This opinion will be unpublished and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
Ron E. Hansen, petitioner,
Melissa M. Hansen,
Filed August 20, 2002
Waseca County District Court
File No. F7-00-567
Brian T. Pierce, Law Office of Brian T. Pierce, 310 First Street, P.O. Box 227, Jackson, MN 56143 (for appellant)
John H. McLoone, IV, McLoone & Kraus, 111 North State Street, P.O. Box 508, Waseca, MN 56093 (for respondent)
Considered and decided by Schumacher, Presiding Judge, Harten, Judge, and Shumaker, Judge.
Appellant challenges the denial of her motion for amended findings or a new trial, alleging that the district court abused its discretion in basing the award of custody of one of the parties’ children to respondent on findings unsupported by the record, in not finding respondent voluntarily underemployed, and in dividing the marital debt equally between the parties. Because we see no abuse of discretion, we affirm.
In 1991, appellant Melissa Hansen and respondent Ron Hansen were married. They have three children: H.H., born in 1993; B.H., born in 1994; and A.H., born in 1996. B.H. has been diagnosed with a form of autism; he has special needs as a result of this condition.
In 1999, to improve conditions for his family, respondent left his job with a local employer and began working for an employer 80 miles away where he earned $21.50 per hour. In August 2000, the parties separated. In September, respondent returned to the local employer and a lower wage of $17.50 per hour because the daily round trip of 160 miles meant that he had little time to spend with his children. The district court, however, used the higher wage respondent had been earning as the basis for a November 2000 temporary order that gave appellant physical custody, set respondent’s monthly child support at $1,360, and made respondent solely responsible for the parties’ debts.
In December 2001, following a custody evaluation and a trial, the district court ordered judgment that gave respondent physical custody of B.H., reduced his net child support payment to $266, and made appellant responsible for one-half the parties’ marital debt. Appellant challenged those determinations by moving for amended findings or a new trial; her motion was denied. She now appeals from the denial, arguing that each determination was an abuse of the district court’s discretion.
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). Review of a custody determination 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). Currently, the law “leaves scant if any room for an appellate court to question the trial court’s balancing of best-interests considerations.” Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000).
Appellant claims that the award of B.H.’s custody to respondent was an abuse of discretion for three reasons. First, appellant alleges that the evidence does not support the district court’s findings that a special bond exists between B.H. and respondent and that respondent is able to deal effectively with B.H. But ample evidence supports these findings. The custody evaluator stated that she had observed B.H. interact very well with respondent on her visit to respondent’s home, but was unable to watch B.H. interact with appellant because B.H. refused to come downstairs during her visit to appellant’s home. Early childhood special education teachers of H.H. and B.H. said that respondent “seemed to genuinely enjoy his time with the boys and the boys appeared more relaxed and happy around him” and that appellant “was angry at the staff for bringing up the possibility of [B.H.] being on the Autistic Spectrum Disorder Scale.” B.H.’s kindergarten teachers were “impressed with [respondent’s] insight into [B.H.’s] needs”; they said respondent seemed “more up front on issues and concerns regarding [B.H.],” “consistent with his parenting”, “more in touch with [B.H.’s] needs,” and “the more stable parent.” They also said that they “never saw [B.H.] so genuinely happy as when [respondent] took him on the kindergarten field trip.” A recreation supervisor said that respondent “seems to be a caring parent and he works well with [B.H.]”. Thus, evidence does support the findings of a special bond between B.H. and respondent and of respondent’s ability to care for B.H.
Second, appellant contends that the district court abused its discretion by not following the custody evaluator’s recommendation that appellant have custody of all three children. But not following a recommendation is not an abuse of discretion: “[c]ustody evaluations may be disregarded if outweighed by other evidence.” Mowers v. Mowers, 406 N.W.2d 60, 64 (Minn. App. 1987) (citing Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985)).
Moreover, the custody evaluator herself cited problems with her recommendation. She testified that she had no experience with autism other than handling this case and that she is opposed on principle to separating siblings.
I thought quite—for quite a long time about the possibility of separating the children, to be honest with you. I thought about having [B.H.] live with [respondent] and the other two children living with [appellant]. I always—I don’t like separating siblings because that’s the only stability that these children have known, known of. What I was thinking about that was that [B.H.]—that [respondent] seems to have a really good understanding of [B.H.]; that these are three really difficult children. [B.H.] and [H.H.] have in the past been difficult children to parent and an arrangement where the children could be together [only] every weekend and one time during the week might make it easier on both parents. That’s something that I thought about. I did not make that recommendation because, like I said, I just have a really hard time separating siblings.
Thus, the custody evaluator’s decision not to recommend the custody arrangement adopted by the district court was based on her disinclination to separate siblings, not on B.H.’s best interests.
Third, appellant argues that split custody is contrary to the law. But in appropriate circumstances, both this court and the supreme court have approved split custody. See, e.g., Maxfield v. Maxfield, 452 N.W.2d 219, 223 (Minn. 1990) (“[s]plit custody is not favored * * * [y]et * * * children come into this world one by one, and in deciding their future, this, too, must be decided one by one”); Sefkow v. Sefkow, 427 N.W.2d 203, 215 (Minn. 1988) (“[o]ther factors, such as bonding to a parent and stability of the home environment, outweigh the need for [siblings] to reside together”); Doren v. Doren, 431 N.W.2d 558, 561 (Minn. App. 1998) (“[when] other factors outweigh the need for siblings to reside together, split custody may be appropriate”); Kennedy v. Kennedy, 403 N.W.2d 892, 898 (Minn. App. 1987) (no abuse of discretion where court “[chose] not to separate the infant child from his mother, but [found] it best for the older children to be together in their father’s custody”). The district court did not abuse its broad discretion by splitting custody.
2. Child Support
A district court has broad discretion to provide for the support of the parties’ children. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). A district court’s findings on net income for purposes of child support will be affirmed on appeal, if those findings have a reasonable basis in fact and are not clearly erroneous. State ex re. Rimolde v. Tinker, 601 N.W.2d 468, 470 (Minn. App. 1999).
The district court found that:
[Respondent] earns * * * a net monthly income of $2006. * * *
Immediately prior to the commencement of these proceedings [respondent] was employed by [a different employer] earning a net income of $3885. [Respondent] credibly testified that [this] employment * * * was intended to generate more family income and allow [appellant] to remain in the marital home with the children. Due to separation and family issues, [this] employment was of relatively short duration. [Respondent] did not intend to stay at [this employment] when he discovered the lack of family continuity that it caused and, also, when he realized the employment hours and distance prohibited him from spending time with the parties’ children.
* * * The Court does not find that [respondent] terminated employment to reduce his support obligation but, rather, terminated employment in an effort to be more available to the children.
Appellant contends that the district court abused its discretion in not finding that respondent is voluntarily underemployed and in not imputing to respondent the income he earned when he worked 80 miles away. But Minn. Stat. § 518.551, subd. 5b(d) (2000), defines imputed income as:
[T]he estimated earning ability of a parent based on * * * availability of jobs within the community for an individual with the parent’s qualifications.
(emphasis added.) Respondent’s higher-paying job was not within his community; he had to travel 80 miles to find it. He was therefore driving 160 miles per day, or 800 miles per week, to get to and from work. He testified that he left that job “[t]o get back and be close to my family” and that his lower-paying job gave him “more time to be available to [his] children and spend time with them.” The district court did not clearly err in finding that he was not voluntarily underemployed.
Minn. Stat. § 518.551, subd. 5b(d), also excludes from the voluntarily underemployed both those whose underemployment is temporary and will lead to an increase in income and those whose underemployment results from a bona fide career change. Appellant argues that, because respondent is in neither of these categories, the district court had no discretion to find him voluntarily underemployed. She supports this argument with Franzen v. Borders, 521 N.W.2d 626, 629 (Minn. App. 1994) (holding that an involuntarily incarcerated individual was not voluntarily underemployed). But appellant’s argument is doubly defective: first, Franzen is clearly distinguishable on its facts, and second, the statute’s exclusion of two groups from the voluntarily underemployed cannot be construed to mean that everyone not in those groups is voluntarily underemployed.
Appellant provides no legal support for her view that a child support obligor must work outside the community if better-paying jobs are available there. Respondent testified that he returned to his lower-paying job to have more time with his children and the district court found his testimony credible. We see no basis to overturn the finding that respondent is not voluntarily underemployed.
3. Marital Debt
A district court has discretion to apportion the parties’ marital debt. Berenberg v. Berenberg, 474 N.W.2d 843, 848 (Minn. App. 1991), review denied (Minn. 13 Nov. 1991). Here, the district court divided the marital debt equally between the parties.
Appellant asserts that this was an abuse of discretion because, in a prior temporary order, the district court had made respondent responsible for the entire debt and “public policy requires courts to enforce their own orders in order to foster respect for the same.” This assertion implies that a district court cannot supercede its own temporary order in light of subsequent evidence; it would have the effect of making every temporary order a permanent order and making any proceedings subsequent to a temporary order irrelevant. Moreover, a temporary order is in effect only until “entry of a final decree of dissolution.” Minn. Stat. § 518.131, subd. 5 (2000).
At the time the district court ordered respondent to be responsible for the debt, it had also awarded appellant temporary physical custody of all three children and imputed income to respondent. In light of its post-trial award of custody of one child to respondent and its specific finding that respondent was not voluntarily underemployed and subject to an imputation of income, the division of debt is equitable.
There was no abuse of discretion in the custody award, in setting child support, or in dividing the marital debt.
 This amount is the difference between respondent’s $600 guideline obligation for H.H. and A.H. and appellant’s $334 guideline obligation for B.H.