This opinion will be unpublished and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:
Raymond Stanley Froberg, petitioner,
Laurie Ann Froberg,
Hennepin County District Court
File No.: DC 243956
Laurie Ann Froberg,
Considered and decided by Peterson, Presiding Judge, Randall, Judge, and Dietzen, Judge.
U N P U B L I S H E D O P I N I O N
On appeal in this custody modification dispute, pro se appellant-mother argues (a) the custody report forming the basis for the findings used to award physical custody of two children to respondent-father is inadequate and that the record does not otherwise support the modification or the district court’s best-interests findings; (b) the district court failed to adequately address the joint physical custody factors for third child; (c) father should not have been awarded conduct-based attorney fees; and (d) the district court was biased against her. We affirm on all issues.
Laurie and Raymond Froberg, appellant and respondent respectively, were married in May 1983 and divorced by judgment and decree in December 1999. The marriage produced three children: K.C.F., L.M.F., and M.R.F.
By the judgment and decree, appellant was granted sole physical custody of the children and both parties shared joint legal custody.
In September 2003, respondent petitioned the court for an order modifying the custody of the children. He requested that he be granted sole legal and physical custody of all three children. Respondent justified his request on appellant’s alleged neglect of medical care and educational supervision of the children and the involvement of at least one of the children in the Wicca religion. It was respondent’s argument that appellant violated the joint legal custody order by not informing or involving him in decisions regarding the children’s religious, medical, and educational needs.
On September 25, 2003, the district court issued an order finding that respondent had established a prima facie case justifying modification of the custody of the children and that an evidentiary hearing was appropriate. As a result, the district court ordered that a neutral custody evaluator be assigned to conduct a custody evaluation. Through stipulation of the parties and by order dated October 7, 2003, Mindy Mitnick, M.A., Ed. M., a licensed psychologist, was appointed to perform the custody evaluation.
After completing her custody evaluation, Mitnick recommended that respondent have sole physical custody of K.C.F. and M.R.F. and both parties have joint physical custody of L.M.F. Mitnick recommended that the parties share joint legal custody.
On October 27, 2004, the district court, considering the 13 factors laid out in Minn. Stat. § 518.17 (2002) and the recommendations of Mitnick, granted physical custody of K.C.F. and M.R.F. to respondent, joint physical custody of L.M.F., and joint legal custody of all children. The district court found that a change in the custody arrangement and primary residence of the children was in the best interests of the children. The district court found that the environment appellant fostered endangered the children’s physical and emotional development. This appeal followed.
Appellant argues several legal issues. Her arguments are essentially as follows: the custody evaluator’s report was inadequate and based upon insufficient evidence, the district court failed to consider the factors under Minn. Stat. § 518.17 in making its decision, improperly awarded attorney fees, and demonstrated bias in favor of respondent.
D E C I S I O N
I. Custody evaluation
Appellant argues that Mindy Mitnick’s custody evaluation report is insufficient and therefore, the district court was wrong to rely on the report in reaching its decision. Appellant argues that the report is insufficient because Mitnick did not observe the parents and children, did not contact Dr. James Laferriere, the treating physician for the children, nor did she contact various individuals/institutions.
The district court has
broad discretion when determining custody of children. Durkin v. Hinich, 442 N.W.2d 148, 151 (
Contrary to appellant’s allegations, Mitnick, a licensed psychologist, conducted a thorough evaluation. Custody evaluations are governed by Minn. Stat. § 518.167 (2002), which allows the court to order a custody evaluation in a contested custody proceeding. Minn. Stat. § 518.167, subd. 2(a) sets forth what a custody evaluator may consult in preparing her report. Subdivision 2(a) states:
[T]he investigator may consult any person who may have information about the child and the potential custodial arrangements . . . and obtain information from medical, psychiatric, school personnel, or other expert persons who have served the child in the past . . .
Minn. Stat. § 518.167, subd. 2(a) (2002).
In preparing her report, Mitnick interviewed both appellant and respondent, together and separately, respondent’s significant other, and two of the three children, L.M.F. and K.C.F. Mitnick also administered psychological testing to both appellant and respondent, and the three children. She contacted the guardian ad litem, a therapist for L.M.F., and five parenting references, three for appellant and two for respondent. Mitnick also had both parties complete lengthy parenting plan evaluation questionnaires and proposed parenting plans. On request of appellant, Mitnick reviewed two books, Raising Children in Goddess Traditions and The Truth About Witchcraft Today. Finally, Mitnick reviewed a plethora of records including medical records, report cards, and court documents which included affidavits and transcripts. There was an abundance of information on which Mitnick based her findings. Although observations of the parties and children would have been helpful, the findings are not rendered irrelevant by the fact that observations were not made. This is not a case where observations were made of one parent with the children and not of the other.
Second, appellant argues that Mitnick failed to interview individuals with pertinent information. She argues that Mitnick had sufficient time to do so in order to make a more complete assessment but chose otherwise. The record shows the time Mitnick had to complete her report was determined by multiple events, some of which were a direct result of appellant’s doing and, specifically, appellant’s lack of assistance in the evaluation process. In her report, and noted thoroughly on the record, Mitnick states that it took months for appellant to complete her questionnaire and that the court found no reasonable basis for the delay. The court conducted the hearing prior to the completion of Mitnick’s report, but both parties were given the opportunity to question Mitnick’s findings through cross-examination.
Through mutual agreement of the parties, Mitnick was ordered on October 7, 2003 to conduct a custody evaluation. Sometime in November 2003, both appellant and respondent met with Mitnick. At the meeting’s conclusion, each was given a questionnaire to take home and fill out. Respondent did so, appellant did not. Eight weeks later, on January 29, 2004, Mitnick wrote appellant inquiring and requesting that she complete and return the questionnaire so that the evaluation process could move forward. Appellant failed to do so. On March 16, 2004, Mitnick, in a letter to the court, explained that she was unable to proceed with the evaluation due to appellant’s lack of cooperation. Appellant justified the delay due to her work schedule. On March 30, 2004, respondent asked the court to order appellant to cooperate. On April 9, 2004, the court found appellant’s delay and lack of cooperation unjustified and ordered her to cooperate with Mitnick so that the evaluation could be completed. On April 7, 2004, almost five months later, appellant finally completed the questionnaire. Although the trial continued on schedule, the court recessed for four months so that Mitnick could finish the evaluation.
Appellant argues that once Mitnick received her questionnaire, she had “four months to fully complete the evaluation process which is more than enough time.” Although four months may seem like enough time for Mitnick to conduct an evaluation, the record shows that the resources Mitnick used to render her report were not always available at the moment. Mitnick had to schedule and reschedule interviews with numerous individuals, request and review records from numerous agencies, and finally, make a thorough and complete recommendation. The court gave her a reasonable time to do all this work. The information that Mitnick had at her disposal was enough to make a thorough recommendation. In rendering its decision, the court considered all the testimony of the parties and did not rely exclusively on Mitnick’s report.
whether to admit expert testimony is within the district court’s discretion and
will be affirmed on appeal absent an abuse of discretion. Silbaugh, 543 N.W.2d at 641. When
deciding whether to admit expert testimony, the district court must determine
whether the expert has been proven competent to provide an opinion on the
matter at issue and “whether the opinion [is] based on facts sufficient to form
an adequate foundation.” Law v. Essick Mfg. Co., 396 N.W.2d 883,
887 (Minn. App. 1986) (citations omitted), review denied
(Minn. Jan. 27, 1987). “A trial judge is
given wide latitude in determining whether there is sufficient foundation upon
which an expert may state an opinion.” Benson v. N. Gopher Enters., Inc., 455 N.W.2d 444, 446 (
The record shows that Mitnick conducted a thorough investigation. As required by Minn. Stat. § 518.167, subd. 2(b), Mitnick’s report specifically addresses the statutory factors set forth in Minn. Stat. § 518.17 and analyzes the information considered in evaluating those factors. Mitnick’s opinions rest upon sufficient foundations.
Appellant argues that the testing relied on by Mitnick is not credible. She bases her argument on a statement in Mitnick’s report. Mitnick states: “Results of psychological testing should always be regarded with caution . . . the results of the testing should not be considered valid into the indefinite future, especially beyond one year.” Based upon this language, appellant argues that Mitnick’s beliefs are not credible to justify a change in custody.
The district court found Mitnick qualified to render opinions and recommendations. As stated earlier, it is the court’s responsibility to determine if expert testimony is credible. Based upon Mitnick’s credentials and means of generating her report, the court determined her recommendations and her report to be reasonable. Mitnick’s report was ordered, reasonably conducted, and its findings and conclusions have support in the record.
Appellant argues that the evidence submitted does not support the district court’s modification. She argues that the court did not properly analyze the 13 factors listed in Minn. Stat. § 518.17.
The district court’s
findings of fact will not be set aside unless clearly erroneous and due regard
shall be given to the opportunity of the district court to judge the credibility
of the witnesses.
prior custody order will not be modified unless the district court finds that a
change of circumstances has occurred and that modification is necessary to
serve the best interests of the child.
Although the record may support findings different than those made by the district court, this does not mean the district court’s findings are defective. Vangsness, 607 N.W.2d at 474 (stating that a party challenging a district court’s findings must show by a firm conviction that a mistake has been made and only then, when the findings are clearly erroneous, will a reviewing court consider whether the district court erred.).
is sufficient evidence in the record to support the district court’s findings
that it relied upon in consideration to modify custody. Because we find that the district court’s
findings are not clearly erroneous we do not further address appellant’s
discussion of evidence. See
We will discuss
some of appellant’s arguments. A
district court’s custody modification decision is reviewed for an abuse of
discretion. Frauenshuh v. Giese, 599 N.W.2d 153, 156 (
The children’s primary caretaker.
The district court took notice that appellant has been the primary caretaker of the children since the dissolution but also relied upon Mitnick’s finding that there were significant lapses and deficiencies in appellant’s parenting.
Appellant assumes that in finding there had been significant lapses and deficiencies in her parenting the district court relied on assertions in Mitnick’s report which she argues are incorrect. Appellant argues the district court failed to take into consideration testimony and medical records from Dr. Laferriere that indicate she is capable of caring for medical needs of the children.
We conclude the district court properly relied on Mitnick’s report. The district court considered all medical testimony in rendering its decision. The district court noted that medical records indicate the children exhibited poor management of their diabetes while living in appellant’s home and it was respondent who enrolled them in an education program which taught them to better manage their diabetes. As a result, they have their diabetes under control. Also, it was appellant who failed to provide a urine sample to L.M.F.’s physician when kidney damage was suspected. There is evidence in the medical records to show that appellant was deficient in her primary caretaker role.
The intimacy of the relationship between each parent and the children.
Mitnick determined that neither parent appeared to be closer than the other to the oldest and youngest children. In regards to L.M.F., the middle child, Mitnick found that appellant was closer, or more “tuned in” to her. But, at the same time, determined that this fact has not benefited L.M.F. Mitnick also determined that appellant was unable to help L.M.F. with her depression or troubles in school, or willing to help her in developing a positive self-image. Additionally, appellant was unable to help L.M.F. manage her diabetes. There are also questions as to the intimacy of the relationship between L.M.F. and appellant because after the evaluation, L.M.F. voiced concerns about her mother’s behaviors.
The relationship between L.M.F. and respondent has not been the best, however, respondent is making an effort to understand L.M.F.’s needs. At the time of trial, L.M.F. was visiting her father on a regular basis and the relationship had significantly improved.
Appellant argues the district court ignored substantial evidence which shows she had an intimate relationship with the children. She argues she was the one who first attended to L.M.F.’s depression. Although this may be true, appellant has often failed to consider the needs of the children. In one instance, appellant cancelled L.M.F.’s appointments with the psychologist in order to find treatment closer to home. However, she never found L.M.F. therapy closer to home or rescheduled appointments with the psychologist. The record supports the district court’s finding.
Appellant also argues Mitnick’s finding that appellant encouraged the rift between L.M.F. and respondent is speculative. Although it is unclear what the crux of appellant’s argument is, what is clear is that the evidence shows that appellant did not take actions to dispel any rift. Appellant admittedly instructed L.M.F. not to divulge information to respondent, withheld information regarding the medical needs of the children, and failed to provide the necessary recommended therapy to L.M.F. It is understandable why respondent was upset. He shares joint legal custody of the children. A parent looking out for the best interests of her children should put aside disagreements with an ex-spouse and give the children’s best interest priority.
The mental and physical health of all individuals involved.
The district court found that neither appellant nor respondent have any physical health problems which would interfere with the upbringing of the children.
The district court relied on Mitnick’s findings who determined that respondent looks at the good side of situations, conforms to social expectations, and avoids conflicts. Mitnick further opined that respondent’s pro-active involvement in requiring L.M.F. to adequately monitor her diabetes contributed to the conflict between L.M.F. and respondent, typical of young adolescents.
Mitnick opined that appellant has a low tolerance for frustrations, and demands on her may lead to sudden angry outbursts toward family members. Appellant’s mental and emotional tests showed that she externalizes her problems away from herself and blames others or unfavorable situations for her difficulties.
The court determined that appellant demonstrated poor and/or inappropriate reactions to K.C.F.’s diabetic episodes. In fact, she has often not reported to K.C.F.’s doctors changes with her diabetes or the effects of K.C.F.’s reactions. Also, appellant has failed to notify respondent of K.C.F.’s emergency room visits. On one occasion, not until the hospital asked for insurance information did appellant notify respondent of K.C.F.’s condition.
Respondent has taken affirmative actions in order to ensure the girls’ diabetes is properly being managed. He attended a special program with the girls relating to the management of their diabetes. Although appellant knew of the meetings, she chose not to attend. Since the management program, K.C.F. has been in control of her diabetes.
L.M.F. also has had trouble managing her diabetes. Medical records show that her poor monitoring could have been a result of her depression and emotional problems because her diabetes was not being properly treated. L.M.F. has been admitted into the hospital as a result of missed insulin injections.
Medical records also show that at one point in L.M.F.’s medical treatment, kidney damage was suspected. The doctor told appellant a urine sample was needed to rule out kidney damage. Respondent was not initially notified of the possibility of the kidney damage. Once he learned of the situation, he contacted the doctor to inquire about the results of the urinalysis but was told it had not been completed. Appellant failed to collect the urine sample. It was eventually respondent who ensured all appropriate tests were completed.
L.M.F. has been diagnosed with depressive disorder. L.M.F. also has difficulty with her general fund of knowledge, abstract verbal reasoning, and social-situational problem solving skills. Tutoring was recommended but appellant never sought the help of a tutor.
In 2001, L.M.F.
was referred to a psychologist by her pediatrician but appellant cancelled the
appointments reasoning that she wanted a psychologist closer to home. However, appellant never found a
psychologist near home nor continued the appointments. Appellant never discussed L.M.F.’s problems
with respondent. He never knew of L.M.F.’s
recommended therapy. In 2003, respondent
set up therapy with the
M.R.F. lacks a close connection with appellant. Mitnick found that appellant was deficient in maintaining M.R.F.’s hygiene, physical, and mental needs. It was her opinion that this lack of attention on appellant’s part would inevitably affect M.R.F.’s immediate and future needs.
Based on the evidence before it, the district court reasonably determined that appellant lacked the necessary skills and attention needed to provide for the best interests of the children. It found that appellant’s lack of attention endangered their emotional health and well-being, while finding that respondent is active and aware of his children’s needs.
Appellant argues that the psychological testing should not be considered an adequate tool for determining custody. Psychological testing is but one of the many factors that are considered when determining custody. The district court relied on the recommendations of Mitnick, which included the psychological testing, interviews, and a review of various different types of records, including medical records. The court’s decision and Mitnick’s recommendations were based upon not just the psychological testing, but upon many factors.
The capacity and disposition of the parties to give the child love, affection, and guidance and to continue educating and raising the children in the children’s culture and religion or creed, if any.
Appellant was arrested and incarcerated three times for violating restraining orders involving a third-party classmate. The community college she attended also obtained a restraining order against her. She denies these arrests impact her ability to care for the children.
At the time of trial, appellant was charged with a felony but the outcome was still pending. Appellant’s problems with the law are not positive guidance for children. Appellant never notified respondent of her incarcerations, which extended over more than one day. The children were left alone while she was incarcerated. Appellant had a family friend “check up” on them while she was incarcerated. Appellant’s problems with the law impacted the emotional and mental well being of the children and their physical health.
The district court noted that religion was a reason why respondent requested a change in custody. Appellant argues the choice of religion should be left to the children.
Appellant claims to be a member of the Wicca religion whereas respondent is Catholic. The children were raised Catholic during the marriage. Once the parties divorced, appellant became involved in Wicca and involved L.M.F., a minor. Although the parties share joint legal custody of the children, appellant failed to share with respondent L.M.F.’s involvement in Wicca. Per the judgment and decree, appellant is required to inform/consult with respondent in regards to the children’s religious upbringing. Appellant intentionally withheld L.M.F.’s involvement in Wicca from respondent and encouraged L.M.F. to do the same. Respondent did not learn about L.M.F.’s involvement with Wicca until he found a ten-inch dagger in her belongings which appellant declared a necessary “Wicca religious item.” Appellant justified her secretiveness reasoning that L.M.F., then 13, was able to make her own choice. With the parties sharing joint legal custody, respondent should have been informed of appellant’s decision to push L.M.F. into Wicca.
The record indicates that appellant failed to support the children’s Catholic upbringing even after respondent reminded her of church activities.
Finally, appellant testified that she has a “lenient” parenting style. This poses a problem when the children have trouble controlling and managing their diabetes and their health. Mitnick reported that appellant’s parenting style contributed to poor hygiene and harmed the children physically and emotionally.
The disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the children.
Based upon the evidence before it, the district court found that appellant has consistently failed to encourage a relationship with respondent. Appellant has tried to file a restraining order against respondent so that he may not have contact with the children, she has encouraged L.M.F. to keep her involvement with Wicca a secret from respondent, and she has failed to notify respondent of the children’s medical needs. Mitnick fears that without court involvement, appellant will continue her ways.
After analyzing the factors of Minn. Stat. § 518.17, the district court properly determined that the children’s physical and emotional health and development were endangered while in the custody of appellant.
III. Attorney Fees
This court reviews an award of conduct-based attorney fees awarded pursuant to Minn. Stat. § 518.14, subd. 1 (2002), under an abuse-of-discretion standard. Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).
The district court awarded attorney fees to respondent because his fees “were incurred solely because [of appellant’s] delay and motion to remove the stipulated neutral custody evaluator.” The court found that respondent was entitled to assistance with his fees because appellant “added length and cost” to the proceedings through motions and delays. Appellant argues she did not unreasonably move the court or cause delay. She argues that respondent failed to provide sufficient evidence that he was burdened by her conduct.
Through her lengthy and protracted actions, appellant caused respondent additional attorney fees. There was a four-month recess due to appellant’s unnecessary actions which extended the length of time respondent needed representation. The district court determined that appellant’s motion to dismiss the custody evaluator was unnecessary and that respondent was entitled to additional fees. The district court based its decision on the fact that both parties agreed to have Mitnick serve as the custody evaluator, appellant’s delay in filling out the questionnaire created numerous additional correspondence, and she delayed Mitnick’s report, thereby delaying the proceedings. There was no abuse of discretion when the district court awarded fees to respondent.
Appellant argues that the trial court demonstrated bias in favor of respondent by not granting appellant a continuance to allow her time to hire an attorney and produce affidavits.
Appellant was not prejudiced and the district court did not show bias in favor of respondent. Appellant voluntarily terminated her attorney on April 8, 2004, knowing the hearing was set for April 22. It is true a client is always free to terminate an attorney, but the district court determined that appellant’s attorney had been providing her adequate representation. Appellant argues that Mitnick’s report was “biased” in favor of respondent. The record indicates otherwise. If appellant disagreed with the findings of Mitnick’s report, she had the opportunity to cross-examine Mitnick about her findings and recommendations. The district court specifically determined that there was no bias on the part of Mitnick on an earlier motion by appellant.
Appellant also argues she was denied her right to introduce police reports as evidence. The district court denied the introduction of the reports because they contained hearsay within hearsay.
within the district court’s discretion and are reviewed under an abuse-of-discretion
standard. Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001)
(citations omitted), review denied (
that appellant wished to introduce contained hearsay within hearsay. The reports included statements made by
appellant to the police officer, but appellant’s statements to the police
officer included statements made to her by third parties. The reports were introduced to prove the
truth of the matter asserted, namely the assertions made by the third
parties. The offered statements are
classic hearsay. See Minn. R. Evid. 801(c) (defining hearsay). Evidence containing double hearsay may be
admissible if each item of hearsay falls into a hearsay exception.
In examining the record as a whole, the hearing was thorough, fairly conducted, and both parties received their day in court.
 According to
appellant’s affidavit, Wicca is a form of witchcraft which is a nature-based
polytheistic religion that incorporates many of the old pagan traditions of the
pre-Christian era. Appellant also
included in her brief an affidavit of Brad Murphy, a minister of the
 The trial began in April 2004 and was in recess until September 2004 so that Mitnick could complete her custody evaluation. The report was delayed due to lack of cooperation on the part of appellant.