This opinion will be unpublished and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
Bernie Jay Nelson,
Kristi Sue Nelson,
Filed October 24, 2006
Stearns County District Court
File No. F0-98-1298
Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from an order modifying custody, appellant-mother argues that the district court’s findings of fact are not supported by the evidence and that the findings of fact do not support the decision to modify custody. We affirm.
The parties entered into a marital-termination agreement, and their marriage was dissolved by judgment and decree in 1998. The decree granted the parties joint legal and joint physical custody of their four children, S.N., J.N., K.N., and A.N., with respondent-father Bernie Nelson having parenting time every other week from Tuesday afternoon to Sunday evening. In July 2004, appellant-mother Kristi Nelson filed a motion seeking sole physical custody of the parties’ oldest child, who had been living solely with mother for three years, and a change in the parenting-time schedule. Father filed a responsive motion seeking sole physical custody of all four children.
The district court appointed a guardian ad litem (GAL). At an evidentiary hearing in April 2005, the GAL
testified about her observations of the parties and the children and stated
that she thought that it would be in the three younger children’s best
interests for father to be awarded sole physical custody and that the benefit
of the change would outweigh any detriment of the transition. The GAL recommended that mother have
parenting time with the children every other weekend from Thursday evening
until Sunday evening, and a midweek visit during the off weeks. The GAL also testified that the children
should continue to attend school in
On cross-examination, the GAL testified that initially all
three younger children stated that they would rather live with their mother and
that they would rather attend school in the
Julie Theismann, a clinical social worker who met with the children at mother’s request, testified that in her opinion the children were not being harmed emotionally or physically. Theismann testified that the children prefer to live with their mother, that based on their report cards, Theismann had no concerns about their schooling, and that although mother’s parenting style is more relaxed, it does not harm the children. Theismann also testified that the children indicated that the rules in father’s home changed when he remarried and that the rules seem to be his wife’s rules and are more applicable to a younger child, like her son. Based on her meetings with the children and mother, Theismann stated that there were not enough concerns to recommend a change in custody because the current arrangement had been in place for years, and if custody were changed at this point, it would be hard on the children because they have a very strong emotional bond and comfort level with their mother.
Father testified that mother failed to keep him informed about
court dates when their oldest child was facing criminal charges and about the
children’s school and medical issues. The
record indicates that the oldest child was charged with various offenses,
including passing forged checks, underage alcohol and tobacco offenses, and
theft. Father testified about the rules
and structure for the children in his home and the activities that they do
together. Father stated that he felt that
the children should remain in the
Father testified that he believes that mother’s parenting
is having a detrimental effect on the oldest child because she is more of a
friend than a parent and imposes no boundaries.
Father expressed concerns about mother leaving J.N. and K.N. in charge
of A.N. for long periods of time and stated that when A.N. stays at father’s
home, he is not left alone or with the older boys. Father testified that his concerns about
mother’s parenting also include keeping secrets and encouraging the children to
keep secrets about things, such as moving to a new home and enrolling the children
in another school district; her unstable home life since her husband moved out;
and the children gambling online. Father
testified that he is now self-employed, so he is free to spend more time with
the children, and he intends to remain in his current home in the
Mother disagreed with the characterization of her parenting as lacking structure and explained that she has rules that the children must follow. Mother acknowledged that she did not keep track of the oldest child’s school attendance and despite his problems with the law and school, she thought it was a good idea for him to take a trip to Mexico; the younger children had missed “a couple” religion classes on nights that she had them; she did not tell father that she was going to Las Vegas for four days and instead had her husband come and stay with the children; she had moved three times in the last three years; and she did not always notify father when S.N. had a court hearing.
In an October 4, 2005 order, the district court awarded father sole physical custody of the three younger children and mother sole physical custody of S.N. In a January 13, 2006 order, the district court granted both parties’ motions for reconsideration, granted father’s motion for a finding that S.N. is no longer a child, thereby eliminating father’s child-support obligation, clarified specific provisions of the custody order, and denied all other pending motions. This appeal followed.
D E C I S I O N
review of custody determinations is limited to determining whether the district
court abused its discretion by making findings unsupported by the evidence or
by improperly applying the law. Silbaugh v. Silbaugh, 543 N.W.2d 639,
argues that the district court made findings of fact that are not supported by
the evidence, and she questions the accuracy and relevance of some
findings. This court does not review the
entire record de novo. Pikula,374 N.W.2d at 710. The
district court’s findings of fact must be sustained unless clearly
Mother identifies several findings of fact that she acknowledges are supported by the evidence but that she argues are irrelevant, inaccurate, incomplete, or misleading. Without addressing the evidence that supports each of these findings, we conclude that they are supported by the evidence and are not clearly erroneous. See Wilson v. Moline, 234 Minn. 174, 182, 47 N.W.2d 865, 870 (1951) (stating that appellate court need not “discuss and review in detail the evidence for the purpose of demonstrating that it supports the trial court’s findings,” and that its “duty is performed when [it] consider[s] all the evidence . . . and determine[s] that it reasonably supports the findings”); Vangsness, 607 N.W.2d at 474-75 & n.1 (applying Wilson in marital-dissolution case). Mother’s arguments that some of the findings are irrelevant, inaccurate, incomplete, or misleading raise concerns about the district court’s credibility determinations and the conclusions that the district court drew based on the facts, but they do not demonstrate that the findings are clearly erroneous.
It appears that three findings that mother cites are not supported by the evidence, but none of the three facts is significant to the district court’s analysis of the issues before it. The district court found that mother wanted to modify parenting time, but mother withdrew her motion to modify parenting time; the district court found that the parties had equally split time with the three younger children, but mother had more time with the children each week than father did; and the district court found that Theismann conducted a custody study, but Theismann’s study was not intended to be a custody study, even though Theismann made a custody recommendation.
argues that the district court’s findings fail to address the requirements for
a change in custody. To modify custody
based on endangerment, a district court must make specific findings that (1) a
change in circumstances has occurred; (2) 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 advantage
of a change to the child.”
1. Change in circumstances
moving party has the burden to demonstrate that there has been a change in
circumstances. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (
district court found that mother’s changes of residence, including a recent
relocation to a new school district, were changes in the circumstances of the
children. Mother argues that her change
of residence did not cause any change for the children and that enrolling the
children in a new school without notifying father was not a change because
father transferred the children’s records back to their original school before
the children learned that they had been transferred. But the district court did not find that just
one change in mother’s residence was a change in circumstances; it found that
multiple changes of residence were a change in circumstances. The district court found that in 2003, mother
2. Best interests
addition to the substantial change in circumstances, the modification must be
necessary to serve the children’s best interests.” Gustafson
v. Gustafson, 376 N.W.2d 290, 293 (
argues that the district court did not do a specific, best-interests analysis applying
the factors in Minn. Stat. § 518.17, subd. 1(a) and, therefore, this court
cannot conduct a meaningful review. But
the district made specific findings about each of the relevant statutory
factors; it just did not state its findings in a format that precisely
parallels the statute. See Tuthill v. Tuthill, 399 N.W.2d 230,
Mother also argues that testimony about all of the factors favored her and did not favor father. But the only statutory factor that mother addresses is the preference of the children. See Minn. Stat. § 518.17, subd. 1(a)(2) (stating that factors to be considered and evaluated by court when determining best interests of child include “the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference”). Mother contends that the district court erred in not addressing the “wishes of the children” or in not giving any weight to the preference of the children.
But the district court did address the wishes of the children; it found that the three youngest children expressed to the GAL that they wished to live full time with mother and have parenting time on alternating weekends with father. However, the district court also found that the GAL determined that the three children prefer to live with mother because when they are with mother, “they have less chores, fewer rules, and can spend more time with friends” and that the children indicated to the GAL that mother helped them write letters to the court stating that they preferred to live with mother. The district court did not fail to give any weight to the children’s preference; it determined that their preference is outweighed by other factors that favor granting father custody.
“The existence of endangerment must be determined on the particular facts of each case.” Sharp, 614 N.W.2d at 263 (quotation omitted). Endangerment requires a showing of a significant danger, but the danger may be purely to the child’s emotional development. Geibe, 571 N.W.2d at 778. Mother argues that the district court’s failure to make meaningful findings makes it impossible to review whether the children’s current environment endangers their physical or emotional health. But the district court found that mother provides little discipline and guidance for the children and that the lack of discipline and guidance endangers their emotional health and development. The district court also found that the children have few rules in mother’s home; father has appropriate rules for the children when they are at his home; the children have fewer behavioral problems when given guidance and consequences at father’s home; and the children’s church, school, and extra-curricular attendance is better during the time they spend with petitioner. These are meaningful findings that make it possible to review whether the district court clearly erred in finding that the children’s current environment endangers their emotional health and development, and mother has not demonstrated that the district court’s finding is clearly erroneous.
4. Harm versus advantages
The district court may not modify a custody order unless the harm caused by a change of custody is outweighed by the advantages, but this factor “may sometimes be implicit in the other factors.” Geibe, 571 N.W.2d at 778. Mother does not address this factor, and we simply note that the district court found that the children are established in the Monticello school district; are active in extracurricular activities in Monticello; are involved in a Monticello church where they participate in confirmation classes on Wednesday evenings; mother does not respect the importance of the children’s education and extracurricular activities; and “the benefit of a stable home environment where the children will have adult guidance, along with accessibility to school and extra-curricular activities, outweighs any harm moving [the children] to father’s home may have.”
The district court’s findings of fact are supported by the evidence and address all four requirements for custody modification.
Mother argues that the district court erred in ignoring or not addressing Theismann’s testimony when it found that Theismann’s report was not neutral. The district court found that Theismann’s study was not neutral because mother unilaterally procured the study without notifying father, the GAL, or the court, and Theismann did not speak to father when preparing the study. Theismann’s testimony that she was contacted by mother and never met with father supports the district court’s finding that Theismann’s study was not neutral.
Mother argues that the district court improperly separated siblings without determining the impact that this would have on the family unit. Mother contends that the custody modification has the effect of preventing the younger children from seeing the oldest child except on every other weekend.
Courts have allowed separation of children where evidence shows it to be in their best interest, however, it is not preferred. This preference recognizes the sibling relationship as a significant aspect of family stability which is particularly important where the family has already been disrupted by loss of one parent from the home.
v. Lundell, 361 N.W.2d 125, 128 (
Although we recognize that separating siblings is not preferred, we are not persuaded that the separation here demonstrates that the district court abused its discretion because the oldest child is no longer a child, and he may choose to live with mother or father or somewhere else.