on grounds other than error of law is within the broad discretion of the trial court”), review denied (Minn. Sept. 18, 1987). “The purpose of a motion for amended findings is to permit the trial court a review of its own exercise of discretion.” Lewis v. Lewis, 572 N.W.2d 313, 315 (Minn. App. 1997) (quotation and citations omitted), review denied (Minn. Feb. 19, 1998).
The findings of the district court must be sustained if they are not clearly erroneous. Minn. R. Civ. P. 52.01. Findings are clearly erroneous if the appellate court “is left with the definite and firm conviction that a mistake has been made.” Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000) (quotation and citation omitted). In determining whether findings are clearly erroneous, this court views the record in the light most favorable to the findings of the trial court. Id. Appellate courts must defer to the credibility determinations of the district court. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). We carefully review the district court’s explanation for its conclusions concerning ultimate issues or mixed questions of law and fact. Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn. 1990) (citing Minn. Stat. § 518.17, subd. 1 (Supp. 1989)).
A district court has broad discretion to provide for the custody of the parties’ minor children. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). Pursuant to statute, custody determinations must be based on the best interests of the child. Minn. Stat. § 518.17 (2000). If joint legal or physical custody is sought, the court is directed to 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 parents’ willingness to use those methods;
(c) Whether it would be detrimental to the child if one parent were to have sole custody over the child’s upbringing; and
(d) Whether domestic abuse, as defined in section 518B.01, has occurred between the parents.
Id. at subd. 2. The statute also mandates that unless domestic abuse has occurred between the parents, “[t]he 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.” Id.
Appellant contends that because respondent failed to present evidence sufficient to overcome this statutory presumption, the district court abused its discretion in not awarding joint legal custody. Appellant cites LaChappelle v. Mitten, 607 N.W.2d 151, 160 (Minn. App. 2000), review denied (Minn. May 16, 2000), cert. denied, 531 U.S. 1011 (2000), and Rosenfeld v. Rosenfeld, 529 N.W.2d 724, 726 (Minn. App 1995), for the proposition that joint custody may be appropriate even when the parents are unable to cooperate. However, in LaChappelle, 607 N.W.2d at 160, thedistrict court found that parties were willing to try to cooperate, and methods for resolving potential disputes were in place. Likewise, in Rosenfeld, 529 N.W.2d at 726, the district court found that the parties were willing to set aside their personal feelings for the sake of the children when it was required. In contrast, here, the district court specifically found that the evidence demonstrated that the parties’ inability to cooperate in raising the children was not likely to improve.
This finding is not clearly erroneous. The extensive record in this case is replete with evidence showing the parties’ inability to cooperate with each other in making major decisions, such as the children’s education, as well as in minor ones, such as picking up the children and arranging scheduled activities. Both custody reports refer to the polarity in the marriage, with the parties’ different personalities clashing on many levels.
Appellant argues to the contrary, stating that the parties are able to work together for the sake of the children. He cites their success in maintaining a joint custody arrangement during the pendency of this action, and Marcia Young’s custody report, which initially recommended joint legal custody. But during trial, when the district court asked Young if she had changed her recommendation, she expressed doubt about joint legal custody, stating that she was “not optimistic anymore” about the parties’ ability to put the children first.
Appellant also contends that the district court prejudged the issue of joint legal custody because the court commented midway through the seven-day trial that it would not order joint custody. But the court invited further evidence on the issue, and the record reflects that indeed, it subsequently heard evidence from 13 of appellant’s witnesses over the course of two and one-half days.
Appellant further challenges the district court’s verbatim adoption of many of respondent’s proposed findings of fact. This court has cautioned that the “wholesale adoption of one party’s findings and conclusions raises the question of whether the trial court independently evaluated each party’s testimony and evidence.” Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993). But the verbatim adoption of proposed findings and conclusions does not constitute reversible error per se. Sigurdson v. Isanti County, 408 N.W.2d 654, 657 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987). In this case, the district court adopted most of respondent’s proposed findings of fact, but the court also independently drafted several findings. Most notable was finding LXIV, which was more than a page in length and referred to specific instances of conflict between the parties. This finding included the court’s credibility determination based on appellant’s demeanor on the witness stand. The trial was lengthy, with the testimony of 21 witnesses producing a transcript of more than 1,000 pages. We cannot say that under these circumstances that the court, in adopting many of respondent’s proposed findings, abdicated its own responsibility to evaluate the evidence on an independent basis.
Alleging he should be awarded sole physical custody of both children, appellant challenges the district court’s award of sole physical custody to respondent. Appellant contends that Minn. Stat. § 518.17, subd. 1 (2000), requires that the district court make detailed findings on each of the best-interests factor, and claims that it was error for the court (1) to conclude that the primary caregiver factor was neutral and (2) to consider his mental health as a factor in the custody determination.
“[C]urrent law leaves scant if any room for an appellate court to question the trial court’s balancing of best-interests considerations.” Vangsness, 607 N.W.2d at 477. While the district court must consider all of the statutory factors that pertain to the best interest of the children, the court “need not make a specific finding on each and every one.” Nazar v. Nazar, 505 N.W.2d 628, 633 (Minn. App. 1993), review denied, (Minn. Oct. 28, 1993). In addition,Minn. Stat. § 518.17, subd. 1(a)(13) states that “the primary caretaker factor may not be used as a presumption in determining the best interests of the child.”
In this case, the evidence showed, and the district court acknowledged, the differing roles of the parents over time in taking physical care of the children as their respective work situations changed. While appellant appeared to be more responsible for the childrens’ physical care in the early years, this situation was modified as respondent cut back on her work hours and further changed as appellant struggled again with depression. The simple fact that appellant allegedly picked up the children more often from daycare does not by itself establish that he was their primary caretaker. Further, as the district court pointed out, the daycare records did not support his claim of such a high percentage of pickup time. Therefore, the district court did not err in finding that the primary caretaker role would not play a role in the determination of physical custody in this case.
Minn. Stat. § 518.17, subd. 1(9) requires that the court consider the physical and mental health of all individuals involved. But any disability of a proposed custodian, as defined in Minn. Stat. § 363.01 (2000), shall not be determinative of custody “unless the proposed custodial arrangement is not in the best interests of the child.” Minn. Stat. § 518.17, subd. 1(9).
“Disability” means 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) who is regarded as having such an impairment.
Minn. Stat. § 363.01, subd. 13. Although the district court made no finding as to whether it considered appellant a disabled person, even if appellant’s depression were to be considered a disability, the court is not precluded from considering it to the extent that it would have an impact on the ability of appellant to raise the children. See, e.g., Schumm v. Schumm, 510 N.W.2d 13, 15 (Minn. App. 1993) (district court properly considered mother’s depression, because it was examined “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) (district court properly considered evidence of mother’s depression under Minn. Stat. § 518.17).
The record reflects that appellant’s mental illness, while not determinative, could have an adverse effect on his ability to parent the parties’ children. Marcia Young, the neutral custody evaluator, reported that she had the overall sense that appellant was minimizing his depression and that his mental health was a risk factor. Dr. Gilbertson, appellant’s expert, reported that appellant was vulnerable to repeat episodes of depression. Dr. Phipps-Yonas, respondent’s expert, testified that after a person has had three episodes of major depression, the chance of having another episode is 90%. The court observed appellant’s demeanor on the witness stand and found that he minimized his depressive episodes.
The parties’ children are now 12 and almost 7 years old. It does not appear that the district court erred in finding that appellant is not capable of recognizing the symptoms of the onset of another such episode and that the children are too young to take responsibility for recognizing such symptoms and reporting them. Therefore, the court’s determination that the best interests of the children would be best served by placing physical custody with respondent was not an abuse of discretion.
In his reply brief, appellant included a scholarly article concerning the psychological effects of joint custody and sole custody arrangements on child adjustment. Respondent moved to strike this article on the grounds that (1) it was not part of the appellate record, (2) it did not meet the requirements for appellate admissibility, and (3) it violated Minn. R. Civ. App. P. 128.02 and was prejudicial to respondent.
The general rule is that this court will strike documents included in a party’s brief that are not part of the appellate record. Fabio v. Bellomo, 489 N.W. 2d 241, 246 (Minn. App. 1992), aff’d., 504 N.W. 2d 758 (Minn. 1993). But the reviewing court may consider cases, statutes, and publicly available articles that were not presented to the district court. Fairview Hosp. v. St. Paul Fire & Marine Ins. Co., 535 N.W. 2d 337, 340 n.3 (Minn. 1995). There is no indication that this article was not publicly available. Therefore, under this criterion the article may be properly admitted. But Minn. R. Civ. App. P. 128.02, subd. 3, provides that “[t]he reply brief must be confined to new matter raised in the brief of the respondent.” Further, the comment to rule 128.02 states that “[t]he reply brief should be confined to strict rebuttal and should not contain a re-argument of matters discussed in the appellant’s brief.” Minn. R. Civ. App. P. 128.02 1967 advisory comm. note. Respondent did not raise the issue of joint custody as a new matter in her brief, and the article merely reiterates the arguments in appellant’s initial brief. Therefore, we grant respondent’s motion to strike the article in question, which played no part in the decision in this case.
Affirmed; motion granted.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.