This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In re the Marriage of:
Domingo Abarca, a/k/a Domingo Abarca Arguello, petitioner,
Briana Jo MacPhee,
Affirmed; motion granted and motion granted in part
Dakota County District Court
File No. F2-01-12948
Charles T. Agan, Charles T. Agan, P.A., Suite 325, 7301 Ohms Lane, Edina, MN 55439-2338 (for appellant)
Briana Jo MacPhee,
Considered and decided by Minge, Presiding Judge; Randall, Judge; and Wright, Judge.
Appellant challenges the district court’s award of sole physical and legal custody of the parties’ daughter to respondent. Because there is adequate evidence to support the district court’s finding that an award of the child to the respondent is in the child’s best interests and because there is adequate evidence to support the findings that there might be conflicts between the parents in decision making concerning the child and that giving sole custody to the mother would not be detrimental to the child, we affirm.
Appellant Domingo Abarca and respondent
Briana Jo MacPhee were married in July 2000, and are the parents of a daughter
born in 1999. Soon after their
daughter’s birth, the parties moved from
On March 16, 2001, appellant initiated a
marriage dissolution action. On May 6,
2002, judgment was entered on an order granting respondent sole physical and
legal custody of the parties’ daughter.
The judgment granted appellant liberal visitation rights. In March 2003, this court reversed the
district court’s judgment and remanded for further findings. Abarca v. MacPhee, No. C8-02-1065,
slip op. at 8 (Minn. App. Mar. 11, 2003) (unpublished opinion). This court found that the district court had
not shown any consideration of the Minn. Stat. § 518.17 (2004) factors for
determining the best interests of the child and that the evidence in the record
was not sufficient to support a finding that the potential threat that
appellant would remove the child to Mexico was serious enough to render all
other considerations irrelevant.
On remand, the district court again granted sole physical and legal custody to respondent. The district court made detailed findings with respect to factors set forth in Minn. Stat. § 518.17, subd. 1. The district court based its grant of sole legal custody to the respondent on the four factors under Minn. Stat. § 518.17, subd. 2. The district court granted parenting time in conformity with the parties’ existing schedule. This appeal followed.
Appellant challenges the adequacy of the
evidence to support the district court’s determinations regarding legal and
physical custody. “Appellate 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.” Pikula v. Pikula,
374 N.W.2d 705, 710 (
The first issue is whether the district court abused its discretion by granting respondent sole physical custody of the child.
decisions are based on and fundamentally focus on a child’s best
interests. Minn. Stat. § 518.17, subd. 1
(2004); Pikula, 374 N.W.2d at 711; Vangsness,607 N.W.2d
at 476. The district court is instructed by statute to determine the best
interests of the child by considering and evaluating “all relevant factors”
including thirteen factors listed in Minn. Stat. § 518.17, subd. 1. When evaluating these factors the “court may
not use one factor to the exclusion of all others.”
Appellant contends that the district court’s findings regarding the factors for determining the child’s best interests are clearly erroneous because the findings are not supported by the evidence. Appellant argues that the district court erred in its findings on eight of the factors listed in Minn. Stat. § 518.17, subd. 1. This opinion will examine these eight disputed factors.
A. Primary caretaker
The third factor for determining the best
interests of the child is the primary caretaker. Minn. Stat. § 518.17, subd. 1(3). The district court found the respondent to be
the primary caretaker. The primary
caretaker is “the person who provides the child with daily nurturance, care and
support.” Pikula, 374 N.W.2d at
711. Appellant and respondent’s mother
testified that before the parties separated, respondent stayed home with the
child most of the time. This indicates
she was the primary caretaker during that time.
We acknowledge that there was testimony that at the end of the marriage
appellant cared for his daughter more than respondent. Even if this testimony is given full
credence, it only means that appellant may have provided more care than
respondent for the last couple of months they were living together. The testimony clearly establishes that after
separation, respondent cared for the child during the week and appellant took
care of the child on weekends. We
recognize that the courts should evaluate the record and make determinations regarding
the primary caretaker factor based on the time prior to separation. See
Ozenna v. Parmelee, 407 N.W.2d 428, 431 (
B. Interaction and relationship of child with each parent and other parties who significantly affect the child
The district court found that this factor was neutral because the child does not have any siblings and it would be beneficial for the child to continue to interact with appellant’s brothers and respondent’s parents. Where there are relatives of both parties that are important to the child, it is not clearly erroneous for the district court to find that this factor does not favor either party.
C. Child’s adjustment to home, school and community
Since both of the parties and respondent’s parents agree that the current schedule, in which the child stays with respondent during the week and with appellant on the weekend, works well for the parties and the child, the finding that the child is well adjusted to living primarily in respondent’s home is not clearly erroneous.
D. Length of time in stable, satisfactory environment and the desirability of maintaining continuity
The district court found that the current living arrangement where the child lives primarily with the respondent has existed since the parties separated in March 2001, and that this situation has been stable and worked well for the parties and should be continued. Appellant is correct that he still lives in the same house where the parties lived together and has lived there with his brothers the entire time that the child has lived or stayed there. However, because the child has lived primarily with respondent for a significant time before trial, it is not an abuse of discretion for the district court to find that the child would benefit from the continuation of this situation.
F. The capacity and disposition of the parties to give the child love, affection, and guidance, and to continue education and raising the child in the child’s culture and religion or creed
The district court found that both parties have the capacity and disposition to provide the child with love, affection and guidance. The court further found that although appellant has taken the child to church, there is no testimony regarding the parties’ creed and that given the child’s age, she is currently too young to require guidance in this area.
The district court found that this factor did not favor either party because there was no evidence presented regarding the child’s cultural background. Although appellant testified that he took the child to church, it was not stated that this was an important cultural event, and without other evidence the district court did not abuse its discretion by finding that this factor did not favor either party.
H. Disposition to encourage and permit frequent and continuing contact by the other parent
The district court found that this factor did not favor either party because both parties wished that the other be involved in the child’s life. Both parties indicated their intention to continue with the current schedule of having the child spend significant amounts of time at both of their residences. Therefore, there is evidence to support the district court’s finding.
The child’s best interests are best served if her mother retains sole physical custody of her. This award of sole physical custody to Respondent is based on the fact that the evidence established that Respondent has been the child’s primary caretaker; that the child is well-adjusted to her present environment; that the child has spent the bulk of her life in the stable, satisfactory environment provided by Respondent and that it is highly desirable that this continuity be maintained; and that the existing custodial home with Respondent is the most stable and permanent option available and will best contribute to maintaining the family unit.
Although we might reach a different conclusion than the district court on certain findings, our review is not de novo. Appellant has not shown that any of the district court’s findings in accordance with Minn. Stat. § 518.17, subd. 1 were clearly erroneous. Therefore, we cannot find that the district court abused its discretion in weighing the factors to grant sole physical custody to respondent.
The next issue is whether the district court abused its discretion by awarding sole legal custody of the child to respondent.
When one party seeks joint legal or physical custody, the district court must consider the following four factors: (1) parents’ ability to cooperate in the rearing of their child; (2) the existence of and the parents’ willingness to use methods for resolving disputes concerning major decisions related to the child’s life; (3) possible detriment to the child if one party had sole authority over the child’s upbringing; and (4) existence of domestic abuse. Minn. Stat. § 518.17, subd. 2 (2004); see also Estby v. Estby, 371 N.W.2d 647, 649 (Minn. App. 1985). There is a rebuttable presumption that joint legal custody is in the best interests of the child. Minn. Stat. § 518.17, subd. 2. However, where the parents’ cannot cooperatively deal with parenting decisions, they should not be granted joint legal custody. Wopata, 498 N.W.2d at 482.
The district court found that the first and fourth factors were neutral because the parties could cooperate in raising the child and there was no evidence of domestic abuse. With regard to the second factor, the parties’ ability to resolve disputes concerning major decisions related to the child’s life, the court recognized respondent’s testimony that appellant occasionally makes decisions that are not based on the best interests of the child, but on his resentment toward respondent. Finally, on the third factor, the district court found that it would not be detrimental to the child if the respondent had sole legal custody. These last two findings are based in part on a combination of the district court’s determination that appellant had threatened to take the child to Mexico against respondent’s will and its conclusion that although the parties generally cooperate, appellant sometimes makes decisions regarding the child not based on the child’s best interests but based on appellant’s unhappiness with conduct of respondent.
risk of flight question is difficult.
The district court stated that it carefully evaluated the demeanor of
the witnesses and respondent’s fear that appellant might take the child to
risk that appellant might flee with the child is limited, the district court
does not appear to be basing its finding of sole legal custody on a current
flight risk. Rather, the district court
views the threat to leave to
parties have moved to strike portions of each other’s briefs. “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.”
Appellant makes five objections to portions of respondent’s brief and appendix as not supported by the evidence. Because the portions objected to are not supported by evidence in the record or refer to facts occurring after the record was closed, we grant appellant’s motion to strike all five objections.
Respondent moves to strike sixteen portions of appellant’s brief. Many of these objections refer to opinions expressed by appellant’s lawyer or characterizations of facts from the record and we will not strike these portions of appellant’s brief. This court grants respondent’s motion to strike on two points of appellant’s brief: that he was the parent responsible for the majority of the care when he was home from work, and that respondent was clearly not the primary caretaker after the first year of marriage. These statements are not supported by the record. This court denies appellant’s motion to strike on all other points.
Affirmed; motion granted and motion granted in part.
RANDALL, Judge (dissenting).
I concur with the reasoning and the result of the majority on the issue of sole physical custody awarded to respondent. I respectfully dissent from the majority’s decision that the district court correctly awarded sole legal custody to respondent.
court shall use a rebuttable presumption that upon request of either or both
parties, joint legal custody is in the best interests of the child.” Minn. Stat. § 518.17 subd. 2
(2004). This presumption is a “strong
indication of public policy as determined by the legislature.” Graham v. Graham, 386 N.W.2d 764, 766
The facts before the district court were insufficient to overcome the presumption that joint legal custody is in the best interests of the child. The court found “the parties have thus far been willing and able to agree among themselves about major decisions in the life of their child.” The court stated that testimony reflected that “both parties take measures to encourage the child’s relationship with her maternal grandparents;” that because the minor child is well adjusted with the joint living arrangement it would be “desirable to maintain” it; and that both “parties are disposed to provide guidance in the child’s religion or creed, culture where applicable and education when the child comes of age.” The court concluded that “the parties have been able to share time with the minor child without major incident and that the parties do possess the ability to cooperate in raising the child.”
The court based its
findings narrowly on petitioner’s “threat” to take the child to
that he made a comment that he could take the child to
actions speak louder than respondent’s complaint about her fears stemming from
one comment made by petitioner.
Respondent had allowed petitioner frequent and extended visits with the
child without incident. Petitioner
complied with respondent’s request not to take the child to
The district court
stated that petitioner’s “possible flight to