This opinion will be unpublished and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:
Tue Moua, petitioner,
Filed September 19, 2006
Hennepin County District Court
File No. DC 202728
Lawrence H. Crosby, Jay D. Olson, Crosby & Associates, Roseville West, 2277 Highway 36 West, Suite 234E, St. Paul, MN 55113-3830 (for appellant)
Naocha Yang, 571 53rd Avenue Northeast, Fridley, MN 55421 (pro se respondent)
Considered and decided by Shumaker, Presiding Judge; Kalitowski, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Tue Moua challenges the district court’s decision to grant respondent Naocha Yang sole legal and sole physical custody of the parties’ child, C.Y., arguing that the district court abused its discretion by (1) modifying the previous custody order; and (2) allowing the guardian ad litem to testify. We affirm.
D E C I S I O N
district court has broad discretion in determining whether to modify child
custody. Sharp v. Bilbro, 614 N.W.2d 260, 263 (
modify a prior custody order, the district court must find that a change has
occurred in the circumstances of the child or custodian and modification would
serve the best interests of the child.
Here, appellant-mother argues that the district court abused its discretion in modifying the previous custody order and granting respondent-father sole legal and sole physical custody of the parties’ son, C.Y. We disagree.
1. Change in circumstances
modify a custody order, the district court must find that a change of
circumstances occurred since the date of the original order.
argues that the district court failed to identify any changes in
circumstances. But “[a] child’s strong
preference to change residence after a custody decree can constitute a change
a custodial parent’s move out of state is a change in circumstances that
triggers provisions of the custody-modification statute. Sefkow
v. Sefkow, 427 N.W.2d 203, 214 (
2. Best interests
district court may not modify a custody order unless modification serves the
child’s best interests.
Here, the district court made extensive findings with respect to each of the best-interest factors under Minn. Stat. § 518.17, subd. 1. The court observed that “[b]oth parents have the capacity and disposition to provide love, affection, and guidance to [C.Y.].” But the court also found that C.Y. has a strong preference to live with his father because of how appellant disciplines him. The record indicates that both parents physically discipline their children, but appellant hits more often and harder, using whatever object she has in her hand. As a result, C.Y. perceives his mother as cruel and has “very substantial fears” of returning to his mother’s custody. Thus, the court found that “[C.Y.’s] emotional development is at risk if he is required to continue to live with her.” These findings are supported by the testimony of C.Y’s GAL and the county custody evaluator.
district court further found that appellant has been C.Y’s primary caretaker
since the parties’ divorce and that respondent suffers from depression. But the court found that respondent now
appears committed to providing C.Y. with a home. Since C.Y. moved into respondent’s home, C.Y.
has seemed happier, more outgoing, and well adjusted. In addition, C.Y. has strong ties to his
extended family in
Appellant argues that respondent and his family coached C.Y. to tell the court that he wants to live with his father and that appellant disciplines her children “as any caring parent does.” But C.Y.’s GAL testified that she believes C.Y.’s statements about being afraid of returning to his mother’s home. And the district court found that C.Y. is “clearly frightened of his mother.” This court gives deference to the district court’s opportunity to assess the credibility of witnesses. Sefkow, 427 N.W.2d at 210. Because the record supports each of the district court’s findings, we conclude that the district court’s findings establish that modification of the custody order is in C.Y.’s best interests.
district court shall retain the custody arrangement of the prior order unless
“the child’s present environment endangers the child’s physical or emotional
health or impairs the child’s emotional development.”
Appellant argues that “the allegations of excessive discipline were not substantiated” and that there is no evidence to show that C.Y. is in “significant danger” in appellant’s custody. But appellant fails to address the evidence that C.Y. was emotionally endangered by her behavior.
Here, several witnesses testified that appellant has hit C.Y., and as a result, C.Y. was “terrified” of returning to his mother’s home. And the custody evaluator testified that “I haven’t seen a child act like that regarding a parent in any of the other custody settings I’ve ever done. That kind of behavior is usually associated with children who have been abused.”
contends that this case is similar to Johnson
v. Smith, 374 N.W.2d 317 (
. . . of being returned to her custody.” On this record, we conclude that the district court did not clearly err in finding that C.Y. is emotionally endangered in appellant’s custody.
4. Balance of harms
district court may not modify a custody order unless the harm caused by a
change of custody is outweighed by the advantage of the change.
argues that modifying custody will only harm C.Y. because “[C.Y.] did very well
with his mother” and respondent’s involvement with his family has been
“extremely limited.” But the court found
that respondent now appears committed to providing C.Y. with financial support
and a home. The record further shows
that C.Y. is frightened of his mother and that he prefers to live with his
father. In respondent’s home, C.Y. seems
happier and has regular contact with his brother, sister, and two
half-brothers. In contrast, if C.Y.
court’s function is not to reweigh the evidence; rather, it is to determine if
the evidence as a whole sustains the district court’s findings. In re
Salkin, 430 N.W.2d 13, 16 (
an erroneous interpretation of the law, the question of whether to admit
evidence is within the district court’s discretion. Kroning
v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (
[a] guardian ad litem shall carry out the following responsibilities:
(1) conduct an independent investigation to determine the facts relevant to the situation of the child and the family, which must include, unless specifically excluded by the court, reviewing relevant documents; meeting with and observing the child in the home setting and considering the child’s wishes, as appropriate; and interviewing parents, caregivers, and others with knowledge relevant to the case;
(2) advocate for the child’s best interests . . . ;
(3) maintain the confidentiality of information related to a case . . . ;
(4) monitor the child’s best interests throughout the judicial proceeding; and
(5) present written reports on the child’s best interests that include conclusions and recommendations and the facts upon which they are based.
Minn. Stat. § 518.165, subd. 2a (2004).
appellant argues that the GAL failed to perform these duties because the GAL’s
investigation was insufficient and she did not submit a written report. Thus, appellant argues that the district
court should have disregarded the GAL’s testimony. But appellant did not object to the GAL’s
testimony at trial, and therefore, the issue is not properly before this
court. Thiele v. Stich, 425 N.W.2d 580, 582 (
Moreover, the GAL conducted an independent investigation as required by Minn. Stat. § 518.165. The record shows that the GAL met with C.Y. twice at school and spoke with the following people on the phone: C.Y., both parties, C.Y.’s classroom teacher, the social worker, C.Y.’s sister, and C.Y.’s sister-in-law. Based on the information that she collected, the GAL submitted a letter to the court, agreeing with the recommendations of the custody evaluator. Thus, we conclude that the GAL conducted a proper investigation and that the district court did not abuse its discretion by admitting her testimony.