This opinion will be unpublished and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

A03-1477

 

In re the Marriage of: Joseph G. Hasslen, petitioner,
Respondent,

vs.

Jill E. Hasslen,
Appellant.

 

Filed May 18, 2004

Affirmed

Minge, Judge

 

Wright County District Court

File No. F4-02-316

 

 

Derk Karl Schwieger, 2823 Lexington Avenue North, Suite 318, Roseville, MN 55113 (for respondent)

 

Richard S. Eskola, 3989 Central Avenue Northeast, Suite 600, Columbia Heights, MN 55421 (for appellant)

 

            Considered and decided by Minge, Presiding Judge; Shumaker, Judge; and Crippen, Judge.*

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

            Appellant challenges the district court’s dissolution judgment on several grounds, including the division of the parties’ property and the award of sole custody of the parties’ minor children to respondent.  Appellant also charges that the district court exhibited judicial bias in favor of respondent.  Because the district court did not abuse its discretion in dividing the parties’ property and awarding custody, and because the appellant has not shown judicial bias on the part of the district court judge, we affirm.

FACTS

The marriage of appellant Jill Hasslen and respondent Joseph Hasslen was dissolved in March 2003.  They had three daughters; two were still minors at the time of dissolution.  The middle daughter has had behavioral problems, which caused academic problems, and led the parties to send her to a juvenile “boot camp.”  The youngest daughter is severely disabled due to brain damage and has a limited ability to communicate.  Prior to the dissolution, a special benefit account was set up for the youngest daughter to receive hyperbaric treatments in Florida.

In March 2002, after the parties separated, the court granted temporary custody of the two minor daughters and possession of the homestead to appellant.  Between June 2002 and November 2002, respondent found several marks on the younger daughter that appeared to be cigarette burns.  During this time, the two daughters were living in the homestead with appellant and Dustin Marquette.  Marquette had been a high school acquaintance of the oldest daughter and had moved into the homestead prior to the parties’ separation.  After the oldest daughter and respondent moved out, Marquette remained in the home with appellant and the younger daughters.   Although appellant and the middle daughter claim the marks were the result of rug burns, a question was raised regarding the cause of the marks and whether Marquette had any involvement. 

While appellant was in the homestead during the separation, she took down a fence and removed trees without consulting respondent.  Appellant also withdrew money from accounts and forged respondent’s signature to start a line of credit with Beneficial Financial.  Additionally, appellant admitted to hosting a party at which all three daughters were present and furnishing alcoholic beverages to minors.  In December 2002, the district court switched custody of the girls and possession of the homestead to respondent. 

A four-day trial on the parties’ dissolution occurred in December 2002.  Appellant, respondent, and the two older daughters were among the witnesses who testified.  Additionally, a court-ordered custody evaluator testified that it was in the children’s best interest that the parties share joint legal custody, but that respondent be given sole physical custody. 

The district court requested that both parties submit proposed written findings.  After review, the district court entered its findings and judgments granting joint legal custody and sole physical custody to respondent, and addressing issues of property division and support.   A hearing was held on appellant’s motion to amend the findings, and the court issued its amended findings and judgment.  This appeal followed.

D E C I S I O N

I.

The first issue is whether the district court abused its discretion in dividing the parties’ property and allocating debt.  Under Minnesota law, the district court must make a “just and equitable division of the marital property.”  Minn. Stat. § 518.58, subd. 1 (2002).  District courts have broad discretion over the division of marital property, and appellate courts will not alter a district court’s property division absent a clear abuse of discretion or an erroneous application of the law.  Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (Minn. App. 2000), review denied (Minn. Oct. 25, 2000); Ebnet v. Ebnet, 347 N.W.2d 840, 842 (Minn. App. 1984).  A district court abuses its discretion if its findings of fact are against logic and the facts on the record.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  A reviewing court will affirm the district court’s property division if it has “an acceptable basis in fact and principle even though [the reviewing court] might have taken a different approach.”  Antone v. Antone, 645 N.W.2d 96, 100 (Minn. 2002).

Similarly, the district court has broad discretion in apportioning the parties’ debt.  Berenberg v. Berenberg, 474 N.W.2d 843, 848 (Minn. App. 1991), review denied (Minn. Nov. 13, 1991).  Even if the debts are marital, the district court has the discretion to allocate debts solely to one party.  Meyer v. Meyer, 375 N.W.2d 820, 828 (Minn. App. 1985), review denied (Minn. Dec. 30, 1985).  Further, “a party to a dissolution may be held liable for marital debts even though the other party receives the benefit of payment.”  Dahlberg v. Dahlberg, 358 N.W.2d 76, 80 (Minn. App. 1984).  Finally, the division of pensions and whether to consider potential tax consequences of a property distribution is discretionary with the district court.  Maurer v. Maurer, 623 N.W.2d 604, 608 (Minn. 2001) (tax consequences); Faus v. Faus, 319 N.W.2d 408, 413 (Minn. 1982) (division of pensions).

Appellant argues that the district court abused its discretion in awarding respondent certain property and assigning various debts to her.  The district court ordered appellant to pay the debt to Ocean Hyperbaric Pediatric Division, the debt to Beneficial, and the encumbrances against the vehicle awarded to her.  The court also awarded appellant’s 401(k) plan to respondent, and ordered that respondent be allowed to claim both minor children as exemptions on state and federal income tax returns.  Appellant argues that these awards and assignments of debt were in error.

First, it is significant that the district court awarded the family homestead to respondent, who was granted custody of the parties’ two minor children.  The value of the property was $260,000, with a $209,781 first mortgage and a balance on a flexible equity line of credit of approximately $71,000.  The court found that the latter includes about $14,000 that appellant had borrowed against the equity in the home after their separation, without respondent’s knowledge, and without an accounting of how the money was spent.   The result was that respondent received the homestead subject to liens that exceed its value by over $20,000.

Second, the record shows that respondent was not consulted regarding the removal of the fence and the trees from the homestead and, when appellant vacated the homestead, the value of personal property she removed exceeded the value of that she left for respondent.  Further, the record reflects that through most of the proceedings, appellant requested the award of the Chevrolet TrailBlazer. 

The record also shows that after the separation, appellant obtained the $5,000 debt to Beneficial by forging respondent’s name without his knowledge.  Further, although appellant handled the parties’ money and paid the bills, she admitted that she could not account for the money raised on the youngest daughter’s behalf for the hyperbaric treatments in Florida. 

Appellant challenges the district court’s award of her 401(k) plan with a value of $9,401 to respondent.  In its findings of fact the court recounted that:  “Since the separation, Wife has taken action that that caused Husband to be face[d] with significant debt . . . .”  The court next listed some $14,000 of debt and $7,000 of possible expenses (and if borrowed, future debt) for replacement of the fence and trees that the respondent may incur as a part of receiving a homestead with a negative net worth and it listed some $39,000 of debt appellant should pay with the observation that there is “significant likelihood that the Wife will not pay the debt and that Husband will be held responsible.”  The district court concluded its discussion of debt as follows: 

Consequently, in addition to ordering the debt division . . . the Court is awarding both 401ks to [respondent], with the hope that [respondent] may be able to use some of the 401k funds to pay off some debt in order to avoid significant adverse economic consequences to the family.

 

Appellant claims that the outright award of her 401(k) was erroneous because it was really security for her payment of debt for which respondent was also liable and that such an outright award of what was really collateral was an abuse of discretion.  Arguably the district court abused its discretion if her 401(k) plan was really supposed to be security and was in anticipation of a default by appellant.  However, we note that the district court did identify $21,000 of expenses, debt, and loss that appellant caused after the separation for which the respondent is now responsible or is suffering the loss.  This more than supports the award of the $9,401 value of appellant’s 401(k) plan to respondent.  As a result, we cannot say the court abused its discretion.

Appellant asks this court to reassess the credibility of the evidence and witnesses.  Appellant does not argue how the court abused its discretion other than to say that she offered evidence to the contrary and the result of the district court’s order is unfair.  But, this court will not reverse a fact determination unless clearly erroneous, with due regard given to the district court’s opportunity to judge the credibility of witnesses. Minn. R. Civ. P. 52.01.  The evidence in the record supports the district court’s order and we cannot say that the district court abused its discretion.

II.

The next issue is whether the district court erred in awarding sole physical custody of the daughters to respondent.  The district court has broad discretion when determining custody of children.  Durkin v. Hinich,442 N.W.2d 148, 151 (Minn. 1989).  An appellate court’s “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.”  Silbaugh v. Silbaugh,543 N.W.2d 639, 641 (Minn. 1996) (quotation omitted).  The district court’s findings of fact will “not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the [district] court to judge the credibility of the witnesses.”  Minn. R. Civ. P. 52.01.  In deciding whether a district court’s findings are clearly erroneous, the appellate courts must view the record in the light most favorable to those findings.  Ayers v. Ayers,508 N.W.2d 515, 521 (Minn. 1993).  “[C]urrent law leaves scant if any room for an appellate court to question the trial court’s balancing of best-interests considerations” when it awards custody.  Vangsness v. Vangsness,607 N.W.2d 468, 477 (Minn. App. 2000). 

In awarding custody, the district court must consider such factors as the wishes of the child’s parents, the reasonable preference of the child, which parent is the child’s primary caretaker, the intimacy of the relationships and interactions between each parent and the child, and the capacity and disposition of the parties to give the child love, affection, and guidance.  Minn. Stat. § 518.17, subd. 1(a) (2002). 

The court may not use one factor to the exclusion of all others.  The primary caretaker factor may not be used as a presumption in determining the best interests of the child.  The court must make detailed findings on each of the factors and explain how the factors led to its conclusions and to the determination of the best interests of the child. 

 

Id.

First, appellant argues that the court erred in not giving more credit to the stated preference of the 15-year-old to live with her mother.  We note that an older child’s stated preference is an “overwhelming consideration in determining [a] child’s custody” and is entitled to considerable weight.  Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991).  But, while appellant argues that the 15-year-old’s stated preference should be determinative of custody, the district court is not allowed to use one factor to the exclusion of all others when determining the overall best interests of a child.  Minn. Stat. § 518.17, subd. 1(a).  Preference is “but one factor among many that a court uses to assess the best interests of a child.”  Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 691 (Minn. App. 1989), review denied (Minn. June 21, 1989).

Here, the district court noted that on different occasions the 15-year-old daughter stated that she would prefer to live with appellant.  But the district court also made detailed findings as to why the preference would not be in the daughter’s best interests.  The record shows that, while appellant was often absent and lax about rules and structure, respondent had a more appropriate and disciplined father-daughter relationship with this daughter.  The record also shows that appellant had furnished alcoholic beverages to minors at a party.  Further, the district court had an opportunity to assess the credibility of all the witnesses and, so long as the record supports its findings, we will not reweigh such issues of credibility.  Here, the record supports the finding that the daughter’s stated preference was not determinative of her best interests.  We cannot say that the district court clearly erred in this regard.

            Next, appellant argues that the district court erred in finding that respondent was the primary caretaker of the children.  The primary caretaker is the parent who has taken primary responsibility for the child’s care.  Pikula v. Pikula,374 N.W.2d 705, 713 (Minn. 1985).  Which parent is the primary caretaker is to be determined as of the time of the separation of the parties.  Sefkow v. Sefkow,427 N.W.2d 203, 211 (Minn. 1988).   The factors in making this determination include, in relevant part, consideration of which parent (1) prepared meals; (2) provided baths, grooming, and dressing of the child; (3) purchased, cleaned, and cared for the child’s clothes; (4) provided medical care, including trips for medical treatment; (5) arranged for social interaction among the child’s peers after school; (6) arranged alternative care for the child; and (7) put the child to bed at night, attended to the child in the middle of the night, and woke the child in the morning.  Pikula,374 N.W.2d at 713.  When the facts demonstrate that both parents shared responsibility for and performance of child care in an entirely equal way, then no preference arises.  Id. at 713-14. 

            Here, the district court found that both parents contributed to childcare performance on some level.  While appellant was primarily responsible for the day-to-day tasks as respondent worked full-time during the day, the record reflects that as time progressed, appellant was increasingly absent and the role of primary caretaker shifted to respondent.  Further, evidence shows that appellant lacks an appropriate emotional bond with her daughters.  Accordingly, the district court did not clearly err in finding this factor to weigh in respondent’s favor.

Next, appellant claims that the district court should not have relied on the testimony of Dawn Kuhl, the court-ordered custody evaluator, because Kuhl was “influenced heavily by [appellant’s] alleged relationship with Dustin Marquette.”  To the contrary, although the record shows that Kuhl did take Marquette into consideration, she did so only in the context of how the relationship affected the best interests of the children.  In recommending that sole physical custody of the girls be awarded to respondent, Kuhl testified that appellant seemed to have “all her energies and time consumed with her relationship with Dusty and not focused on her children.”  Further, Kuhl specifically noted that her recommendation “[did] have anything to do with the morality of the situation.”  Appellant does not specifically cite, nor do we find, any evidence in the record of this alleged bias. 

            Finally, appellant argues that the district court erred in its findings regarding the alleged physical abuse of the youngest daughter.  The court found that the youngest daughter experienced physical injuries on two different occasions that resulted in what appeared to be cigarette burns.  Appellant argues that the district court ignored testimony that the injuries were actually the result of rug burns.  But, the district court’s order expressly acknowledges this testimony.  The district court stated, “[Appellant and her 15-year-old’s] story that [the injuries] were the result of rug burns from tussling on a stairway were not credible.”  Again, appellant asks this court to reweigh the credibility of the witnesses, which we will not do.  Accordingly, we find appellant’s argument to be without merit.

            When viewing the record in the light most favorable to the district court’s findings, we cannot say that the award of sole physical custody of the children to respondent was an abuse of discretion and affirm the district court’s determination.

III.

            Finally, appellant alleges that she was prejudiced by judicial bias on the part of the district court judge.  We do not consider allegations of judicial bias lightly. 

            Appellant’s first allegation of bias concerns the district court’s adoption of respondent’s proposed findings.  A district court’s verbatim adoption of a party’s proposed findings of fact and conclusions of law does not constitute reversible error per se.  Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).  But the practice does raise questions of “whether the trial court independently evaluated each party’s testimony and evidence.”  Id.  The district court “must scrupulously assure that findings and conclusions - whether they be the court’s alone, one or the other party’s, or a combination - are always detailed, specific and sufficient enough to enable meaningful review by this court.”  Id. (footnote omitted).

            Appellant argues that the district court failed to independently evaluate the evidence.  Appellant asserts that the lack of independent review is evidenced by a number of clerical mistakes that were repeated; even more telling, according to appellant, is the legend at the bottom of each page of the original order noting “Joseph Hasslen’s Proposed Findings.”

            We do not find appellant’s argument determinative.  First, the district court’s twenty-five-page order contains findings that are “detailed, specific and sufficient enough to enable meaningful review by this court.”  Id.  Second, the clerical mistakes appellant complains of were corrected in the district court’s amended order.  Third, appellant’s appendix contains a letter to both counsel from the district court judge asking for assistance in preparing a final draft of findings.  The judge states, “I enclose your Draft Findings with my annotations and my own re-write of findings on custody issues.” (Emphasis added).  This statement suggests that the district court independently evaluated the case and the proposed findings.  In addition, the findings of the district court are amply supported by evidence in the record.  Accordingly, while a district court’s photocopy adoption of one party’s proposed findings is not a practice which we encourage, it does not constitute reversible error on this record.

Finally, appellant asserts that an “objective reader can only surmise that the Trial Court was angry with the Appellant and that its opinion as to the Appellant’s relationship with Dustin Marquette has colored its decision making . . . .”  Appellant correctly notes that it is improper for the district court to base custody decisions on a parent’s infidelity.  See Hansen v. Hansen, 284 Minn. 1, 6, 169 N.W.2d 12, 15 (1969) (requiring the district court to disregard allegations of marital misconduct unless it has a direct bearing on the welfare of the child in determining custody).  But the district court’s order contains no evidence that the court considered the alleged relationship between appellant and Marquette as a basis for making its property and debt division.  Further, the court’s only discussion regarding Marquette was limited to the extent to which Marquette’s presence affected appellant’s relationship with the children, the children’s best interests and appellant’s apparent motivation for making certain alterations to the homestead.  We find no evidence in the record that the district court’s consideration of appellant’s involvement with Marquette was inappropriate.

Affirmed.

 



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.