This opinion will be unpublished and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

A03-390

 

 

In re the Marriage of:

Marilia E. Zellner, petitioner,

Respondent,

 

vs.

 

Ruon S. Sawyer,

Appellant.

 

 

Filed December 2, 2003

Affirmed; motion granted

Robert H. Schumacher, Judge

 

Hennepin County District Court

File No. DC 269391

 

 

Robert N. Schlesinger, Kelly McSweeney Loonan, Robert N. Schlesinger, P.A., 700 St. Paul Building, Six West Fifth Street, St. Paul, MN 55102 (for respondent)

 

Ruon S. Sawyer, 6417 Camden Avenue North, Suite 108, Brooklyn Center, MN 55430 (pro se appellant)

 

 

Considered and decided by Peterson, Presiding Judge; Schumacher, Judge; and Hudson, Judge.

 

U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Ruon S. Sawyer (father) appeals from the judgment dissolving the marriage with respondent Marilia E. Zellner (mother). The record supports the district court's findings of fact, which support the district court's conclusions of law. The court did not otherwise abuse its discretion in resolving these questions. We affirm and grant mother's motion for attorney fees on appeal.

FACTS

The parties married in May 1998, had a child in July 2000 and separated on July 20, 2001. Mother alleged domestic abuse occurred on that day and sought an order for protection against father. She reported a second incident of domestic abuse allegedly occurring on August 15, 2001. At the dissolution trial, the parties entered conflicting evidence on numerous issues. Ultimately, the district court awarded mother sole legal custody of the child, awarded the parties joint physical custody, directed father to pay mother a $3,000 property equalization payment, awarded mother $12,000 in attorney fees, and set a parenting schedule giving mother 71% and father 29% of the parenting time. Father challenges these decisions.

D E C I S I O N

1. Review of custody determinations is limited to determining whether the district court abused its discretion by making findings unsupported by the evidence or improperly applying the law. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996).

Father argues that the record does not support various findings of fact made by the district court in addressing the child's best interests. He also argues that the award to the parties of joint physical custody was the result of the district court misbalancing the statutory best-interests considerations. See Minn. Stat.  518.17, subd. 3(a)(3) (2002) (requiring district court to consider child's best interests when awarding custody); see also Minn. Stat.  518.17, subd. 1(a) (2002) (listing factors to be considered by district court when addressing child's best interests). On appeal, findings of fact are not set aside unless clearly erroneous. Minn. R. Civ. P. 52.01. The proper method for challenging a district court's findings of fact is set out in Vangsness v. Vangsness, 607 N.W.2d 468, 472, 474 (Minn. App. 2000). Where there is conflicting evidence, appellate courts defer to the district court's determinations of credibility and the weight to be given witness testimony. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988); General v. General, 409 N.W.2d 511, 513 (Minn. App. 1987) (superseded by statute on other grounds).

Here, the district court made detailed findings on each of the statutory best-interest factors, and review of the record shows that those findings are not clearly erroneous. See Wilson v. Moline, 234 Minn. 174, 182, 47 N.W.2d 865, 870 (1951) (stating appellate court need not "discuss and review in detail the evidence for the purpose of demonstrating that it supports the trial court's findings," and that its "duty is performed when [it] consider[s] all the evidence . . . and determine[s] that it reasonably supports the findings"); Vangsness, 607 N.W.2d at 474-75 & n.1 (applying Wilson). Also, no best-interest factors beyond those listed in the statute were explicitly argued to be relevant. See id., at 477 n.3 (noting Minn. Stat.  518.17, subd. 1(a), defines "best interests" as "all relevant factors . . . including" the statutorily listed factors and that case law rejects the idea that best-interests considerations are limited to those listed in the statute); In re Paternity of B.J.H., 573 N.W.2d 99, 102 (Minn. App. 1998) (rejecting arguments that child's best interests are limited to those considerations listed in the statute). Therefore, we cannot alter the custody award for reasons related to the best-interests findings or the balancing thereof. See Vangsness, 607 N.W.2d at 477 (stating that if custody decision is "supported by defensible findings that address relevant best-interests factors, . . . current law leaves scant if any room for an appellate court to question the [district] court's balancing of best-interests considerations").

Father also argues that a number of the district court's findings addressing questions other than the child's best interests are unsupported by the record. A similar analysis addresses those allegations. To the extent father asserts that the district court's findings are inadequate to explain how it reached its custodial and other decisions, we reject those assertions. The district court's 17-page, single-spaced amended judgment details what the district court did and why. The extent of the district court's findings also addresses father's arguments that more weight should have been given to evaluations by experts. See Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991) (stating district court can refuse to accept custody study's recommendation by expressing reasons for rejection or making detailed findings on factors that study examined).

Father also argues that the district court failed to make detailed findings on the primary parent factors listed in Pikula v. Pikula, 374 N.W.2d 705, 713 (Minn. 1985). But the district court made detailed findings on the best-interest factor of primary parent as well as related findings that address of many of Pikula's primary-parent factors. Not only does the record support these findings, but, after Pikula, the legislature twice amended the best-interests statute to remove Pikula's presumption that custody of a child too young to express a custodial preference should be placed with the child's primary parent. 1989 Minn. Laws ch. 248 2; 1990 Minn. Laws ch. 574, 13. Thus, even if the primary parent factor were to weigh in father's favor, it would not require that father be awarded physical custody here.

Father argues that, in addressing custody, the district court failed to comply with the portion of Minn. Stat.  518.17, subd. 1a (2002), requiring a district court to consider evidence of violations of Minn. Stat.  609.507 (2002), which prohibits false allegations of child abuse intended to affect a child-custody hearing. Father is incorrect. The district court specifically found that mother's domestic-abuse allegation "was made with the intent to gain an advantage in the dissolution proceeding." Thus, the district court considered mother's intent in making her allegation.

Father argues that the district court failed to explain the connection between its finding that mother is the child's primary parent and its custody decisions. On this record, the connection between finding mother the child's primary parent and the award to that primary parent of legal custody is self-evident. Because that connection is self evident, father could not be prejudiced by what he alleges is the district court's failure to explain the connection between the finding that mother is the child's primary parent and the award to the parties of joint physical custody. If there were prejudice, it was prejudice to mother (the primary parent), who was not awarded sole physical custody. Father was not prejudiced by any failure of the district court to make that explanation, therefore we need not address the issue. See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (stating that to prevail on appeal, party must show both error and that error caused prejudice).

Father also alleges that the award of joint physical custody is defective because the parties cannot cooperate. Joint physical custody is a disfavored custodial arrangement appropriate only in exceptional cases where the parties can cooperate. Rosenfeld v. Rosenfeld, 529 N.W.2d 724, 726 (Minn. App. 1995); Wopata v. Wopata, 498 N.W.2d 478, 483 (Minn. App. 1993). To award joint physical custody, the district court must make findings addressing the joint-physical-custody factors in Minn. Stat.  518.17, subd. 2. See Minn. Stat.  518.17, subd. 2 (2002) (stating where joint physical custody is sought "court shall consider" subdivision 2 factors). Review of this record shows that it supports the district court's finding that, despite the parties irreconcilable differences on certain issues, they have demonstrated an evolving ability to cooperate regarding the communication and other cooperation necessary for a functioning joint physical custody arrangement. Therefore, we reject this aspect of father's challenge to the joint physical custody award.

Father further argues the award of joint physical custody violates Gerardy v. Gerardy, 391 N.W.2d 915, 918 (Minn. App. 1986), review denied (Minn. Oct. 17, 1986). But a major portion of the Gerardy analysis focused on the district court's failure to apply the then-applicable Pikula analysis. Id. at 918-19. As noted, Pikula's impact on Minnesota custody law has been reduced by subsequent statutory amendments.

To the extent father argues that the award of joint physical custody is defective because it is an attempt to preclude the parties from moving away from Minnesota, we reject that argument for two reasons. First, the district court's findings that awarding either party sole physical custody would be contrary to the child's best interests because it could result in the custodian impairing the other party's access to the child is consistent with both parties' testimony that they were interested in leaving Minnesota. Second, if either party should leave Minnesota, custody and parenting time can be adjusted accordingly. See Minn. Stat.  518.175, subd. 5, .18 (2002) (addressing parenting time and custody modification).

Finally, father seems to argue that the award of joint physical custody is defective because of the extent of the parties' disagreements regarding "religion, education, and the child's upbringing." This argument is unclear. Religion, education, and upbringing are aspects of legal custody, not physical custody. Minn. Stat.  518.003, subd. 3(a) (2002). Therefore, those aspects of the child's life, even when the child is in the physical care of the party who is not the child's legal custodian, will be decided by the legal custodian.

2. Citing what he alleges are unanswered questions about mother's emotional health, father challenges the district court's denial of his motions for a physical or psychological examination of mother. In contested custody matters, a district court "may" order an investigation and report concerning custodial arrangements for the child. Minn. Stat.  518.167, subd. 1 (2002). Whether to do so is discretionary with the district court. Meyer v. Meyer, 375 N.W.2d 820, 826 (Minn. App. 1985), review denied (Minn. Dec. 30, 1985). This record includes evidence that both directly and indirectly addresses mother's emotional health over an extended period of time; not all of which reflects favorably on mother.

Based on the breadth and amount of this evidence however, we cannot say that the district court lacked the information necessary to resolve any concerns father may have raised about mother's emotional health. Therefore, father has not shown that the district court abused its discretion by denying his motions for an examination of mother.

3. Father argues the district court abused its discretion in awarding sole legal custody to mother. Joint legal custody is presumed to be in a child's best interests, but an inability of the parties to cooperate regarding a child is fatal to an award of joint legal custody. Minn. Stat. 518.17, subd. 2 (presumption); Wopata, 498 N.W.2d at 482 (holding inability to cooperate is fatal to joint legal custody). Here, the record supports the district court's finding that the parties cannot cooperate regarding the child's religion, among other things. Such an insoluble disagreement precludes an award of joint legal custody. Id.; see Minn. Stat.  518.003, subd. 3(a) (defining legal custody to include right to determine religious training).

While father argues that the district court should have awarded him sole legal custody, he does not argue that mother is an unsuitable legal custodian, only that he is a better legal custodian. Awarding sole legal custody to a person who is undisputedly an appropriate legal custodian cannot be an abuse of the district court's discretion. Moreover, to the extent that father argues that the district court awarded mother sole legal custody based on its inappropriate favoring of mother's religious views, we reject that argument. The record shows that the district court's decision was based on the fact that mother, unlike father, was willing to consider father's educational and religious views.

The district court stated that whether one party's religious view is more in the best interests of the child than the other party's view cannot be determined, but that it is in the child's best interests to be in mother's legal custody because she is more "flexible" and more willing to be considerate of father's views on these points than father is. Father alleges that these statements are inconsistent. We disagree. The district court's point is not that mother will find a way to reconcile the parties' irreconcilable differences, but that the conflict between the parties will be lessened if mother handles them rather than father. And it is undisputed that limiting parental conflict is in the child's best interests.

We also reject father's invocation of Johnson v. Johnson, 424 N.W.2d 85, 88-89 (Minn. App. 1988), to argue that the principle of religious continuity in the life of a child requires that he be awarded sole legal custody. This court's reversal of the Johnson custody decision was based on four district-court errors, including unsupported findings regarding where the father intended to live, unsupported findings regarding the oldest child's custodial preference, and the Johnson court's "[m]ost important" error, a misapplication of the Pikula primary parent analysis. Id. at 88. None of these three errors are present here. And, as noted, statutory amendments have removed the Pikula presumption. The last Johnson error was its failure to consider the fact that the Johnson children had been raised in one religious faith and that the parent to whom their custody was awarded had testified that he would change that religious faith. Id. at 88-89.

Parents' ability to continue the religious tradition of a child is important and statutorily protected. Minn. Stat.  518.17, subd. 1(a)(10). But because that protection is but one part of one factor of the best-interest analysis, the protection is not dispositive of best-interest or custody questions. See Minn. Stat.  518.17, subd. 1 (stating court "may not use one [best-interest] factor to the exclusion of all others"). Because two of the Johnson errors are not present here, because the law has been changed since Johnson, and because the changed law precludes making any single best-interest factor dispositive, we cannot say that Johnson requires a reversal of the district court's award of legal custody.

Father also argues the award of sole legal custody to mother violates his First Amendment rights under the United States Constitution. Because father did not raise this argument in the district court, it is not properly before this court, and we decline to address it. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

4. Father challenges the access schedule set by the district court, alleging it is improperly based on remote relationships between the child and extended family and on erroneous findings that mother is the child's primary parent. District courts have extensive discretion in deciding issues related to parenting time and will not be reversed absent an abuse of discretion. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995). Also, joint physical custody does not require an equal division of time; only that physical custody of the child be the parties' shared responsibility. Lutzi v. Lutzi, 485 N.W.2d 311, 314 (Minn. App. 1992).

Because the record supports the district court's findings, we need not further address this aspect of father's challenge to the division of parenting time. Given the child custody examiner's testimony, father's ability to seek a parenting time modification (if necessary), and the district court's findings on the best-interest factors, including the finding that mother is the child's primary parent, we cannot say that father has shown that the district court abused its discretion by awarding him almost a third of the parenting time.

5. Father argues the district court abused its discretion in awarding the $3,000 property equalization. To support his argument, he alleges that the district court clearly erred in finding that he had $5,000 in equity in his vehicle. A property division need not be equal, only equitable. Minn. Stat. 518.58, subd. 1 (2002); Ruzic v. Ruzic, 281 N.W.2d 502, 505 (Minn. 1979). Here, in light of the marital estate and the parties' financial circumstances, we conclude that even if father is correct, it will not alter the property division so drastically as to cause it to be inequitable. Therefore, we will not alter the district court's requirement that father make the property equalization payment.

6. Under Minn. Stat.  518.14, subd. 1 (2002), the district court "shall" award need-based attorney fees if the statutory factors have been satisfied. Need-based fee awards are discretionary with the district court. Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999); but cf. Geske v. Marcolina, 624 N.W.2d 813, 816 n. 1 (Minn. App. 2001). Here, father argues the award of $12,000 in need-based attorney fees to mother is improper because the cost of the litigation was significantly increased by mother's erroneous allegations of domestic abuse.

While the district court found that mother's abuse allegations were made with the intent to gain advantage in the dissolution proceeding, mother did not raise the domestic-abuse issue in the dissolution proceeding, father did as part of his trial strategy. Thus, mother's allegations were not the basis for the allegedly unnecessary expenditures in the dissolution. Moreover, the record contained extensive evidence addressing, and the district court made findings focused on, the parties' financial circumstances. Therefore, we affirm the district court's award of need-based attorney fees to mother.

7. Mother moved for need-based attorney fees on appeal under Minn. Stat.  518.14, subd. 1. An award of attorney fees on appeal is discretionary with this court. Case v. Case, 516 N.W.2d 570, 574 (Minn. App. 1994). The affidavit mother submitted with her motion details $4,591 in attorney fees in connection with this appeal. And neither party alleges any change in their financial circumstance since the district court's ruling. Therefore, we grant mother's request for $4,591 in need-based attorney fees.

Affirmed; motion granted.