This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
In re: Ronnie Giles, Sr.,
Denise L. Giles,
Filed April 8, 2003
Hennepin County District Court
File No. DC260549
Lateesa T. Ward, Cassandra K. Ward Brown, Ward & Ward, LLC, 2520 Park Avenue South, Carriage House, Minneapolis, MN 55404 (for respondent)
Bruce E. Brody, 3300 County Road 10, Suite 414, Brooklyn Center, MN 55429 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Willis, Judge, and Anderson, Judge.
G. BARRY ANDERSON, Judge
Appellant challenges the award of sole legal and physical custody of the parties’ two children to respondent, the determination of child support based on imputed income, and the refusal to award a retroactive increase in child support. We affirm the award of custody and reverse and remand the district court’s child-support order.
Appellant Denise Giles and respondent Ronnie Giles were married in June 1994. Two children were born during the marriage. The parties began having marital problems in the spring of 2000 and instituted an in-home separation; the parties lived in the same home, but respondent slept in the basement. In July 2000 appellant obtained an order for protection against respondent. The district court later dismissed the order for protection after an evidentiary hearing. Following the hearing, upon learning that appellant planned to go back to school, the district court cautioned appellant against quitting her job to pursue her bachelor’s degree full-time.
In September 2000 respondent moved out of the family home and sought to dissolve the marriage. In December 2000 the district court issued a temporary order granting joint legal custody, but giving appellant sole physical custody, of the parties’ two children. The district court also set a fairly detailed visitation schedule and ordered respondent to pay child support.
The dissolution process was very contentious. After the temporary order was issued, respondent went to appellant’s house to pick up the children for visitation and appellant refused to let him visit with the children, stating that she had not received her copy of the order. Respondent called the police and was forced to return to court to enforce his rights under the temporary order. The parties unsuccessfully participated in mediation.
An evaluator with the county’s family-court-services division conducted an investigation to help the district court resolve the custody issues. The evaluator met several times with the parties, watched them interact with the children, and spoke with some of the children’s daycare providers and teachers. The evaluator concluded that although both appellant and respondent are good and loving parents, appellant did not foster respondent’s relationship with the children. Therefore, the evaluator recommended that respondent be granted sole legal and physical custody.
Besides the parties themselves, the evaluator was the only other witness to testify at trial. There was evidence at trial that while appellant had been the primary caretaker during the separation, during the marriage the parties shared parenting duties, including providing transportation, preparing meals, bathing, putting the children to bed, and helping them with homework.
Much of the testimony at trial centered on appellant’s inability to cooperate with respondent in the raising of their children. There was evidence that she failed to inform respondent of her unilateral changes in the younger child’s day care arrangements. A childcare worker at that child’s former preschool was told by appellant not to tell respondent where the child had been moved. The evaluator reported that appellant was very secretive concerning the flow of information to respondent. The evidence also showed several other instances when appellant did not keep respondent informed of important events in the children’s lives, including doctors’ appointments, school events, and birthday parties. She also did not include respondent on emergency pick-up lists at school. When the evaluator asked appellant about these lapses, she responded that if respondent wanted information about the children, he should not have “walked out on them.”
There was also evidence this discord adversely affected the children. The older child was saddened by the lack of time he spent with respondent, but the evidence also showed that after a difficult adjustment period, the children had adjusted well to their new home living with their mother and grandparents in Plymouth.
The district court dissolved the parties’ marriage, awarded respondent sole legal and physical custody of the children, and granted appellant liberal visitation. The district court held that the parents were relatively evenly matched in an analysis under the best-interests factors as set forth in Minn. Stat. § 518.17 (2002), with the exception of appellant’s unwillingness to encourage and permit frequent and continuing contact between respondent and the children. Citing appellant’s demeanor, language, and the evaluator’s report, the district court concluded that appellant had a great deal of anger toward respondent that prevented her from fostering the relationship between respondent and the children.
Additionally, the district court found that appellant was voluntarily unemployed and ordered her to make child-support payments. The district court acknowledged that appellant was a full-time student. The district court also concluded that appellant had quit her job after the court had specifically advised her not to do so. The court held that appellant could find full-time employment, imputed to appellant her previous salary of $14 per hour, and ordered her to make $556.59 in monthly support payments. The district court made no mention of appellant’s motion to retroactively increase respondent’s support obligation and neither party made any post-trial motions. This appeal followed.
Appellant raises several issues on appeal, including challenging the district court’s decision to award respondent sole legal and physical custody, finding that she was voluntarily unemployed and imputing her last salary to her when setting her support obligation, and refusing to order a retroactive increase in respondent’s support obligation.
Generally, the standard of review when considering these and similar issues is whether the district court abused its discretion. See Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (district court has broad discretion when setting support and its decision will only be set aside if it abuses that discretion); Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App. 1997) (stating that a district court’s decision concerning custody will only be reversed if the court abused its discretion). But where a party fails to move for a new trial, we only ask whether the evidence presented to the district court sustains the district court’s findings of fact and whether the district court’s findings support its conclusions of law. Veit v. Veit,413 N.W.2d 601, 604 (Minn. App. 1987).
Appellant first contests the district court’s decision to award respondent sole legal and physical custody. The district court must base its determinations of child custody on the best interests of the child. Minn. Stat. § 518.17, subd. 3 (2002). When considering what is in the best interests of a child, the district court must make detailed written findings reflecting consideration of the factors set forth in Minn. Stat. § 518.17, subd. 1. Rogge v. Rogge, 509 N.W.2d. 163, 165 (Minn. App. 1993), review denied (Minn. Jan. 28, 1994). Further, before awarding joint custody, the district court must consider the additional factors set out in Minn. Stat. § 518.17, subd. 2. Veit, 413 N.W.2d at 605. Although the district court must consider all the factors listed in Minn. Stat. § 518.17, it is not required to make specific findings on each factor. Nazar v. Nazar, 505 N.W.2d 628, 633 (Minn. App. 1993), review denied (Minn. Oct. 28, 1993) superceded by statute on other grounds Minn. Stat. § 518.551, subd. 5b(d). But effective appellate review is possible only when the district court has made sufficiently detailed findings showing consideration of all relevant factors required by the statute. Stich v. Stich, 435 N.W.2d 52, 52 (Minn. 1989).
Review here is made difficult by the absence of detailed findings. The district court made only a passing reference to the statutory criteria it was obligated to consider in stating
[b]oth parents are relatively evenly matched in their parenting skills with regard to the substantial majority of the “best interest” factors set forth in Minn. Stat. § 518.17, with one exception, “the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the children.”
The district court then found that appellant had a great deal of anger toward respondent that prevented her from fostering a positive relationship between the children and respondent. The district court held it was not in the best interests of the children for appellant to have legal custody, given her attitude toward respondent, and that the district court was confident that respondent was capable of fostering appellant’s relationship with the children. The district court then concluded that the parties were unable to communicate and that joint legal custody was inappropriate, and awarded respondent sole legal custody.
The district court here adopted the family court evaluator’s extensive report but, as appellant notes, some of the material forming the basis of the report was not current and the evaluator did a less than thorough investigation of some of respondent’s allegations. Additionally, appellant testified at length about steps she took to cooperate with respondent and to keep him informed about important events in the lives of their children.
Joint legal custody is presumed to be in a child’s best interests. Minn. Stat. § 518.17, subd. 2. But joint legal custody is only appropriate when the parents are able to cooperate with one another. Estby v. Estby, 371 N.W.2d 647, 649 (Minn. App. 1985). Where the evidence indicates that the parties lack the ability to effectively communicate and cooperate concerning the upbringing of their children, the district court should not order joint legal custody. Compare Wopata v. Wopata, 498 N.W.2d 478, 482 (Minn. App. 1993) (where there was significant animosity between the parents that prevented them from working together, andthe parents used the children as weapons against each other, joint legal custody was not appropriate), and Estby, 371 N.W.2d at 649 (joint custody is not appropriate where two parents could not cooperate effectively enough to make collective parenting decisions and were unwilling to communicate with each other), with Rosenfeld v. Rosenfeld, 529 N.W.2d 724, 726 (Minn. App. 1995) (where, despite their animosity toward each other, parents who had their children’s best interests at heart, recognized the importance of the children’s relationship with the other parent, and tried to conduct themselves in a manner so as to minimize the impact of the divorce on the children, joint legal custody was appropriate).
While the evidence is hardly overwhelming, the record nevertheless ultimately supports the district court’s custody determination. After the temporary order was issued detailing a visitation schedule, respondent still was forced to seek the assistance of the police and the courts to enforce his rights. The record shows that when the visitation schedule was finally worked out, appellant still acted in a manner that was inconsistent with fostering good relations between respondent and the children. Likewise the record also contains evidence that appellant did not put respondent on the children’s emergency contact or pick-up lists at day care and school. She frequently did not inform respondent of doctors’ appointments and other important events or informed him at the last minute.
Further evidence produced at trial showed that appellant had made several statements casting doubt on her willingness to work cooperatively with respondent. When the evaluator asked appellant why she had not been more forthcoming in presenting information to respondent, she replied that if respondent wanted to be kept abreast of developments, he should not have “walked out on them.” A day-care employee told the evaluator that appellant was very clear that the day-care staff should not tell respondent the location of the new day care.
The record reflects that appellant withheld information from respondent, was unwilling to cooperate with him in making significant decisions concerning the children’s education, and denied him visitation. Based on this record, we conclude that the evidence supports the district court’s decision to grant respondent sole legal and physical custody and affirm that ruling.
Appellant next argues that the district court abused its discretion in using an imputed salary in setting her support obligation. The district court acknowledged that appellant was a full-time student, but noted she had gone back to school after a previous warning by the district court not to do so. Further, the district court found that at the time the dissolution order was issued, appellant had already received her associate’s degree and was only attending school one night per week, so the district court saw no reason why she could not find full-time employment making at least her former salary of $14 per hour.
These findings are unsupported for several reasons. The district court made much of the fact that following the evidentiary hearing in July 2000, on appellant’s petition for a protective order, it warned appellant not to quit her job. But the district court offered no explanation why it felt it had the authority to give this advice or, more importantly, why it proceeded as if such advice had any preclusive effect.
We first note that this comment was made off the record after an evidentiary hearing during an order-for-protection proceeding, before either party had filed for dissolution and is thus arguably unrelated to this matter. Additionally, temporary orders serve the limited function of preserving the status quo until the district court can decide contested issues on their merits. Korf v. Korf, 553 N.W.2d 706, 709 (Minn. App. 1996). The final dissolution of a marriage is not limited by a temporary order. In re J.M.K., 507 N.W.2d 459, 461 (Minn. App. 1993). Moreover, the statute governing temporary orders states that such orders “[s]hall not prejudice the rights of the parties[.]” Minn. Stat. § 518.131, subd. 9(a) (2002).
Finally, and perhaps most significantly, the district court’s findings do not properly take into account the required statutory factors to impute income. Although the district court made passing reference to the fact that appellant was in school, it failed to recognize or discuss that appellant’s temporary period of unemployment may enable her to further her education so she may provide for a more financially secure future for her family. Minn. Stat. § 518.551, subd. 5b(d) (2002).
Similarly, the district court did not analyze appellant’s education, training, skills, and employment history. We cannot say that the finding that appellant could earn $30,000 annually is supported by the record. We therefore reverse and remand this issue for a determination of child support to be paid by appellant. Veit, 413 N.W.2d at 605-607. On remand, the district court shall have discretion to reopen the record regarding support.
Appellant also argues that the district court’s failure to issue a decision on her motion to increase respondent’s child-support obligations retroactively was erroneous. But as respondent correctly points out, appellant did not raise this issue in a post-trial motion. Generally, when the district court does not issue a ruling and there is no post-trial motion, this court will not consider the matter. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
Even if we were to review this matter, we would still conclude that the record supports the district court’s ruling. Appellant is correct that respondent’s history of fabricating his income when it suits his purposes, such as when applying for a loan or an apartment, makes him less credible when he assured the district court he was accurately disclosing his income to the district court. But he did testify about his income level and produced several documents that supported his claims. That evidence is sufficient to uphold the district court’s refusal to order a retroactive increase in respondent’s support obligation.
Finally, respondent has also moved to strike portions of appellant’s appendix that attempt to summarize the record. Respondent argues that because the transcript was available, appellant’s summary of the record is improper. Appellant has submitted a letter brief to this court. The rules of civil appellate procedure require that the letter briefs contain a concise statement of appellant’s argument, a proper appendix, and be informally bound by a staple. Minn. R. Civ. App. P. 128.01, subd. 2. Appellant’s brief fulfills these obligations.
Respondent contends that appellant has included items in her appendix not listed in Minn. R. Civ. App. P. 130.01, subd. 1. Appellant provides impermissible summaries in her appendix summaries. We therefore grant respondent’s motion and strike the offending material, which played no role in our determination of this matter.
Finally, alleging that appellant’s appeal is baseless and filed simply to harass him, respondent also seeks attorney fees. The decision to award fees lies within the discretion of this court. LaChappelle v. Mitten, 607 N.W.2d 151, 167 (Minn. App. 2000), review denied (Minn. May 16, 2002). The animosity between the parties is obvious. But on these facts, which include fairly evenly balanced evidence on the issue of custody, we cannot say respondent has demonstrated that an award of fees is appropriate and we deny the request.
 Appellant also contends that the district court disregarded her role as primary caretaker of the children during the marriage and separation in granting respondent sole custody. But a right to custody cannot be prejudiced by a temporary custody order. Minn. Stat. § 518.313, subd. 9(a) (2002). Moreover, the primary caretaker is determined from the time of separation, not dissolution. Sefkow v. Sefkow, 427 N.W.2d 203, 211 (Minn. 1988). Here the record reflects that during the marriage both parties participated in the care of the children.