This opinion will be unpublished and

may not be cited except as provided by

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






In re the Marriage of: Domingo Abarca, a/k/a Domingo Abarca Arguello, petitioner,


Briana Jo MacPhee,


Filed April 26, 2005

Affirmed; motion granted and motion granted in part

Minge, Judge

Dissenting, Randall, Judge


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, 3935 Pillsbury Avenue South, Minneapolis, MN 55409 (pro se respondent)


            Considered and decided by Minge, Presiding Judge; Randall, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N


MINGE, 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 Indiana to Minnesota where they lived in the home of respondent’s parents for approximately nine months.  The parties then moved into their own home where they lived for several months before respondent and their daughter moved out. 

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 Mar. 11, 2003) (unpublished opinion).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.  Id. at 7.

            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 (Minn. 1985).  Unless they are clearly erroneous, a district court’s findings must be sustained.  Id.  An appellate court will defer to a district court’s determinations of witness credibility.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).  When making a custody determination, an appellate court views the record in the light most favorable to the district court’s findings.  Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000). 


The first issue is whether the district court abused its discretion by granting respondent sole physical custody of the child.

Child custody 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.”  Id.  “[C]urrent law leaves scant if any room for an appellate court to question the trial court’s balancing of best-interests considerations.”  Vangsness, 607 N.W.2d at 477.  Joint physical custody is not a preferred outcome.  Wopata v. Wopata, 498 N.W.2d 478, 482-83 (Minn. App. 1993).

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 (Minn. App. 1987), review denied (Minn. Aug. 12, 1987).  Even after adjusting for this principle, given our limited scope of review, the record is adequate to support a finding by the district court that respondent was the primary caretaker.

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.

E.  The mental and physical health of the parties involved

            The district court found this factor to be neutral because there was no testimony to indicate that any family member had any significant mental or physical problem that would affect the child.  Appellant does not disagree with this except to state that respondent is considered to be untruthful and self-centered.  This allegation is not sufficient to make the district court’s finding clearly erroneous.

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. 

G.  Child’s cultural background

            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.

            After considering all of the statutory factors for determining the best interests of the child, the district court stated:

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. 

            This 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 Mexico and not come back, and that it found her fears to be highly credible.  Although respondent’s parents did not believe that appellant would take the child to Mexico and the evidence of a risk of flight is weak, because the district court is given deference in determining witness credibility, we are not in a position on this record to conclude that the district court abused its discretion in giving the fears of the appellant some weight.  See Sefkow, 427 N.W.2d at 210. 

            Although the 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 Mexico with the child as evidence of appellant’s difficulty in resolving his disputes with respondent, and how this difficulty creates an unacceptable risk of problems in making major decisions affecting the child.  We conclude that the finding by the district court that appellant occasionally makes decisions regarding the child that are not in the child’s best interests but are designed to retaliate against respondent supports its determination not to grant joint legal custody.  This finding also supports the district court’s conclusion that there would be a possible detriment to the child if appellant had sole custody.  It further supports the implicit finding that the respondent does not have the same retaliatory tendencies as appellant and the explicit determination that there would not be a detriment to the child if respondent had sole authority over her upbringing. 


            Both 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.”  Minn. R. Civ. App. P.  110.01.  Matters that are outside the record on appeal may not be used as the basis of a decision by an appellate court, and the court may not consider matters not produced and received in evidence below.  Plowman v. Copeland, Buhl & Co. Ltd., 261 N.W.2d 581, 583 (Minn. 1977). 

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. 

            “The 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 (Minn. App. 1986).  Joint legal custody is defined as the equal right and responsibility “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 should be granted where the parents can cooperatively deal with parenting decisions.  Wopata v. Wopata, 498 N.W.2d 478, 482 (Minn. App. 1993).

 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 Mexico coupled with respondent’s testimony that petitioner periodically makes decisions not in the child’s best interest and respondent “doubts some of [petitioner’s] reasoning sometimes.”  The district court then concluded that it would “not be detrimental to the child” if respondent were to have sole legal custody.

Petitioner admits that he made a comment that he could take the child to Mexico.  He claims that he was not serious and that respondent knew he was not serious.  Respondent does not contradict petitioner’s testimony that the comment was made only once.  Respondent did not submit any evidence that petitioner intended to act on the statement.  Respondent’s parents testified that they were unconcerned about the possibility that petitioner might remove the child to Mexico.  Both respondent and respondent’s parents testified that petitioner is a good parent.  Petitioner has family in the area and has a job, and has demonstrated none of the characteristics of a “flight parent.”

  The parties’ 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 Indiana for a baptism.

The district court stated that petitioner’s “possible flight to Mexico” has no support in the record except the aforementioned isolated comment.  I find the record far short of overcoming the presumption in favor of joint legal custody.  I conclude that the district court erroneously awarded sole legal custody to respondent.