This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-02-1241

 

In re:

 

Wyatt Orendorf, petitioner,

Respondent,

 

vs.

 

Tammy Orendorf,

Appellant.

 

Filed March 11, 2003

Affirmed

Harten, Judge

 

Polk County District Court

File No. F6-96-1758

 

Tammy Orendorf, 512 East Prairie Street, Apt. 3, Warren, MN 56762 (appellant pro se)

 

Patti Jo Jensen, Galstad, Jensen & McCann, 411 Second Street Northwest, Suite D, East Grand Forks, MN 56721 (for respondent)

 

††††††††††† Considered and decided by Harten, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D†† O P I N I O N

 

HARTEN, Judge

 

Appellant mother, acting pro se, challenges the granting of respondent fatherís motion to modify custody of the partiesí child, the denial of her motion to remove the district court judge who granted the evidentiary hearing, and the setting of the amount of her child support obligation.† Because we see no abuse of discretion in any of these determinations, we affirm.

FACTS

 

††††††††††† Appellant Tammy Orendorf and respondent Wyatt Orendorf are the parents of D.O., now 17, and T.O., now 15.† The parties separated while the family was living in Germany, where respondent was serving in the army.† Appellant returned with the children to Minnesota.† Respondent still had five months to serve in Germany when the partiesí marriage was dissolved.† Appellant received physical custody of the children.

Appellant became involved in a relationship with Kenny Mendez; they had a child, D., in June 1998.† T.O. complained that appellant required her to spend a lot of time caring for D.

After his discharge from the army, respondent lived for a few months in Maryland, where D.O. and T.O. visited him during the summer of 1998.† Respondent then moved to Ohio, and the children visited him there in the summer of 1999.† During this visit, T.O. began bonding with respondentís new wife, Monika.† T.O. alone went to visit respondent and his wife during the summer of 2000, because circumstances prevented D.O., then 14, from making the trip.† T.O. did not want to return home from this visit; she expressed her desire to live permanently with respondent.

††††††††††† T.O., respondent, and respondentís wife all share an interest in horses.† When respondent and his wife married in 1999, she already had a horse; after they moved to a home where they could keep horses, they purchased a second horse for respondent. T.O. returned alone to visit respondent again in 2001 because D.O. wanted to take a driversí training course in Minnesota.† During one of T.O.ís visits, respondent and his wife heard from a friend asking if they were interested in looking at some horses available for purchase.† For $400, they bought a young, unbroken horse with the expectation that T.O. would care for it.†

††††††††††† T.O. became more insistent about wanting to live with respondent, and he moved for a change in her custody.† Pursuant to a temporary order, she remained in Ohio for the 2001-02 school year; except for occasional visits to appellant, she has now lived in Ohio since June 2001.†

Respondent was granted an evidentiary hearing on his motion and a guardian ad litem (GAL) was appointed for T.O.[1]† The GALís initial report in September 2001 was based on phone and fax contact with T.O., who said she had a good relationship with respondent and his wife and definitely wanted to live with them in Ohio, where she had made friends, participated in sports, and was doing well at school.† T.O. said she loved appellant, but could not live with her.

T.O. also said she had wanted to live with respondent since 1996, but was afraid to ask because ď[appellant] would really be mad at her.Ē† When asked how she felt about herself since the move to Ohio, T.O. replied,

I am happy, I feel loved, I love being here.† I like my school much more * * *, I feel safe, I feel needed and enjoy life now.† I sleep good at night and work hard all day.† People listen to me and donít judge me.† Iím not afraid, and I want to live with my father and stepmother in Ohio.† I know that I will not be screamed at or pushed around.† I know I will be happy.

 

The GAL recommended that T.O. be granted permission to live with respondent in Ohio and that T.O. begin therapy to deal with her feelings about appellant.

††††††††††† The GAL updated her report in February 2002.† She wrote that respondent and his wife reported that T.O. was happy, well adjusted in their home and community, active with friends, sports, and horses, and making good progress in school.[2]† The GAL provided a final update by giving the report of the therapist who was working with T.O.† The therapist stated:

[T.O.] reports much happiness and satisfaction with living with father and step-mother.† She has little desire to visit with [appellant] * * *.

 

* * * *

 

I do not believe that [respondent] or [his wife] have influenced her through intimidation to choose to live with them.† She enjoys working with horses and is planning to become part of 4H if time permits.† She is also hopeful of becoming part of the school track team.

 

Testimony at the hearing confirmed the GALís reports.†

The district court awarded physical custody of T.O. to respondent and set child support accordingly.† Appellant moved for modification of respondentís child support; the court re-calculated respondentís income for child support purposes and raised his obligation for D.O. from $761 to $887.†

This appeal followed.† Appellant contends that the district court abused its discretion in changing T.O.ís custody, in denying appellantís request to remove a second district court judge, and in setting appellantís child support obligation.

 

†D E C I S I O N

 

1.†††††††† Modification of Custody

 

††††††††††† 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.† Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).† A district courtís findings will be sustained unless they are clearly erroneous.† Id.

††††††††††† Minn. Stat. ß 518.18(d) (Supp. 2001) provides in relevant part that a court may not modify custody

unless it finds, upon the basis of facts * * * that have arisen since the prior order * * * that a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child * * * [and] unless

 

* * * *

 

(iv) the childís present environment endangers the childís physical or emotional health or impairs the childís emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.

 

The district court found an obvious and unrefuted change in circumstances: T.O.ís strong preference to live with respondent.† See Eckman v. Eckman, 410 N.W.2d 385, 388 (Minn. App. 1987) (affirming modification of custody when ď[t]he primary change in circumstances the court observed * * * properly included [the childís] preference to live with [the non-custodial parent]Ē).

††††††††††† The next question is whether modification is necessary to serve T.O.ís best interests.† The† district court did a complete analysis of the 13 best interest factors listed in Minn. Stat. ß 518.17, subd. 1 (2000).† It found that factor 11, cultural background, and factor 12, effects of an abuser, did not apply; that factor 1, the parentsí wishes, and factor 13, each parentís inclination to foster a relationship with the other, favored both parties, that factor 3, the childís primary caretaker, favored appellant, and that the other eight factors favored respondent.

Factor† 2 is the reasonable preference of the child.† No one disputes T.O.ís strong, longstanding, and often-repeated desire to live with respondent.

Factor 4 is the intimacy of the relationship with each parent.† The GAL reported that T.O.ís relationship with respondent was very good, and both the GAL and the therapist reported significant problems in her relationship with appellant.

Factor 5 is the interaction of the child with parents, siblings, and others.† The GAL reported that T.O. liked her brother D.O. but feared his mood swings, that she did not want to be a caretaker for her half-brother, and that she was very close to her stepmother, respondentís wife.†

Factor 6 is the adjustment of the child to home, school, and community.† School reports indicate that T.O. is doing better and enjoying school much more since she repeated the eighth grade when she moved to Ohio, that she has friends in respondentís community, and that she is happy in his home.†

Factor 7 is the length of time the child has lived in a stable environment.† T.O. has been living in Ohio with respondent since June 2001; both his home and his marriage appear to be stable.† Appellant has moved a number of times and has been involved in an unstable relationship.†

Factor 8 is the permanence of the proposed custodial home.† Respondentís home, job, and marriage appear to be solidly established.†

Factor 9 is the mental and physical health of all involved.† The district court noted that appellant (1) wrote the court making unsubstantiated accusations that respondent was paranoid, delusional, and seriously disturbed; (2) has filed lawsuits against the City of Crookston, her former supervisor, a social worker, the county social services department, and the school district; (3) told a psychologist that ďthe systemĒ was responsible for her son D.O.ís problems; and (4) testified that, if she had to have a psychological or psychiatric evaluation, ď[respondent] could keep [T.O.].Ē†

Factor 10 is the capacity of each parent to give the child love, affection, and guidance.† T.O.ís development and happiness since she moved to Ohio show that respondent has given her love, affection, and guidance; her life with appellant involved a good deal of strife, for which appellant made no effort to seek professional help.

††††††††††† The final consideration is whether living with appellant endangered T.O.ís emotional health.† When asked if she thought it would do emotional harm to T.O. to move back with appellant, the GAL answered, ďI definitely do.Ē

††††††††††† The district courtís findings have ample support; there is no basis to overturn the modification of custody.

2.†††††††† Removal of District Court Judge

††††††††††† Appellant sought to remove the judge who granted the evidentiary hearing because he had dismissed an earlier unrelated civil action she had filed.† Her request was properly denied because it was untimely: the judge had already conducted a hearing in this action.† See Minn. R. Civ. P. 63.03 (no notice to remove may be filed by a party against a judge who has presided at a motion or any other proceeding).†

3.†††††††† Child Support

††††††††††† This court reverses a district courtís decision on the modification of child support only when convinced that the district court abused its broad discretion and reached a conclusion that is against logic and the facts on the record.† Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999).† Because the district court changed T.O.ís custody from appellant to respondent, appellant became a non-custodial parent and child support obligor for T.O.

††††††††††† Appellant was unemployed at the time of the hearing.† She has a bachelorís degree and has completed most of the coursework for a masterís degree.† She testified that, for several years, she has been only sporadically employed.† The district court found that appellant could earn at least $7 per hour, imputed that income to her, and, based on that income, set child support for one child at $238 monthly.† Appellant does not persuasively justify her asserted inability to obtain employment and earn at least $7 an hour.† There was no abuse of discretion in setting her child support.

††††††††††† Affirmed.



[1] Appellant requested another GAL, and one was appointed; she then requested a third, and her request was denied.

 

[2] The GAL did not have input from appellant because neither she nor appellantís lawyer had been successful in persuading appellant to cooperate; the GAL stated that appellant† ďrefused to talk about the case and threaten[ed] to sue me if I investigate her * * * [or] her other children.Ē† She also testified, however, that appellantís behavior had not influenced her recommendation.