This opinion will be unpublished and

may not be cited except as provided by

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






In re Keith Everett Benson, petitioner,


Vicki Ann Benson,


Filed June 15, 2004

Affirmed and remanded

Minge, Judge


Otter Tail County District Court

File No. F3-02-1148



Charles A. Krekelberg, Jason M. Hastings, Krekelberg & Skonseng, P.L.L.P., 213 South Mill Street, Fergus Falls, MN 56537 (for appellant)


Tammy L. Merkins, Thorwaldsen, Malmstrom, Sorum, Wilson, LaFlair & Majors, P.L.L.P., 1105 Highway 10 East, P.O. Box 1599, Detroit Lakes, MN 56501 (for respondent)


            Considered and decided by Harten, Presiding Judge; Halbrooks, Judge; and Minge, Judge.

U N P U B L I S H E D  O P I N I O N


MINGE, Judge

On appeal in this child custody dispute, appellant argues that the district court erred in making certain findings regarding respondent’s mental health and their son’s attachment to his half-brother, in finding that respondent’s sole custody was in the best interests of the child, and in placing conditions on respondent’s custody award.  We conclude that the challenged district court findings are supported by the record.  We further conclude that its determination that respondent’s custody is in the best interests of the son and its conditioning of custody on respondent’s compliance with recommended medical treatment were not clearly erroneous.  But, because there is no indication that the district court considered whether the respondent’s custody warrants monitoring safeguards, we remand for such consideration. 


The marriage of appellant Keith Benson and respondent Vicki Benson was dissolved in September 2003.  The only child born of the marriage was a son, approximately two years old at the time of dissolution.  Respondent has another son from a previous marriage who is approximately 11 years old. 

            Respondent is diagnosed as having depressive and anxiety disorders.  She began receiving treatment in 1993.  Shortly after her father’s death, and despite taking various medications, respondent was hospitalized in 1996 after attempting suicide by overdose of medication.  In August 2002, respondent sought help from a mental health center for emotional problems related to the parties’ dissolution proceedings and was given a treatment plan, which included meeting with a psychologist at least every other week and continuing her prescribed medications. 

            In September 2002, the sheriff’s department received reports that respondent was threatening suicide and threatening her older son.  The responding deputy found respondent outside with her older son and noted that she was visibly distraught, stating that she did not want to live.  Respondent was admitted to a treatment center under emergency hold and was released approximately one month later.  Respondent’s records from this time reflect her guilt in having told her 11-year-old son that she was going to die, but that she denied ever threatening or considering hurting her children.  Both boys stayed with appellant during respondent’s hospitalization.

            During the separation, both parties requested sole physical custody of the younger son.  Following a June 2003 trial, the district court awarded sole legal and physical custody of the younger son to respondent, subject to reasonable visitation with appellant.  The district court’s order conditioned respondent’s grant of sole custody on her compliance with treatment and medication recommendations.  This appeal follows.



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 a custody determination is limited to “whether the trial 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.  Minn. R. Civ. P. 52.01.  Due regard shall be given to the opportunity of the district court to judge the credibility of the witnesses.  Ruzic v. Ruzic,281 N.W.2d 502, 503 (Minn. 1979).  “Clearly erroneous means manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.”  Novack v. Northwest Airlines, Inc., 525 N.W.2d 592, 597 (Minn. App. 1995) (quotation omitted).  In deciding whether a district court’s findings are clearly erroneous, an appellate court must view the record in the light most favorable to those findings.  Ayers v. Ayers,508 N.W.2d 515, 521 (Minn. 1993).  Where, as here, there was no motion for a new trial, appellate courts may review substantive issues of law properly raised at trial as well as whether the evidence supports the findings of fact, and whether the findings of fact support the conclusions of law and the judgment.  Alpha Real Estate Co. v. Delta Dental Plan, 664 N.W.2d 303, 310 (Minn. 2003); Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976).


The first issue is whether the district court made certain findings of fact that were clearly erroneous.  Finding 66 of the district court’s order states:

Each party is capable of adequately parenting [their son].  According to the Guardian ad Litem, both parties have a strong loving relationship with [their son] and display strong parenting techniques.  If custody of [the younger son] is awarded to the [Appellant], [the younger son] will be separated from [his half-brother] for longer periods of time.  This will result in emotional harm to [the younger son].  If custody of [the younger son] is awarded to the Respondent, then [he] will live with the risk of the Respondent’s recurrent depression, which may lead to further suicidal ideations on the part of the Respondent.  This could result in emotional harm to [the younger son].  From review of the psychological and psychiatric reports provided to this Court, the risk of the Respondent’s recurrent depression may be controlled with medication and continued psychological and psychiatric counseling, conditions that the Respondent is willing to accept.  The risk may be further minimized by the Respondent’s newfound insight into determining the effectiveness of her medication.  The risk of emotional harm to [the younger son] in separating him from [his half-brother] cannot be limited or controlled.  Although [he] is a young child and would adjust to not living with [his half-brother], [the younger son] would suffer a substantial loss of this supportive relationship.


Appellant first argues that the record does not support the finding that respondent’s depression can be controlled by counseling and medication.  Appellant cites to Jones v. Jones, where this court reversed an award of custody, stating that the best interests of the children were not served by placing them with their mother who suffered from mental illness.  377 N.W.2d 38, 40-41 (Minn. App. 1985). 

At trial, respondent presented medical records both from her hospitalization after her 2002 suicide threat and from her ongoing therapy.  This evidence indicates that, since the 2002 incident, respondent’s medications have been readjusted, that she is consistently taking the medication, that she has cooperated with treatment plans, and she has not experienced further suicidal thoughts.  An affidavit from respondent’s licensed psychologist indicates that respondent participated fully in therapy sessions and is currently receiving the appropriate course of treatment.  Further, respondent testified at trial that she is aware of when her medication is not working or needs adjustment.  Respondent explained the 2002 incident, stating that she knew she was having problems with her medications, but because she was a new patient at her clinic, she was unsuccessful in her attempts to schedule an emergency appointment.  Respondent further explained that, if the need were to arise again, she is now able to schedule emergency appointments immediately.  Respondent also indicated that continuing counseling and taking all prescribed medications will ensure that her depression will not compromise her parenting.  Finally, the evidence indicates that, as of the time of trial, respondent was not experiencing feelings of depression.

The foregoing is sufficient evidence to support the district court’s findings that respondent’s depression can be controlled by counseling and medication.  Unlike the parent in Jones, the evidence here shows that respondent is consistently taking her medication and has followed through with treatment plans.  See id. at 39.  Viewing the record in the light most favorable to the district court’s findings, the district court was not clearly erroneous.

Appellant also argues that there is no evidence to support the finding that the younger son will suffer a substantial loss if separated from his half-brother.  We have stated that the preference for keeping siblings together “recognizes the sibling relationship as a significant aspect of family stability which is particularly important where the family has already been disrupted by loss of one parent from the home.”  Johnson v. Lundell, 361 N.W.2d 125, 128 (Minn. App. 1985).  Here, testimony indicated that the younger son and his half-brother have a close relationship and that it was important that they spend time together.  We cannot say that the district court’s finding that he would “suffer a substantial loss of [a] supportive relationship” if separated from his half-brother was clearly erroneous or unsupported by the record.


            The next issue is whether the district court erred in finding that granting sole custody of the son to respondent was in his best interests.  Minnesota law does not favor joint physical custody where, as here, the parties are unable or unwilling to fully cooperate and communicate with each other regarding parenting decisions.  Rosenfeld v. Rosenfeld, 529 N.W.2d 724, 726 (Minn. App. 1995).  In determining whether a custody award serves a child’s best interests, the district court must consider numerous factors such as the wishes of the parents and their relationship with the child, which parent has served as the child’s primary caretaker, the child’s interaction with parents and siblings, the permanence of the family unit and custodial home, and the relative mental and physical health of the parties.  Minn. Stat. § 518.17, subd. 1(a) (Supp. 2003).  The statute further provides that “[t]he court may not use one factor to the exclusion of all others . . . .  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

            Here, the district court found that both parties have been significantly involved in the primary daily care of the boys and that respondent is capable of adequately parenting the children.  The court found that respondent has a close relationship and bond with the younger son, and that the boys are very close and love each other.  The court also found that the son has lived consistently with respondent in the same home, except for the month she was hospitalized.  As to respondent’s mental health, the court found no indication that respondent poses a direct threat of harm to her children.  Further, respondent loves her son very much, enjoys spending time with him, and appropriately disciplines him.  While harboring anger toward appellant, respondent has nonetheless acknowledged the importance of appellant playing a role in the lives of both boys.

Appellant argues that the district court erred in not giving respondent’s depression more significance in weighing the best-interests factors.  Again, we are urged to consider our decision in the Jones case.  But, in Jones there was evidence from a psychiatrist that individuals suffering from the mother’s type of illness often went off their medication, leading to psychotic episodes, and that the mother would be unaware of when she was having such an episode.  Jones, 377 N.W.2d at 40; see Uhl v. Uhl, 413 N.W.2d 213, 217 (Minn. App. 1987) (finding Jones not applicable where there is no evidence of a major mental illness and where the parent was only depressed and suffering from stress). 

            In determining what is in the best interests of a child, Minnesota law provides for consideration of the mental health of all individuals involved, but dictates that such a disability “shall not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interest of the child.”  Minn. Stat. § 518.17, subd. 1(a)(9).  The statute also provides that “[t]he court may not use one factor to the exclusion of all others.”  Id., subd. 1(a).  Further, “current 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).  The district court’s order shows that it spent considerable time considering the state of respondent’s mental health and its possible effect on the parties’ son.  We cannot say that the district court failed to give this factor appropriate weight.  

Appellant also argues that the overall weight of the evidence and the district court’s findings favor his receiving sole custody of their son.  In essence, appellant asks this court to reweigh the best-interests factors in his favor.  While appellant is correct to the extent he argues the existence of findings in his favor, on review we must view the evidence in the light most favorable to the district court’s findings.  Ayers,508 N.W.2d at 521.  Taking such a view, we find there is ample evidence in the record to support the district court’s grant of sole custody to respondent.  Because the court’s findings are supported by evidence and in accordance with the statute, we conclude that the district court did not abuse its discretion.


            The next issue is whether the district court’s conditioning respondent’s custody on taking her medication and continuing treatment impermissibly changed the statutory standard for modification of custody.  A district court may not modify a prior custody order unless it finds a change in circumstances of either the child or the parties that makes modification necessary to serve the best interests of the child.  Minn. Stat. § 518.18(d) (2002).  The district court is required to retain the existing custody arrangement unless, among other things, “the child’s present environment endangers the child’s physical or emotional health or impairs the child’s emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.”  Id. § 518.18(d)(iv).

The party moving for modification must submit an affidavit containing facts that support the requested modification.  Minn. Stat. § 518.185 (2002).  Four elements are required to establish a prima facie case for a modification based on endangerment:

(1) a change in the circumstances of the child or custodian; (2) that a modification would serve the best interests of the child; (3) that the child’s present environment endangers her physical or emotional health or emotional development; and (4) that the harm to the child likely to be caused by the change of environment is outweighed by the advantage of change.


Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997). 

            Appellant contends that the conditional custody award changes the requirements for modification by allowing respondent to maintain custody so long as she meets the conditions of maintaining treatment and taking prescribed medications.  But, nothing in the district court order states that, if appellant satisfies all four elements above, modification is in any way precluded by the respondent’s satisfaction of the required conditions.  Nor is there any indication that appellant’s burden of proof for modification is limited to proving a failure by respondent to abide by the terms of the conditional custody award.  Rather, appellant’s ability to show that respondent has failed to meet the conditions of her custody award merely provides one way in which to prove that a change in circumstance has occurred.  The district court order, however, does nothing to indicate that this is the only way of satisfying the first element.  Accordingly, we conclude that the district court’s grant of conditional custody does not alter the requirements for modification and was not error.


Finally, we consider whether the district court abused its discretion in not providing any monitoring arrangement for the two conditions it imposed on respondent’s custody: that she continue treatment as recommended by her doctors and take her medication as prescribed and recommended.  Appellant relies solely on Meyer v. Meyer, to argue that conditioning child custody is contrary to Minnesota law.  375 N.W.2d 820 (Minn. App. 1985), review denied (Minn. Dec. 30, 1985). 

In Meyer, the mother was diagnosed with a mental illness during the five years leading up to dissolution.  Id. at 822.  The district court granted her custody of her eight-year-old son on the condition that she maintain a regular course of treatment with a licensed psychiatrist, including taking prescribed medications, until discharged by the psychiatrist.  Id. at 826.  The district court also required the mother to provide the father a written report from the physician indicating her ability to continue to function as a parent.  Id.  The custody order further required the mother to enroll the son in a counseling program and that the father be given access to records pertaining to the son’s counseling.  Id.  On appeal, the father argued that the district court failed to provide sufficient means by which he would be able to ascertain whether the mother was continuing to provide adequate care for their son.  Id.  While sharing the father’s concern, this court affirmed the conditional custody award.  Id.

            Appellant asserts that Meyer stands for the proposition that a conditioned custody award is not in a child’s best interests and contrary to Minnesota law.  But, the Meyer opinion does not go that far.  Rather, in that case we urged the district court on remand “to require more rigid safeguards with respect to [father’s] ability to closely monitor [mother’s] condition while she has custody of [the son].”  Id.  We did not require more rigid safeguards.  Furthermore, we have previously stated that a “lack of statutory authority explicitly allowing conditional custody awards does not preclude such an award when it is in the child’s best interest.”  LaChapelle v. Mitten, 607 N.W.2d 151, 162-63 (Minn. App. 2000), review denied (Minn. May 16, 2000). 

As with the situation in Meyer, we have concerns about appellant’s ability to monitor the conditions set forth by the district court.  There is no indication on the record before us that the district court considered whether procedures were necessary or appropriate for monitoring the terms of the conditional custody.  We note some rudimentary process existed in the Meyer case.  Having heard all the evidence and the opportunity to view the witnesses, it is for the district court, not this reviewing court, to determine the necessity and appropriateness of safeguards for such a conditional custody award.  While we decline to go so far as to require that conditional custody awards contain monitoring mechanisms, the necessity for such safeguards should be considered by the district court.  Accordingly, we remand for a determination by the district court as to whether the facts of this case warrant the establishment of a procedure that enables appellant or an agency to monitor the conditions of respondent’s compliance with the conditions and, if so, the terms of such a procedure.

            Affirmed and remanded.