This opinion will be unpublished and

may not be cited except as provided by

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






Brian L. Dunham, petitioner,


Melissa M. McCollough,
Misty M. McCollough,
Melissa M. McCollough, petitioner,


Misty M. McCollough,


Filed April 27, 2004


Stoneburner, Judge


Hubbard County District Court

File Nos. F902537 & F902354


Gregory S. Walz, Walz Law Offices, Suite 206, 1411 West St. Germain Street, Box 1794, St. Cloud, MN 56302 (for respondent Dunham)


John E. Valen, Fifth and Michigan, Box 1105, Walker, MN 56484 (for appellant Misty M. McCollough)


            Considered and decided by Anderson, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.

U N P U B L I S H E D  O P I N I O N




            Appellant Melissa McCollough challenges the district court’s award of custody of her nephew, B.D.D., who has resided with her since 1998, to respondent Brian Dunham, the child’s biological father.  Appellant asserts that the district court failed to independently review the evidence, made factual findings that are not supported by the record and made conclusions of law that are not supported by the findings.  We affirm.



            Appellant’s sister, Misty McCollough, and respondent, Brian Dunham, were never married, but have a son, B.D.D., whose date of birth is August 25, 1995.  The couple lived together until B.D.D. was a year-and-a-half old, then separated.  B.D.D. remained with Misty McCollough until 1998, when he began to live primarily with appellant, Melissa McCollough.  Vicki McCollough, B.D.D.’s maternal grandmother, has provided all necessary childcare, and Misty McCollough has spent most weekends with B.D.D.  Respondent has spent very little time with B.D.D. since he separated from Misty McCollough, due, he claims, to interference by Misty, Melissa, and Vicki McCollough, with his visitation requests.

            In 1999, respondent and Misty McCollough entered into an agreement forgiving respondent’s child support arrearages and suspending respondent’s previously established child support obligation “so long as B.D.D. was living with his maternal grandparents.”[1]  A Clay County administrative law judge accepted this agreement and issued an order based on the agreement.  The order provided that child support would be automatically reinstated “in the event that public assistance is received on behalf of the child.” 

            Appellant sought public assistance for B.D.D. from Hubbard County, which, in March 2002, served respondent with a motion to modify child support.  And, because Misty McCollough was making plans to take B.D.D. to live with her in Fargo, appellant petitioned the Hubbard County district court for custody of B.D.D.[2]   Respondent was named as a party in this custody action, but was never given notice of the action.  Appellant and Misty McCollough temporarily resolved the custody issue by agreeing that they would share joint temporary legal custody and appellant would have temporary sole physical custody of B.D.D. “until further Order of the Court.”  This agreement was placed on the record on May 22, 2002, but was not incorporated into an order until September 19, 2002. 

            On May 28, 2002, respondent, who had not previously sought court intervention regarding access to B.D.D., petitioned the district court for custody of B.D.D. and requested an evidentiary hearing.  By order dated February 25, 2003, the district court concluded that because the temporary order issued in September 2002 did not permanently establish custody, “it is appropriate that a hearing including [respondent] be held.”  The district court appointed a guardian ad litem (GAL) for B.D.D. and ordered Hubbard County Human Services to conduct a child custody study for appellant and respondent.

            Hubbard County Human Services conducted a custody study for appellant but declined to perform a study for respondent because he lives in Stearns County.  Stearns County declined to perform a custody study for respondent because the district court’s order directed Hubbard County to perform the study.  As a result, no custody study was performed for respondent.

            After an evidentiary hearing, at the request of the district court, each party submitted proposed findings of fact, conclusions of law and order for judgment.  The district court adopted respondent’s proposal verbatim, awarding sole physical custody of B.D.D. to respondent and alternate weekend visitation to appellant and Misty McCollough.[3]  Appellant and Misty McCollough moved for amended findings of fact, conclusions of law and judgment or, in the alternative, a new trial, and for a stay of entry of judgment pending either a new trial or appeal.  All of the motions were denied, and this appeal followed.





            As a threshold matter, respondent argues that appellant failed to preserve any issues for appeal.  Although appellant’s posttrial motion is vague, the motion filed by Misty McCollough is specific.  And in this case, the interests of Misty McCollough and appellant are identical because they both seek an award of custody to appellant.  In her motion for a new trial or amended findings, Misty McCollough asserted that: (1) the evidence does not support the findings; (2) last minute scheduling changes precluded the calling of necessary witnesses; (3) a court-ordered custody study regarding respondent was not done; (4) the court ignored the GAL’s report; and (5) the court adopted verbatim respondent’s proposed findings of fact and conclusions of law.  Because the issues raised by appellant in this appeal were raised below, we conclude that we can address these issues.  Cf. Minn. R. Civ. App. P. 103.04.  The district court had the opportunity to consider each of these issues, and therefore, this court does not usurp the discretion of the district court by considering the issues.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (this court will not consider matters that were not argued and considered by the district court); see also Tischendorf v. Tischendorf, 321 N.W.2d 405, 410 (Minn. 1982) (this court may consider issues that were implied in the district court).

            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.  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996); Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  A district court’s findings will be sustained unless they are clearly erroneous.  Pikula, 374 N.W.2d at 710.

            Appellant argues that the district court failed to independently review the evidence, made factual findings that are not supported by the record, and made conclusions of law that are not supported by the findings.  The verbatim adoption of a party’s proposed findings and conclusions of law is not reversible error per se.  Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).  While this practice has been recognized as acceptable, we have strongly cautioned that “the wholesale adoption of one party’s findings and conclusions raises the question of whether the trial court independently evaluated each party’s testimony and evidence.”  Id.  If, after a careful review of the record, we conclude that the findings are not clearly erroneous, the verbatim adoption, standing alone, will not provide sufficient grounds for reversal.  Id.

            In reviewing the record to determine whether the district court abused its discretion by making findings unsupported by the evidence, we view the evidence in the light most favorable to the district court’s findings.  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999).  A finding is “clearly erroneous only 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) (quoting Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987)).

            In this case, the findings of fact and conclusions of law, drafted by respondent and adopted verbatim by the district court, have several shortcomings.  They (1) fail to adequately address the parties’ dispute over which standard for awarding custody applies; (2) fail to address the lack of a custody study on respondent; (3) refer to “wrongful” and “intentional” conduct by appellant, preventing respondent from “exercising his rights under the law,” when respondent had failed to pursue or obtain any “rights under the law” regarding access to B.D.D.; (4) espouse argumentative constitutional and public-policy propositions; (5) incorrectly cite case law; and (6) fail to reflect that the district court engaged in an independent review of the evidence or the law.  Despite these shortcomings, after a thorough review of the record, we conclude that any errors in the findings are harmless and the district court did not improperly apply the law.  See Minn. R. Civ. P. 61 (requiring harmless error to be ignored).    

            At the evidentiary hearing, the parties disputed what standard should apply:  the best-interests-of-the-child standard, used in initial custody and recognition of parentage proceedings; the modification-of-custody standard; or the standard used in custody disputes between a parent and a third party.  The order for the evidentiary hearing implies that the modification-of-custody standard contained in Minn. Stat. § 518.18 (d)(iii) and (e) (2002), would apply.[4]  Respondent argued for application of the standard articulated in In re Custody of N.A.K., 649 N.W.2d 166 (Minn. 2002), used in custody disputes between a parent and a third party after the death of a custodial parent.[5]  At the hearing, the district court indicated that the best-interest standard used in initial custody determinations should be used because there had not been a previous custody determination.  The issue of what standard would apply was not resolved at the hearing.

            The findings of fact, conclusions of law and order for judgment drafted by respondent apply the N.A.K. standards, under which the natural parent is entitled, as a matter of law, to custody of a minor child, and the burden of disproving this presumption rests upon those who challenge it.  Id. at 180.  Although there is no indication that the district court independently analyzed the issue of what standard applies, we conclude that the district court did not err in applying the standard set out in N.A.K. to the facts of this unusual situation.    

            In N.A.K., the supreme court rejected the district court’s application of the best-interests standards set out in Minn. Stat. §§ 518.7 and 257.025 and also rejected the award of N.A.K’.s custody to her maternal aunt (Rodgers) rather than her biological father (Knauff) after the death of N.A.K.’s mother.  The supreme court agreed with Knauff, that the best-interest factors set forth in Minn. Stat. §§ 257.025 and 518.17, do not adequately protect the right of a parent to raise his or her child when the custody dispute is with a third party.  Id. at 176-77.

            The supreme court first examined Knauff’s argument that the district court failed to properly incorporate into its analysis a fundamental principle of Minnesota case law, that in custody disputes, a fit parent must be given a superior right to his child over a third party.  After examining prior cases involving custody disputes between a parent and a third party, the supreme court held that, following the death of a custodial parent, a surviving, noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature, indicating that the best interests of the child require that the surviving parent be denied custody.  Id.

            This case is strikingly similar to N.A.K., except that B.D.D.’s mother is not dead.  The district court concluded that Misty McCollough’s relinquishment of any claim to B.D.D.’s physical custody was “tantamount” to her death insofar as it triggered the need for a custody determination between appellant and respondent.  Appellant argues that there has not been a change in circumstances because B.D.D. has lived with appellant since 1998.  But we conclude that the district court did not err by implicitly concluding Misty McCollough’s participation in a court action to place B.D.D. in the permanent custody of appellant, when the issue of custody has never been determined by a court, constitutes a change of circumstances sufficient to require the court to establish a permanent custody order for the child.  And, based on the reasoning of N.A.K., we conclude that the standard set forth in that case for determining a custody dispute between a parent and a third party applies, rather than the modification standard set out in Minn. Stat. § 518.18, which requires a finding of endangerment in the current placement before custody can be modified.

            The record in this case supports the district court’s conclusion that appellant has failed to rebut the presumption that respondent is entitled to custody of B.D.D.  The guardian ad litem had no criticism of respondent’s parenting.  He testified that, despite respondent’s limited involvement in B.D.D.’s life, B.D.D. “idolizes” respondent.  Neither Misty McCollough nor appellant have any concerns about respondent’s parenting or interaction with B.D.D.  The record also demonstrates that respondent has adequate housing, a stable home, stable employment, plans for B.D.D.’s education and religious training, and a plan for B.D.D.’s continued interaction with appellant, Misty McCollough and B.D.D.’s half-sister, who remains in appellant’s custody.  There is no allegation in the record that a custody study of respondent would have revealed any negative information about respondent.  The record supports the district court’s findings that “there has been no evidence presented that [respondent] is unfit in any way,” and “there is no evidence of any nature and certainly no evidence of a grave and weighty nature which would justify any separation of this child and his father.”

            Despite our concern about the district court’s verbatim adoption of respondent’s flawed findings, we conclude that it would not be in the best interests of B.D.D. to remand the case merely for the production of a more satisfactory court document, when the record demonstrates that the district court did not abuse its discretion by awarding physical custody to respondent.  See Grein v. Grein, 364 N.W.2d 383, 387 (Minn. 1985) (declining to remand the custody matter for findings that comport with the statutory language). 



[1] From the record it appears that respondent knew that B.D.D. was living with appellant and not his maternal grandparents at this time.  The record is silent about why the parents  represented to the Clay County administrative law judge that B.D.D. lived with his maternal grandparents.

[2] The motion for custody included another child of Misty McCollough, T.K.M., who has also lived with appellant since 1998.  T.K.M.’s father is Cory Olson, who was also named as a respondent in appellant’s petition for custody.  T.K.M. is not involved in the current litigation.

[3] Legal custody was not determined and is not an issue in this appeal.

[4] The memorandum attached to the district court’s order granting respondent’s motion for an evidentiary hearing stated the need for “a determination of whether a change in the custody arrangement is in the best interests of the child and whether the child’s present environment, i.e. in the home of the mother, endangers the child’s physical or emotional health and whether a change in the environment is outweighed by the advantages to the child.”

[5] This case is incorrectly titled in the findings as Rodgers v. Knauff.