This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1119

 

 

In re 

Michael James Nehring, petitioner,

Respondent,

 

vs.

 

Janet Marie Nehring,

n/k/a Janet Marie Mathison,

Appellant.

 

Filed February 15, 2005

Affirmed

Lansing, Judge

 

 

Stearns County District Court

File No. F3-01-3526

 

 

Thomas W. Lies, Pennington & Lies, P.A., 1111 North First Street, P.O. Box 1756, St. Cloud, MN 56302-1756 (for respondent)

 

John E. Mack, Mack & Daby, P.A., 26 Main Street, New London, MN 56273 (for appellant)

 

 

            Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Stoneburner, Judge.


U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            Janet Mathison challenges the district court’s order modifying custody and restricting her parenting time.  Because we conclude that the district court did not misapply the law, abuse its discretion, or make findings unsupported by the record, we affirm.

F A C T S

Michael Nehring and Janet Mathison’s eight-year marriage was dissolved by court order in May 2003.  One child, KMN, was born during the marriage and is now nine years of age.  The dissolution judgment established that Nehring and Mathison would have joint legal custody of KMN with Mathison receiving sole physical custody, subject to Nehring’s reasonable and liberal parenting time.  Nehring’s parenting time included alternating weekends, alternating midweek visits, and telephone contact.

Within three months after the dissolution judgment, in an affidavit responding to Mathison’s postdissolution motion to determine dependency exemptions, Nehring alleged that Mathison was frustrating his telephone contact with KMN and his exercise of midweek parenting time.  A district court order, one month later, directed Mathison to comply strictly with the dissolution judgment’s provisions on Nehring’s telephone contact and midweek parenting time.  The order also allowed Nehring eight compensatory midweek visits.

The day that the court issued the order, Mathison moved KMN approximately 180 miles from the Willmar area, where Nehring and Mathison had been living.  On the following day, Nehring filed a motion requesting the district court grant him sole physical custody of KMN.  The district court ordered a custody evaluation and scheduled an evidentiary hearing. 

Mathison was not represented by counsel at the hearing.  Nehring testified that, although he repeatedly attempted to exercise his privilege of telephone contact, he had been able to speak with KMN only three times between the May 2003 dissolution and the March 2004 modification hearing.  He further testified that on August 27, 2003, Mathison told him that she might move KMN “up north” and that Mathison forcibly took KMN from him when he and KMN attended a school function during the exercise of his weekend parenting time.  Each parent grabbed one of KMN’s arms to keep her from leaving with the other parent, and, according to school officials, KMN became visibly upset.  In additional testimony, Nehring reported that Mathison repeatedly frustrated his exercise of parenting time by not answering the telephone when he called to schedule midweek visits, that following the dissolution Mathison changed KMN’s school and church without Nehring’s participation, and that Mathison’s removal of KMN to Grand Rapids prevented KMN from participating in counseling that Nehring had arranged.  The custody evaluator and the guardian ad litem concluded that Mathison’s behavior was causing KMN emotional harm.

Based on this evidence, the district court modified custody by placing sole legal and sole physical custody of KMN with Nehring.  The district court restricted Mathison’s parenting time to supervised time with no overnight stays.  It ordered that Mathison attend counseling and “not move the [district court] for unsupervised parenting time . . . until [Mathison’s] psychological evaluation is complete and recommendations are followed.” The court further stated that Mathison would not “receive unsupervised parenting time if she continues to interfere with the parenting time of [Nehring].”  Mathison appeals from this order.

D E C I S I O N

I

“Appellate 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.”  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  We sustain a district court’s findings unless clearly erroneous.  Id.  When reviewing the record, we view the evidence in the light most favorable to the district court’s findings.  Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn. 1993).  The overriding principle is the best interests of the child.  Minn. Stat. § 518.17, subd. 3(a) (2004); Pikula, 374 N.W.2d at 710-11.

A district court may order an endangerment-based modification of custody under Minn. Stat. § 518.18(d) (2004) if the moving party demonstrates: (1) a change in circumstances has occurred; (2) a modification is necessary to serve the child’s best interests; (3) the child’s present environment endangers the child’s health or emotional development; and (4) the harm likely to be caused by the change is outweighed by the advantages of the change.  See Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997) (discussing findings necessary to support endangerment-based modification).  In determining whether custody modification is in the best interests of the child, the district court must examine the thirteen factors outlined in Minn. Stat. § 518.17, subd. 1(a) (2004).  In modifying joint custody, the court must also consider the factors listed in Minn. Stat. § 518.17, subd. 2 (2004), including the ability of the parents to cooperate in the rearing of their children.  Andros v. Andros, 396 N.W.2d 917, 921-22 (Minn. App. 1986).

Mathison contends that the district court failed to make findings on two of the four required factors under section 518.18(d)—endangerment and best interests—and also failed to make findings on the capacity of the parents to cooperate as joint legal custodians.  Mathison does not challenge the district court’s finding that her interference with Nehring’s parenting time constituted a change of circumstances.  Nor does she challenge the finding that the harm likely to be caused by the change is outweighed by its advantages.

Mathison contends that the findings on endangerment are deficient because they are only repetitive findings on parenting-time interference.  We disagree.  The district court not only found that Mathison interfered with Nehring’s parenting time, which Mathison does not contest, but also found that “[Mathison’s] behavior endangers [KMN’s] emotional health and development.”  These findings are supported by Nehring’s testimony, the custody evaluator’s report, and the guardian ad litem’s testimony; and they satisfy the endangerment requirement under section 518.18(d).  See Clark v. Bullard, 396 N.W.2d 41, 44 (Minn. App. 1986) (affirming district court’s finding of endangerment when custodial parent denied noncustodial parent visitation for over six months, moved child without notice, and repeatedly changed child’s school).

The custody evaluator testified that she believed Mathison’s interference with Nehring’s parenting time was emotionally unhealthy for KMN.  The guardian ad litem testified that KMN was “[c]aught in between two parents,” frequently forced to act as a diplomat between her parents, and coped by attempting to please whichever parent was with her.  The guardian also testified that when both parents were present, KMN experienced a “horrible tension.”  The guardian stated that Mathison isolated KMN in an attempt to maintain KMN’s dependency on her and that this isolation “is not going to be helpful” or “healthy” for KMN.  See Meier v. Connelly, 378 N.W.2d 812, 816 (Minn. App. 1985) (affirming district court’s conclusion that consistent denial of access to noncustodial parent impairs child’s emotional development).  Finally, the guardian testified to the school confrontation between Mathison and Nehring, explaining that it is not healthy for a child of KMN’s age to be present during that type of dispute between parents. 

The record demonstrates that KMN’s emotional development was also endangered by frequent school changes and the interruption of counseling.  KMN has been enrolled in four different schools since Nehring and Mathison’s separation; three of the school changes were initiated by Mathison.  The custody evaluator testified that, for a child of KMN’s age, repeated changes in schools are unhealthy because the changes affect emotional stability, impede the formation of a peer group, and limit the ability to establish friendships.  The custody evaluator further testified that KMN and Nehring needed to attend individual and joint counseling and that Nehring arranged this counseling, which was necessarily discontinued when Mathison moved KMN’s residence to Grand Rapids.

The second asserted deficiency is the absence of best-interests findings.  Specifically Mathison argues that the court “cannot ‘incorporate by reference’ the findings of a custody evaluator and thereby comply with” the required best-interests analysis.  We agree that, when a district court modifies custody, it must support the modification with specific findings indicating consideration of the factors listed under Minn. Stat. § 518.17.  Abbott v. Abbott, 481 N.W.2d 864, 867 (Minn. App. 1992).  The district court is not, however, prohibited from incorporating other findings or required to expressly address each statutory best-interests factor.  Rosenfeld v. Rosenfeld, 311 Minn. 76, 83, 249 N.W.2d 168, 171-72 (1976).  Rather, the “findings as a whole” must “reflect that the [district] court has taken the statutory factors into consideration.”  Id

The district court found that “the change in custody is in the best interests of [KMN]” and noted that this finding was consistent with the conclusion of the custody evaluator.  The district court also found that KMN “must have unfettered contact with [Nehring] in order to maintain stability in her life,” that Mathison’s “repeated efforts to shield [KMN] from contact with [Nehring] are unjustified and are harmful to [KMN’s] emotional welfare,” and that Mathison’s behavior demonstrates she “is willing to place her own interests above those of her minor child.”

Although the district court did not expressly address each statutory best-interests factor, these findings demonstrate the district court’s consideration of the relevant best-interests factors.  See Minn. Stat. § 518.17, subd. 1(a) (listing, as best-interests factors, the “interaction and interrelationship of the child with a parent,” “disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child,” “length of time the child has lived in a stable, satisfactory environment,” and “the permanence, as a family unit, of the existing or proposed custodial home”).  The record shows that other factors not expressly discussed by the district court were neutral between the parties:  KMN did not cite any specific custody preference; both parents have a good relationship with KMN; both parents indicated that they have support of extended family; both parents maintain satisfactory environments for KMN’s residence; neither parent has a record of mental or physical health problems; both parents love KMN; KMN’s cultural background did not appear to be an issue; and the record contains no substantiated incidents of abuse.

As evidenced by its eight pages of factual findings and four pages of analysis on the custody-modification issue, the district court carefully reviewed testimony produced at the evidentiary hearing as well as written reports filed by the custody evaluator and guardian ad litem.  The court’s findings, as a whole, properly reflect that it took the required statutory best-interests factors into consideration.

Mathison’s third asserted deficiency is the absence of findings to support the ordered modification of legal custody.  Mathison contends that the district court erred in placing sole legal custody with Nehring because it “made no findings which would indicate that [Mathison] was incapable of participating in the major decisions concerning her child’s upbringing.” 

Joint legal custody is the equal right “to participate in major decisions determining the child’s upbringing, including education, health care and religious training.”  Minn. Stat. § 518.003, subd. 3(b) (2004).  Joint legal custody is not appropriate when the parents cannot cooperate in making decisions that affect the child.  Minn. Stat. § 518.17, subd. 2; Wopata v. Wopata, 498 N.W.2d 478, 482 (Minn. App. 1993); Estby v. Estby, 371 N.W.2d 647, 649 (Minn. App. 1985).

Although the district court did not make explicit findings on the parents’ ability to cooperate, it noted the custody evaluator’s conclusion that “the parties have poor ability to co-parent, primarily due to [Mathison’s] interference with [Nehring’s] parenting time and her unwillingness to communicate with [Nehring] on parental issues.”  This conclusion is supported by the record, which shows that Mathison interfered with or disallowed Nehring’s participation in decisions that determined KMN’s counseling, school enrollment, and church attendance.  This inability or unwillingness to exercise joint decisionmaking establishes that joint legal custody was not a viable choice.

The district court made the necessary endangerment-based modification findings under section 518.18; the record supports the district court’s findings; and the evidence demonstrates that KMN’s parents are unable or unwilling to cooperate in making decisions for KMN’s upbringing and well-being.  The district court did not abuse its discretion in modifying custody and placing sole physical and sole legal custody of KMN with Nehring.


II

The final issue raised in this appeal is a challenge to the restriction on parenting time.  Mathison contends the district court’s restrictions on her parenting time are not supported by adequate findings because the endangerment findings are directed to the issue of custody, not parenting time, and therefore the restrictions are an abuse of discretion.

We will not reverse the district court’s decision governing parenting time unless that decision is a clear abuse of discretion.  Hennessy v. Stelton, 302 Minn. 550, 550, 224 N.W.2d 926, 927 (1974).  When modifying an order for parenting time, the district court may not impose restrictions unless it finds that “parenting time is likely to endanger the child’s physical or emotional health or impair the child’s emotional development.”  Minn. Stat. § 518.175, subd. 5 (2004).  Under Minn. Stat. § 518.176, subd. 2 (2004), supervised parenting time may be ordered, “if the court finds that in the absence of the order the child’s physical or emotional health is likely to be endangered or the child’s emotional development impaired.”  Under both statutes, the key requirement is endangerment.  Clark, 396 N.W.2d at 46.

The district court made express findings that KMN’s emotional health and development were endangered while in Mathison’s custody.  The record supports this finding.  The district court did not make an express finding that endangerment would likely continue in the absence of an order restricting Mathison’s parenting time.  But failure to make this finding “is not necessarily grounds for reversal if the evidence in the record as a whole shows a parent’s conduct endangers the child.”  J.M.G. v. J.C.G., 431 N.W.2d 592, 595 (Minn. App. 1988).  And a district court, after ordering a change in custody, does not abuse its discretion by ordering that parenting time be supervised when evidence supports a finding that the child was endangered while in a parent’s custody under the existing order.  See Clark, 396 N.W.2d at 46 (determining that supervised visitation was necessary because pattern of consistent denial of visitation under premodification order endangered child’s emotional development); Meier, 378 N.W.2d at 817-18 (holding same).

The district court’s order is not a permanent denial of unsupervised visitation; the court required that Mathison seek counseling, complete a psychological evaluation, and follow through with any recommendations of the psychologist before seeking a modification of the restricted parenting time.  These requirements are appropriately directed at ending the behavior that the court has determined is harmful to KMN’s emotional health and development, and, given the current record, the requirements do not constitute an abuse of the district court’s discretion.  The district court retains jurisdiction to modify the order under Minn. Stat. § 518.18 (2004).

            Affirmed.