This opinion will be unpublished and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 County of Sherburne,
Kim Yvonne Shonyo,
Bruce Ray Walberg,
Filed February 24, 2004
Sherburne County District Court
File No. F1-01-865
Brian M. Olsen, Brian M. Olsen Law Office, P.O. Box 988, Cokato, MN 55321 (for appellant)
Wright S. Walling, Walling & Berg, P.A., 121 South 8th Street, Suite 1100, Minneapolis, MN 55402 (for respondent)
Considered and decided by Stoneburner, Presiding Judge, Kalitowski, Judge, and Halbrooks, Judge.
Appellant Kim Yvonne Shonyo challenges the district court order granting respondent Bruce Ray Walberg sole physical custody of the parties’ minor child, subject to reasonable and liberal visitation by appellant. Appellant argues that the district court abused its discretion by (1) relying too heavily on a court-ordered custody evaluation in its decision and (2) making findings of fact unsupported by the record. We affirm.
The parties, who were never married, began living together in approximately 1994. Appellant’s son, B.S., who was born in 1990 and is not respondent’s child, lived with the parties throughout their cohabitation. In 1998, N.S., the parties’ only child, was born. N.S.’s paternity was established by the parties’ joint execution of a Recognition of Parentage filed just after N.S.’s birth. The parties separated in approximately May 2001.
The same month, the County of Sherburne, on behalf of appellant, began an action against respondent seeking to establish child, medical, and daycare support pursuant to Minn. Stat. § 256.87 (2002), which authorizes suit against “[a] parent of a child . . . for the amount of public assistance . . . furnished to and for the benefit of the child, . . . which the parent has the ability to pay.” Id., subd. 1. Appellant then moved for sole physical custody of the child. Following a hearing, the district court ordered respondent to pay retroactive and ongoing child support, granted appellant temporary physical custody of N.S., granted the parties joint legal custody of N.S., and ordered that a custody evaluation be performed by Sherburne County Social Services prior to a hearing to determine custody.
The custody evaluation was performed by Brenda Long and submitted to the court in April 2002. The file created by Long in the course of her investigation contains over 150 pages of research; the report itself is 12 pages long. The report specifically addresses the child’s best interests in light of the 13 statutory factors set forth in Minn. Stat. § 518.17, subd. 1(a) (2002). In the report, Long stated that N.S. has a “bonded, confident relationship with both parents,” that the child “will always be a full part of both parents’ lives,” and that “[e]ach parent clearly loves [N.S.] and gives him a safe, emotionally secure environment.” She proposed a parenting-time schedule intended “to keep [N.S.] involved in both households” and pursuant to which the child, who was four at the time, would continue to divide his time evenly between parental homes until beginning kindergarten. At that point, he would reside with respondent during the school year and with appellant during the summer, subject to visitation on weekends and holidays and two weeks of uninterrupted vacation time with each parent annually.
An evidentiary hearing was held in January 2003. At the beginning of the hearing, the parties stipulated to joint legal custody of N.S., leaving permanent physical custody, parenting time, and child support to be resolved. The court heard testimony from appellant, respondent, respondent’s wife (whom he married after separating from appellant), and a former daycare provider of N.S., and received custody evaluator Long’s deposition testimony. Both parties requested sole physical custody of N.S.
Appellant testified to her belief that the custody evaluation was biased and contained “a lot of inaccuracies” and admitted that she accused respondent of paying off the evaluator in order to obtain a favorable report. She also testified that respondent was violent with B.S., her older son, on several occasions and that respondent “touch[ed her] in anger” once or twice a month over the course of their seven-year relationship. Long testified that as part of her evaluation, she reviewed reports of a violent altercation between respondent and B.S. in February 2000. Long stated that, although the incident was of “some minor interest” to her evaluation, “[i]t was not pivotal because the child in question [B.S.] was different than the focus . . . of my study.”
Following the hearing, the district court issued an order awarding respondent sole physical custody of N.S. subject to “reasonable and liberal parenting time” by appellant as set forth in the order. The court credited the custody evaluation, finding it to be “a thorough and professional evaluation of the circumstances in this matter” and observing that the custody evaluator “has nearly 25 years of experience with Sherburne County Social Services [and] . . . has conducted 400 to 500 custody and visitation studies over the past  years.” The court specifically found that appellant’s assertions concerning the reliability, accuracy, or bias of the custody report lacked “credible support.”
The court found that appellant’s allegations concerning respondent’s abuse of B.S. were “not germane as to whether [respondent] would be a danger to [N.S.]” because neither the police nor the county social services – both of whom investigated the February 2000 incident between respondent and B.S. – ever took any enforcement action against respondent. The court also found that in light of B.S.’s “serious behavioral problems, possibly due to an attention deficit disorder,” “[t]he incident with [B.S.] . . . appears to result from the unique relationship between [respondent] and [B.S.]” The court further gave “little credence” to appellant’s allegation that respondent regularly abused her during their relationship and found that “there is no credible evidence that [respondent] has been or would be an abuser of [N.S.].”
The court also addressed evidence that respondent was convicted of misdemeanor trespassing in 1993 and was charged with misdemeanor assault and disorderly conduct in 1992 and 1993, respectively. The latter two charges were dismissed. The court concluded that these incidents “provide little, if any, basis to conclude that [respondent] poses any danger to [N.S.]”
In reaching its conclusion concerning custody, the court considered N.S.’s best interests in light of each of the factors set forth in Minn. Stat. § 518.17, subd. 1(a). Because each party had requested sole physical custody, the court did not consider granting the parties joint physical custody. The court found that “[N.S.’s] best interests would be served best by awarding to [respondent] sole physical custody” because (1) “[respondent] would provide a more permanent family unit for [N.S.] than would [appellant]” in light of “[t]he apparent lack of mutual commitment” between appellant and her boyfriend, to whom she is not – and has no plans to be – engaged; (2) “if [appellant] has primary physical control of [N.S.], her ongoing bitterness and antagonism towards [respondent], her inflexibility and her distrust may result in frustrating or even depriving [N.S.] of time with his father”; (3) “[appellant] has a somewhat irrational distrust of [the custody evaluator]”; and (4) “[t]here is less concern that [respondent] would deprive or obstruct [N.S.’s] time with [appellant] if [respondent] has physical custody.”
The order adopted the parenting-time schedule proposed by Long in the custody evaluation. This appeal follows.
District courts have broad discretion to determine matters of custody. Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989). Our review of custody determinations 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). Fact findings that form the basis for the custody decision are not set aside unless clearly erroneous, and we review the custody decision in the light most favorable to the district court’s findings. Minn. R. Civ. P. 52.01; Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn. 1993). A finding is clearly erroneous if the reviewing court is “left with the definite and firm conviction that a mistake has been made.” Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted). Where there is conflicting evidence, we 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).
Custody decisions must be based on a child’s “best interests” as determined according to the factors listed in Minn. Stat. § 518.17, subd. 1(a) (2002); Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997). In considering a child’s best interests, the district court must make findings to show that it considered all relevant factors, including those listed in Minn. Stat. § 518.17, subd. 1(a). Rogge v. Rogge, 509 N.W.2d 163, 165 (Minn. App. 1993), review denied (Minn. Jan. 28, 1994). Currently, the law “leaves scant if any room for an appellate court to question the [district] court’s balancing of best-interests considerations.” Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000).
Appellant argues that the district court abused its discretion by basing its custody determination on the custody evaluation, which appellant contends was flawed in that it (1) repeated lies that respondent told the evaluator and others concerning his education, his work schedule, his financial situation, and activities in which he participates with N.S.; (2) inadequately investigated respondent’s 1993 misdemeanor-trespassing conviction and charges brought against him (and dismissed) in 1992 and 1993 for misdemeanor assault and disorderly conduct; and (3) failed to sufficiently consider the February 2000 altercation between respondent and B.S. in assessing whether respondent poses a physical threat to N.S. We cannot agree with appellant’s characterization of the custody evaluation or her criticism of the district court’s use of the evaluation.
Minn. Stat. § 518.167, subd. 4 (2002), specifically authorizes the district court to receive a court-ordered custody evaluation into evidence. The decision to “rel[y] on expert testimony is within the trial court’s discretion.” Uhl v. Uhl, 395 N.W.2d 106, 111 (Minn. App. 1986). In support of her argument that the district court should not have relied upon the evaluation, appellant cites to Uhl, id., as well as to Nazar v. Nazar, 505 N.W.2d 628, 633 (Minn. App. 1993), review denied (Minn. Oct. 28, 1993), for the proposition that a district court abuses its discretion when it determines custody in reliance upon a custody evaluation that fails to conduct a careful examination of allegations of physical abuse.
Appellant’s reliance on Uhl and Nazar is misplaced in that those cases concern uninvestigated allegations of abuse against the child whose custody is disputed. See Nazar, 505 N.W.2d at 633-34; Uhl, 395 N.W.2d at 111; see also Lucas v. Lucas, 389 N.W.2d 744, 747 (Minn. App. 1986) (holding that district court abuses its discretion by determining custody based upon a record containing unanswered questions pertaining to the best interests of the children; district court has burden to uncover reliable evidence to determine the best interests of the child). Here, although appellant reproaches the custody evaluator for failing to give greater weight to the physical altercations between respondent and B.S., she does not allege that any allegation of respondent abusing N.S. arose after the report was filed, and the district court specifically found that the record contains no credible evidence that respondent ever abused N.S.
Appellant also contends that the custody evaluation is unreliable because the evaluator and respondent gave conflicting testimony concerning whether the two ever discussed the February 2000 incident at all. But it is well within the district court’s discretion to weigh evidence and resolve conflicting testimony, and the fact that the record could support findings other than those made by the district court does not render the district court’s findings defective. See Vangsness, 607 N.W.2d at 474.
The district court’s order specifically addressed the 1992 and 1993 trespassing, assault, and disorderly conduct charges against respondent and found them to be irrelevant to a determination of N.S.’s current best interests. The court also addressed respondent’s misrepresentation of his education, concluding that that issue was not dispositive to a determination of custody; presumably, the court reached a similar conclusion with respect to other testimonial inconsistencies and conflicts in the record. In light of the wide latitude we afford the district court’s determinations of credibility and the weight to be given witness testimony, we conclude that the district court did not abuse its discretion by determining that the custody report was credible and reliable.
Appellant argues that the district court abused its discretion by awarding custody to respondent because the record does not support its findings. We disagree.
In determining the child’s custody, the district court set forth detailed findings based on the factors listed in Minn. Stat. § 518.17, subd. 1(a), and carefully balanced the best-interests considerations. Appellant’s argument that the record does not support the district court’s findings is based entirely on credibility issues and the weight the district court accorded certain testimony and other evidence. These are determinations well within the district court’s discretion. See Vangsness, 607 N.W.2d at 474. The district court’s findings are supported by the record.