This opinion will be unpublished and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:
Randall M. Johnson, petitioner,
Deidre C. Johnson
Filed August 29, 2006
Hennepin County District Court
File No. DC 291684
Kathleen M. Picotte Newman, Joani C. Moberg, Larkin Hoffman Daly & Lindgren, 1500 Wells Fargo Plaza, 7900 Xerxes Avenue South, Minneapolis, MN 55431(for appellant)
Robert W. Due,
Susan A. Daudelin, Katz, Manka, Teplinsky Due & Sobol, Ltd.,
Considered and decided by Lansing, Presiding
Judge; Randall, Judge; and Willis, Judge.
U N P U B L I S H E D O P I N I O N
In this dissolution appeal, appellant-mother challenges the district court’s determination on custody, arguing that the court-appointed custody evaluator’s report reflected impermissible bias and that the district court improperly adopted respondent-father’s proposed findings on custody. Appellant also argues that the district court erred in its findings on the duration and amount of maintenance and should have awarded her attorney fees. We conclude the record does not reflect improper bias on the part of the custody evaluator, the district court did not abuse its discretion in determining custody and maintenance, and did not abuse its discretion in denying attorney fees. We affirm.
The district court dissolved the ten-year marriage of appellant Deidre C. Johnson, n/k/a Deidre C. Corniea, and respondent Randall M. Johnson in 2005. The parties have one child, who was nearly three at the time of the dissolution. Respondent also has two sons, now older than 18, from his previous marriage. Respondent works in the building-construction business and receives additional income from a non-marital ownership interest in three subchapter S, family-owned, building-materials corporations. Appellant, who earned credentials as a certified public accountant, worked part-time for seven years during the marriage but has been a full-time parent since the birth of the parties’ child.
The parties submitted for trial issues of child custody and parenting time, maintenance, property division, and attorney fees. The district court received expert evidence from a court-appointed custody evaluator, a neutral accounting expert, and a vocational expert. The court ordered, consistent with the custody evaluator’s report, joint legal and physical custody, with a gradually increasing parenting-time schedule for respondent until the child reached school age. The district court also ordered maintenance to appellant of $2,065 per month for three years, as corrected by an amended judgment. The district court denied appellant’s need-based attorney-fee request. This appeal of custody, maintenance, and attorney-fees issues followed.
D E C I S I O N
awards are based on a child’s best interests.
The district court, in ordering
custody, must make detailed findings on the best-interests factors listed in
Minn. Stat. § 518.17, subd. 1 (2004), and explain how its consideration of
those factors led to its conclusions and the determination of the best
interests of the child. The judgment
contains specific findings on the thirteen best-interests factors considered by
the district court in its allocation of joint legal and physical
custody of the minor child. Appellant challenges these findings as improperly based on the report of the custody evaluator, who, appellant asserts, demonstrated bias during the evaluation process.
Custody evaluations are governed by
Minn. Stat. § 518.167 (2004), which authorizes the district court to order a
custody evaluation in a contested custody proceeding. The decision to order a custody evaluation is
discretionary with the district court. Meyer v. Meyer, 375 N.W.2d 820, 826 (
The custody evaluator addressed in
her report each of the statutory best-interests factors for determining
custody. See Minn. Stat. § 518.17, subd. 1.
Appellant maintains that in her report, which formed the basis of the
district court’s custody determination, the custody evaluator improperly focused
exclusively on negative parenting references to appellant and ignored negative
references to respondent’s parenting. We
disagree. The custody evaluator followed
a thorough process of meeting separately with both parents, observing them
separately interacting with the child, and performing psychological
testing. Although we recognize that the
evaluator may have interjected unnecessary references to events that were not
directly relevant to determining custody, we do not find that these references
impaired the evaluator’s recommendation.
And the recommendation was supported by testimony at trial. Appellant’s consulting psychologist, although
expressing a concern with bias in the custody report, testified, consistent
with her notes, that appellant was acting as a “gatekeeper” and attempting to
control respondent’s relationship with the child. The recommendation, adopted by the district court, for a gradually-increasing parenting-time schedule for respondent until the child reached school age recognized appellant’s significant role as the parent of a young child.
parties stipulated before trial to the selection of the custody evaluator, who
was subject to cross-examination by both attorneys. Cf.
Scheibe v. Scheibe, 308
Appellant also specifically challenges
the district court’s order of joint physical custody on the basis that the
district court clearly erred in finding that the parties could cooperate in
raising the child. See
district court also ordered the parties’ use of a parenting consultant, which was proposed in appellant’s parenting plan, as a method of resolving disputes. This court has cited parents’ ability to work with a parenting consultant in upholding a joint-custody award. See Schallinger v. Schallinger, 699 N.W.2d 15, 21 (Minn. App. 2005), review denied (
claims that the district court’s verbatim adoption of respondent’s proposed
findings warrants reversal. “Adoption of
a party’s proposed findings by a district court is generally an accepted
challenges the district court’s determination on the duration and amount of
maintenance. To reverse the district
court’s maintenance determination, this court must conclude that the district
court abused its discretion by resolving the issue in a manner “against logic
and the facts on record.” Rutten v. Rutten, 347 N.W.2d 47, 50 (
district court may order maintenance if a party is unable to provide
self-support through adequate employment or lacks sufficient property,
including marital property apportioned in the dissolution, to provide for that
party’s reasonable needs.
argues that she is entitled to permanent maintenance because she lost skills,
retirement benefits, and workplace experience during her absence from the
workforce when she stayed home to care for the parties’ child. The district court found that appellant was
able to provide adequate self-support in her occupation as a certified public
accountant, based on her report to the vocational expert that she earned
approximately $41,000 per year as an independent contractor performing
accounting services from 1988 to 1995.
The district court cited the vocational expert’s report that appellant
could, with minimal effort, take the required continuing-education courses to
become recertified as a CPA. Based on
the record, the district court’s finding that appellant was capable of
self-support to the extent of working part-time until the child entered kindergarten,
and full time thereafter, is not clearly erroneous. See
Lyon v. Lyon, 439 N.W.2d 18, 22 (
also argues that the district court’s maintenance allocation to her of $2,065
per month for three years was insufficient to meet her reasonable needs, based
on the standard of living established during the marriage. See
Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (
budget of $5,500 per month, based on her testimony at trial. The district court did not err in basing the amount of maintenance on the neutral accounting expert’s testimony that appellant’s reasonable needs could be met with maintenance of $2,065 per month in combination with child support of $1,744 and earnings from her employment. Appellant failed to cite authority for her proposed standard of “income equalization,” which would strip the district court of its discretionary power to award maintenance according to the particular circumstances of each case. See Nardini, 414 N.W.2d at 199.
challenges the district court’s denial of her request for additional attorney
fees. A district court in a dissolution
action “shall” order attorney fees when necessary for the good-faith assertion
of a party’s rights if the party seeking fees lacks the ability to pay the fees
and the party from whom the fees are sought is capable of payment.
requests that respondent pay a portion of her attorney fees, based on a
comparison of the parties’ ability to pay, citing a discrepancy between the
valuation of her apportionment of marital property and respondent’s
apportionment of marital property, as well as his additional nonmarital assets. We find the district court properly denied
this request. The record supports the
district court’s finding that a significant
portion of respondent’s nonmarital assets are illiquid and will not produce immediate income. The district court was entitled to weigh respondent’s previous contribution of $5,000 to appellant’s attorney fees, as well as his payment of expert-witness fees for the court-appointed neutral custody evaluator and economic expert. Finally, the district court appropriately questioned whether the fees were necessary for the good-faith assertion of appellant’s rights in the factual context of this proceeding.