This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
In re the Marriage of:
Filed June 27, 2006
Carver County District Court
File No. FA-03-335
Considered and decided by Stoneburner, Presiding Judge, Dietzen, Judge, and Harten, Judge.
Kathryn M. Goodyear-PeKarna challenges the district court’s rulings on child custody
and division of property in this marital dissolution appeal. She claims that the district court abused its
discretion in modifying its initial temporary custody determination, in making
its ultimate custody decision, and in failing to order a post-judgment
evidentiary hearing on claimed endangerment of the children. She also claims that the district court
abused its discretion in dividing property by awarding her a lien on the
homestead payable when the youngest child graduates from high school, in
failing to credit her for extraordinary expenses she paid for the children, and
in dividing proceeds from an account that held funds derived from the second
Appellant Kathryn M. Goodyear-PeKarna and respondent Matthew DeWitt PeKarna married on 4 November 1991. The parties’ children are K.M.P., born 13 February 1995, and A.M.P., born 3 June 1996. Both parties are employed full time: appellant as a medical consultant, respondent as an engineering manager. When the parties separated in June 2003, respondent moved out of the family home in Chanhassen.
The district court initially granted sole physical custody of the children to appellant and appointed a guardian ad litem, custody evaluator, and psychologist to assist the court in determining custody. After holding an evidentiary hearing, the district court ordered a temporary modification of physical custody and placed the children with respondent in late 2004 because appellant had “alienated [r]espondent from the lives of the . . . children to a level of it being emotionally harmful to the children’s wellbeing.” To facilitate this order but maintain continuity of the children’s living arrangement, the district court ordered appellant to vacate the parties’ home to allow respondent to live there with the children. Appellant took most of the children’s possessions with her when she moved out, including their beds, clothes, and toys.
In its dissolution judgment following a six-day trial, the district court granted respondent sole legal and physical custody of the children subject to supervised access by appellant. Among its findings on the best interests of the children, the district court found that while both parties love the children, they have shown a “complete inability to cooperate with each other in rearing [them].” The district court found no single best interests factor determinative, but specifically found that respondent would “more likely be inclined to encourage contact between [appellant] and the children . . . and that the children are clearly better adjusted at school since [r]espondent has been the temporary physical custodian of the children.” The district court’s findings provide specific examples of appellant’s attempts to vilify respondent and to discourage the children’s relationship with him. The district court’s findings do not substantiate the parties’ allegations of mutual inappropriate conduct, including alleged sexual misconduct involving respondent and alleged alcohol abuse involving appellant.
In dividing marital property, the district court evenly split property between the parties to the extent possible. Appellant claimed reimbursement for “extraordinary expenses” for the children’s school tuition, school costs, childcare expenses, and out-of-pocket medical expenses paid during their separation. In the original judgment, the district court allowed the parties to submit verification of such payments within 30 days. Appellant did not submit further probative evidence on these expenses.
Also in the original judgment, the district court found that respondent had no duty to reimburse $26,000 from a Wells Fargo PMA Investment Account that appellant claimed respondent had improperly withdrawn when the parties separated. Of the $39,000 remaining in the account as of 30 June 2003, the district court awarded appellant $26,000 and divided the remainder between the parties. The district court ordered appellant to “provide an accounting of withdrawals that were made on this account if the $39,000.00 has been depleted.” Due to inadequate accounting evidence on this issue, the district court ordered the parties to agree on the amount of the remainder or make further submissions to the court within 30 days.
district court’s amended judgment valued the homestead at $660,000 as of 24
September 2004, awarded appellant a non-marital interest of $141,042, and
awarded each party a marital interest of $49,479 after deducting the $420,000
1. Child Custody.
“Appellate review of custody
determinations is limited to whether the trial court abused its discretion by
making findings unsupported by the evidence or by improperly applying the
law.” Pikula v. Pikula, 374 N.W.2d 705, 710 (
In making a custody determination, the district court must consider the statutory factors set forth in Minn. Stat. § 518.17, subd. 1 (2004). All custody determinations must consider and give effect to the best interests of the child. In re Custody of N.M.O., 399 N.W.2d 700, 703 (Minn. App. 1987); see Minn. Stat. § 518.17, subd. 1.
Here, the district court specifically considered each statutory factor in determining custody. The district court’s custody award turned on appellant’s unwillingness to cooperate with respondent in custodial matters and her repeated attempts to excise respondent from the children’s lives, contrary to the district court’s stated objective to maintain continuity in the children’s lives by allowing the parties to live where they had lived for the past six years. In its findings, the district court enumerated numerous instances in which appellant had asserted herself as the exclusive parent, including (1) discouraging or prohibiting respondent from having contact with the children after their separation; (2) eliminating respondent’s name from school information; (3) vilifying respondent to the children; (4) making unsubstantiated claims that respondent made sexually inappropriate comments to the children; (5) providing the children with inappropriate and harmful information about the parties’ marriage dissolution; (6) urging the children to disparage respondent; (7) stripping the parties’ homestead of the children’s possessions after temporary custody was placed in respondent and she was ordered to vacate the homestead; (8) bringing the children to see an independent therapist without respondent’s knowledge; (9) removing the children from school without notifying respondent even though he was their custodian; and (10) refusing to allow respondent to visit with the children when it was ordered that she do so during Easter 2005. These instances are supported in the record by the testimony of respondent, the custody evaluator, the court-appointed psychologist, and others.
Appellant also attempts to contest the district court’s custody determinations by claiming that the initial change in temporary custody was unwarranted. The district court’s order modifying temporary custody was made under Minn. Stat. § 518.131, subd. 8 (2004), rather than Minn. Stat. § 518.18(d) (2004), which appellant claims is controlling. Under Minn. Stat. § 518.131 (2004), which enumerates permissible temporary custody orders, the district court may hold an evidentiary hearing, which the court did. The district court specifically found that it was in the children’s best interests to change the initial custody award and set forth reasons for the change. The district court later conducted a full custody hearing and made final determinations on the issue. The district court did not abuse its discretion by modifying temporary custody.
Appellant further argues that the
district court abused its discretion by failing to order an evidentiary hearing
before issuing a post-judgment order directing that respondent not impede
appellant’s employment of a therapist for the purpose of interviewing the
children to establish whether the parties had attempted to alienate the
children from the other parent.
Appellant argues that the district court abused its discretion and
applied a “double standard” by requiring an evidentiary hearing on
pre-dissolution issues, but failing to order one following judgment. But in the resolution of post-judgment
custody modification claims, the court must “retain the custody arrangement . .
. established by the prior order” unless endangerment is shown.
Finally, appellant asserts that the custody evaluation and its associated conclusions were flawed. Appellant points to instances in which the evaluator failed to enumerate information sources, disregarded respondent’s conduct, and perceived appellant to be a good parent but did not include that perception in her final recommendation. On the whole, the record supports the evaluator’s conclusions and the district court’s findings on the custody evaluation. Moreover, the evaluator’s testimony is supported by the testimony of other trial witnesses. We conclude that the district court did not abuse its discretion in making custody determinations. See Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000) (requiring reviewing court to review the evidence in the light most favorable to the district court’s findings in custody cases; when record would support other findings, reviewing court must affirm if evidence supports district court’s findings).
2. Property Division.
Appellant claims that the district court
abused its discretion in dividing marital property. In marital dissolutions, a trial court must
make “a just and equitable division of the marital property of the
The district court awarded appellant
a $82,218 lien on the homestead for her marital interest in that property. Appellant claims that the district court
abused its discretion by deferring satisfaction of the lien, among other things,
to “[w]ithin 90 days after the date the youngest child [ ] graduates from high
school.” But a district court may
validly exercise its discretion by ordering a marital lien on a homestead,
especially when the children’s best interests favor retaining the homestead and
the parties’ financial conditions allow it.
See Schuck, 390 N.W.2d at
4. Here, the district court found that
it was in the children’s best interests to remain in the home and community
where they had resided for most of their lives.
We find no reason to reject the district court’s exercise of discretion
in this instance. See Thomas v. Thomas, 356 N.W.2d 76, 79 (
Appellant further claims that the district court abused its discretion by failing to consider, as a part of the property division, reimbursement for her payment of extraordinary expenses for the children. Appellant claims a total amount of $25,665.29, of which she requests credit for half. The district court found that appellant had failed to sustain her burden of proof on this issue because she submitted a computer-generated summary of expenses that failed to specify how each item related to an expense associated with the children, or, in some instances, identify the object of the expense. In its initial dissolution judgment, the district court notified appellant of this evidentiary deficiency and granted her 30 days to submit proof of these claimed expenses. Because appellant failed to respond to this judicial proposal, the district court did not abuse its discretion in denying her claim.
Finally, appellant contends that she
should have been awarded more of the parties’ Wells Fargo account. The district court found that the account
held homestead equity funds generated by a second mort
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.