This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1084

 

Grady T. Studier,
Respondent,

vs.

Tarah C. Hoiseth,
Appellant.

 

Filed February 15, 2005

Affirmed

Minge, Judge

 

Freeborn County District Court

File No. FX-02-50510

 

 

Robert D. Sturtz, Goldman, Sturtz & Halvorsen, Chtd., 137 North Broadway, Albert Lea, MN 56007 (for respondent)

 

Matthew L. Benda, Peterson, Savelkoul, Schlichting & Benda, Ltd., 211 South Newton, Albert Lea, MN 56007 (for appellant)

 

††††††††††† Considered and decided by Minge, Presiding Judge; Toussaint, Chief Judge; and Schumacher, Judge.

U N P U B L I S H E D† O P I N I O N

 

MINGE, Judge

 

††††††††††† Appellant challenges a district court order finding that respondent was the primary caretaker and granting physical custody of their child to respondent.† Because evidence in the record supports the district courtís finding that respondent was the primary caretaker, we affirm.†

FACTS

On April 30, 2000, Grady Gage Studier (ďGageĒ) was born to Tarah Hoiseth, appellant, and Grady Studier, respondent.† When the child was born, the parties were living with appellantís parents.† The parties and Gage moved in with respondentís parents in December 2000.† In August 2001, the parties and Gage moved into a house that respondent purchased.† Appellant moved out of respondentís house and back in with her parents in March 2002.† Gage spent substantial time at both locations.

††††††††††† Until November 2001, respondent worked at Brown Printing from 6 p.m. until 6 a.m. three to four days a week, plus overtime.† Respondent stated that appellant felt as if she were a single mother at times.† Appellant testified that compared to respondent, she performed the vast majority of the caretaking duties during the time before she moved out of respondentís home.† Appellantís mother testified that when the parties were living with her, they tried to take turns and shared the parental duties.† There is also testimony that both sets of grandparents performed substantial amounts of caretaking duties during the time the parties were still living together.† The record also indicates that at times while they lived together appellant was attending school and busy during the day.

††††††††††† The evidence shows that from March 2002, when appellant moved back in with her parents, until the trial in January 2004, both appellant and respondent performed parental caretaking duties.† In addition, respondentís mother, who acts as the childís daycare provider, has performed a large portion of the caretaking duties.† Between March and June 2003, respondent was in jail following a DWI conviction, with work release privileges.† During this time, respondentís parents continued to watch Gage on weekends and brought Gage to see respondent at work about twice a week.† From July 2003 until the hearing, Gage was in respondentís care approximately half of the time, and Gage spent a significant amount of the remaining time with respondentís mother.† Respondent arranged for his mother to provide daycare when he was at work.†

††††††††††† The district court awarded physical custody to respondent after analyzing 13 factors used to determine the best interests of the child.† The district court determined that six factors do not favor either party, one factor favors appellant, and six factors favor respondent.† The court found that the primary caretaker factor favors respondent, noting the following: respondent worked full-time and appellant attended school; for the preceding six to eight months, respondent and his mother provided primary care for the child; even during the time that the parties lived together, much of the childcare was provided by grandparents; the grandmothersí caretaking was difficult to separate from the partiesí caretaking; when the parties were living together, they cooperated and shared in caring for the child; and appellantís choice to live apart from her mother during the months before the trial showed irresponsibility in relation to caring for her son.††† ††††††††††††††††

D E C I S I O N

ďAppellate review of custody determinations is limited to whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.Ē† Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).† Unless they are clearly erroneous, a district courtís findings must be sustained.† Id.† An appellate court will defer to a district courtís determinations of witness credibility.† Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).† When making a custody determination, the appellate court views the record in the light most favorable to the district courtís findings.† Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).†

††††††††††† Child custody decisions are based on and fundamentally focus on a childís best interests.† Pikula, 374 N.W.2d at 711; Vangsness,607 N.W.2d at 476.† When determining the best interests of the child, Minn. Stat. ß 518.17, subd. 1 (2002), lists 13 factors that the district court should use to decide the best interests of the child; one of these is who is the primary caretaker.† ď[C]urrent 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.

††††††††††† Appellant argues that the record does not support the district courtís finding that the respondent was the primary caretaker.† The primary caretaker is ďthe person who provides the child with daily nurturence, care and support.Ē† Pikula, 374 N.W.2d at 711.[1] Factors in making this determination include consideration of which parent (1) prepared meals; (2) provided baths, grooming, and dressing of the child; (3) purchased, cleaned, and cared for the childís clothes; (4) provided medical care, including trips for medical treatment; (5) arranged for social interaction among the childís peers; (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.† Id. at 713 (quoting Garska v. McCoy, 278, S.E.2d 357, 363 (W.Va. 1981).

††††††††††† At the outset, we emphasize that the question is not whether this court would find that the appellant is the primary care provider or that the parties were substantially equal care providers.† The question is whether there is substantial evidence that supports the district court decision.† If there is not substantial evidence, the district courtís findings are clearly erroneous and it abused its discretion in concluding that the respondent was the primary provider and granting him custody.

††††††††††† Appellantís strongest claim that she was the primary care provider is based on the period prior to the partiesí separation.† Respondent worked long hours.† However, appellantís mother testified that during this period the parties tried to take turns and shared the duties for taking care of Gage.† Furthermore, the record indicates that appellant was a student during part of this time, that she was often busy during the day, and that the grandparents played a significant role in caring for the child.

After the parties stopped living together, the record indicates that both parties performed significant caretaking duties.† Respondentís mother testified that Gage was with respondent almost every weekend and many times during the week.† During the time that Gage was with the respondent, there is testimony that respondent was performing the Pikula caretaking duties.††††

††††††††††† The district court found that for the six to eight months preceding the trial, Gage was with respondent approximately half the time and that respondent, together with his mother, provided the primary care for the child.† There is testimony that respondent performed the Pikula caretaking duties when Gage was in his care and it appears that he arranged for his mother to care for Gage.† While the caretaking by respondentís mother is not the same as respondent actually furnishing care, arranging for daycare is one of the Pikula factors.†

††††††††††† We conclude that there is sufficient evidence on the record to support the district courtís decision that the respondent was the primary caretaker for Gage and to award respondent custody.[2]† The district court heard the witnesses and could judge their credibility on contested matters.† We cannot conclude that it abused its discretion or that its findings were clearly erroneous.†† This conclusion is reinforced by the district courtís conclusion that five other factors used to determine the best interests of the child favored respondent, one favored appellant and six did not favor either party.[3]

††††††††††† Affirmed.



[1] There is a general rule that the primary caretaker is determined as of the date of the separation of the parties.† Sefkow, 427 N.W.2d at 211.† However, this rule is viable only when the date of separation is reasonably close to the actual trial.† Id. at 212; cf. Maxfield v. Maxfield, 439 N.W.2d 411, 415 (Minn. App. 1989) (holding that where only one year had passed after separation and the post-separation events did not undermine the validity of the analysis, the Pikula analysis was still valid), affíd 452 N.W.2d 219, 222 (1990) (tangentially acknowledging the proximity of time of trial to separation and concluding the mother continued to be primary parent up to the time of trial).† Because approximately 23 months passed between the time when the parties separated and the trial, the time after separation is properly considered.† In addition, both parties agreed in their hearing before this court that the time after separation was relevant to the primary caretaker determination.

[2] We note that the district court found both parties had a history of substance abuse and that neither had clearly overcame their problems.† Should respondentís alcohol use affect his ability to parent Gage, it could become a basis for changing custody in the future.

[3]Appellant contends some of those factors that allegedly favor respondent depend upon the courtís primary caretaker analysis and because that analysis is flawed, those factors do not favor respondent.† Given our conclusion that the record supports the district courtís decision on the primary caretaker, we do not further analyze the other factors.