This opinion will be unpublished and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

A03-96

 

 

In re the Marriage of:

James Joseph Rakos,

petitioner,

Appellant,

 

vs.

 

Tami Colleen Rakos,

Respondent.

 

 

Filed August 19, 2003

Affirmed;

motion to strike granted in part and denied in part;

motion for fees denied
Forsberg, Judge*

Dissenting, Anderson, G. Barry

 

Hennepin County District Court

File No. 256393

 

 

Jon G. Sarff, Sarff & Sarff, 100 East Walnut Street, Mankato, MN 56001 (for appellant)

 

Debra E. Yerigan, Kimberly A. Ross, Rider Bennett, LLP, 333 South Seventh Street, Suite 2000, Minneapolis, MN 55402 (for respondent)

 

            Considered and decided by Hudson, Presiding Judge, Anderson, Judge, and Forsberg, Judge.

 

UNPUBLISHED OPINION

FORSBERG, Judge

In this appeal of a custody determination, appellant argues that the district court improperly awarded joint physical custody because the parties are unable to cooperate and because respondent has a history of domestic abuse and psychological problems.  Because the record supports the district court’s award of joint physical custody and commensurate child support, we affirm.

FACTS

            Appellant James J. Rakos and respondent Tami C. Rakos were married on April 20, 1996, and their daughter E.M.R. was born on July 20, 1998.  Two weeks before E.M.R.’s second birthday, the parties separated, and their marriage was dissolved by judgment and decree on October 25, 2001.  The parties stipulated to joint legal custody, and the district court reserved the issues of permanent physical custody and child support for future determination.  Appellant was awarded temporary sole physical custody of E.M.R., but under the temporary order, respondent’s parenting time was nearly equal to that of appellant.

            Each of the parties described respondent’s past instances of domestic abuse and her mental health problems.  Respondent was diagnosed with a psychological condition identified as adjustment disorder with mixed anxiety and depressed mood; the district court ordered her to obtain treatment.

            These past incidents have had no apparent effect on E.M.R., who is happy, intelligent, and well adjusted.  Both parties acknowledge that E.M.R. has done well with the temporary parenting schedule, consisting of frequent contact with each parent, and each has noted that E.M.R. is comfortable in both homes.  She has a close relationship with both parents, and she has positive interactions with her day-care provider and with her extended family in both households.  In the words of her day-care provider, “[E.M.R.] loves life and life loves [E.M.R.].”

            The parties live in the same city and both are within a short distance from E.M.R.’s day-care provider and future school.  The parties share similar values regarding education, health care, and religious training.  Hennepin County Family Court Services evaluator Dorothy Delegard prepared a custody evaluation and initially concluded that E.M.R.’s best interests would be served by joint legal and physical custody.  Delegard noted that this determination should be contingent on respondent’s participation in therapy to address her anger and jealousy issues.  After the district court later ordered Delegard to update her evaluation, she ultimately recommended that appellant be awarded sole physical custody.

            On September 23, 2002, the district court awarded joint physical custody and set support under the Hortis/Valento formula.  It based its decision, in large part, on E.M.R.’s success under the temporary arrangement.  The court took as true appellant’s testimony regarding domestic abuse and psychological issues but concluded that therapy, coupled with the marriage dissolution, would reduce or eliminate those issues.  It also noted that joint physical custody would facilitate continuity in E.M.R.’s care.  Appellant moved for reconsideration of the amended judgment and decree, for amended findings and conclusions of law, and to compel respondent to permit E.M.R. to attend preschool.  Appellant’s motions were denied; no motion for a new trial was made.  This appeal followed.

DECISION

            The district court has broad discretion in determining custody matters.  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989).  Appellate 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).  The evidence must be viewed in the light most favorable to the district court’s findings.  Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn. 1993).  The court’s findings must be sustained unless they are clearly erroneous.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).  A finding is clearly erroneous if an appellate court is left with the “definite and firm conviction that a mistake was made.”  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).  Where, as here, a party does not move for a new trial, an appellate court asks only whether the evidence presented at trial sustains the findings of fact and whether these findings support the conclusions of law.  Veit v. Veit, 413 N.W.2d 601, 604 (Minn. App. 1987).

I.  Award of Joint Physical Custody

            Appellant first argues that the district court abused its discretion by awarding joint physical custody.  The guiding principle in all child custody cases is whether the arrangement would be in the best interests of the child.  Pikula, 374 N.W.2d at 711.  In determining whether to grant joint custody, one factor to be considered is whether domestic abuse has occurred between the parents.  Minn. Stat. § 518.17, subd. 2(d) (2002).  Where there is evidence of a history of domestic abuse, as defined in Minn. Stat. § 518B.01, subd. 2(a) (2002), there is a rebuttable presumption that joint legal or physical custody is not in the best interests of the child.  Minn. Stat. § 518.17, subd. 2(d).  If, despite the history of domestic abuse, a district court awards joint legal or physical custody, that court must make detailed findings for each of the factors in Minn. Stat. § 518.17, subd. 2, and it must explain its conclusion that joint custody would be in the child’s best interests.  Id.

            A.         History of Domestic Abuse

            Appellant points to respondent’s prior mental-health problems and her history of domestic abuse, arguing that the court did not consider the risk that respondent may engage in domestic abuse in future relationships and the effect this might have on E.M.R.  See Schumm v. Schumm, 510 N.W.2d 13, 15 (Minn. App. 1993) (holding that parent’s mental or physical condition is relevant to custody determinations if that disability affects child’s best interests).

            The district court found that there was a history of domestic abuse, as defined by Minn. Stat. § 518B.01, subd. 2(a), but it made detailed findings supporting its conclusion that respondent had successfully rebutted the presumption against joint physical custody.  It found that most of the factors listed in Minn. Stat. § 518.17 were neutral, favoring neither parent.  The court noted that respondent has readily participated in therapy, and the evaluator reported that the therapy has not revealed any reason to limit respondent’s parenting role.

            The record supports the court’s finding that respondent has successfully addressed her problems through therapy.  No domestic abuse had occurred since the parties’ separation almost two years earlier, and the prior abuse did not have any negative effect on E.M.R, who has equally split time between her separated parents for all of her cognitive life.  The court emphasized each parent’s acknowledgement that E.M.R. has a warm and loving relationship with the other parent.  It found that “the most cogent, compelling, undisputed fact presented in this case [is that] E.M.R. is thriving under the existing arrangement that mimics joint physical custody.”  The court concluded that this is an exceptional case where joint physical custody, similar to the temporary arrangement in effect after the separation, would be in the child’s best interests.

            Appellant also speculates that respondent’s therapy could not have been successful in only six sessions.  Although this argument might appear reasonable on its face, there is no evidence before us to contradict the district court’s finding that respondent has not experienced any parenting problems since the separation.  Further, the evaluator stated that analysis of respondent “has not revealed any reasons to limit her parenting role.”  Absent substantial evidence to the contrary, we will not reverse the district court’s finding.

            Next, appellant contends that because the district court accepted appellant’s testimony regarding domestic abuse, it abused its discretion by giving more weight to the therapist’s opinion than that of the custody evaluator.  This court views evidence in the light most favorable to the district court’s findings and defers to a district court’s credibility determinations.  Prahl v. Prahl, 627 N.W.2d 698, 707 (Minn. App. 2001).  Considering the district court’s broad discretion in deciding evidentiary matters, the court did not err by placing undue weight on the therapist’s opinion. 

            B.         Parties’ Ability to Cooperate

            Appellant also argues that the district court abused its discretion in granting joint physical custody because the parties have demonstrated an inability to communicate.  See Minn. Stat. § 518.17, subd. 2(a) (requiring court to consider “ability of parents to cooperate in the rearing of their children”).  But appellant fails to acknowledge the parties’ earlier stipulation to joint legal custody and their history of cooperation with regard to E.M.R.  The district court acted within its discretion in finding that under the temporary schedule, the record is “markedly devoid” of evidence that an inability to cooperate has adversely impacted E.M.R.

            C.        Child’s Best Interests

            Appellant contends that most of the best-interests factors found in Minn. Stat. § 518.17, subd. 1(a) (2002), weigh against granting joint custody.  But the record supports the district court’s determination that the best-interests factors are neutral.  In particular, the record supports the determination that the two most disputed factors—the primary caretaker and the mental and physical health of the individuals—favor neither appellant nor respondent.

            Although appellant has been the primary caretaker under the temporary award of physical custody, a court shall determine which parent is the primary caretaker at the time of the parties’ separation.  Pikula,374 N.W.2d at 714.  The court did not clearly err in its findings that respondent was slightly more involved before the parties’ separation and that after the separation, both parties participated in the care-giving role with nearly equal parenting time.

The district court also carefully evaluated the mental and physical health of the parties.  It noted that respondent attended counseling sessions and that her therapist has not given any reasons to limit her parenting role.  The court did not err in finding that the record lacks credible evidence that respondent has had any parenting problems since the parties separated.

            The record supports the district court’s findings that E.M.R. has flourished in an environment where she splits her time between the homes of her mother and father, and those findings support the court’s conclusion that joint physical custody is appropriate.

II.  Child Support

Appellant argues that because the district court abused its discretion in awarding joint physical custody, it similarly erred in granting the corresponding amount of child support under the Hortis/Valento formula.  To determine a party’s child support obligation, a district court must apply the child support guidelines in Minn. Stat. § 518.551, subd. 5(b) (2002).  Each parent becomes the obligor during the time the child is in the physical custody of the other parent.  See Valento v. Valento, 385 N.W.2d 860, 862-63 (Minn. App. 1986), review denied (Minn. Jun. 30, 1986); Hortis v. Hortis, 367 N.W.2d 633, 635-36 (Minn. App. 1985).  For joint physical custody cases, the guideline child support amount for each parent is calculated under Minn. Stat. § 518.551, less the amount offset by the Hortis/Valento formula.  Schlichting v. Paulus, 632 N.W.2d 790, 792-93 (Minn. App. 2001).

            As we held above, the record supports the district court’s findings and conclusions of law.  Accordingly, it did not err by awarding the amount of child support appropriate under Schlichting.

III.  Child Care Determination

            Appellant briefly argues that the district court erred by declining to order the parties to continue sending E.M.R. to pre-school.  This argument was first brought before the district court in appellant’s motion for amended findings, and the district court reserved the issue because neither party provided sufficient documentation on the issue.  Appellant provides no legal or factual support for its argument.  The district court acted within its discretion by concluding that the record contains insufficient evidence to decide the issue.

IV.  Motions to Strike

            Respondent moved to strike a medical report included in the appendix to appellant’s brief that was not formally admitted into evidence, but to which the district court and the custody evaluator both referred.  This court cannot base its decision on matters outside of the record on appeal.  Holtberg v. Bommersbach, 235 Minn. 553, 554, 51 N.W.2d 586, 587 (1952).  “The papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.”  Minn. R. Civ. App. P. 110.01.  Before trial, appellant filed a medical report from Hennepin County Family Services to which respondent objected; the objection was not sustained.  The district court admitted evidence en masse, including the disputed report, and referred to the medical report in its amended judgment and decree.  Because the district court did not exclude the report from its record, the report remains a part of the appellate record.  Therefore, respondent’s motion to strike the medical report is denied.

            Respondent also moved to strike from the appendix to appellant’s brief a letter from her psychologist.  Appellant moved to admit the letter at trial, but the district court sustained respondent’s objection to its admission.  Nonetheless, appellant referred to the letter in his appellate brief and appendix.  Documents not included in the district court record, and all references to those documents, shall be stricken from an appellate appendix and brief.  Losoya v. Richardson, 584 N.W.2d 425, 430 (Minn. App. 1998).  Because that letter was not admitted to the trial court record, respondent’s motion to strike the letter and all references to it is granted.

            Respondent moved for an award of attorney fees on appeal.  Because respondent cites no authority and provides no support for her request for attorney fees, the motion is denied.  Cf. Geske v. Marcolina, 624 N.W.2d 813, 819 n.7 (Minn. App. 2001) (noting that there are “numerous” possible bases for attorney fees in family matters).

            We hold that the record, viewed in the light most favorable to the district court’s findings, supports the court’s awards of joint physical custody and child support.  We grant respondent’s motion to strike her psychologist’s letter, deny her motion to strike the medical report, and deny her request for attorney fees.

Affirmed; motion to strike granted in part and denied in part; motion for fees denied.


 

 

G. BARRY ANDERSON, Judge (dissenting)

            I respectfully dissent.

            Minnesota courts have consistently expressed a strong preference against joint physical custody, holding that because of the “divisiveness inherent in such a scheme,” such arrangements are appropriate “only in exceptional cases.”  Brauer v. Brauer, 384 N.W.2d 595, 598 (Minn. App. 1986).  Of particular significance is the effect that joint physical custody has on young children:

Regularity in the daily routine of providing the child with food, sleep, and general care, as well as stability in the human factors affecting the child’s emotional life and development, is essential, and it is difficult to attain this regularity and stability where a young child is shunted back and forth between two homes. 

 

Id. (quotation omitted). 

When contemplating a joint-physical-custody award, Minn. Stat. § 518.17, subd. 2(a) (2002), mandates that the district court examine the ability of the parents to cooperate in the rearing of their children.  The district court and the majority conclude that the parties here have sufficiently demonstrated their ability to cooperate because their only child, E.R., was not adversely affected by the previous custody arrangement (and by all accounts is otherwise doing well), which the district court found “mimics” joint physical custody.  I dissent because the weight of the evidence in the record does not support the finding that the parties have the ability to cooperate and because the similarities between the current custodial situation and the joint-physical-custody arrangement ordered by the court are not persuasive enough to overcome the presumption against joint physical custody.

It is undisputed that the relationship between the parties is strained, to put it mildly.  For example, respondent has demanded that appellant communicate with her only through a parenting notebook.  Further, the record is replete with evidence regarding conflict between the parties and the most recent custody evaluator has opined that these interactions continue to adversely affect the best interests of the child:

[The parties’] relationship continues to be strained much of the time and they distrust one another.  They are unable to consistently converse in a positive manner and find negative motives in one another’s request of alterations to [E.M.’s] schedule.

 

[Respondent’s] interactions with * * * [appellant] remain somewhat difficult and untrusting, * * * impacting her ability to be receptive to [his] views and to consistently cooperate as a parent.

 

While I recognize that the issue for the district court to consider is the ability of the parents to cooperate in the rearing of the child, rather than cooperation with each other, in this case those two goals are inextricably intertwined, and I believe the district court clearly erred in finding that the parties were, and could, cooperate with each other sufficient to award joint physical custody in this contested custody dispute.

The baseline principle for custody decisions is the best interests of the child.  Part of that analysis includes a consideration of the mental health of all the individuals involved in a custody dispute.  Minn. Stat. § 518.17, subd. 1(9) (2002); see also Schumm v. Schumm, 510 N.W.2d 13, 15 (Minn. App. 1993) (holding that a parent’s mental or physical disability is relevant to a custody determination if that disability affects the best interests of the child).  Consistent with this statutory requirement, the district court made detailed and well-developed findings regarding respondent’s emotional and mental-health history.  Among other things, the court found that respondent attempted suicide as a teenager, on separate occasions threatened to kill both of her now-former husbands, and has received counseling for anxiety and depression.  The district court expressly found that appellant’s description of respondent’s physical violence during their marriage was credible, and respondent’s denials were not credible.  But the district court’s conclusion that these issues had been largely resolved by respondent’s participation in six therapy sessions is simply not persuasive, and, additionally, there was expert evidence to the contrary in the record.  

Because the lack of cooperation and ongoing hostility between the parties interferes with their ability to cooperate in the raising of their child and because the best interests of the child are not served by a joint physical custody arrangement, I cannot conclude that this record supports the district court’s determination that this is the “rare case” where an award of joint physical custody would be appropriate, and I would reverse and remand to the district court for the purpose of awarding sole physical custody to appellant.

A word must be said about appellant’s argument that if sole physical custody were awarded to appellant, respondent’s parenting time should be significantly reduced.  The district court found that appellant’s motives in challenging the custodial arrangement were, at best, mixed and included a desire to improve his financial posture by requiring respondent to pay child support; further, the objective evidence supports the district court’s finding that the child is presently thriving.  Appellant’s position that there should automatically and necessarily be a significant reduction in respondent’s parenting time is neither reasonable nor supported by the record and the district court is in the best position to make whatever alterations are necessary in the parenting time arrangement between the parties.

 

 

 

 



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.