This opinion will be unpublished and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:
Kurt J. Stimpfl, petitioner,
Kristi L. Stimpfl,
Filed February 7, 2006
Lake of the Woods County District Court
File No. F3-03-182
George A. Duranske, III,
Alan B. Fish, Alan B. Fish, P.A.,
Considered and decided by Randall, Presiding Judge; Peterson, Judge; and Dietzen, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a custody determination in a dissolution judgment, an order allowing the children’s removal from Minnesota, and a denial of a motion for a new trial, appellant-mother argues that the district court did not fully address the custody factor of the children’s primary caretaker; the district court improperly adopted respondent-father’s proposed order; the order allowing removal does not address the required statutory criteria; the district court abused its discretion in declining to award her maintenance; and a new trial is required because she was unfairly treated by the district court. We conclude the district did not abuse its discretion and properly addressed the statutory custody factors in its custody and removal determinations. We conclude the district court did not abuse its discretion in denying maintenance to appellant and declining to consider appellant’s allegations of bias. We affirm on all issues.
A judgment dissolved the twelve-year marriage of appellant Kristi Stimpfl, n/k/a Kristi Wells, and respondent Kurt Stimpfl in 2004. The judgment granted to appellant sole physical custody of the parties’ three children, ages seven, four, and three; the parties shared joint legal custody. Both parties have college degrees in chemistry. Before their children were born, both worked as chemists for Solvay Pharmaceuticals; after the birth of the first child, appellant worked briefly and then stayed home to care for the children. Respondent still works for Solvay.
the parties’ separation in 2003, appellant moved with the children close to her
parents’ home in
In March 2004 appellant obtained an emergency ex parte order for protection against respondent, alleging that two of the children had reported symptoms consistent with sexual abuse. After investigation, the OFP was dismissed.
The parties experienced significant difficulties at parenting-time exchanges, which led, on at least one occasion, to police involvement. In November 2004, the district court, after issuing an order to show cause why temporary custody should not be changed due to ongoing problems with parenting-time exchanges, ordered a change of temporary physical custody to respondent and supervised visitation with appellant.
After a two-day trial, the district
court issued its judgment allocating sole physical custody to respondent and awarding
parenting-time to appellant. Respondent indicated at trial that he intended to
district court later held a hearing on the proposed move, denied appellant’s
motion for a new trial, and granted permission for respondent to remove the
D E C I S I O N
review of a custody determination is narrow and “limited to whether the
[district court] abused its discretion by making findings unsupported by the
evidence or improperly applying the law.”
Silbaugh v. Silbaugh, 543
N.W.2d 639, 641 (
Appellant argues that the district
court erred by failing to indicate in its findings how the best-interests
factors supported its granting of custody to respondent. In particular, appellant contends that the
district court gave insufficient weight to the application of the
primary-caretaker factor enunciated in Pikula
v. Pikula, 374 N.W.2d 705, 712 (Minn. 1985), because the evidence showed
that appellant was the children’s primary caretaker before the parties’
separation. However, the “primary
caretaker” factor relied on in Pikula is
no longer dispositive of the children’s best interests. After Pikula,
The district court made findings on all of the custody factors listed in Minn. Stat. § 518.17, subd. 1. These include the children’s primary caretaker; the intimacy of the relationship between each parent and the children; the interaction and interrelationship of the children with each parent and other significant persons; the children’s adjustment to home, school, and community; the desire for continuity; the mental and physical health of the parties; the permanence of the proposed custodial home; the children’s religious background and education; the capacity of each parent to give the children love and guidance; and the disposition of each parent to encourage and permit frequent and continuing contact of the children with the other party.
In particular, the district court found that although both parties love their children, many parenting-time exchanges were unsuccessful when the children were upset, and that appellant had no inclination to encourage the children to see respondent, acting in a way intended to impede the exchange and cause emotional trauma. The record supports this finding. The record contains reports of the guardian ad litem, a responding police officer, and the supervisor of a parenting-time exchange location that appellant made inappropriate comments in front of the children, the children appeared to have been coached not to go with respondent, and when the children were reluctant to go with respondent, appellant would ask, rhetorically, what she was supposed to do. In contrast, the record contains no evidence that respondent acted inappropriately during these exchanges.
argues that the district court improperly ignored the bonding of the children
with her, as shown by the oldest child’s placing of numerous phone calls to her
during the custody change period. But
the district court listened to the tapes of these conversations and properly
drew inferences from that evidence in assessing credibility. The tapes contain conversations in which
appellant, among other things, did not discourage the child from calling 9-1-1
to request removal from respondent’s house.
See Nelson v. Lutheran Mut. Life
Ins. Co., 311
The record further supports the district court’s findings on appellant’s court-ordered psychological evaluation, which suggested the possibility of acquired impairment of cognitive functioning and psychopathology, with identification of a possible delusional disorder and a recommendation for further neurological follow-up. The record shows that appellant, after briefly meeting with a psychiatrist, refused to provide the psychiatrist with releases to enable a complete assessment before the custody trial. Although respondent’s court-ordered psychological report indicated some defensiveness, the evidence provides no indication of adverse conduct affecting his relationship with the children. See Minn. Stat. § 518.17, subd. 1(b) (stating that in making a custody determination,court shall not consider conduct not affecting proposed custodian’s relationship with the child).
Appellant argues that the district court clearly erred in its finding that the children’s cultural background, including their grandfather’s Native American heritage, is not a significant custody factor. We disagree. The district court correctly noted that no evidence was introduced at trial on this factor. The district court did not err in implicitly adopting the custody evaluator’s report, which noted a slight Native American background but indicated that it was “not a significant factor” in the custody determination.
asserts that the district court improperly adopted respondent’s proposed
findings of fact and conclusions of law. Although verbatim adoption of a party’s
proposed findings and conclusions of law raises the issue of whether the
district court independently weighed the evidence, it is not reversible error
per se. Bliss v. Bliss, 493 N.W.2d 583, 590 (
challenges the district court’s order allowing respondent to remove the
physical custodian may not remove a child from the state without the consent of
the other parent or a court order permitting removal. Minn. Stat. § 518.175, subd. 3 (2004). But it is presumed that removal will be
permitted. See Auge v. Auge, 334 N.W.2d 393, 399 (
argues that the district court made insufficient findings to support its
decision to allow respondent to remove the children to
Appellant argues that the district
court abused its discretion in declining to award her maintenance. To reverse a district court’s determination
on maintenance, this court must conclude that the district court abused its
discretion by resolving that issue in a manner “that is against logic and the
facts on record.” Rutten v. Rutten, 347 N.W.2d 47, 50 (
district court may order maintenance if a party lacks sufficient property to
provide for the party’s reasonable needs or if a party is unable to provide
self-support through adequate employment.
contends that the district court improperly failed to make findings on all of
the statutory maintenance factors. But
while the district court must consider all relevant factors, it need not make
findings regarding each factor. Justis v. Justis, 384 N.W.2d 885, 891 (
Appellant argues for a new trial based on a lack of fundamental fairness, including: (1) improper ex parte communication between the guardian ad litem and the custody evaluator and the district court judge, resulting in appellant being called in on short notice to show cause that she should not lose temporary custody; and (2) bias on the part of the Lake of the Woods County sheriff, who, appellant contends, failed to appear for testimony although under subpoena, and whose deputies allegedly treated appellant with disrespect during trial.
The record does not show improper statements made to the district court by either the guardian ad litem or the custody evaluator. The hearing on the change of temporary custody occurred only after difficult parenting-time exchanges, at least one of which resulted in police involvement, so that the district court properly convened the hearing to determine the best interests of the children. The district court had previously stated that failing to comply with its previous parenting-time order could result in a contempt order and a change of temporary custody.
The record does not demonstrate the
existence of bias on the part of the sheriff.
Because appellant did not raise the issue of the sheriff’s failure to
respond to the subpoena until the posttrial hearing, the district court did not
abuse its discretion in failing to consider it.