This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-581

 

In re Jeffrey Allan Johnston, petitioner,
Appellant,

vs.

Lisa Marie Plessel,
Respondent.

 

Filed March 2, 2004

Affirmed; motion granted

Wright, Judge

 

Hennepin County District Court

File No. MF 267881

 

 

Mark A. Olson, 2605 East Cliff Road, Burnsville, MN† 55337 (for appellant)

 

Susan M. Lach, Messerli & Kramer, P.A., 1800 Fifth Street Towers, 150 South Fifth Street, Minneapolis, MN† 55402 (for respondent)

 

††††††††††† Considered and decided by Wright, Presiding Judge; Lansing, Judge; and Minge, Judge.

 

U N P U B L I S H E D† O P I N I O N

 

WRIGHT, Judge

 

Appellant-father contests the district courtís custody and child-support determination, arguing that the district court abused its discretion in (1) awarding sole physical custody of the partiesí children to respondent-mother and (2) ordering appellant-father to pay child support in accordance with the child-support guidelines.† We conclude that the district courtís custody determination is supported by the record and the amount of child support ordered is in accordance with Minn. Stat. ß 518.551 (2002).† Respondent-mother moves this court to award attorney fees incurred while defending appellant-fatherís appeal.† We affirm and grant the motion.†

FACTS

Appellant-father Jeffrey Johnston and respondent-mother Lisa Plessel began living together in 1990.† R.J., their first child, was born on May 28, 1991, and P.J. was born on July 8, 1993.† In June 2001, mother notified father that she and the children were moving out of the home they shared.† Both parents petitioned for sole physical custody of the children.† A temporary order was issued, granting the parties joint legal and physical custody of the children and setting parenting time for each parent.† The district court then ordered the parties to attempt to resolve the physical-custody and parenting-time issues through mediation and ordered Hennepin County Family Court Services (court services) to perform a custody evaluation if the mediation proved unsuccessful.† Because the parties stipulated to joint legal custody but were unable to reach an agreement as to physical custody, court services conducted a custody evaluation.†

In May 2002, while the custody evaluation was in progress, mother was arrested for, and subsequently pleaded guilty to, driving while impaired by alcohol (DWI).† On the night of the arrest, mother called father for assistance.† Father later advised the custody evaluator of motherís arrest.†

During the course of the custody evaluation, the custody evaluator spoke with the parties on several occasions.† Mother refused to discuss the DWI offense with the custody evaluator and denied having any alcohol-related arrests or convictions.† The custody evaluator also spoke with the prosecutor for the DWI case and reviewed court documents relating to motherís DWI offense.† The custody evaluation recommended awarding father sole physical custody of the children.† In October and November 2002, a trial was held on the issues of physical custody and child support.† The district court awarded sole physical custody to mother and ordered father to pay child support in accordance with the child-support guidelines.† Father moved for amended findings or a new trial.† The district court granted the posttrial motion for amended findings to correct clerical errors and denied the motion for a new trial.† This appeal followed.†

D E C I S I O N

I.

Father argues that the district court abused its discretion in awarding sole physical custody of the children to mother because (1) the decision is contrary to the custody evaluatorís recommendation and (2) the district courtís findings as to the best interests of the children are unsupported by the evidence.† A district court has broad discretion in determining custody matters.† Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989); Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).† Our review of the district courtís custody determination is limited to determining whether the district court abused its discretion by making findings that are unsupported by the evidence or by improperly applying the law.† Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996); Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).† Unless they are clearly erroneous, the district courtís findings will not be disturbed.† Pikula, 374 N.W.2d at 710.† In determining whether the findings are clearly erroneous, we view the record in the light most favorable to the district courtís findings, giving deference to the district courtís credibility determinations.† Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).†

1.†††††††† Custody Decision Contrary to† the Custody Evaluatorís Recommendation

We first consider whether the district court abused its discretion in awarding mother sole physical custody of the children, contrary to the recommendations of the custody evaluator.† The district court is not bound by an independent evaluatorís recommendations regarding custody.† Pikula, 374 N.W.2d at 712; Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991); Mowers v. Mowers, 406 N.W.2d 60, 64 (Minn. App. 1987).† When making a custody determination, the district court must make detailed findings addressing the statutory best-interests factors.† See Minn. Stat. ß 518.17, subd. 1 (2002); Rogge v. Rogge, 509 N.W.2d 163, 165 (Minn. App. 1993), review denied (Minn. Jan. 28, 1994).† When credible evidence outweighs a custody evaluatorís recommendation, the district courtís decision not to follow the evaluatorís recommendation does not constitute an abuse of discretion, provided the district courtís detailed findings support the conclusion that the district courtís custody determination is in the best interests of the child.† Rutanen, 475 N.W.2d at 104; Roehrdanz v. Roehrdanz, 410 N.W.2d 359, 362 (Minn. App. 1987), review denied (Minn. Oct. 28, 1987); Mowers, 406 N.W.2d at 64; Lawver v. Lawver, 360 N.W.2d 471, 473 (Minn. App. 1985).†

The district court determined that the custody evaluatorís recommendation was primarily based on uncorroborated information provided by father that lacked credibility.† The district courtís decision to reject the custody evaluatorís recommendation was made after weighing the evidence and making credibility determinations based on the trial testimony of the custody evaluator and witnesses whom the custody evaluator relied on in formulating her recommendation.† The only person with whom the custody evaluator spoke who did not testify was the prosecutor in motherís DWI case.† Based on all of the evidence received at trial, the district court fulfilled its factfinding function and performed a thorough independent analysis of the best-interests factors set forth in Minn. Stat. ß 518.17, subd. 1.† Thus, we conclude that the district court, having weighed the evidence and evaluated the weight and credibility it should be afforded, did not abuse its discretion in declining to follow the custody evaluatorís recommendation.†

2.†††††††† Best Interests of the Children

Arguing that the district court did not give adequate weight to certain statutory best-interests factors that should have been decided in fatherís favor, father asserts that the district courtís best-interests findings are unsupported by the record.† We initially note that ďcurrent law leaves scant if any room for an appellate court to question the trial courtís balancing of best-interests considerations.Ē† Vangsness, 607 N.W.2d at 477.†

The district court determined that mother was the childrenís primary caretaker under Minn. Stat. ß 518.17, subd. 1(a)(3).† In deciding this best-interests factor, the district court must examine the facts and circumstances, as they existed prior to any court ordered custody arrangement to determine the primary caretaker.† Hemingsen v. Hemingsen, 393 N.W.2d 414, 417 (Minn. App. 1986), review denied (Minn. Nov. 17, 1986).† The evidence presented at trial established that mother stayed home with the children for five years, from P.J.ís birth in 1993 until he entered kindergarten in 1998.† Since then, mother has worked an average of 32 hours per week in order to be at home with the children before and after school.† Father argues that he and mother have borne equal caretaking responsibilities for the children since 1998.† But the record establishes that, since mother returned to work, father has cared for the children on Saturdays and Sundays and taken them to activities twice a week.† Fatherís testimony demonstrates that his caretaking responsibilities for the children increased dramatically only after the court-ordered parenting-time schedule was established.† The district court, therefore, correctly determined that mother was the primary caretaker.†

Father contends that the district court erred when considering the interaction of the children with others who significantly affect their best interests under Minn. Stat. ß 518.17, subd. 1(a)(5).† The district court concluded that this factor was not of substantial consequence.† Father argues that this factor should have been weighed in his favor because his mother is more involved with the children than any other relative.† Fatherís contention is not in conflict with the district courtís finding that the children have a significant relationship with their paternal grandmother.† But there is no evidence in the record that granting sole physical custody to mother would negatively impact the childrenís relationship with their paternal grandmother, with whom they have developed a significant attachment.† The district court, therefore, accurately determined that the evidence presented at trial as to this best-interests factor was not of substantial consequence.†

Similarly, father argues that the district court did not give adequate consideration to factors relating to the childrenís adjustment to home, school, and community under Minn. Stat. ß 518.17, subd. 1(a)(6), and the length of time the children have lived in a stable, satisfactory environment as well as the desirability of maintaining continuity under Minn. Stat. ß 518.17, subd. 1(a)(7).† The district court determined that both of these factors weigh in favor of father because the children attend school and have several friends in fatherís neighborhood.† In contrast, mother lives outside the school district and drives the children 15 miles each way to school.† The children do not have friends in motherís neighborhood.† But the record establishes that mother has allowed the children to stay at their school and continue to see their friends while in her care.† That these factors weigh in fatherís favor is undisputed.† Father contends, however, that they should have been given greater weight in the district courtís calculus.† The weight afforded these factors rests within the district courtís broad discretion.† Vangsness, 607 N.W.2d at 476-77.† There is no basis for finding an abuse of that discretion where, as here, the record establishes that the district court properly weighed these best-interests factors in fatherís favor.†

As to the permanence of the existing custodial home, Minn. Stat. ß 518.17, subd. 1(a)(8), the district court foundthat neither party plans any change with respect to its family unit or proposed custodial home.† Father asserts that this finding is unsupported by the record because mother intended to move to Anoka in the event that the house she was renting was sold.† Our review of the record establishes that mother plans to remain in the house she is currently renting as long as it is affordable.† Although for a short period of time the owner of the house attempted to sell it, the house is no longer on the market.† Mother testified that, should she need to move, she would look for housing closer to fatherís neighborhood.† She would move to Anoka where her family lives only if she could not afford to live near father.† In the absence of any evidence that mother is planning to move, fatherís challenge to this finding fails.†

The district court found that there is no evidence that motherís mental health prevents her from providing daily care for the children.† Father argues that, because of motherís DWI conviction, her threats to turn the children against father, and her money-management problems, the district court abused its discretion when it declined to weigh the mental-health factor, Minn. Stat. ß 518.17, subd. 1(a)(9), in favor of father.†

Contrary to fatherís claim, the record is devoid of any evidence that motherís mental health negatively affects her parenting.† The custody evaluator testified that, during home visits with mother, she observed mother setting appropriate boundaries with the children.† And father testified that mother cared for the children appropriately during their relationship when she was not employed.† The record supports the district courtís determination that motherís DWI offense, which was not committed in the presence of the children, was an isolated incident that does not hinder motherís ability to care for the children.† Although mother was not truthful when the custody evaluator asked about her involvement in an alcohol-related driving offense, father testified that mother did not have any alcohol-related problems during their relationship and that he did not have an opinion as to whether she has an alcohol problem now.† The custody evaluator also testified that, other than her DWI conviction, father did not raise any substance-abuse issues regarding mother.†

The district court determined that mother inappropriately threatened to tell the children about fatherís actions on several occasions.† But the district court found a dearth of evidence that mother actually made disparaging remarks to the children about their father.† The custody evaluator found no evidence that mother used the children as pawns or that father had been alienated from the children.† Similarly, the testimony of P.J.ís school counselor, who had been working regularly with P.J., supports the conclusion that mother had not done anything to jeopardize P.J.ís relationship with his father.†

The district court rejected the custody evaluatorís conclusion that mother was unable to manage her finances, finding it unsupported by credible evidence derived from an independent investigation of the partiesí financial circumstances.† It is the province of the district court, as factfinder, to determine issues of the weight and credibility of the evidence because ďit has the advantage of hearing the testimony, assessing relative credibility of witnesses and acquiring a thorough understanding of the circumstances unique to the matter before it.Ē† Hasnudeen v. Onan Corp., 552 N.W.2d 555, 557 (Minn. 1996); see also Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating appellate courts defer to district court credibility determinations).† Accordingly, the district courtís finding that the mental health of the parents was either not at issue or favored neither parent is supported in the record.†

As to the capacity and disposition to give the children guidance and to continue educating and raising the children in their religion, Minn. Stat. ß 518.17, subd. 1(a)(10), the district court found that this best-interests factor weighs in favor of mother.† In support of this finding the district court relied, in part, on evidence from the custody evaluator and mother that father has the propensity to be a ďpalĒ rather than an authority figure to the children.† The record also establishes that mother participated in Early Childhood Family Education with each child, was the primary parent involved in school selection, and volunteers at P.J.ís school.† Although both parents help the children with their homework, mother is primarily responsible for this assistance on a daily basis.† Mother also arranged for P.J. to see the school counselor in response to his difficulty with assignments.† Moreover, to avoid additional disruption after mother and the children moved out of the home they shared with father, mother kept the children enrolled in the same school and provided their daily transportation.†

With respect to the childrenís religious training, the children participate in religion classes and attend church with mother twice a week.† Father does not attend church.† In sum, the record amply supports the district courtís conclusion that, while father has the same capacity to continue the childrenís education, mother has the greater disposition to continue the childrenís education, guidance, and religious training.

Father also challenges the district courtís finding that mother would be more flexible in accommodating continuing contact with father.† See Minn. Stat. ß 518.17, subd. 1(a)(13).† Father does not point to any evidence that he has been denied access to the children.† Rather, the record establishes that mother has permitted father to have greater access to the children than provided in the court-ordered parenting-time schedule.† In contrast, father has granted mother a deviation from the court-ordered parenting-time schedule on only one occasion.† Thus, the record supports the district courtís conclusion that mother has been more flexible and willing to foster the childrenís frequent and continuing contact with father.†

When viewed in the light most favorable to the district courtís findings, the district courtís decision to award mother sole physical custody of the children is based on a correct application of the law and detailed findings that are supported by the evidence.

II.

A district court has broad discretion to provide for the support of the partiesí children.† Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002); Rutten, 347 N.W.2d at 50.† Absent an abuse of discretion, we will not reverse the district courtís child-support determination.† Ver Kuilen v. Ver Kuilen, 578 N.W.2d 790, 792 (Minn. App. 1998). A district court abuses its discretion when it sets support in a manner that is illogical, unsupported by the facts on record, or based on a misapplication of the law.† Id.; Rutten, 347 N.W.2d at 50.†

The guideline child-support amount is presumed to be the correct support amount.† Minn. Stat. ß 518.551, subd. 5(i) (2002); Schlichting v. Paulus, 632 N.W.2d 790, 792 (Minn. App. 2001).† This presumption, however, is rebuttable and deviations from the guideline child-support amount can be made with appropriate findings.† Id. †In using the child-support guidelines to calculate a child-support obligation, the district court determines an obligorís net income after deducting health insurance, a reasonable retirement contribution, state and federal taxes, and any current child-support or maintenance obligations.† Minn. Stat. ß 518.551, subd. 5(b) (2002).† Under the child-support guidelines, the appropriate child-support obligation for an obligor with two children to support and a net monthly income exceeding $1,000 is 30 percent of the obligorís net income.† Minn. Stat. ß 518.551, subd. 5 (2002).†

Father argues that the district court granted mother custody of the children to equalize motherís income with child support.† This assertion is without support in the record.† As discussed above, in awarding sole physical custody to mother, the district court properly analyzed the best-interests factors and correctly applied the law.† The district court then ordered father to pay child support in accordance with the child-support guidelines.† As such, the district court ordered the presumptively appropriate amount of child support.† See id., subd. 5(i).† The district court determined fatherís net income to be approximately $5,765 per month after deducting health insurance, a reasonable retirement contribution, and taxes.† The district courtís child-support award of $1,729.50 is precisely 30 percent of fatherís net income.† Father offered no evidence that a deviation from the child-support guidelines is warranted.† Thus, the district court did not abuse its discretion in ordering father to pay child support commensurate with the child-support guidelines.†

III.

Mother moves for need-based attorney fees incurred on appeal.† See Minn. Stat. 518.14, subd. 1 (2002).† Father opposes the motion.† In light of the record as a whole, the outcome of this case on appeal, and the awards made by this court in similar cases, we conclude that the statutory criteria for need-based attorney fees have been met, and it is appropriate for father to contribute $2,000 toward the attorney fees mother incurred in this appeal.†

††††††††††† Affirmed; motion granted.