This opinion will be unpublished and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:
David Kent Bruechert, petitioner,
Lisa Jane Bruechert,
Filed December 6, 2005
Gordon W. Shumaker, Judge
Ramsey County District Court
File No. F3-01-1458
Edward F. Kautzer, Ruvelson & Kautzer, Chartered, 1600 University Avenue West, Suite 510, Spruce Tree Centre, St. Paul, MN 55104; and
Beau D. McGraw,
Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
GORDON W. SHUMAKER, Judge
Appellant-mother challenges the district court’s order awarding joint legal custody of the parties’ minor children and the valuation of the parties’ marital assets. Respondent challenges the district court’s grant of sole physical custody to appellant. Because the court’s findings are adequately supported by the record and appellant failed to raise the property-valuation issue below, we affirm.
By an amended judgment and decree of marriage dissolution entered June 25, 2004, the district court, through a referee of family court, awarded sole physical custody of the parties’ three minor children to appellant Lisa Jane Bruechert; granted joint legal custody of the children; and divided the parties’ real and personal property, including an award to respondent of a $59,436 nonmarital interest in the parties’ homestead and $36,321 of nonmarital stock.
Among the court’s findings of fact was that respondent had committed domestic abuse against appellant by physically assaulting her and had violated an order for protection on more than one occasion.
Appellant challenges the court’s award of joint legal custody because of respondent’s history of domestic abuse and disputes the court’s valuation and division of property. Respondent contends that the court abused its discretion by awarding sole physical custody of the children to appellant.
D E C I S I O N
1. Standard of Review
The district court has broad discretion in awarding
custody of minor children. Durkin v. Hinich, 442 N.W.2d 148, 151 (
2. Joint Legal Custody
At the commencement of
the dissolution proceedings, each party sought joint legal custody of the
children. During the pendency of the
matter, each decided instead to request sole legal custody. Appellant’s change of mind was precipitated
largely because of respondent’s domestic abuse that occurred on several
occasions and ranged from terroristic threats to physical assault. When domestic abuse has occurred between the
parents of minor children, the district court “shall use a rebuttable
presumption that joint legal or physical custody is not in the best interests
of the child . . . .”
Minn. Stat. § 518.17, subd. 2 (2004). Furthermore, when a court awards joint legal
or physical custody over the objection of a party, it must make detailed
findings on three statutory factors to show how and why it reached its
determination that joint custody would be in the child’s best interests: (1) the
parents’ ability to cooperate, (2) their methods for resolving disputes about
matters that affect the child, and (3) whether it would be detrimental to the
child if one parent had sole authority over his upbringing.
In essence, the court found that the parties historically have been agreeable decision-makers who have kept the best interests of the children foremost in their minds and whose communications lapsed only in the context of the acrimony of the dissolution. But even then the court found that the parties recognized the importance of serving the children’s best interests through cooperation and that they had successfully used the services of neutral third parties to resolve many of their conflicts.
We find that the court meticulously considered and evaluated all factors pertinent to the joint legal custody award, based its evaluation on evidence in the record, and did not abuse its discretion in awarding joint legal custody.
3. Sole Physical Custody to Appellant
Respondent does not dispute any of the district court’s specific factual findings regarding physical custody but rather asserts that the district court abused its discretion by not explaining why it did not find the testimony and evaluation of Dr. Phipps-Yonas, an expert witness, credible.
The caselaw is clear that this court is deferential to the district court’s determination of witness credibility. “We give district courts broad discretion precisely because they are in the best position to determine which witnesses are credible and to weigh the evidence.” Haefele v. Haefele, 621 N.W.2d 758, 763 (Minn. App. 2001) review denied (Minn. Feb. 21, 2001); see also County of Nicollet v. Haakenson, 497 N.W.2d 611, 615 (Minn. App. 1993) (stating that the appellate court must “defer to the [fact-finder’s] assessment of credibility of witnesses and the weight to be given to their testimony”) (quotations omitted).
Respondent argues that the district court was required to express its reasons for rejecting Dr. Phipps-Yonas’s recommendations or to make detailed findings that examine the same factors contained in the custody report. Respondent misapplies the law.
In Rutanen v.
Olson, 475 N.W.2d 100 (Minn. App. 1991), the district court did not follow
the custody recommendation and it did not make findings regarding its rationale
for rejecting the custody study.
The district court here has done even more than the court in Rutanen. It provided a detailed analysis of all twelve factors required under Minn. Stat. § 518.17, subd. 1 (2004), and it analyzed the additional three factors under Minn. Stat. § 518.17, subd. 2, and it explicitly found Dr. Phipps-Yonas’s testimony not credible. The district court was not required to articulate why it did not find Dr. Phipps-Yonas’s testimony credible; it was only required to provide detailed findings on the best-interest factors.
Because this court gives broad deference to the district court’s credibility determinations, and because the district court made specific findings as to why sole physical custody was appropriate, the court did not abuse its discretion in the sole physical custody award.
Appellant argues that the district court clearly erred when it overvalued the homestead by including appellant’s nonmarital equity contribution, and it undervalued the marital shares of 3M stock. With regard to the homestead, appellant asserts that the court erred because it failed to take into account the monthly mortgage payments that appellant had been making since the separation on September 29, 2001. On appeal, she argues that since that time she had been paying $861.46 per month towards the mortgage, and the district court divided the equity in the home as it existed on August 4, 2003, without giving her credit for those payments.
Yet, appellant failed to raise this issue below. The record is devoid of any evidence that
would show appellant presented the issue of her mortgage payments to the district
court. Generally, this court will not
consider matters not argued and considered in the district court. Thiele
v. Stich, 425 N.W.2d 580, 582 (
Appellant next contends that the district court erred by improperly
awarding respondent more premarital shares of 3M stock than he rightfully
owns. Appellant alleges that respondent
sold 3M stock during the marriage and after the separation, but before the
valuation date of September 26, 2002. In
her brief, she cites to the parties’ 1998, 1999, and 2001 tax returns, which
are not in the record. Papers filed in
the trial court, the exhibits, and the transcript of the proceedings constitute
the record on appeal.