This opinion will be unpublished and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

A04-1602

 

 

In re the Matter of:
Shawn H. Roen, petitioner,
Appellant,

vs.

Tammy Lynn Hart,
Respondent.

 

 

Filed April 12, 2005

Reversed and remanded; motions denied

Wright, Judge

 

 

St. Louis County District Court

File No. F0-02-650013

 

 

Linda R. Allen, Butler, Huson & Allen, P.A., 2330 U.S. Bank Center, 101 Fifth Street East, St. Paul, MN† 55101 (for appellant)

 

Mark C. Jennings, 509 Board of Trade Building, 301 West First Street, Duluth, MN55802 (for respondent)

 

 

††††††††††† Considered and decided by Minge, Presiding Judge; Wright, Judge; and Crippen, Judge.*

U N P U B L I S H E D† O P I N I O N

 

WRIGHT, Judge

 

Appellant challenges the district courtís denial of his motion to modify custody, asserting that the findings are not supported by the record and fail to address the requisite statutory factors.† Respondent moves this court for attorney fees to sanction appellant for requiring respondent to prepare an extended fact section in respondentís appellate brief, claiming that such additional preparation was necessitated by appellantís mischaracterization of the record.† In response, appellant moves for attorney fees incurred in replying to respondentís motion.† We reverse and remand, and we deny the motions for attorney fees.

FACTS

 

Respondent Tammy Hart gave birth to B.J.R. in May 1994.† Appellant Shawn Roen initiated a paternity action shortly thereafter and was legally adjudicated the father in January 1995.† Following a custody evaluation, the parties reached an agreement as to custody.† The district court adopted the terms of the partiesí stipulated agreement by order, granting joint legal custody to both parties and sole physical custody to Hart.†

On December 19, 2001, Roen moved to modify custody, alleging child endangerment and seeking sole physical custody of B.J.R.† In the exhibits and affidavits accompanying the motion, Roen made several claims about Hartís conduct from 1998 to 2001.† Roen alleged that Hart temporarily moved to a homeless shelter in the fall of 1998 and, noticing significant changes in B.J.R.ís behavior, brought him to a psychologist.† Based on four appointments in September and October 1998, the psychologist reported that B.J.R. was experiencing separation anxiety.† Roen also alleged that Hart permitted her significant other, Lorin Gade, to move in with her in April or May 2001.† Their relationship was abusive.† Gade was arrested in August 2001 and subsequently pleaded guilty to gross misdemeanor terroristic threats against Hart. †During and after Hartís relationship with Gade, B.J.R. exhibited increasing behavioral problems, including an incident in which B.J.R. injured a dog at daycare.

Responding to these allegations, Hart acknowledged that she was homeless for approximately two months in late 1998.† But she emphasized that she sought out appropriate treatment for B.J.R. during this stressful period.† Regarding her relationship with Gade, Hart asserted that B.J.R. had not been exposed to any abuse.† She also claimed that, aside from the incident that led to Gadeís conviction, Gade had not been physically abusive.† Hart later admitted that Gade continued to reside with her until March 2002.† Hart denied that B.J.R. had injured the dog and maintained that the claims of the daycare worker were not credible.† Hart conceded that B.J.R. had experienced difficulties in school but noted that his teachers had observed substantial improvement by November 2001.† This assertion was supported by letters from B.J.R.ís teacher, a social worker, and a Boys Club director.

The district court ordered a custody evaluation and an evidentiary hearing.† The district court also appointed a guardian ad litem and placed B.J.R. under the temporary protective supervision of St. Louis County Social Services.† By letter dated February 25, 2003, a caseworker from St. Louis County Social Services advised that protective supervision was unnecessary and recommended its termination.

During the custody evaluation process, the evaluator requested psychological evaluations for Hart and Roen.† Roenís evaluation reported that he suffered from anxiety and depression, which were in remission as a result of therapy and medication.† Hart was diagnosed with strong histrionic and narcissistic personality traits, which were characterized as an unspecified personality disorder.

The court-ordered custody evaluation was completed on April 21, 2003.† Much of this evaluation discussed mental-health care and treatment for B.J.R.† According to the evaluation, B.J.R. had a history of difficulty with bowel and urinary control.† The evaluator suggested that Hart used inappropriate discipline to address these problems.† When Roen eventually sought mental-health treatment for B.J.R. in June 2002, a social worker concluded that B.J.R. exhibited generalized anxiety.† B.J.R. started biweekly therapy, but Hart did not assist with transportation to B.J.R.ís appointments.† In addition, Hart did not acknowledge parenting difficulties, whereas Roen was prepared to direct care and treatment for B.J.R.† Based on these findings, the evaluator recommended that Roen receive sole legal and physical custody of B.J.R.

B.J.R.ís guardian ad litem issued a report on June 25, 2003, reiterating much of the information from the custody evaluation.† From her interaction with Hart, the guardian ad litem was skeptical of Hartís fitness to parent B.J.R.† The guardian ad litem recounted an episode near Christmas 2002 during which Hart claimed that B.J.R. had been kidnapped.† The guardian ad litem also was troubled by Hart speaking more highly of Gade than of Roen.† The guardian ad litem also rejected Hartís assertion that B.J.R. had not been exposed to abuse between Gade and Hart.† Finding that Hart lacked insight into B.J.R.ís behavioral difficulties, the guardian ad litem noted Hartís resistance to obtaining psychotherapy for B.J.R.† Based on these findings, the guardian ad litem recommended that Roen receive sole legal and physical custody of B.J.R.

The district court held a four-day evidentiary hearing in late June and late July 2003.† In addition to the documentary evidence relating to the events and reports described above, the district court received conflicting testimony from the parties, the custody evaluator, the guardian ad litem, and several witnesses who had frequent interaction with B.J.R.

Roen presented significant evidence that challenged Hartís credibility.† For example, the custody evaluator recounted an incident when Hart misrepresented B.J.R.ís activities to the district court, purportedly to prevent Roen from receiving more parenting time.† Other allegations of Hartís untruthfulness involved disputes over whether Roen provided B.J.R. adequate clothing and lunch money.† Roen also suggested that Hart generally avoided providing mental-health treatment for B.J.R.† On cross-examination, Hart admitted that she had not acquired health insurance for B.J.R., and the custody evaluator suggested that Hart feigned medical problems to avoid transporting B.J.R. to appointments.

Hart countered with substantial testimony from several witnesses who had observed Hartís successes as a parent.† Thus, Hart asserted that, notwithstanding some difficulties in the past, she had provided B.J.R. a stable home environment for more than four years, along with a warm and supportive relationship.† Hart also challenged Roenís ability to be an effective parent, citing his 1997 conviction of driving while impaired by alcohol and his history of anxiety and depression.† Hart also questioned the stability of Roenís household circumstances, noting that as of April 2003, he worked nights and lived with his sister and brother-in-law.† The report and testimony of the guardian ad litem were also impeached based on the guardianís reliance on outdated information and her failure to contact B.J.R.ís teachers directly.

In its order dated October 2, 2003, the district court denied Roenís motion to modify custody, summarily concluding that there was ďno evidence that there has been a substantial change in circumstances or that the childís present custodial arrangement presents a danger of harm or injury.Ē† Roen moved for amended findings of fact, including particularized findings on the best interests of the child, or a new trial.† On December 10, 2003, a hearing was held on the motion.† In its order dated March 8, 2004, the district court granted Roenís motion in part by issuing the following findings:

1.†††††††† [Hart] has had physical custody of [B.J.R.] since his birth.† [Hart] has been the primary caregiver.

 

2.†††††††† [Roen] and [Hart] have cooperated reasonably well with one another regarding visitation.† [Hart] has not interfered with [Roenís] parenting time.

 

3.†††††††† The child has been diagnosed with encopresis and enuresis.† [Hart] is working with [B.J.R.ís] doctor to treat the problem.† [B.J.R.] is currently seeing a therapist as well.† The child is receiving adequate medical care.

 

4.†††††††† [B.J.R.ís] school reports that he is a loving, happy, and wonderful child.† [B.J.R.] is not a ďdiscipline problemĒ in school.† Though he has had some problems in school, [Hart] has been in close contact with the school and has worked with the school to improve [B.J.R.ís] immature behavior and academic progress.

 

5.†††††††† The facts as presented to the Court do not demonstrate that a significant change of circumstances has occurred.† [B.J.R.] is not physically or emotionally endangered in the care of his mother.

 

This appeal followed.

D E C I S I O N

 

I.

When a parent moves to modify custody, the district courtís decision to grant or deny modification is reviewed for an abuse of discretion.† In re Custody of N.A.K., 649 N.W.2d 166, 174 (Minn. 2002).† Applying this standard, we will reverse only if the district courtís findings are unsupported by the evidence or the district court improperly applied the law.† Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).

A.

Roen challenges the second, third, and fourth findings of the district court, asserting that they are not supported by the evidence in the record.† Because we afford the district courtís findings of fact substantial deference, we do not independently weigh the evidence or draw contrary conclusions about witness credibility.† Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).† In conducting our review, we view the record in the light most favorable to the findings and will not reverse absent a firm and definite conviction that a mistake was made.† Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).

††††††††††† As its second finding, the district court determined that ď[Roen] and [Hart] have cooperated reasonably well with one another regarding visitation.† [Hart] has not interfered with [Roenís] parenting time.Ē† A review of the record establishes that evidence of the partiesí cooperation with parenting time is controverted.† To demonstrate that Hart consistently interfered with parenting time, Roen claimed that Hart misled him about B.J.R.ís need for clothing and lunch money and misrepresented B.J.R.ís swimming schedule.† Hart countered that, as a result of an agreement they reached, Roen received parenting time approximately every other weekend, in addition to other incidental time with B.J.R.† When this evidence is viewed in the light most favorable to the district courtís findings, it reasonably supports the conclusion that the parties are cooperative and that Hart has not unreasonably interfered with Roenís parenting time.

††††††††††† The district court determined in its third finding that ď[t]he child has been diagnosed with encopresis and enuresis.† [Hart] is working with [B.J.R.ís] doctor to treat the problem.† [B.J.R.] is currently seeing a therapist as well.† The child is receiving adequate medical care.Ē† The evidence pertaining to this issue likewise is conflicting.† Roen maintained that Hart did not make adequate contributions to B.J.R.ís health care, based on her failure to acquire insurance and her resistance to psychotherapy for B.J.R.† Hart testified that she had cooperated with B.J.R.ís treatment and had an ongoing relationship with B.J.R.ís doctor.† In light of the deference afforded the district courtís assessments of evidentiary weight and witness credibility, the evidence in the record also supports the district courtís findings regarding the status of B.J.R.ís health care.

††††††††††† Roen also challenges the district courtís fourth findingóthat

[B.J.R.ís] school reports that he is a loving, happy, and wonderful child.† [B.J.R.] is not a Ďdiscipline problemí in school.† Though he has had some problems in school, [Hart] has been in close contact with the school and has worked with the school to improve [B.J.R.ís] immature behavior and academic progress.†

 

The parties presented reports and testimony from B.J.R.ís teachers addressing B.J.R.ís school performance.† Some reports, particularly those in 2000 and 2001, disclosed difficulties with B.J.R.ís behavior and academic performance.† Other reports and testimony, including that of a current teacher, suggest that B.J.R. has made substantial progress.† When viewed in the light most favorable to the findings, this evidence supports the district courtís determinations on B.J.R.ís behavior and academic performance.† Thus, Roenís challenge to the evidentiary basis for the district courtís findings of fact fails.

B.

Roen also argues that the district courtís findings are inadequate because they do not address all relevant statutory factors.† In particular, Roen contends that the district court failed to consider the best interests of the child when it omitted any consideration of the reports of the custody evaluator and the guardian ad litem.

Notwithstanding the deference afforded the district courtís factual findings, the district court must make sufficiently detailed and particularized findings to permit meaningful appellate review.† Wallin v. Wallin, 290 Minn. 261, 267-68, 187 N.W.2d 627, 631 (1971); Sullivan v. Allen, 419 N.W.2d 822, 825 (Minn. App. 1988).† When a motion to modify custody proceeds to an evidentiary hearing and the district court decides the motion on its merits, the district court must make findings that demonstrate proper consideration of the relevant statutory factors.† Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989); Abbott v. Abbott, 481 N.W.2d 864, 867-68 (Minn. App. 1992).† The district court need not make particularized findings on each statutory factor as long as ďthe findings as a whole reflect that the court properly considered the relevant factors in reaching its decision.Ē† Roehrdanz v. Roehrdanz, 410 N.W.2d 359, 362 (Minn. App. 1987), review denied (Minn. Oct. 28, 1987).†

The need for particularized findings, however, is heightened when the district court rejects the recommendation of a court-appointed custody evaluator.† Lawver v. Lawver, 360 N.W.2d 471, 473 (Minn. App. 1985).† Indeed, the district court has broad discretion to do so.† Pikula, 374 N.W.2d at 710.† But on such occasions, the findings must contain either a detailed rebuttal of the evaluatorís recommendation, Rogge v. Rogge, 509 N.W.2d 163, 166 (Minn. App. 1993), review denied (Minn. Jan. 28, 1994), or extensive findings on the best interests of the child, Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991).

††††††††††† Modification of custody is governed by Minn. Stat. ß 518.18(d) (2004), which provides in relevant part:

[T]he court shall not modify a prior custody order or a parenting plan provision which specifies the childís primary residence unless it finds, upon the basis of facts, including unwarranted denial of, or interference with, a duly established parenting time schedule, that have arisen since the prior order or that were unknown to the court at the time of the prior order, that a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child.† In applying these standards the court shall retain the custody arrangement . . . unless:

 

(iv)††††† the childís present environment endangers the childís physical or emotional health or impairs the childís emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.

 

Under this statute, the movant must demonstrate the following four elements: (1) a change in the circumstances that existed prior to modification; (2) that modification serves the best interests of the child; (3) that the child is presently endangered; and (4) that the balance of harms favors modification.† See In re Weber, 653 N.W.2d 804, 809 (Minn. App. 2002) (setting forth standard for prima facie case); Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997) (same).

††††††††††† The movant must establish a significant change in the childís physical or emotional health or development since the prior custody determination.† In re Weber, 653 N.W.2d at 809-10.† A substantial change in the childís behavior may be sufficient to prove the changed-circumstances element.† Wilkus-Schmidt-Hight v. Wilkus, 398 N.W.2d 44, 48 (Minn. App. 1986).† The best interests of the child are determined in accordance with all relevant factors listed in Minn. Stat. ß 518.17, subd. 1 (2004).† Geibe, 571 N.W.2d at 778.† One such factor is the mental health of the individuals involved, including the impact of the parentsí mental health on their fitness to parent.† Minn. Stat. ß 518.17, subd. 1(a)(9); Sinsabaugh v. Heinerscheid, 428 N.W.2d 476, 479-80 (Minn. App. 1988).† Another factor is the effect of domestic abuse on the child.† Minn. Stat. ß 518.17, subd. 1(a)(12); Digatono v. Digatono, 414 N.W.2d 498, 501-02 (Minn. App. 1987), review denied (Minn. Jan. 15, 1988).†

Endangerment is not precisely defined and varies according to the circumstances of the case.† Sharp v. Bilbro, 614 N.W.2d 260, 263 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000).† Consideration of the physical and emotional well-being of the child is relevant to the determination of whether a child is endangered.† Harkema v. Harkema, 474 N.W.2d 10, 13-14 (Minn. App. 1991).† Although changes in a childís behavior may be sufficient to establish a prima facie case of endangerment, Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991), not all allegations of abuse will conclusively establish endangerment, Geibe, 571 N.W.2d at 779.

Here, the district court found that there was no change in circumstances and that B.J.R. was not presently endangered.† But the district court neither provided particularized findings about changes in B.J.R.ís physical or emotional development, nor supplied more than conclusory findings with respect to endangerment, the quality of care B.J.R. receives, and the frequency of such care.† Because the district court did not make findings that relate the evidence in the record to its findings, we are unable to engage in meaningful appellate review.

Of particular concern is the district courtís failure to address recommendations of the custody evaluator and guardian ad litem that are contrary to the district courtís decision.† When considering the best interests of the child, each recommendation raised substantial concerns about Hartís mental health and the effect of her prior relationship with Gade on B.J.R.† The district court did not address and rebut the bases for the recommendations or explain its decision to deny custody modification.† See Rogge, 509 N.W.2d at 166 (remanding when district court failed to address or rebut expert recommendations); Rutanen, 475 N.W.2d at 104 (upholding district court, where expert recommendation was rejected, based on detailed findings on best interests of child).† To facilitate meaningful appellate review, we reverse and remand for further consideration of all relevant statutory factors and preparation of particularized findings relating to these factors.

II.

In her responsive brief and by separate motion, Hart seeks attorney fees, arguing that such fees are warranted to sanction Roen for violating Minn. R. Civ. App. P. 128.02.† Hart contends that she was compelled to prepare an accurate version of the facts in her brief in response to Roenís substantial misrepresentation of the facts in his brief.† Roen opposes the motion and seeks attorney fees incurred in responding to Hartís motion.

††††††††††† Rule 128.02, subdivision 1(c), requires parties to summarize evidence that would sustain the district courtís decision, as well as the contrary evidence on which the party is relying.† Minn. R. Civ. App. P.† Hart relies on Vangsness v. Vangsness, 607 N.W.2d 468 (Minn. App. 2000), in seeking attorney fees.† In Vangsness, we criticized an appellant whose brief cited only evidence favorable to the appellant, ignoring all of the evidence that supported the findings made by the district court.† Id. at 474.† But the Vangsness court did not impose any sanctions against appellant for failure to acknowledge and summarize the contrary evidence.

Rule 139.06 prescribes the procedurefor seeking fees on appeal.† Minn. R. Civ. App. P.† Subdivision 1 of that rule requires a separate motion for fees.† But the rule does not prescribe a substantivebasis for fees, and the comment clearly explains that appellate fees ďmay be allowed as a matter of substantive law or as a sanction.Ē†

Here, because the district courtís findings lacked particularity, we decline to sanction Roen for failing to ďsummarizeĒ evidence that would support the minimal findings actually made by the district court.† Likewise, we deny Roenís motion for attorney fees.

Reversed and remanded; motions denied.



*†† Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ß 10.