This opinion will be unpublished and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: Shelly Jean Cooper, f/k/a
Shelly Jean Stenger, petitioner,
George Joseph Stenger,
Chisago County District Court
File No. F7-99-1079
Kenneth J. Jacobs,
Shane C. Perry,
Considered and decided by Minge, Presiding Judge; Randall, Judge; and Collins, 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, appellant-father argues that (1) the district court’s findings of fact and order are not supported by the evidence, and (2) the district court misapplied the law in granting respondent-mother’s motion to modify custody. We affirm.
The marriage of appellant George Stenger and respondent Shelly Stenger was dissolved pursuant to judgment and decree on September 14, 2001. Under the terms of the decree, the parties were granted joint physical and legal custody of the parties’ minor son, G.J.S. The divorce decree also provided that G.J.S., who was age 11 at the time, would alternate living with each parent for one week.
On May 12, 2003, Liz Hagen-Johnson, the guardian ad litum (GAL) originally assigned to the case, submitted a letter to the district court indicating that she was concerned that appellant was involved with illegal drug use. Although Hagen-Johnson had been discharged as the GAL nine months earlier pursuant to the dissolution decree, the district court, apparently in reaction to the letter, issued an order on May 14, 2003, requiring appellant to submit to a five panel hair drug detection test. The order also stated that if appellant failed to take the drug test, the court would reserve appellant’s parenting time until he complied.
Appellant submitted to the drug test, and the results were a positive for illegal drug use. Based on the test results, the district court issued an order on May 28, 2003, granting respondent temporary sole physical custody of G.J.S., and suspending appellant’s visitation until a June 9, 2003 hearing on the matter. After the hearing, the matter was continued until July 9, 2003, at which time respondent moved to modify custody.
At the July 9, 2003 hearing, Hagen-Johnson testified under oath, and she affirmed the accuracy of her reports concerning appellant’s alleged drug use. Based on the GAL’s investigations, the district court issued an order on September 29, 2003, finding that appellant’s use of illegal drugs endangered the child’s physical and emotional health. The court’s order, among other things, maintained the restrictions on appellant’s contact with his son, ordered that appellant be subjected to random drug testing, ordered appellant to complete a chemical dependency evaluation, and granted an evidentiary hearing on respondent’s motion to modify custody.
On May 6, 2004, the district court ordered the parties to participate in a custody evaluation. A subsequent order, issued on June 19, 2004, ordered the parties to cooperate with the custody study, and appellant to submit to random drug testing. A few months later, an evidentiary hearing on respondent’s motion to modify custody was conducted. The district court issued an order on January 31, 2005, adopting respondent’s proposed findings of fact and conclusions of law almost verbatim. The court found that appellant had refused to complete a chemical dependency evaluation and the ordered drug tests. The court also found that Mary Pfeiffer, the GAL appointed to the case on June 16, 2004, had safety concerns for the minor child, and that the safety concerns persisted because appellant refused “to verify that he can provide a safe and drug-free home environment for the minor child.” The district court further noted respondent’s testimony concerning appellant’s disclosure to her of his hallucinations and suicidal thoughts. Based on its findings, the district court ordered sole physical custody of the minor child to respondent, subject to supervised parenting time granted to appellant.
On March 18, 2005, appellant moved for amended findings of fact, or in the alternative, for a new hearing. The district court denied the motion. This appeal followed.
D E C I S I O N
court’s findings of fact will be sustained unless they are
clearly erroneous. LaChapelle v.
Mitten, 607 N.W.2d 151, 158
A. Finding of fact IV
Appellant argues that there is no support in the record for finding of fact IV because the finding was based on the five-panel hair test, which was not admitted into evidence at the evidentiary hearing. The record indicates that Hagen-Johnson submitted a letter to the district court on May 27, 2003, addressing appellant’s failed drug test. Attached to the letter, was a copy of results from the five-panel drug test. The district court relied on the five-panel test results in two prior temporary orders, dated May 28, 2003, and September 29, 2003. Notably, the September 29, 2003 order was issued after a hearing held on July 24, 2003, where Hagen-Johnson testified as to the results of appellant’s drug test. Although a copy of the test results was not admitted into evidence at the evidentiary hearing, the test results were already part of the district court record at the time of the evidentiary hearing.
contends that the district court erroneously relied on the letter and attached
drug-test results because the results lacked foundation and the letter was
improper ex parte communication between the district court and the GAL. Appellant points to the fact that the GAL had
been discharged and still submitted the letter to the court. Appellant is correct in that Hagen-Johnson
had been discharged as a GAL pursuant to the dissolution decree. Hagen-Johnson’s further involvement with the
case was tenuous. But a GAL’s general statutory
responsibility is to advocate for a child’s best interests. See
Appellant was aware of his own failed drug test, and he had the opportunity to dispute the results at the evidentiary hearing. Despite appellant’s testimony in which he attempted to explain the test results, the district court found his testimony to be not credible. See In re Welfare of S.A.M., 570 N.W.2d 162, 167 (Minn. App. 1997) (stating that the credibility of witness testimony is an issue for the fact-finder). We conclude the district court properly relied on the five-panel drug test in issuing its findings of fact.
B. Finding of fact XII
In finding XII, the district court noted the GAL’s concerns about “[appellant’s] positive drug test results.” Appellant argues that because the district court used “results” rather than “result,” the district court erroneously believed appellant failed more than one drug test. Appellant asserts that because there was evidence of only one failed test, finding of fact XII is unsupported by the evidence, and, therefore, the district court’s order should be reversed.
Appellant attempts to read an issue into finding XII that does not exist. The statement “[appellant’s] positive drug test results” does not indicate that appellant failed more than one drug test any more than it indicates that appellant only failed one drug test. The finding simply uses the word “results” rather than “result.”
C. Finding of fact XIII
Appellant argues that finding XIII is not supported by the record because the finding is based on appellant’s medical records (Exhibit 5), which were not admitted into evidence. Appellant contends that because Exhibit 5 was not admitted into evidence, there is no support for the district court’s findings that: (1) appellant’s “hospital records indicated that [appellant] admitted methamphetamine use and increased usage of methamphetamine;” (2) appellant “admitted that he had been suicidal for the previous three months at that time;” and (3) appellant, “while at Cambridge Medical Center, also admitted that he had used cocaine in the past.”
Respondent concedes that Exhibit 5 was marked, but not admitted into evidence. But respondent argues that notwithstanding the fact that Exhibit 5 was not admitted, there was a sufficient evidentiary basis in the record to support the district court’s findings.
A review of the record reveals that respondent is partially correct. At trial, appellant admitted that he had used cocaine in the past. But there is not support for the finding that appellant actually admitted that he used methamphetamine and that his use of the drug has increased. There is also no support for the finding that appellant admitted having suicidal thoughts. In fact, at the evidentiary hearing, appellant denied ever threatening to commit suicide. Consequently, part of finding XIII is not supported by the record.
Nevertheless, despite appellant’s argument to the contrary, the record does support the district court’s finding of endangerment. Under Minn. Stat. § 518.18(d)(iv) (2004), a district court may modify a custody order if the district court finds that “the child’s present environment endangers the child’s physical or emotional health or impairs the child’s emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.”
Here, the record
reflects that appellant tested positive for amphetamines and
methamphetamines. The record also
reflects that appellant has refused to participate in a custody study, refused
to provide samples for drug testing, and refused to obtain a chemical
evaluation, all of which were ordered by the district court. Respondent testified that appellant had
suicidal ideations, and that appellant told her that while he was with the
parties’ son, government airplanes and helicopters followed them down to
contends that the district court’s findings of endangerment were primarily
based upon the GAL’s limited information, and, therefore, the court abused its
discretion in relying on the GAL’s report.
We disagree. The amount of weight
to be given to the report of the GAL is within the discretion of the district
court. Rutanen v. Olson, 475 N.W.2d 100, 104 (
Appellant contends that because the GAL’s report was filed two days before the scheduled hearing, the district court abused its discretion by admitting the report. See Minn. R. Gen. Pract. 108.01 (requiring a GAL to submit a report at least ten days before the hearing). However, appellant failed to object to the admission of the report at trial and failed to demonstrate that he was prejudiced by the failure to follow the ten-day rule. The GAL testified at the evidentiary hearing, and was subject to cross-examination.
Appellant argues that the district court misapplied the law in granting respondent’s motion to modify custody. Specifically, appellant argues that in granting respondent’s motion to modify custody, the district court erred by: (a) applying the wrong legal standard by improperly shifting the burden of proof from respondent to appellant; (b) granting an evidentiary hearing; (c) failing to give due deference to the parties’ stipulation concerning joint and physical custody; and (d) adopting, almost verbatim, respondent’s proposed findings and order. Each issue will be discussed in turn.
A. Appropriate legal standard
To grant a motion to modify custody
based on endangerment, a district court must make specific findings that (1) a
change in circumstances has occurred; (2) a modification is necessary to serve
the child’s best interests; (3) the child’s present
environment endangers the child’s health or impairs the child’s emotional
development; and (4) the harm likely to be caused by a change of environment is
outweighed by the advantages of the change to the child. See
Appellant argues that the district court misapplied the law governing modification of custody by placing the burden on appellant to verify a safe home environment through his submission to drug tests and chemical evaluations. We disagree. Although appellant was ordered to submit to drug tests and chemical evaluations, the burden of proof was not placed on appellant. Rather, the district court’s orders were a consequence of appellant’s drug test failure. The initial burden was placed on respondent to prove that a modification was appropriate. Based on the evidence submitted by respondent, the district court found that appellant failed a drug test, refused to comply with orders of the court, demonstrated suicidal ideations, and displayed an unstable mental state. These findings show that respondent met her burden to prove that there was a change in circumstances rendering the child’s present environment with appellant dangerous to the child’s health and emotional development. The court found that based on the facts, a modification of custody was necessary to serve the child’s best interests, and that any harm that would be caused by the change of environment outweighed the advantages of the change to the child. The fact that appellant failed to submit to subsequent drug tests and declined a chemical dependency evaluation lends support to the district court’s findings that modification of custody was appropriate. We find the district court applied the correct legal standard.
B. Evidentiary hearing
Appellant also contends that the
district court erred by granting an evidentiary hearing to modify custody
because respondent failed to make a prima facia case of endangerment by
affidavit. To proceed
with a motion to modify custody, the movant must submit affidavits that
establish a prima facie case in support of modification. Axford v. Axford, 402 N.W.2d 143, 145 (
Here, appellant is correct in that respondent did not submit a supporting affidavit with her motion to modify custody. But, we conclude this fact alone does not constitute reversible error. The record shows that after respondent filed her motion to modify custody, a hearing was held to determine whether an evidentiary hearing should be conducted. At the hearing, the GAL testified that appellant had tested positive for illegal drugs. Based on the GAL’s testimony, the district court found that respondent had “met her burden of establishing a prima facia showing that grounds modifying custody exist.” The district court then concluded that an evidentiary hearing should be conducted on the matter. Because respondent established a prima facia case in support of modification based on the testimony presented at the July 24, 2003 motion hearing, the district court properly granted the evidentiary hearing.
argues that the district court erred by failing to give due deference to the
parties’ stipulation for joint physical and legal custody. Minn. Stat. § 518.18 specifically governs
later modification of custody orders, even where the original judgment grants
custody to one party pursuant to a stipulation.
See Gunderson v. Preuss,
336 N.W.2d 546, 547 (
D. Proposed findings
appellant argues that the district court failed to exercise independent
judgment and independently evaluate the facts based on the court’s almost
verbatim adoption of respondent’s proposed findings and order. A district court’s
verbatim adoption of proposed findings and conclusions of
law is not reversible error per se. Schallinger
v. Schallinger, 699 N.W.2d
15, 23 (Minn. App. 2005), review denied (
Retired judge of the district court, serving as judge of the Minnesota Court of
Appeals by appointment pursuant to