This opinion will be unpublished and

may not be cited except as provided by

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






In re:


Michael J. Wanke, petitioner,





Linda Ann Wanke,



Filed November 19, 2002


Harten, Judge


Dakota County District Court

File No. F7-99-8571


John G. Westrick, Tammy L. Merkins, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for appellant)


Linda R. Allen, Daniel R. Butler & Associates, P.A., 101 East Fifth Street, Suite 2330, St. Paul, MN 55101 (for respondent)


            Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N




            Appellant-mother challenges the grant of sole physical custody of the parties’ children to respondent-father, arguing that the record does not support various best-interests findings made by the district court.  Appellant also argues that the district court abused its discretion by awarding income tax exemptions to respondent and denying her request for attorney fees.  Because we conclude that there was no abuse of discretion, we affirm.


            Appellant Linda Wanke and respondent Michael Wanke were married for 18 years.  They have three children: C.W., now 18, A.W., 15, and M.W., 7.  In March 1999, appellant moved out of the parties’ home.  C.W. and A.W. continued to live with respondent, and the parties shared physical custody of M.W.  In December 1999, the district court granted respondent temporary physical custody of C.W. and A.W. and appellant temporary physical custody of M.W.  One year later, the district court granted respondent temporary physical custody of all three children.

            The district court appointed a guardian ad litem (GAL) to perform a custody evaluation.  The GAL recommended that physical custody of A.W. go to respondent and physical custody of C.W. and M.W. go to appellant.  Despite this recommendation, the GAL testified that there was an obvious bond between M.W. and his older brother, A.W.  This was supported by other testimony at trial: respondent’s friend testified that M.W. “looks up” to A.W. and follows everything A.W. does; respondent’s mother testified that A.W. was M.W.’s “hero” and that they were “very close and very loving brothers,” and respondent testified that A.W. and M.W. were “extremely close” and that separating them would be “devastating, especially for [M.W.].”

            Both parties have a close relationship with M.W., the only child whose custody is currently in dispute.[1]  Respondent testified that he spent a “tremendous amount of time” with M.W., watching movies, playing games, and spending weekends at a cabin owned by respondent’s friend.  Appellant testified that she picked up M.W. from school, scheduled and attended his academic functions, and attended his extracurricular activities.

            At trial, the parties agreed that respondent would have physical custody of A.W., but both parties requested physical custody of the other children.  The district court declined to follow the custody recommendation and granted physical custody of all three children to respondent.  The district court also awarded respondent the income tax exemptions for the children.  Appellant now argues that the district court abused its discretion by granting physical custody of M.W. to respondent, granting the income tax exemptions to respondent, and denying her request for attorney fees.


1.         Physical Custody

            A district court has broad discretion to provide for the custody of the parties’ children.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  Appellate court 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.[2]  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996).  A district court’s findings will be sustained unless they are clearly erroneous.  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).

The focal point in child custody decisions is the child’s best interests.  Schumm v. Schumm, 510 N.W.2d 13, 14 (Minn. App. 1993).  When determining the child’s best interests, the district court must review the factors listed in Minn. Stat. § 518.17, subd. 1(a) (2000).  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).  The district court made detailed findings on all of the statutory factors.  Appellant argues that the evidence does not support some of these findings.

            Appellant first challenges the district court’s finding that respondent was the primary caretaker.  Respondent testified that, when the parties lived together, they shared the parental duties.  “I would almost call it a 50-50 deal.  It was very close.”[3]

            Appellant next challenges the finding that M.W. was devastated when he was separated from the other children under the temporary custody order.  Respondent testified, however, that A.W. and M.W. had a very close relationship and that separating them would be devastating, especially to M.W.  Other witnesses testified that M.W. “looks up” to A.W., that A.W. is M.W.’s “hero,” and that they were “very close and very loving brothers.”  The evidence supports the district court’s finding.

Appellant also challenges the finding that being in her custody was detrimental to M.W.  Respondent testified that M.W. suffered a tremendous amount of stress, confusion, and negative feelings at that time.  We must defer to the district court’s determination on the credibility of witnesses.  Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).  Thus, the record supports the district court’s finding.

Appellant argues that the record would support findings other than the findings made by the district court on the comparative stability of the parties’ homes, the desirability of maintaining continuity in M.W.’s current stable environment, the health of the parties, respondent’s ability to continue educating M.W., and respondent’s willingness to permit continuing contact between M.W. and appellant.  But there is evidence supporting these findings, and the fact that the record might support other findings does not demonstrate that the district court’s findings are defective.  See Vangsness, 607 N.W.2d at 474 (citations omitted) (“[t]hat the record might support findings other than those made by the trial court does not show that the court’s findings are defective”).

Finally, appellant argues that the district court abused its discretion by failing to follow the recommendation of the GAL.  The district court stated:

The Court carefully considered the testimony and reports of the Guardian Ad Litem and the report of the consulting psychologist.  Notwithstanding that, the Court further finds, having carefully considered the best interests of the children * * * that the benefits of the children remaining together in the same residential homestead they have always known far outweigh any potential benefit, real or perceived, which might accrue from separating the siblings.


A district court does not abuse its discretion when it declines to follow a custody study recommendation.  Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991).  The district court made detailed findings on each of the best interest factors and explained its reasons for rejecting the GAL’s custody recommendation.  There was no abuse of discretion in awarding sole physical custody of M.W. to respondent.

2.         Income Tax Exemptions

            The allocation of federal tax exemptions is within the discretion of the district court.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. 18 Feb. 1999).  Appellant argues that it would be in the children’s best interests for her to receive the income tax exemptions for C.W. and M.W. because she cannot afford to provide for the children when they are with her.  But respondent has sole physical custody of all three children and is primarily responsible for expenses associated with their care.  The district court did not abuse its discretion by awarding the deductions to respondent.

3.         Attorney Fees


            “An award of attorney fees rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion.”  Id. (quotation omitted).  Such an award requires that the party from whom the fees are sought have the means to pay them.  Minn. Stat. § 518.14, subd. 1(2) (2000).

Appellant argues that the district court erred by failing to award her attorney fees because her expenses exceed her net income, which is less than respondent’s net income.  There is no evidence that respondent has the means to pay appellant’s attorney fees,
however, because his expenses also exceed his net income.  The district court did not abuse its discretion by denying appellant’s request for attorney fees.


[1] Appellant agrees that the custody of C.W. is now moot.

[2] Appellant relies on Maxfield v. Maxfield to argue that the appropriate standard of review is de novo, but appellant’s reliance is misplaced: Maxfield states that the district court’s conclusions on the “ultimate issues” are reviewed under an abuse of discretion standard.  Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn. 1990) (citation omitted).

[3] Minn. Stat. § 518.131, subd. 9 (2000), provides that a temporary order shall not prejudice the right of the parties.  Therefore, we do not consider the time period when the temporary order giving respondent temporary custody was in effect.