This opinion will be unpublished and

may not be cited except as provided by

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






In Re the Guardianship of:
T. E., A. E., S. M. and H. M.,


Filed August 9, 2005


Peterson, Judge


Scott County District Court

File No. 0404350



Richard J. Haefele, Ingrid K.K. Dixon, 1059 Stoughton Avenue, PO Box 85, Chaska, MN  55318 (for appellant Jeffrey A. McCarthy)


Dennis P. Moriarty, Michelle L. Lureen, Jaspers, Moriarty & Walburg, P.A., 206 Scott Street, Shakopee, MN  55379 (for respondent Dana Gantriis)


            Considered and decided by Peterson, Presiding Judge; Schumacher, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


Following the death of their mother, who was their custodial parent, the district court awarded custody of two sisters to an interested third party, the sisters’ stepfather, rather than to their biological father.  The district court found that the biological father is a fit parent, but the court awarded custody to the stepfather based on the strong public policy of keeping minor siblings together, in this case the two sisters and their two half-sisters; the grieving process surrounding the loss of their mother; and the lack of a relationship between the sisters and their biological father.  The biological father argues that the district court (1) erred in awarding custody to the interested third party rather than to him; (2) erred in deciding custody in a guardianship proceeding venued in a county other than the county where the sisters were residing with him; and (3) deprived him of his constitutional right to have custody of his children.  We affirm.


            Laura Gantriis (mother), who died in January 2004, was the mother of four minor daughters, T.E., age 16; A.E., age 14; S.M., age 13, and H.M., age 12.  Appellant Jeffrey A. McCarthy (father) is the father of S.M. and H.M.  Mother and father were never married but lived together when S.M. and H.M. were very young.  In a paternity proceeding initiated by father, he was adjudicated the father of S.M. and H.M., and mother was awarded physical custody.

Beginning in 1999, mother and the children lived with respondent Dana Gantriis (stepfather), who married mother in October 2002.  Mother and stepfather separated for four months in 2003.  During the separation, stepfather stayed with his sister but spent time at home on weekends and some weeknights.  Mother and stepfather reconciled when mother was diagnosed with cancer in November 2003.

Five or six weeks after mother died, father brought S.M and H.M. to his home to live with him.  Father lives in a rural area near Belle Plaine.

            In her will, mother nominated stepfather to be the guardian of the persons and estates of S.M. and H.M.  Stepfather petitioned the court to be appointed the guardian of the person and estates of the four children.  The petition was granted with respect to T.E. and A.E., whose father did not object to the petition.  Father objected to the petition with respect to S.M. and H.M.

            The district court appointed a guardian ad litem (GAL) to determine whether it was in S.M.’s and H.M.’s best interests to award custody to father or stepfather.  The GAL concluded:

            [S.M.] and [H.M.] have been very outspoken regarding where they want to reside and want to return to live with who they consider to be their father, [stepfather] and their sisters.  Everyone involved has experienced a major loss with the death of [mother] and have only begun the grieving process.  By moving the girls to [father’s] home they have had to experience additional loss of those they considered to be family.  It is especially concerning that [S.M.] is beginning to act out and show signs of self injurious behavior.


            Although everyone has [their] version of what life was like when [mother] and [father] were together it is apparent that it was chaotic at times.  Regardless of why [father] did not have consistent time with [S.M.] and [H.M.], he didn’t, resulting in the girls not having a close relationship with him.  The father figure in their lives over the past few years has been [stepfather].  It is more likely [S.M.] and [H.M.] will develop a relationship with [father] if they are not forced to do so.  It is clear to see that [father] loves his daughters and wants to be involved with their day to day lives.


The GAL recommended that S.M. and H.M. be returned to stepfather’s home, that he be appointed their guardian, and that a parenting schedule be established for S.M. and H.M. to begin spending consistent time with father.

            Based on the following factors, the district court found extraordinary circumstances sufficient to overcome the presumption favoring custody in the biological father:

            a.  The children’s father wants custody; [mother] wants the stepfather to have custody.


            b.  [S.M.] and [H.M.], whom the court finds to be of a sufficient age to express a preference, both want to live with [stepfather] in his home.  Their reasons are (1) they do not want to be apart from their half-sister [A.E.], with whom they have lived since birth, (2) they want to live in the city of Belle Plaine so they can be near their friends and school, and (3) they want to reside in a home that is familiar to them, especially following the loss of their mother.


            c.  Up until her death, [mother] and, to a lesser extent, [stepfather] were the primary caretakers of the children.


            d.  The children share an intimate relationship with [stepfather] and are able to confide in him.  According to the guardian ad litem, “[r]egardless of why [father] did not have consistent time with [his daughters] he didn’t, resulting in the girls not having a close relationship with him.”  They do not confide in him or feel comfortable talking to him.


            e.  The children have a very close sibling relationship with [A.E.].  They have also developed a significant relationship with Sue Simek, [father’s] girlfriend, and are comfortable talking to and confiding in her.  So far she is the only close adult female in their lives.


            f.  The children are well adjusted to the Belle Plaine community, have many friends and are high achievers in school.


            g.  The children have lived in Belle Plaine for at least five years.  It has been a stable environment.


            h.  For the past four years the family unit has been [mother], the four children and [stepfather].


            i.  Prior to the death of their mother, the children were both involved in individual and family therapy, apparently due to the behavior of [T.E.].  Since moving to [father’s] home [S.M.] has engaged in self-injurious behavior.  The guardian ad litem writes “[t]his writer is fearful that [S.M.] is not running away from home at this time only because she has promised not to until the end of this proceeding.”


            j.  Both [stepfather] and [father]  have the capacity and disposition to give the children love, affection[,] guidance, however, the children are more accepting of [stepfather] in this regard.


            k.  [Stepfather] was convicted of domestic assault against [T.E.]  [Stepfather], as a condition of probation, is engaged in anger management programming.  There is no evidence this assault had any negative impact on [A.E.], [S.M.] or [H.M.].


The district court awarded sole physical custody of S.M. and H.M. to stepfather and joint legal custody to stepfather and father.  The court granted parenting time to father every weekend when the children are not in school and alternating weekends when they are in school.  The district court directed father and stepfather to establish a parenting-time schedule for holidays, the children’s birthdays, and extended visits when the children are not in school.  The district court denied father’s motion for a new trial or amended findings.  This appeal followed.



            Father argues that the record does not support the award of physical custody to stepfather.

District courts have broad discretion to determine matters of custody.  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.  When determining whether findings are clearly erroneous, an appellate court views the record in the light most favorable to the trial court’s findings.  As a general matter, appellate courts review questions of law de novo.


In re Custody of N.A.K., 649 N.W.2d 166, 174 (Minn. 2002) (citations omitted).

Minn. Stat. § 257C.03, subd. 1 (2004), permits a person other than a parent to petition for child custody.  The court may award custody to an interested third party upon a showing by clear and convincing evidence that extraordinary circumstances exist and proof “by a preponderance of the evidence that it is in the best interests of the child to be in the custody of the interested third party.”  Minn. Stat. § 257C.03, subd. 7(a)(1)(iii), (2) (2004).  In deciding an interested third party’s petition, the court must consider “the amount of involvement the interested third party had with the child during the parent’s absence or during the child’s lifetime”; factors relating to the parent’s absence, including “the amount of involvement the parent had with the child during the parent’s absence”; and “whether a sibling of the child is already in the care of the interested third party.”  Id., subd. 7(b)(2), (7); see also Minn. Stat. § 257C.04, subd. 1(a) (2004) (listing best-interests factors).

            The district court found that father is a fit parent but awarded stepfather physical custody based on extraordinary circumstances.  Father argues that the district court improperly determined custody based on a policy of keeping siblings together.  In the order denying father’s motion for amended findings, the district court stated:

            In finding an “extraordinary circumstance” sufficient to outweigh the preference for awarding children to their biological parent the court did not rely on the preference of the children to “remain in town,” or “to remain with their stepfather.”  Rather, the court relied on the policy, articulated by the children, to keep siblings together.  The court is cognizant of the difficulty of this decision for [father], however, to wrench his children away from their sibling with whom they have lived all their lives, on the wake of the death of their mother, does not appear to the court to be in the best interest of these children.


In the memorandum that accompanied the order awarding custody to stepfather, the district court stated:

            [Mother’s] four children have lived together their entire lives, even though the two youngest and the two oldest have different fathers.  While their relationship with [T.E.] is somewhat “rocky” and estranged, [S.M.] and [H.M.] are very close to [A.E.]  In their in camera, off-the-record discussion with the court, both identified their relationship with [A.E.] as being the primary reason they want to remain in the custody of [stepfather].


S.M.’s and H.M.’s relationships with A.E. and their wishes to not be separated from her were appropriate factors for the district court to consider in determining S.M.’s and H.M.’s best interests.  See Johnson v. Lundell, 361 N.W.2d 125, 128 (Minn. App. 1985) (stating that “[c]ourts have allowed separation of children where evidence shows it to be in their best interest, however, it is not preferred” and that “[t]his preference recognizes the sibling relationship as a significant aspect of family stability which is particularly important where the family has already been disrupted by loss of one parent from the home”).

            Contrary to father’s assertion, the district court did consider factors in addition to S.M.’s and H.M.’s relationships with A.E. and their wishes to not be separated from her.  The district court made specific findings on all of the relevant best-interests factors.  The court’s findings also address the factors stated in Minn. Stat. § 257C.03, subd. 7(b).

The best-interest factors that favored the custody award to stepfather included that stepfather, although to a lesser extent than mother, was a primary caretaker of S.M. and H.M.; S.M. and H.M. shared an intimate relationship with stepfather and were able to confide in him but did not have a close relationship with father and did not confide in him or feel comfortable talking to him; the family unit for the previous four years had been mother, the four children, and stepfather; after moving to father’s home, S.M. engaged in self-injurious behavior and threatened to run away; and while both father and stepfather have the capacity and disposition to give S.M. and H.M. love, affection, and guidance, S.M. and H.M. are more accepting of stepfather in that regard.

Ultimately, father’s lack of a relationship with S.M. and H.M. undercut his position that he is entitled to custody.  The supreme court has stated “that ultimately the welfare of the child is the umbrella under which every aspect of custody decisions—including the parental presumption—falls.”  N.A.K., 649 N.W.2d at 175.

[T]he parental preference must be viewed in context of the parent’s parenting in the past.  The weight to be given to the promise of future right treatment arising out of the blood relationship of parent and child varies according to the surviving parent’s past record of fidelity in meeting his parental obligations.


Id. (quotation omitted).  The N.A.K. court concluded

that following the death of a custodial parent, a surviving, noncustodial parent is entitled to custody unless the presumption that the parent be awarded custody is overcome by extraordinary circumstances of a grave and weighty nature, indicating that the best interests of the child require that the surviving parent be denied custody.



Father argues that mother frustrated his efforts to exercise parenting time.  But the district court focused on the effect on S.M. and H.M. of father’s failure to exercise parenting time and did not consider significant the reasons for that failure.  The district court found, “According to the guardian ad litem ‘[r]egardless of why [father] did not have consistent time with [his daughters] he didn’t, resulting in the girls not having a close relationship with him.’  They do not confide in him or feel comfortable talking to him.”

Father cites evidence to dispute allegations (1) regarding a DWI charge in October 2003; (2) regarding S.M.’s self-injurious behavior; and (3) that he had drug and anger problems.  But it is the district court’s role to assess witness credibility and resolve conflicts in evidence.  Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).  Father also cites stepfather’s domestic-assault conviction against T.E., but the district court specifically addressed the conviction, and father cites no authority supporting his contention that the conviction makes stepfather an unfit custodian.  To obtain reversal, an appellant must show both error and prejudice.  Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975).  Father contends that the record contains no evidence that stepfather maintained contact with the children during his separation from mother.  But the evidence in the record that stepfather spent time at home during the separation supports an inference that he spent time with the children.

Father argues that the district court ignored evidence that while S.M. and H.M. were in his custody, he and Simek encouraged A.E. to visit their home, set up a liberal visitation schedule with stepfather, and provided H.M. with emotional support and appropriate supervision; and S.M. and H.M. attended the same school and participated in the same activities as when they lived with stepfather and also developed a close relationship with Simek.  But the district court specifically found that S.M. and H.M. developed a significant relationship with Simek, were comfortable talking to and confiding in her, and that she was the only close adult female in their lives.  A reading of the district court’s order as a whole indicates that it carefully considered all of the evidence presented.

The evidence supports the district court’s findings regarding the existence of extraordinary circumstances and S.M.’s and H.M.’s best interests, and the findings support the custody award to stepfather.


Father argues that the district court erred in deciding the custody issue in a guardianship proceeding venued in Scott County when father and the children were residing in Carver County.  Minn. Stat. § 524.5-205(c), which governs judicial appointment of a guardian, states:

The court, upon hearing, shall make the appointment if it finds that a qualified person seeks appointment, venue is proper, the required notices have been given, the conditions of section 524.5-204, paragraph (a) [both parents are deceased or all parental rights are terminated by court order], have been met, and the best interest of the minor will be served by the appointment.  In other cases, the court may dismiss the proceeding or make any other disposition of the matter that will serve the best interest of the minor.


The express statutory language permitting the court to “make any other disposition of the matter that will serve the best interest of the minor” supports the district court’s denial of father’s motion to dismiss based on improper venue.  Also, Scott County was a convenient forum because S.M. and H.M. had lived there for the preceding five years, and it is adjacent to Carver County

Father asserts that he had already initiated a custody proceeding in Carver County.  But the district court found:

While [father] claimed that he commenced an action in Carver County, [father] did not explain exactly what action he had commenced in Carver County or supply the Court with any documentation of such action.  The Court was unable to verify the existence of any such action.  Based upon the evidence, or lack of evidence, presented by [father], the Court is not able to grant [father’s] request for dismissal of this proceeding on the basis that it is duplicative of the Carver County action . . . .


The district court did not err in denying father’s motion to dismiss based on improper venue.


            Father argues that the award of custody to stepfather violated his constitutional due-process rights.  Stepfather argues that father waived the constitutional issue because he raised it for the first time in his posttrial motion for amended findings or a new trial, and the district court did not address it.  We agree.  The purpose of a new-trial motion is to allow the district court to reconsider its decisions on issues arising during the course of trial, such as evidentiary and procedural rulings and jury instructions.  Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minnesota, 664 N.W.2d 303, 310-11 (Minn. 2003).  Similarly, the purpose of a motion for amended findings is to permit the district court to review its own exercise of discretion.  Lewis v. Lewis, 572 N.W.2d 313, 315 (Minn. App. 1997), review denied (Minn. Feb. 19, 1998).  Father’s due-process claim was unrelated to the purposes of his posttrial motion; therefore, it was untimely.  Cf. Parsons Elec. Co. v. Village of Watertown, 283 Minn. 505, 509-10, 169 N.W.2d 20, 23 (1969) (claim that appellant was denied his constitutional right to a jury trial was waived when raised for the first time in posttrial motion); State v. Kotka, 277 Minn. 331, 333-34, 152 N.W.2d 445, 447 (1967) (considering in the interests of substantial justice a claim raised for the first time in posttrial motion that evidence should have been suppressed as the result of an unconstitutional search and seizure, but noting that it is consistent with due process to require that such issues be timely raised in the district court and that the supreme court did not intend to undermine the force of prior decisions governing issues that may be raised on appeal).