This opinion will be unpublished and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

A03-46

 

Christopher J. Brezina, petitioner,

Appellant,

 

vs.

 

Julie A. Wasley,

Respondent.

 

Filed January 27, 2004

Affirmed

Halbrooks, Judge

 

 

Dakota County District Court

File No. F4018528

 

 

Christopher J. Brezina, 3005 Eagandale Place, #318, Eagan, MN 55121 (pro se appellant)

 

Andrew V. Moran, 501 East Highway 13, #114, Burnsville, MN 55337 (for respondent)

 

 

 

            Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

On appeal from an order granting respondent sole physical and legal custody of the parties’ child, appellant argues that (1) one of the district court’s findings is not supported by the evidence; (2) the district court’s findings do not support its denial of his motion; and (3) the district court erred by applying the best-interests factors set forth in Minn. Stat. § 518.17, subd. 1(a) (2002), to determine custody.  We affirm.

FACTS

Appellant Christopher Brezina and respondent Julie Wasley are the unmarried parents of C.B., born in September 2000.  In July 2001, the district court adjudicated appellant C.B.’s father, granted respondent temporary sole physical and legal custody of C.B., and appointed a guardian ad litem (GAL) to make recommendations concerning the parties’ permanent parenting arrangement.  The GAL recommended that the parties “have approximately equal amounts of parenting time.”  In October 2001, the district court issued a provisional parenting-time schedule for appellant and set an evidentiary hearing to establish a permanent parenting-time schedule.  In January 2002, a child-support magistrate set appellant’s monthly child-support obligation at $379 beginning February 1, 2002.

At the evidentiary hearing, the parties stipulated on the record to joint legal and physical custody of C.B.  Based upon the stipulation, the district court ordered in April 2002 that C.B.’s “primary residence” would be with respondent and established a visitation schedule for appellant.  The court also ordered that appellant continue making the $379 monthly support payments ordered by the child-support magistrate.  The same day that order was filed, respondent filed a motion for change of custody, requesting sole custody of the child on the basis of appellant’s alleged physical and emotional abuse and threats against both herself and C.B.  The district court denied the motion.  Respondent filed a petition for an order for protection (OFP) against appellant, reasserting the allegations in the motion for change of custody and again seeking sole custody of C.B.

            The district court denied respondent’s petition for an OFP and ordered the parties to submit to psychological evaluations and parenting assessments and to “refrain from swearing . . . [and] from disparaging each other.”  In August 2002, appellant sought and obtained an OFP against respondent based on allegations that respondent was physically and emotionally abusive to himself and C.B. and requested sole custody of the child.  At approximately the same time, appellant filed a motion to reduce his child-support obligation.  At the August 23, 2002 review hearing, the district court learned that neither party had completed a psychological evaluation as ordered.  The court cancelled the evaluations, discharged the GAL (who had been unable to make progress with the parties), and scheduled an evidentiary hearing to determine C.B.’s custody and parenting time. 

At the hearing, the parties agreed on the record through counsel that, although neither party had filed a motion to modify custody, there had been a sufficient change in circumstances since the April 2002 joint-custody order to warrant an evidentiary hearing to determine whether modifying that order was necessary to serve C.B.’s best interests.  Appellant’s counsel specifically stated that C.B. was “endangered” under the existing joint-custody arrangement and that the district court should therefore modify C.B.’s ongoing custody by applying the best-interests standard set forth in Minn. Stat. § 518.17, subd. 1(a) (2002).  Respondent’s attorney agreed that the current custody arrangement constituted “endangerment” warranting application of the best-interests standard. 

In November 2002, the district court issued an order granting respondent sole legal and physical custody of C.B. and setting out a visitation schedule for appellant.  In an accompanying memorandum, the court considered each of the 13 best-interests factors outlined in Minn. Stat. § 518.17, subd. 1(a), and each of the factors to consider before awarding joint custody, as set forth in Minn. Stat. § 518.17, subd. 2 (2002).  The court set appellant’s monthly child-support obligation at $250 beginning December 1, 2002, based upon his imputed net monthly income of $1,000.  The district court did not make a specific finding that C.B. was endangered under the existing custody arrangement. 

Appellant filed a motion for amended findings of fact or a new trial.  At the motion hearing, appellant’s counsel stated that “the court properly took into account the 13 factors in trying to figure out what is best for [C.B.],” but challenged several of the court’s findings of fact.  The district court denied appellant’s motion.  This appeal follows.    

D E C I S I O N

This court’s review of a custody determination is limited to determining whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.  Frauenshuh v. Giese, 599 N.W.2d 153, 156 (Minn. 1999).  We review a district court’s findings of fact in the light most favorable to the findings and will not reverse the findings unless they are clearly erroneous.  Id.  But we “need not defer to the [district] court in reviewing questions of law.”  Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993).

Appellant first argues that the district court applied the wrong statutory standard in determining whether and how to modify the joint-custody arrangement set by the April 2002 order.  Determining the proper statutory standard to apply in a custody-modification proceeding is a question of law.  Dabrowski v. Dabrowski, 477 N.W.2d 761, 764 (Minn. App. 1991). 

Generally, the party seeking to modify child custody must assert facts sufficient to establish a prima facie case for modification.  Minn. Stat. § 518.18(d) (2002); Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981).  A prima facie case to warrant an evidentiary hearing on the issue requires a showing that: (1) there has been a change in circumstances of the child or the parties since the last custody order; (2) a modification serves the best interests of the child; (3) the present environment endangers the child; and (4) the advantages of modification outweigh the harm caused by the change in custody.  Minn. Stat. § 518.18(d) (2002); In re Weber, 653 N.W.2d 804, 809 (Minn. App. 2002); see also Minn. Stat. § 518.17, subd. 1(a) (2002) (listing 13 best-interests factors).  “If the moving party asserts sufficient facts, then an evidentiary hearing must be held to determine the truth of the allegations and to provide a basis for the necessary findings.”  Matson v. Matson, 638 N.W.2d 462, 467 (Minn. App. 2002). 

Even if the district court concludes that modification would serve the child’s best interests, the court must retain the custody arrangement previously ordered unless, among other things, “the child’s present environment endangers the child’s physical or emotional health or impairs the child’s emotional development.”  Minn. Stat. § 518.18(d)(iv).  A district court must apply this endangerment standard unless “the parties agree in writing to the application of a different standard.”  Minn. Stat. § 518.18(e) (2002). 

Here, there was no motion to modify custody before the district court when the November 2002 hearing was held.  But the parties agreed at the hearing that there was sufficient evidence in the record – including the OFP appellant obtained against respondent, the mutual allegations of physical and emotional abuse, and the parties’ agreement that the current arrangement endangered C.B. – to satisfy the statutory criteria for a prima facie case.  The parties specifically agreed, as the district court noted, that “[t]hings have gotten so bad that we need to devise a new plan” and that the hearing’s purpose was to present facts sufficient to permit the court to determine whether, and how, to modify custody.  

As to the applicable standard to determine whether and how custody should be modified, appellant’s counsel stated that “what the court needs to look at, I believe, are the 13 factors:  best interest of the child standard.”  Appellant’s counsel did not argue either at that hearing or at the hearing on the motion for amended findings that the district court erred by not applying the endangerment standard or by not making a specific finding of endangerment.  

Now, appellant challenges the district court’s finding that the parties agreed to apply a “best interests” standard in the modification proceeding.  He argues that because the parties did not agree in writing to the exclusive application of the best-interests standard, the district court was required to apply the endangerment standard in Minn. Stat. § 518.18(d)(iv) and specifically find endangerment before holding an evidentiary hearing and modifying custody.  We disagree.

First, the record of proceedings before the district court demonstrates that appellant repeatedly agreed to both an evidentiary hearing and application of the best-interests standard.  He did not appeal or object to the August 2002 order setting the matter for an evidentiary hearing to determine custody.  At the November 2002 evidentiary hearing, his counsel agreed on the record that endangerment had been established and that the court should apply the best-interests standard to determine custody.  In his post-hearing motions and at the hearing on the motions, appellant specifically agreed that the 13-factor best-interests standard was applicable.  In his application for an OFP, appellant alleged that C.B. was physically and emotionally endangered by respondent and requested a hearing to change the custody arrangement.  Because appellant did not challenge either the proposed evidentiary hearing or application of the best-interests standard, he has waived those issues on appeal.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that generally, issues not argued before the district court are waived on appeal). 

Second, even had appellant not waived these issues, we conclude that the record before us requires an inference that C.B. was endangered by the custody arrangement in place prior to the November 2002 hearing.  The district court’s failure to make an explicit finding of endangerment did not therefore preclude its application of the best-interests standards.  See Warwick v. Warwick, 438 N.W.2d 673, 677-78 (Minn. App. 1989) (stating that missing explicit finding can be inferred on appeal where the record compels it).  Whether a child is in the “significant degree of danger” required for the child to be “endangered” is a finding of fact.  See Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991); see also Lilleboe v. Lilleboe, 453 N.W.2d 721, 724 (Minn. App. 1990).  The parties stipulated on the record that C.B. was endangered by the joint-custody arrangement, and appellant specifically alleged endangerment in his OFP. 

The district court considered each of the factors relevant to joint custody, see Minn. Stat. § 518.17, subd. 2 (2002), and concluded that, in light of the considerable evidence of conflict between the parties, joint custody was inappropriate.  See Wopata v. Wopata, 498 N.W.2d 478, 482 (Minn. App. 1993) (stating that joint legal custody is inappropriate when the parties are unable to communicate and cooperate).  The court unambiguously found that the parties cannot cooperate, that the parties are unable to resolve disputes, and that joint custody would be “detrimental” to C.B.  Each party made numerous allegations of emotional and physical abuse against the other party at the hearing.  The district court did not abuse its discretion by concluding that granting sole legal and physical custody of C.B. to respondent was the best way to “spare [C.B.] from continuing exposure to her parents’ acrimony.” 

We conclude that even if appellant did not waive his right to challenge the district court’s failure to make a specific finding of endangerment, that finding is compelled both by the parties’ stipulations to endangerment at the hearing and by the extreme animosity of each party toward the other.

Appellant also challenges several of the district court’s findings and alleges unethical and biased behavior by the court.  As to the findings, the district court issued a seven-page memorandum carefully applying each of the 13 factors of the best-interests standard as well as each of the four joint-custody factors to the facts in the record.  Each of the findings challenged by appellant is supported by the record.  Appellant’s charges of bias are bare accusations that are not supported by the record.

Finally, appellant argues for a modification of his child-support obligation based on unsubstantiated facts and income figures that were presented to the district court for the first time in appellant’s motion for amended findings.  The proper means for appellant to modify his support obligation is to file a motion with the district court.

            Affirmed.