This opinion will be unpublished and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
In re the Marriage of:
Karin Lesley Ackerberg, petitioner,
Stuart Ira Ackerberg,
Filed March 8, 2005
Affirmed; motions denied
Gordon W. Shumaker, Judge
Hennepin County District Court
File No. DC 256353
M. Sue Wilson, Amy Yanik Meisel, M. Sue Wilson Law Offices, P.A., Two Carlson Parkway, Suite 150, Minneapolis, MN 55447 (for appellant)
Karim El-Ghazzawy, El-Ghazzawy Law Offices, LLC, 701 Fourth Avenue South, Suite 300, Minneapolis, MN 55415 (for respondent)
Candace J. Barr, Niemi, Barr & Jerabek, P.A., 510 Marquette Avenue, Suite 200, Minneapolis, MN 55402-1121 (guardian ad litem)
Considered and decided by Shumaker, Presiding Judge; Dietzen, Judge; and Poritsky, Judge.*
GORDON W. SHUMAKER, Judge
In this custody dispute, appellant-mother argues that (a) the parties’ inability to communicate and cooperate regarding the children should have precluded an award of joint legal custody; (b) because this case lacks exceptional circumstances, joint physical custody was inappropriate; (c) the district court should not have awarded mid-week overnight parenting time on this record; and (d) the custody re-evaluation clause improperly precludes application of Minn. Stat. § 518.18 (2002) in deciding whether to allow custody modification. Because the district court did not abuse its discretion, we affirm.
Appellant Karin Ackerberg and respondent Stuart Ackerberg married on December 23, 1990. Thereafter, they adopted two children. The Ackerbergs had a “traditional” marriage, with appellant as homemaker and respondent as wage earner. They separated in October of 1999, and appellant started this marriage-dissolution proceeding in April of 2000.
The parties stipulated that a consensual special magistrate, William E. Haugh, would preside over their dissolution proceeding. After a trial and two amendments of the findings of fact and conclusions of law, Magistrate Haugh awarded to the parties the joint legal and joint physical custody of the children; ordered a parenting-time schedule that provided a mid-week overnight stay with respondent; and established a “custody re-evaluation” clause that could be invoked by either party one year after the entry of judgment. Appellant challenges all these rulings on the ground that they are the product of the clear abuse of the magistrate’s discretion.
During the nearly five years that this case has been in litigation, the predominant issues in contention have related to the legal and physical custody of the children and respondent’s parenting-time schedule. To help resolve these issues, the parties enlisted several professionals.
In extensive and detailed findings of fact, Magistrate Haugh reviewed and evaluated the observations, opinions, and recommendations of the professionals, the most prominent of which was Dr. Jane McNaught Stageberg.
Dr. Stageberg was retained to serve as a neutral custody evaluator. She made a temporary recommendation on July 26, 2000, and a formal recommendation on February 1, 2001. In both, she recommended that appellant be awarded sole physical custody of the children, that the parties share joint legal custody, and that respondent be allowed a parenting-time schedule that would permit him to remain close to the children and be involved in their lives.
Dr. Stageberg’s recommendations were based in significant part on her opinion that the parties were capable of cooperating with each other on matters involving the children; that the parties had neither physical nor emotional problems that would compromise their abilities to perform appropriate parenting tasks; and that both parties are intelligent people who demonstrated an above-average interest in protecting and serving their children’s best interests.
In her updated report of October 15, 2002, Dr. Stageberg changed her opinion, recommending that the court award sole legal and physical custody to appellant. She also proposed a more restrictive parenting-time schedule than she had previously suggested. She testified that among the reasons for the new recommendation were that respondent met the criteria for narcissistic personality disorder and some of the criteria for antisocial personality disorder. She also highlighted several parenting deficiencies in respondent’s interaction with the children and intimated that there was a question of the children’s safety while in respondent’s care.
The other professionals in the case also emphasized deficits in respondent’s parenting judgment and ability. Mindy Mitnick, the neutral parenting consultant, testified that the parties were in the highest possible degree of conflict; that they had not been able to resolve major issues; and that she was concerned that respondent put the parties’ daughter in unsafe situations by allowing her to ride on an ATV without a helmet and letting her ride in the back of a pickup truck, and that respondent put the parties’ son in danger by not securing him in a car seat in respondent’s motor vehicle.
Dr. Susan Phipps-Yonas was the parties’ daughter’s therapist. She felt that appellant had considerable parenting skills but that respondent did not know how to take care of the parties’ son and that respondent put the daughter in the role of a parent who needed to nurture respondent.
The guardian ad litem, Candace Barr, assessed appellant’s parenting abilities as excellent but felt that, in some respects, respondent’s skills and judgment were lacking. Additionally, Ms. Barr was concerned about the children’s sleeping arrangements in respondent’s home and complimented appellant on providing a child-centered and childproof home environment.
Despite the negative opinions of these professionals toward respondent, Magistrate Haugh awarded joint legal and joint physical custody. His reasons for doing so are set forth with clarity and particularity in his findings of fact and will be discussed below.
The district court has broad discretion in determining custody matters. Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989). Appellate review of custody determinations is limited to deciding 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); Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). The district court’s findings are to be upheld unless they are clearly erroneous. Pikula, 374 N.W.2d at 710. A finding is clearly erroneous if the reviewing court is left with the definite and firm conviction that the district court has made a mistake. Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).
The controlling principle in all child-custody determinations is that of the best interests of the child. Pikula, 374 N.W.2d at 711. The district court must consider several factors in determining the best interests of the child, including the parents’ wishes, the child’s preference, the identification of the child’s primary caretaker, the intimacy and interrelationship between the child and the parents, health issues of both the child and parents, adjustment issues, the nature of the proposed custodial home, cultural factors, and the abilities of the parents to provide love, guidance, and education for the child. Minn. Stat. § 518.17, subd. 1 (Supp. 2003).
When joint legal or joint physical custody is contemplated, the court must consider four additional factors: (1) the parents’ ability to cooperate in the rearing of the child; (2) the existence and nature of dispute-resolution methods respecting major issues that concern the child and the parties’ willingness to use these methods; (3) if it would be detrimental to the child for one parent to have sole authority over the child’s upbringing; and (4) whether either parent has committed domestic abuse. Minn. Stat. § 518.17, subd. 2 (Supp. 2003).
We look first at Magistrate Haugh’s assessments of the credibility of the professionals who testified because those assessments became a central and sometimes dispositive feature of the magistrate’s findings. Appellant courts are required to give substantial deference to a fact-finder’s determinations of the credibility of witnesses. Vangsness, 607 N.W.2d at 472.
The common theme as to three of the professionals is that appellant “lobbied” them to persuade them of the existence of respondent’s parenting deficits. Through such lobbying, the magistrate found, appellant managed to compromise to some degree the objectivity of each of the three professionals. As compromised, the professionals ceased to have the credibility that would be expected of truly neutral witnesses and instead took on, to a lesser or greater extent, the role of advocate for appellant.
The examples of compromised credibility are many and are explained fully in the magistrate’s findings. But to highlight a few, after the parties’ separation appellant required that they communicate only through e-mail. They did so and engendered thousands of e-mail messages. Appellant gave less than the majority of these e-mails to Dr. Stageberg, selecting those that portrayed respondent as unreliable, untruthful, and inadequate as a parent. Appellant also sent lengthy letters to Dr. Stageberg in which she complained about respondent’s parenting ability. Appellant sent some of the e-mails and other correspondence to Ms. Mitnick and Dr. Phipps-Yonas in an effort to create a picture of respondent as a poor parent. Sometimes the other professionals related concerns about respondent to Dr. Stageberg. Respondent was unaware that these materials were being submitted to the professionals. And Dr. Stageberg reviewed only selected e-mails provided by appellant. Magistrate Haugh was “left with the conviction that Dr. Stageberg, being provided only selected e-mails by [appellant], was afforded less than complete information, which thus appeared to have influenced her findings and recommendations.”
Appellant engaged in what Magistrate Haugh characterized as a “systematic course of complaining” about respondent to the professionals and others and, in doing so, distorted otherwise positive factors respecting respondent’s parenting ability. Regarding Dr. Stageberg, the magistrate found:
The bottom line is that the Magistrate is left with the conviction that the custody evaluator, hired as a neutral, has become, at least to some degree, an advocate for [appellant] and has been aided in this proceeding by the ongoing submissions to her from [appellant], on many—probably most—of which Respondent was not copied, and as to most of which he had no knowledge.
The record supports this finding. The selected e-mails distorted the context of information relevant to Dr. Stageberg’s recommendation, and some of the correspondence from appellant about respondent’s behavior was either inaccurate or exaggerated.
The magistrate found that Ms. Mitnick received a great deal of correspondence from appellant, received telephone calls from her, and had personal meetings with her. Much of these contacts involved criticisms of respondent as a parent but likely few were also revealed to respondent. As a result, Ms. Mitnick, according to the magistrate, made unjustified assumptions about respondent’s parenting behavior and ability. Ms. Mitnick also engaged in a telephone conference with appellant’s attorney to prepare for testifying at trial, but respondent’s attorney was not notified of this contact. However, when respondent’s attorney sent a letter to Ms. Mitnick regarding Dr. Stageberg’s recommendations, Ms. Mitnick reprimanded him for the contact.
Dr. Susan Phipps-Yonas was hired to be the parties’ daughter’s therapist. But she also had ten therapy sessions with appellant and she met with appellant’s attorney to prepare for trial. After receiving information from appellant that reflected negatively on respondent, Dr. Phipps-Yonas communicated with Dr. Stageberg but did not inform respondent of the contact.
The record reveals that appellant engaged in a campaign by which she flooded Dr. Stageberg, Ms. Mitnick, and Dr. Phipps-Yonas with negative information about respondent for the purpose of influencing their opinions and recommendations on the custody and parenting-time issues. The magistrate concluded that appellant did succeed in influencing the opinions of those professionals but also thereby diminished their impartiality and significantly compromised their credibility. The magistrate’s conclusions as to the credibility of these three professionals are amply and unmistakably supported by the record.
The magistrate found Ms. Barr to be a credible professional and concluded from her testimony that both parties are good parents; that these adopted children need both parents in their lives; and that the parties have the capacity to communicate with each other for the benefit of the children. Ms. Barr favored an award of joint legal custody.
Joint Legal Custody
Under a joint legal custody arrangement, both parents have equal rights and responsibilities to participate in major decisions as to a child’s upbringing, including matters of education, health care, and religious training. Minn. Stat. § 518.003, subd. 3(b) (2002). The law provides a rebuttable presumption that, upon request of either party, or both, joint legal custody is in the child’s best interests. Minn. Stat. § 518.17, subd. 2 (2002). However, if the court awards joint legal custody over the objection of a party, it must make detailed findings on the four joint-custody factors and must explain how joint custody is in the child’s best interests. Id. Joint legal custody should be granted only where the parents can cooperatively make necessary major parenting decisions. Estby v. Estby, 371 N.W.2d 647, 649 (Minn. App. 1985).
The magistrate found that, before appellant began her lobbying efforts, Dr. Stageberg twice recommended that the parties be awarded joint legal custody. That recommendation was based in part on the parties’ history of cooperating in the rearing of the children, on Dr. Stageberg’s assessment of the parties as being high-functioning people with significantly above-average concern for addressing the emotional and physical needs of the children, and on Dr. Stageberg’s opinion that the parties are likely to communicate appropriately once the litigation has ended.
Although the record discloses strife between the parties and substantial animosity by appellant, it also reveals that the parties have communicated with each other, albeit through e-mails, during the entire litigation and have managed to agree on major child-rearing decisions. They agree on the issues of school attendance, health care, and religious training. In such agreements, the parties have clearly demonstrated their ability to cooperate on issues that affect the best interests of their children. The record shows that the parties have exercised joint legal custody for over four years and have fostered the best interests of the children in major, critical areas of their lives. It seems that the very best evidence of whether the parties are able to cooperate and communicate as to joint legal custody types of issues is what they have been doing for several years. Despite many personal conflicts, they have found the means to achieve an ultimate harmony on legal-custody questions. And if the parties need a specific methodology for dispute resolution, that is provided in the magistrate’s findings and is based on the guardian ad litem’s recommendation.
Furthermore, the magistrate found that “if [appellant] is awarded sole legal custody, she will not involve Respondent in any significant legal custody issues affecting the children, and will discourage his participation in the children’s lives.” This finding is amply supported in the record. The record shows that appellant is controlling, restrictive, and inflexible when it comes to allowing respondent to participate in the children’s lives. Dr. Stageberg acknowledged this, as did the guardian ad litem. And the magistrate observed appellant’s demeanor while testifying at trial and considered the content of her testimony and concluded that she made an effort to portray respondent as an inadequate and incompetent parent. The reasonable inference to be drawn from that testimony, and the one the magistrate drew, is that appellant would likely not entrust major decisions affecting the children’s lives to a father whom she wishes to portray as inadequate and incompetent.
Appellant cites several caselaw authorities in which joint legal custody was rejected. We find none of them controlling here and instead find that the statutory joint legal custody factors applied to the facts of this case fully support an award of joint legal custody of the children. The magistrate did not abuse his discretion in making this award.
Joint Physical Custody
Under a joint-physical-custody arrangement, the routine daily care, control, and child’s residence are structured between the parties. Minn. Stat. § 518.003 (2002).
The magistrate awarded a “highly structured sharing of parenting time,” with a distribution of 60% to appellant and 40% to respondent. Because of this time distribution and the ability of appellant and respondent to cooperate in making parenting decisions in the best interests of the children, the magistrate determined that the parenting arrangement “be deemed joint physical custody.”
Joint physical custody is not routinely awarded in marriage dissolutions, but rather is limited to exceptional cases in which the parties are able to cooperate. Rosenfeld v. Rosenfeld, 529 N.W.2d 724, 726 (Minn. App. 1995). We have upheld awards of joint physical custody when the parties “cooperate” by sharing and acting on compatible philosophies regarding the upbringing of their children. Berthiaume v. Berthiaume, 368N.W.2d 328, 332-33 (Minn. App. 1985). We have also approved joint physical custody when the record indicates that the parties had cooperated in such an arrangement for a significant time. Rosenfeld, 529 N.W.2d at 726.
Appellant argues that this is a “high conflict” case in which the parents have been in continual disagreement throughout the litigation and have had to obtain assistance from professionals to resolve problems. She also emphasizes that it is not disputed that she has been the primary caregiver of the children and that all the professionals, including the guardian ad litem, recommend that she receive sole physical custody She also points to the concern that joint physical custody fosters instability and the lack of continuity in the children’s upbringing. Wopata v. Wopata, 498 N.W.2d 478, 482-83 (Minn. App. 1993). Finally, she contends that the parties have significantly different parenting styles and standards.
When we examine the record, we cannot ignore the evidence that the parties have had much conflict in this matter. The fact that the case has been in litigation for nearly five years and is still unresolved attests to such conflict. But we are left with the impression, as we believe the magistrate was, that a good deal of the “conflict” was manufactured to serve ulterior motives. Despite personal acrimony between the parties, the overwhelming evidence is that they invariably have tried to act in the children’s best interests. When there has been a concern about respondent in that regard, he has adjusted and not repeated questionable conduct. And some of appellant’s ostensible concern about respondent’s behavior proved to be unfounded.
There was no credible evidence adduced at trial that would contradict the conclusions that these parties are intelligent, capable people who sincerely desire to be the very best parents they can be; that each party has an excellent relationship with the children, and each takes an active interest in the children’s lives in every respect; that appellant has more significant parenting skills than respondent, but respondent is improving and is willing to continue to do so; that respondent does not disagree with appellant’s parenting style; that neither parenting style has proved to be deleterious to the children’s best interests; and the parties have consistently demonstrated the ability to move beyond their personal conflicts and make decisions that serve their children’s best interests.
Recognizing that joint physical custody is not the ordinary parenting arrangement, we have scrutinized the record to find credible evidence of a reasonable potential for discontinuity or instability in the children’s lives if the joint physical custody award is upheld. We did not find such evidence. Rather, we found that a substantial amount of time with each parent would augment the already firm bonds of love the children have for their mother and father and would stabilize rather than destabilize the children’s lives. Perhaps because these children are adopted, there is a heightened concern that they not come to feel abandoned by one parent or the other, which is a risk when one parent becomes virtually peripheral in their lives.
We also conclude, as did the magistrate in assessing joint legal custody, that the perpetuation of litigation itself is a source of conflict that eventually will not exist. When there is nothing further to gain from the courts, the parties can devote more of their attention and energies to their parenting duties.
Although the award of joint physical custody presents a closer issue for us than the award of joint legal custody, the record supports the magistrate’s exercise of discretion on this question and we find no clear abuse of that discretion.
Mid-week Overnight Parenting Time
Appellant argues the magistrate abused his discretion when he granted a mid-week overnight stay with the respondent. Visitation rights are not absolute and are to be exercised only when in the best interest of the child. Manthei v. Manthei, 268 N.W.2d 45, 45 (Minn. 1978). The focus in granting visitation rights is primarily the best interests of the child. Minn. Stat. § 518.175, subd.1 (2002). The district court “has broad discretion to determine what is in the best interests of the child in the area of visitation and its determination will not be overturned absent an abuse of discretion.” Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995). “There must be a clearly erroneous conclusion that is against logic and the facts on the record before this court will find that the trial court abused its discretion.” Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).
Appellant argues that there is overwhelming testimony from the experts that a mid-week overnight stay is a poor idea. She states that it disrupts stability and that the oldest child will have trouble with transitions. The professional opinions were based on a former schedule that granted respondent an overnight stay on Tuesday or Wednesday. The magistrate modified the previous overnight schedule and granted respondent an overnight stay on Thursdays. The guardian ad litem addressed the Thursday overnight stays, stating that they are a good idea and that she would not recommend changing them. More importantly, there is no evidence that the children are adversely affected by this Thursday overnight stay. There are no reports from the children’s teachers that they are tired, and the report cards reveal that the oldest child is doing well in school. Therefore, because the magistrate carefully considered this grant on two separate occasions and because it has been working well and has had no ill effects on the children, it is not clearly erroneous, and the magistrate did not abuse his discretion on this issue.
Custody Re-evaluation Clause
Finally, appellant argues that the magistrate abused his discretion when he placed a custody re-evaluation clause in the amended decree. Specifically, appellant asserts that the clause is an attempt to override Minn. Stat. § 518.18 (2002).
The standards for a modification of a custody order are set forth in Minn. Stat. § 518.18. Essentially, no motion for a modification of a custody order can be made before one year after the decree unless (1) there was a written agreement by the parties; (2) there has been persistent and willful denial or interference of parenting time; or (3) the present environment is dangerous to the welfare or development of the child. Minn. Stat. § 518.18, subd. (a), (c). Additionally, it sets forth the standards that a court should apply when determining a custody modification. Minn. Stat. § 518.18, subd. (d).
Appellant challenges the custody re-evaluation clause found in the second amended decree, stating that this clause makes it possible for either party to re-litigate legal or physical custody one year after entry of the decree “for any reason whatsoever.” But the custody re-evaluation clause states that “[a]t the request of either party, or of the Guardian ad litem, the legal and/or physical custody decisions herein made shall be reviewable one year after entry of the Judgment and Decree, and thereafter for good cause shown by either party hereto.” (Emphasis added.) The magistrate may have been attempting to paraphrase the standards in the statute because Minn. Stat. § 518.18 is cited in the re-evaluation clause. We deem “good cause” as used in the re-evaluation clause to mean only those statutory bases provided under Minn. Stat. § 518.18. Thus, despite the language of the re-evaluation clause, the statute controls. Furthermore, respondent concedes that the controlling statute on custody modifications should be Minn. Stat. § 518.18. To the extent that the magistrate was simply referring to controlling statutory law, he did not abuse his discretion.
On November 9, 2004, appellant brought a motion to strike portions of respondent’s brief and appendix and a motion for attorney fees. Specifically, appellant requests that the court strike (1) from the respondent’s appendix the deposition transcript of the daughter’s psychologist; (2) portions of respondent’s brief that refer to statements in the deposition; and (3) portions of respondent’s brief that refer to material facts that are not accompanied by a cite to the record. Respondent’s reply motion asks that appellant’s motion be denied and that respondent be granted attorney fees related to this motion.
a. Motion to strike deposition and references to deposition in respondent’s brief
“The papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.” Minn. R. Civ. App. P. 110.01. This court will strike documents included in a party’s brief that are not part of the appellate record. Brett v. Watts, 601 N.W.2d 199, 201-02 (Minn. App. 1999), review denied (Minn. Nov. 17, 1999).
In this case, respondent moved to enter at trial the deposition of the daughter’s psychologist and appellant objected on hearsay grounds. Respondent stated that the deposition was to be used for impeachment. The magistrate stated that because a limited time was available for the witness it did not “have any problem in the deposition coming in,” but it would “consider only those parts of the deposition that you directly cross-examine her on.” Therefore, the portions of the deposition that respondent cross-examined the psychologist on are part of the record. Further, in his reply motion, respondent has supplied citations to the record of the cross-examination from the transcript of the hearing. Because portions of the deposition are part of the record and because respondent can point to cross-examination on particular topics, the motion to strike the parts of the deposition on which the respondent cross-examined the psychologist or the sections of respondent’s brief that relate to those portions of the deposition is denied.
b. Motion to strike portions of respondent’s brief that do not refer to the record
Appellant moves that this court strike portions of respondent’s brief that refer to material facts but are not accompanied by a reference to the record. Statements of material fact shall be accompanied by a reference to the record. Minn. R. Civ. App. P. 128.02, subd. 1(c). “Failure to cite to the record is a violation of Minn. R. Civ. App. P. 128.03.” Watts, 601 N.W.2d. at 202. A flagrant violation of the rules and failure to provide citations to the record “may lead to non-consideration of an issue or dismissal of an appeal.” Id. However, this court has declined to strike portions of a brief if the critical facts are supported by documents in the record. Hecker v. Hecker, 543 N.W.2d. 678, 681 n.2 (Minn. App. 1996).
In this case, some portions of the respondent’s brief are not accompanied with a citation to the record. However, the lack of citations is not flagrant and the statements are generally supported by documents in the record. Therefore, the motion to strike portions of respondent’s brief lacking citations to the record is denied.
c. Attorney fees
Both appellant and respondent ask for attorney fees related to this motion. Appellant requests fees for bringing the initial motion and response motion. Respondent requests fees that were generated in drafting the reply motion. Both seek an award of conduct-based fees under Minn. Stat. § 518.14 (2002).
The court may award, “in its discretion, additional fees, costs, and disbursements against a party who unreasonably contributes to the length or expense of the proceeding.” Minn. Stat. § 518.14. Fees can be awarded for conduct that occurs during the litigation. Geske v. Marcolina, 624 N.W.2d. 813, 819 (Minn. App. 2001). Bad faith is not required for an award of attorney fees. Id. at 817. Fees can be awarded if positions taken are duplicitous and disingenuous. Redmond v. Redmond, 594 N.W.2d 272, 276 (Minn. App. 1999).
In this case, the conduct (including the deposition/filing the motion) occurred during the litigation and contributed to the expense of the litigation. However, neither party acted unreasonably, in bad faith, or made duplicitous or disingenuous arguments. Therefore, neither party is awarded fees for this motion.
Affirmed; motions denied.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.