This opinion will be unpublished and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

A03-1159

 

In re the Marriage of:
Tina M. Bryan-Stephan, petitioner,
Respondent,

vs.

Timothy R. Bryan,
Appellant.

 

Filed June 8, 2004

Affirmed

Stoneburner, Judge

 

Ramsey County District Court

File No. DMF5961039

 

David A. Jaehne, Suite 109, 60 East Marie Avenue, West St. Paul, MN 55118 (for respondent)

 

Timothy R. Bryan (pro se appellant)

 

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

U N P U B L I S H E D   O P I N I O N

 

STONEBURNER, Judge

 

Appellant-father Timothy Bryan challenges the district court's denial of his motion to modify custody to award him sole physical custody of his sons, and grant of respondent-mother Tina Bryan-Stephan's motion to modify joint legal custody to sole legal custody with respondent.  Appellant also challenges denial of his motion to modify child support and the award of conduct-based attorney fees to respondent.  We affirm.

FACTS

 

Appellant Timothy Bryan and respondent Tina Bryan-Stephan were married in March 1979 and dissolved the marriage in June 1996.  Based on a marital termination agreement, the dissolution judgment awarded the parties joint legal custody of their sons, A.B., born 8/3/86, and P.B. born 3/11/89.  Designation of physical custody was reserved for 36 months, with respondent having primary physical care of the children until final designation.  In May 1998, based on the parties' agreement, the court awarded sole physical custody to respondent. 

The parties' post-dissolution relationship has been extremely contentious.  The record demonstrates that the parties have been unable to communicate or cooperate with each other on issues regarding the children.[1]  The parties have been in court numerous times on appellant's various motions and respondent's countermotions regarding child support and parenting time. 

On December 3, 2001, the parties had a physical confrontation at appellant's residence when respondent came to pick up the children from a visit and appellant allegedly refused to let the children leave.  The next day, respondent had a conversation with the children that they interpreted as a demand that they go live with appellant.  The children communicated to appellant this interpretation of what respondent told them.  Appellant, without initiating any communication with respondent, promptly sold his home in Shoreview and had the boys help him choose a new house close to the boys' school and church, so that the boys could move in with him immediately.  On December 31, 2001, appellant moved for sole physical custody of the children based on his claim that "the boys now live with me at our new residence."  

When respondent learned that appellant had bought a house and was expecting the children to immediately move in with him, she apologized to the children and indicated that she did not think they should live with appellant.  P.B., however, moved in with appellant in mid-January 2002, and remained there until sometime in February 2002, with frequent visits to respondent's home.  A.B. never moved in with appellant.  Previous court orders, based on agreements reached by the parties during sessions with a visitation expeditor, had given A.B., since the age of 14, the right to choose whether or not to participate in visitation with appellant.  After the December 3 incident, it appears that A.B. has rarely chosen to spend time with appellant or communicate with him.   

Respondent opposed appellant's motion for physical custody and moved for sole legal custody.  After a hearing on February 19, 2002, the district court found that appellant had made a prima facie showing of emotional endangerment or impairment[2] and ordered a custody/parenting-time evaluation to be provided to the parties by July 29, 2002.

The order provided that either party could request a hearing with ten days of receiving the custody report and if no hearing was requested the court could issue an order based on the results of the custody report.  The order also gave Court Services supervision over parenting time for six months, or until further order of the court.  Pending exercise of that parenting-time-supervision authority, the parties were ordered to "continue under the most recent direction of the parenting consultant."[3] 

The parties received the custody report on August 1, 2002.  The district court was unaware that appellant had requested a hearing, and, on August 20, 2002, accepted the recommendations in the custody report and awarded sole legal and physical custody of the two minor children to respondent, continued parenting time for P.B. as set out in a temporary parenting time schedule, and continued to let A. B. choose whether and when to visit appellant.  The order also addressed ongoing counseling requirements for the parties and the children.  Because appellant had requested a hearing, the matter was later scheduled for an evidentiary hearing on the parties' custody motions.  Appellant's motion for a modification of child support was consolidated with the custody hearing, but was submitted on affidavits and arguments only.  The hearing took place before a referee on December 2, 2002, March 6, 2003, and March 28, 2003.

On June 12, 2003, the district court issued an order identical to the order issued on August 20, 2002, plus an award of attorney fees to respondent and a denial of all other motions.  On appeal, appellant asserts that he was denied an opportunity to be heard, challenges many of the district court's findings of fact as clearly erroneous and argues that the district court abused its discretion by denying his motion to modify custody and granting respondent's motion to modify legal custody.

D E C I S I O N

 

I. Right to be heard

 

At the beginning of the evidentiary hearing, the referee carefully explained appellant's burden under Minn. Stat. § 518.18 to show that the children's current environment endangers their physical or emotional health or impairs their emotional development "and if that threshold is crossed, then it must be proved that . . . the harm that would be caused by a change of custody is more than outweighed by the benefits."  The referee stated:

I will impart to you from having read the Affidavits and evaluation and all of the collaterals from Domestic Relations, including the statements of your sons . . . I have read all of this and unless there are some big surprises that I don't know about, I am not sure why we are having a trial today.  I am imparting to you a sense of the court.  If I had to decide the case based upon what is before me right now, we don't get across even the first threshold of endangerment, let alone a change of custody.

 

The referee then gave the parties some time to consider settling the issues before beginning the evidentiary hearing.  Appellant asserts (although his argument is not developed or supported by any authority) that he was denied the opportunity to be heard, and that the referee had made the decision prior to the evidentiary hearing, "and the rest was for show."  Although the referee's custody decision issued after the evidentiary hearing is identical to the decision erroneously issued before the evidentiary hearing, we do not find any merit in appellant's argument that he was denied the opportunity to be heard.  The referee was candid in explaining appellant's burden at the beginning of the evidentiary hearing.  The referee's findings of fact, and conclusions of law adopted by the district court, demonstrate that the referee considered the testimony and evidence presented at the hearing and that appellant was afforded a full and fair opportunity to be heard.

II. Physical custody

Appellant challenges a number of the district court's findings of fact.  This court will not set aside the district court's findings of fact unless they are clearly erroneous.  Minn. R. Civ. P. 52.01.  A finding is clearly erroneous if the reviewing court is left with the definite and firm conviction that a mistake has been made.  Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).  When determining whether findings are clearly erroneous, the appellate court views the record in the light most favorable to the district court's findings.  Id.  Also, a reviewing court defers to a district court's credibility determinations.  Id.  To successfully challenge a district court's findings of fact, "the party challenging the findings must show that despite viewing [the] evidence in the light most favorable to the [district] court's findings (and accounting for an appellate court's deference to a [district] court's credibility determinations and its inability to resolve conflicts in the evidence), the record still requires the definite and firm conviction that a mistake was made."  Id. at 474.  Because this court must view conflicting evidence in the light most favorable to the district court's findings, challenging findings by simply marshalling evidence that could support findings other than those made by the district court is inadequate to show the challenged findings to be clearly erroneous.  Id.  The challenger must address why the evidence upon which the district court based its findings is inadequate to support those findings.  See id.  (stating both, "[t]hat the record might support findings other than those made by the [district] court does not show that the court's findings are defective" and that only if findings are "clearly erroneous" does it become relevant that the record might support findings other than those that the district court made).  This court declines to remand for de minimis technical errors.  Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985).  And, "error without prejudice is not ground for reversal."  Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (Minn. 1975) (citation omitted).  When a party alleges that a number of the district court's findings are unsupported by the record, this court need not individually address whether each challenged finding is supported by the record.  Vangsness, 607 N.W.2d at 474 n.1.  Our "duty is performed when we consider all the evidence . . . and determine that it reasonably supports the findings."  Id. (citing Wilson v. Moline, 234 Minn. 174, 182, 47 N.W.2d 865, 870 (1951)).

In this case, we have conducted a painstaking review of the entire district court file.  While there is merit to some of appellant's challenges to details, appellant has failed to show that any of these errors were prejudicial and we determine that any error is harmless.  For example, appellant contends that his motion to modify custody arose out of respondent's statements to the children on December 4, 2001, which he characterizes as an "abandonment" of the children, and not, as the district court found, from the hostile domestic dispute between the parties on December 3, 2001.  But the incidents were related and any error in assigning the impetus for the motion is harmless.  The importance appellant attributes to the December 3, 2001, incident is apparent from his challenge to a finding characterizing that incident as "relatively insignificant."  Because the custody report states that the effect of "this high-conflict, on-going divorce seems to have been more detrimental [to the children] than the one particular incident," the referee's characterization of the December 3, 2001, incident is not clearly erroneous.

Appellant challenges the finding that the children have become stressed due to visitation issues, are sometimes "emotionally wiped out" from parenting time with him, and suffer from depression.  Appellant argues that the district court misread the custody report regarding the visitation stress on the younger child.  And appellant claims that the alleged emotional "wipe out" is "hearsay" from respondent and that the children have told him that they are stressed in having to return to their mother's home.  However, based on the testimony of the children's psychologist, the custody report, and the fact finder's ability to weigh conflicting evidence, the record supports the finding and it is not clearly erroneous.

Appellant challenges the finding that his "current psychological evaluation describes his condition as severe bi-polar disorder without psychotic features, chronic generalized anxiety disorder in partial remission, and narcissistic personality disorder, ADHD ruled out."  Appellant argues that reliance on a court-appointed therapist's one-hour evaluation of appellant was an abuse of discretion.  Appellant claims that although he has never been diagnosed with ADHD, he clearly has been diagnosed with ADD.

The record demonstrates that appellant has been diagnosed with ADD, and also supports the finding that appellant has not been diagnosed with ADHD.  The record also supports the finding that appellant suffers from some form of bi-polar disorder, anxiety disorder, and narcissistic personality disorder.  Appellant agrees that he has mental health issues.  Based on the record before this court, the finding is not clearly erroneous.

Appellant challenges the finding that his "testimony was at times conflicting and disingenuous," and that the children had been exposed to pornography on his computer.  Appellant argues that his testimony was "clear, accurate, sincere and documented."  He also argues that he has not used pornography "since November of 1999 when he was baptized."  However, he admits to having researched child pornography on the computer by the way of textual material, with no graphics, and that the topic is a "passion" of his due to his own abuse as a child.  The record demonstrates some conflicts in appellant's testimony and we defer to the fact finder's determination that he was disingenuous.  Any issue of appellant's credibility is clearly within the fact finder's discretion.  See Haefele v. Haefele, 621 N.W.2d 758, 763 (Minn. App. 2001) (giving district court broad discretion in determining witness credibility), review denied (Minn. Feb. 21, 2001).  These findings are not clearly erroneous.

There is a parenthetical note in a finding that appellant "acknowledged that he gave both children ­his medication three or four times."  Appellant argues that this finding is incorrect.  But appellant testified that he gave his own prescription of ADD medication to P.B., on one occasion without knowing if P.B.'s medication was the same.  The custody report states that appellant "openly admitted" to administering his own prescription medication to "the children."  Any error in the details of this finding is harmless.

Other specifically alleged errors in the findings are either without merit, or involve de minimis technical errors that are harmless.  Viewing the evidence in the light most favorable to the court's findings and taking into account credibility determinations and the court's ability to weigh any conflicting evidence, the record clearly supports the findings that the children are not endangered physically or emotionally in respondent's care, that P.B. was not integrated into respondent's home with respondent's consent, as required under Minn. Stat. § 518.18(d)(iii) (2002), and that the evidence does not

establish parental alienation[4] by respondent.  The custody report states that the "children have not demonstrated any current fear of their mother . . . . The children have been living in a stable, secure home with the mother."  Also, the custody report notes that, while the boys may be emotionally alienated from appellant, this alienation is not a result of respondent's behavior.  And there is no evidence in the record to support appellant's contention that P.B. was integrated into his home with respondent's consent.  Because the record supports the findings that appellant failed to meet his burden under Minn. Stat.     § 518.18 for modification of custody, the district court did not abuse its discretion by denying appellant's motion for modification to award him sole physical custody.

III. Legal custody

Appellant argues that the district court abused its discretion in awarding respondent sole legal custody.  A reviewing court will not reverse a custody determination unless the district court abused its discretion.  Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn. 1990).  And a custody determination will not be overturned for abuse of discretion unless the determination is erroneous and illogical in light of the facts in the record.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

It is undisputed that the parties have been unable to communicate since their dissolution.  Even the parties acknowledge the detrimental effect their continuing hostility and inability to communicate has had on the children.  Appellant testified that respondent has never included him in the type of decision-making expected in a joint-legal-custody situation.  Each party blames the other for the inability to communicate.[5]  The record demonstrates that each party has used the children for communication and the parties have shifted a significant amount of decision-making about visitation to the children because the parties are unable to make joint decisions.  The court-appointed psychologist testified that in light of the lack of communication, continued joint legal custody could be difficult and that sole legal custody to respondent is appropriate.  And the custody report recommends that respondent be awarded sole legal and sole physical custody.  The record supports award of sole legal custody to respondent and the award does not constitute an abuse of discretion.

IV. Child support

Appellant argues that denial of his motion to modify child support was error.  This court will reverse a district court's order regarding child support modification "only if we are convinced that the court abused its broad discretion" and reached a "conclusion that is against the logic and the facts on [the] record."  Ludwigson v. Ludwigson, 642 N.W.2d 441, 445 (Minn. App. 2002) (citations omitted).  This court will affirm the district court's findings on net income for child support purposes "if those findings have a reasonable basis in fact and are not clearly erroneous."  Id. at 446.

Appellant argues that his child support and child support arrearages should be reduced, and his medical support obligation should be eliminated.  Appellant argues that the findings that there was "no verification of [appellant's] income" and that "his tax returns show a loss" are contradictory.  The district court found that

[Appellant] is a self-employed entrepreneur.  He provided no current documentation or verification of his income or his claimed disability.  In 2002, his application for SSI was denied.  He did not produce current bank statements or business records as requested by counsel for [respondent].  [Appellant's] income tax returns for the years 2000 and 2001 show net business losses, but he purchased a new home in 2002 (no financing statement was provided).  Articles from the Pioneer Press in 2001 and 2002 featured [appellant] as an entrepreneur whose business received substantial grants from the State of Minnesota.

 

The information before the Court fails to establish a change of circumstances, which would make the current child support order unreasonable and unfair.

 

The record demonstrates that the same referee has been involved with these parties since the beginning of the dissolution process and is intimately familiar with the entire record. 

Appellant's income has been the subject of lengthy examination in the past.  The record supports the finding that appellant has not established a change of circumstances that would make the current support order unreasonable and unfair.  As appellant points out, his change of residence improved his financial condition and he is capable of many hours of work.  The district court did not err in denying appellant's motion to modify child support.

V. Attorney fees

The district court has broad discretion in determining whether to award attorney fees and this court will not disturb the determination absent a clear abuse of discretion.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).  There are two bases for the award of attorney fees under Minn. Stat. § 518.14, subd. 1 (2002).  First, the district court "shall" award attorney fees based on a party's need if the court finds that (1) the fees are necessary for the good-faith assertion of the party's rights; (2) the party from whom fees, costs, and disbursements are sought has the means to pay them; and (3) the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.  Id.  In addition, the district court "may" award "additional" attorney fees against a party who "unreasonably contributes to the length or expense of the proceeding."  Id.  The district court must make findings relating to any award of conduct-based fees in order for us to meaningfully review the award.  Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1992). 

The party who moves for conduct-based attorney fees has the burden to show that the other party's conduct unreasonably contributed to the length or expense of the proceeding.  Geske v. Marcolina, 624 N.W.2d 813, 818 (Minn. App. 2001).  On November 13, 2002, respondent moved for reasonable attorney fees and costs incurred related to the current custody-modification proceeding, but did not specify whether the motion was need-based or conduct-based.  And, although the district court did not make explicit findings stating that the attorney award was conduct-based, it is apparent from the district court's findings that the award was based on appellant's conduct during the current proceeding.  The district court found that appellant had

pressed the current litigation on a thin allegation of endangerment, which was shown to be without merit in the custody evaluation and at trial.  [Appellant] appeared pro se and therefore had little expense in pursuing his unsupported position.  Coupled with a substantial child support arrearage, this has the appearance of economic warfare by [appellant].  He should not be successful in impoverishing [respondent] (and the children) with relentless, unwarranted litigation.  His conduct has contributed to delay and unnecessary expense for [respondent].

 

Although the district court initially determined that respondent made a sufficient prima facie showing of endangerment to proceed with a custody evaluation, it is less clear that appellant had a valid basis for requesting review of the custody report or proceeding with his motion to modify support.  The referee was thoroughly familiar with the parties and the history of their continuing conflict and was in a better position than is this court to assess the need for a conduct-based award of fees.  We cannot say that the award in this case was an abuse of discretion.

Affirmed.

 



[1] A visitation expeditor's report filed on March 28, 2001, noted the ongoing conflict between the parties and stated: "It is likely that any parenting time schedule will be met with complaints, more fighting, and perhaps sabotage.  I am concerned for [the children] but believe that the parenting expeditor can not provide any further relief for them in the face of the parents' unrelenting conflict."

[2] Although appellant's pro se motion implies that the request for modification is based on the alleged integration of the children into his home with respondent's consent, he also argued the respondent's "abandonment" of the children and "parental alienation" endangered the emotional health of the children.

[3] It appears that P.B. returned to respondent's physical custody as a result of this order.

[4] In addition to the December 4 events, "parental alienation" seems to be an underlying basis for appellant's motion.  We note that proof of an unwarranted denial of or interference with duly established parenting time may be relevant to a reversal of a custody award under Minn. Stat. § 518.175, subd. 6(e) (2002).  Grein v. Grein, 364 N.W.2d 383, 386 (Minn. 1985); see Sharp v. Bilbro, 614 N.W.2d 260, 263 (Minn. App. 2000) (noting interference with parenting time is not dispositive regarding custody modification), review denied (Minn. Sept. 26, 2000).  Although appellant did not articulate this basis for a custody change, he fully litigated his theory of parental alienation and the record supports the district court's conclusion that he failed to prove this claim.

[5]  The district court adopted the recommendation of the custody report to order counseling for the parties designed to give each better insight into how their actions have affected the children.