This opinion will be unpublished and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:

David Eugene Manke, petitioner,





Wendy Louise Manke,




Filed August 30, 2005


Halbrooks, Judge



Wright County District Court

File No. F4-02-3913



Rhonda L. Pagel, Young Brown & Pagel, LLP, 63 Oak Avenue South, P.O. Box 859, Annandale, MN 55302-0859 (for respondent)


Brian M. Olsen, Brian M. Olsen Law Office, Tower Center Mall, P.O. Box 988, Cokato, MN 55321 (for appellant)



            Considered and decided by Dietzen, Presiding Judge; Halbrooks, Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N


            In this dissolution proceeding, appellant challenges the district court’s amended judgment awarding sole legal and sole physical custody of the parties’ child to respondent and temporary spousal maintenance to appellant for a six-month term.  Appellant argues that (1) the record does not support several of the district court’s custody findings and that the district court thereby abused its discretion by failing to establish a joint-custody arrangement, and (2) the district court abused its discretion by limiting her spousal maintenance to a six-month term.  Because we conclude that the district court did not err in its custody findings nor abuse its discretion by awarding respondent sole legal and sole physical custody or by awarding appellant temporary spousal maintenance, we affirm.


            Appellant Wendy Manke and respondent David Manke married on October 14, 1995.  The couple has one son together.  Respondent also has five children from a previous marriage.  In December 2002, respondent commenced dissolution proceedings.  After mediation, and pursuant to a temporary agreement, the parties continued to reside together in their Annandale homestead.  In addition, the parties agreed to alternate being the primary caretaker for their child on a weekly basis, pending completion of a custody study to determine permanent custody.

            Prior to the dissolution proceedings, both parties played an active role in the parenting of their child.  But after mediation, the parties had a number of disputes about certain parenting procedures.  Appellant would often not allow respondent to contact the child when it was “her week” to care for him.  As respondent explained:

[I]f I wanted to take [the child] somewhere, [appellant] would tell me, no, you can’t take him; she tried to keep him from me as much as possible at that time; she’d let me interact with him at home, but I couldn’t take him to grandma’s house or other people’s places; and [the child was] not allowed around my other kids.


Respondent testified that appellant uses a “high tone” and “military-style” discipline toward the child, whereas he is “more laid off, more relaxed.”  Appellant defended her parenting style, explaining that she “believe[s] in discipline” and that “[c]hildren need some type of structure.”

Respondent also testified that appellant had been romantically involved with David Wool, a man who “could not be around children under the [age of] 18” because of his status as a “sex offender.”[1]  Respondent further stated that he had seen his son and Wool in the same car in December 2002.  Appellant admitted that Wool “had contact with [the child] twice in the car,” but claimed that she “never plan[s] on being with [Wool] again.”  At trial, a handwritten letter from appellant to Wool was offered into evidence.  In the letter, appellant wrote, “I really do love you.  I can’t get you off my mind or out of my heart.”  While the correspondence was not dated or clearly postmarked, appellant conceded that the letter was “probably written in January [2004].”

A county child-custody evaluator recommended that the court award sole legal custody to respondent.  The report explained:

It is clear that [appellant] undermines the parenting decisions that [respondent] makes, denies [respondent] the right to make parenting decisions, and [appellant] has exhibited poor decision making regarding [the child], such as allowing a romantic other, who is a pedophile sex offender, to have access to [the child].  [I have] serious concerns that [appellant] would continue to undermine and perhaps keep [respondent] from having access to [the child] . . . .  [Respondent] clearly can provide a more stable, safe, emotionally healthy and nurturing environment.


The custody evaluator testified at trial and opined that respondent “had made attempts [to cooperate] and [appellant] did not reciprocate attempts to cooperate.”  She also stated that respondent was more apt to compromise and settle disputes than appellant. 

The district court awarded sole legal and physical custody of the child to respondent and ordered appellant to pay $212.75 per month in child support.  Respondent was ordered to pay temporary spousal maintenance to appellant in the amount of $150 per month for six months.  Appellant challenged the judgment in this court, arguing that the district court failed to make best-interests findings supporting the custody award.  We agreed and remanded the case to the district court for more detailed findings.  Manke v. Manke, No. A04-1568 (Minn. App. Sept. 28, 2004) (order).  In an amended judgment dated October 15, 2004, the district court listed 14 sub-findings relating to the best interests and welfare of the child in accordance with Minn. Stat. § 518.17, subd. 1(a) (2004), including the following:


3.         The child’s primary caretaker: Since the birth of the child, the parties have taken turns with the caretaking duties of the child.  Medical records indicate that both [respondent] and [appellant] have been involved in the child’s care.  Neither party is the primary caretaker of the child.


4.         The intimacy of the relationship between each parent and the child:  Each party has a close, loving and affectionate relationship with the child.  [Respondent’s] relationship is a more emotionally healthy and nurturing one than the child’s relationship with [appellant].


5.         Interaction and interrelationship of the child with a parent or parents, siblings and other person[s] who may significantly affect the child’s best interests: [Respondent] does not presently have a significant other.  [Appellant] had been seeing a known pedophile sex offender who was not allowed to have access to children.  Although this individual is now incarcerated, his relationship with [appellant] once he is released is unclear. . . .


. . . .


7.         Length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity:  The child has lived in the same house since his birth.  [Respondent] has been employed at the same place for almost 20 years, and indicates it is stable and secure.  Respondent indicates her work is not secure as she is working for a temp service. 


. . . .


9.         Mental and physical health of all individuals involved:  [Respondent] indicates he is in good health, other than having high blood pressure for which he takes medication.  [Appellant] indicates she is in good health, and she claims to have no chemical dependency issues.  [Respondent] expresses concern that [appellant] goes out drinking on most weekends.  [Appellant] has exhibited poor decision-making regarding the child, such as allowing a pedophile sex offender to have access to the child.


10.       Capacity and disposition of the parties to give the child love, affection, and guidance . . . : Both parties are capable of giving the child love, affection and guidance.  [Respondent] has a very hand[s]-on parenting style.  [Appellant’s] parenting style is less actively involved and more controlling.


. . . .


13.       . . . [T]he disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child: [Respondent] believes [appellant] should be allowed contact with the child.  [Respondent] expresses his concern that if [appellant] is given custody, . . . she would want to limit [respondent’s] access to the child since the 50/50 custody arrangement currently in place does not give the child needed stability.  [Appellant] clearly engages in behavior that undermines the father/child relationship. 


The district court again awarded sole legal and physical custody of the child to respondent, “subject to reasonable parenting time by [appellant],” and ordered the same maintenance as it had in the initial judgment.  This appeal follows. 



Challenging a number of the district court’s best-interests findings, appellant argues that the district court abused its discretion by awarding sole custody of the parties’ son to respondent and that, instead, the court should have awarded joint legal custody.  A district court has broad discretion to provide for the custody of the parties’ children.  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989).  The law “leaves scant if any room for an appellate court to question the [district] court’s balancing of best-interests considerations.”  Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000).  Appellate review of custody determinations is limited to determining 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).  When making a custody determination, an appellate court views the record in the light most favorable to the district court’s findings.  Vangsness, 607 N.W.2d at 472. 

A.        Factual Findings

            Appellant challenges five of the district court’s factual findings.  A district court’s findings of fact will be sustained unless they are clearly erroneous.  Minn. R. Civ. P. 52.01; Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  A finding is “clearly erroneous” if this court is left with the definite and firm conviction that a mistake has been made.  Vangsness, 607 N.W.2d at 472. 

1.         Primary Caretaker

            Appellant challenges the district court’s finding that both parties “have taken turns with the caretaking duties of the child” and that “[n]either party is the primary caretaker of the child.”  While appellant stayed at home in order to care for the child when respondent was at work from January 2001 until November 2003, the record also reflects that respondent was actively involved in caring for his son.  Because respondent worked a “graveyard shift” from 11:00 p.m. until 7:00 a.m., he primarily spent time with the child “in the morning hours or late evening hours after [respondent] woke up from sleeping.”  When respondent returned to working during the daytime in December 2002, he testified that the parenting time was split “about 50/50” between himself and appellant.  In addition, the child-custody evaluator testified as follows:

I felt that both [parties] had participated in the care of their son.  During the time that [appellant] stayed home from work and was a stay-at-home mom she may have provided more than half of the care, but I did feel that they both participated in the care and they both had the capability of caring, providing all types of care[] for their son. 


The record supports a finding that neither party was the child’s primary caretaker.  Moreover, because the primary-caretaker factor is only one among many used in a best-interests-of-the-child analysis, even if there were factual error, it would not in and of itself nullify the district court’s ultimate custody determination.  See Minn. Stat. § 518.17, subd. 1(a) (“The court may not use one factor to the exclusion of all others.  The primary caretaker factor may not be used as a presumption in determining the best interests of the child.”); Maxfield v. Maxfield, 452 N.W.2d 219, 222 n.2 (Minn. 1990) (noting “the fact that one parent may be the primary caretaker does not necessarily control who gets custody.  All relevant factors must be weighed”).


2.         Interaction and Interrelationship of the Child with Persons Who May Significantly Affect the Child’s Best Interests


            Appellant next challenges the district court’s finding that she allowed contact between her son and David Wool, a “known pedophile sex offender,” whose present “relationship with [appellant] once he is released is unclear.”  Appellant claims that Wool’s sex offense was not actually committed against a child and that the term “pedophile” was incorrectly and unjustifiably used by the district court.[2]  Regardless, whether the crime was committed against a child or an adult is a distinction without a difference in this context.  Moreover, appellant testified, “Yes, I knew that [Wool] couldn’t have contact with children, but he needed a ride to work so I gave him a ride to work.”  This implies that the child’s safety was put in jeopardy.  In addition, a letter offered into evidence at trial supports the contention that appellant still has romantic feelings for Wool and that she would like to have a future relationship with him.  Because there is evidence in the record to support the conclusion that appellant’s relationship with Wool may adversely affect the child’s best interests, the finding is not clearly erroneous.[3]


3.         Length of Time in Stable, Satisfactory Environment and the Desirability of Maintaining Continuity


            Appellant contends that the district court’s finding of stability in favor of respondent was “[c]learly . . . discrimination against a person based on income status” because respondent has had a full-time job for the past 20 years, while appellant had been working at a temporary job.  But the district court’s finding merely states the fact that respondent has been employed in a stable and secure job for the past 20 years and that appellant has not been so employed.  This finding does not demonstrate that the district court improperly relied on evidence concerning the parties’ incomes when determining custody.  In addition, the custody evaluator reported that “[appellant] indicated her job . . . [was] not secure.”  Because there is evidence in the record to support the court’s stability finding, it is not clearly erroneous.    

4.         Capacity and Disposition of the Parties to Give the Child Love, Affection, and Guidance


            Appellant challenges the district court’s finding that her “parenting style is less actively involved and more controlling.”  But the district court also noted that “[b]oth parties are capable of giving the child love, affection and guidance.”  There is no dispute that appellant’s parenting style is more controlling.  Appellant herself admitted as much, stating, “I do believe in discipline; and it might seem controlling, but I guess I always thought that a parent is supposed to have some type of control of their child . . . .”  (Emphasis added.)  And while the district court did not explain what it meant by characterizing appellant’s parenting style as being “less actively involved,” the record does reflect that appellant often served as the disciplinarian in the relationship and that respondent was, in the words of appellant, the child’s “playmate” and that the two “play[ed] together all the time.”  We therefore cannot say that the district court’s finding was in error. 

5.         Disposition to Encourage and Permit Frequent and Continuing Contact by the Other Parent


            Finally, appellant challenges the district court’s finding that “[appellant] clearly engages in behavior that undermines the father/child relationship.”  But the record is replete with instances of appellant’s interference with respondent’s parenting of the child, even when it was “respondent’s week” to care for the child.  For example, respondent testified:

Q:        And what would happen if, during her week, [the child] asked to go outside with you?


A:        [Appellant] would tell [the child], wait until your daddy leaves and then you can go outside.  Otherwise she wouldn’t let him come outside with me.


. . . .


Q:        What would [the child] typically do if you were outside and he wanted to have gone outside?  . . .


A:        He would sit in the front window and watch me out there. . . . [W]hen he was about two, he would sit in front of the window there and he would cry, and then I felt bad, either I came back inside to be with him or I would leave.


In addition, the custody evaluator explained that appellant “was not allowing [respondent] to provide care for [the child] . . . and did not agree with some of the choices that [respondent] was making in his parenting choices.”  Because the record supports the district court’s finding in this regard, we will not disturb it.  

B.        Joint Legal Custody

            Appellant also argues that the parties should have been awarded joint legal custody of their son.  Although joint legal custody is presumed to be in a child’s best interest, caselaw makes clear that “[j]oint legal custody should be granted only where the parents can cooperatively deal with parenting decisions.”  Wopata v. Wopata, 498 N.W.2d 478, 482 (Minn. App. 1993) (emphasis added) (quoting Estby v. Estby, 371 N.W.2d 647, 649 (Minn. App. 1985)).  “Where the evidence indicates that the parties lack the ability to cooperate and communicate, joint legal custody is not appropriate.”  Id.  The district court specifically found that the parties had been “unable to cooperate in the rearing of the[ir] child” and that “it would be in the child’s best interest if only one parent had sole authority over his upbringing.”  The record supports the district court’s conclusion that joint legal custody was inappropriate based on the lack of effective cooperation between the parties, and it was therefore within the court’s discretion to award sole legal custody to respondent. 

C.        Reliance on Custody Evaluation Report

            In her brief, appellant contends that the district court “essentially pirated” the 14 best-interests findings from the child-custody evaluator’s report.  Appellant appears to therefore question whether the district court independently evaluated the evidence before making its best-interests findings. 

While the district court did not specifically adopt the findings and recommendations of the custody-evaluation report, it is appropriate for a district court to rely on a court-appointed evaluator’s report, as long as it appears from the record that the district court considered both the contents of the report and all the evidence submitted at trial.  Cf. Schallinger v. Schallinger, 699 N.W.2d 15, 23 (Minn. App. 2005) (concluding that the district court evaluated evidence independently and did not err by adopting respondent’s proposed order verbatim); see also Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991) (noting that a district court has discretion to either accept or reject a custody study’s recommendations).  We further note that district courts regularly rely on the services and recommendations of court-appointed experts (such as probation officers, psychiatrists, and custody evaluators).  Here, it was appropriate for the district court to consider the totality of the evidence before it, including the advice of a child-custody evaluator, in order to reach an informed determination as to the child’s best interests.  Therefore, it cannot be said that the district court erred by relying on the custody evaluator’s opinions and by incorporating key observations from the custody evaluator’s report into its findings of fact. 


            Appellant also contends that the district court erred by limiting appellant’s spousal maintenance to six months.[4]  A district court’s spousal-maintenance determination will not be disturbed absent an abuse of that court’s discretion.  Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  This court will not find an abuse of discretion unless the district court’s resolution of the matter “is against logic and the facts on record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  Unless the findings of fact are clearly erroneous, they will be upheld.  Minn. R. Civ. P. 52.01; Pikula, 374 N.W.2d at 710.

It is within the district court’s discretion to grant a maintenance order for either spouse if it finds that the spouse seeking maintenance

(a) lacks sufficient property, including marital property apportioned to the spouse, to provide for reasonable needs of the spouse considering the standard of living established during the marriage, especially, but not limited to, a period of training or education, or


(b) is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment, or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.


Minn. Stat. § 518.552, subd. 1 (2004).  The maintenance order shall then be set “in amounts and for periods of time . . . as the court deems just” after considering a variety of factors, including, among other things, (1) the financial resources of the party seeking maintenance, (2) the standard of living established during the marriage, (3) the duration of the marriage and the length of absence from employment, (4) the age of the spouse seeking maintenance, and (5) the distribution of marital assets.  Minn. Stat. § 518.552, subd. 2 (2004).  While Minn. Stat. § 518.552 lists a number of factors to be considered in setting the amount and duration of maintenance, no single factor is dispositive.  Erlandson, 318 N.W.2d at 39.  The maintenance analysis ultimately balances the recipient’s need against the obligor’s financial condition.  Id. at 39-40.

            Here, the parties each stipulated to their respective incomes.  Respondent’s net monthly income was $2,181.71 and his monthly living expenses were $2,687.  Appellant’s net monthly income was $1,000 and her monthly living expenses were $1,818.69.  Both parties’ living expenses surpassed their net monthly incomes by several hundred dollars.  While it is true that appellant stayed at home in order to raise their child from January 2001 until November 2003, the record also reflects that appellant worked outside of the home during most of the marriage and was employed during the trial, although on a temporary basis.  In addition, respondent was awarded only minimal child support from appellant and is alone responsible for the child’s daycare, medical, and dental expenses.  The record reflects that the district court properly balanced the statutory factors in reaching its decision to award appellant temporary spousal maintenance.  Its decision to limit the maintenance to a six-month term was not an abuse of discretion. 


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

[1] Appellant disputes the characterization of Wool as a “pedophile” or “sex offender,” as well as the district court’s use of the term and notes that a child-custody evaluator admitted that she had never investigated allegations against Wool independently, beyond what “the parties admitt[ed].” 

[2] We note that the Minnesota Department of Corrections website lists Wool as being on “Intensive Supervised Release” until February 16, 2009, for violating Minn. Stat. § 609.343, subd. 1(a) (2002) (criminal sexual conduct in the second degree with a minor under the age of 13).  See Minn. Dep’t of Corr., Offender Locator, (accessed July 8, 2005). 

[3] Appellant also appears to challenge the district court’s finding that the child “rarely sees [his five half-siblings] because [appellant] doesn’t allow it.”  But respondent testified that the child “was not allowed around [his] other kids,” because of appellant.  Because there is evidence in the record to support this finding, it is not clearly erroneous. 

[4] Respondent asserts that appellant’s spousal-maintenance challenge is barred because her “original appeal did not involve spousal maintenance.”  While it is true that appellant’s original statement-of-the-case filing does not list spousal maintenance as an issue for appeal, this court has previously noted that “the statement of the issues contained in an appellant’s statement of the case does not limit the reviewability of issues on appeal.”  Lilly v. City of Minneapolis, 527 N.W.2d 107, 110 n.2 (Minn. App. 1995), review denied (Minn. Mar. 29, 1995).  Instead, the nature of the appeal and the course of the district court proceedings determine this court’s scope of review.  Id. (citing Minn. R. Civ. App. P. 103.04 (“appellate courts may reverse, affirm or modify the judgment or order appealed from or take any other action as the interest of justice may require”)).  It is therefore appropriate to address appellant’s challenge to her spousal-maintenance award here.