This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-947

A06-1418

 

 

In re the Marriage of:

Penny Jeanne Dittbrenner,

petitioner,

Respondent,

 

vs.

 

Anthony Allen Dittbrenner,

Appellant.

 

 

Filed May 1, 2007

Affirmed in part, reversed in part, and remanded;

motions ≠≠≠≠≠≠≠≠≠≠≠≠granted in part and denied in part

Crippen, Judge*

 

Sherburne County District Court

F6-03-2762

 

Penny J. Dittbrenner, 418 Railroad Avenue, Aurora, MN 55705 (pro se respondent)

 

Kathleen M. Picotte Newman, Joani C. Moberg, Larkin Hoffman Daly & Lindgren, Ltd., 1500 Wells Fargo Financial Center, 7900 Xerxes Avenue South, Minneapolis, MN 55431-1194 (for appellant)

 

††††††††††† Considered and decided by Toussaint, Chief Judge; Worke, Judge; and Crippen, Judge.


U N P U B L I S H E D†† O P I N I O N

CRIPPEN, Judge

††††††††††† Appellant Anthony Dittbrenner challenges the district courtís findings and conclusion on its placement of physical custody of the youngest of the partyís children with respondent Penny Dittbrenner.† Except for a single finding, we affirm the district courtís findings of fact; thus, reversing in part, we remand for further proceedings not inconsistent with this opinion.†

FACTS

††††††††††† The parties were married in 1987 and have three children; divorce proceedings commenced in 2003.† The oldest child, T.D.D., was emancipated, and A.C.D., who was approximately 17, was placed, according to her wishes, in appellantís physical custody.† The district court conducted an October 2005 trial on the custody of four-year-old A.S.D.† In January 2006 the court decided this custody issue and dissolved the marriage of the parties.† ††

††††††††††† The court-appointed custody evaluator recommended that respondent receive sole physical custody of A.S.D., but a second custody evaluator, selected and paid for by appellant, recommended that appellant receive sole physical custody of the child.† The district court made independent findings on each of the best-interests factors and ultimately awarded sole physical custody of A.S.D. to respondent.†

††††††††††† In May 2006, two months after the courtís amended findings on A.S.D.ís custody, appellant filed a motion for an amended custody order based on alleged abuse or neglect of the child and/or intentional interference with appellantís parenting time.† His supporting affidavit included a statement that respondent sounded intoxicated when appellant spoke with her on the telephone.† The district court denied the motion, finding that appellantís allegations failed to establish a significant change in circumstances.†

††††††††††† The appeal is from the original custody decision, the denial of appellantís motion for amended findings or a new trial, and the denial of his motion to amend the custody order.† Because we find reversible error in a custody-related finding in the district courtís original custody judgment, we do not reach appellantís arguments on denial of his amendment motion.

D E C I S I O N

††††††††††† Our review of custody decisions is narrow and ďlimited to whether the [district] court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.Ē† Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996).† We must sustain a district courtís findings unless they are clearly erroneous.† Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993).†

††††††††††† District courts make custody determinations based on the best interests of the child.† Minn. Stat. ß 518.17, subd. 1 (2006).† When considering the childís best interests, the court must make detailed written findings that reflect itís consideration of the 13 factors set forth in Minn. Stat. ß 518.17, subd. 1(a).† Rogge v. Rogge, 509 N.W.2d 163, 165 (Minn. App. 1993), review denied (Minn. Jan. 28, 1994).† The law ďleaves scant if any room for an appellate court to question the trial courtís balancing of best-interest considerations.Ē† Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000).

† ††††††††† This court must view the record in the light most favorable to the district courtís findings of fact and defer to the courtís credibility determinations.† Id. at 474.† Reversal is not warranted merely because the record might support findings other than those made by the district court.† Id.† Factual findings that underlie a custody decision will not be set aside unless clearly erroneous.† Ayers, 508 N.W.2d at 518.† It is not our role to reconcile conflicting evidence, and we give great deference to the district courtís findings of fact.† Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999).† We will not disturb those findings if there is reasonable evidence in the record to support them.† Id.

1.† Respondentís Health

††††††††††† We have reviewed the district courtís findings and conclusions and find clear error in one of its findings leading to an ultimate best-interests determinationóthe finding that respondent exhibits ďgood general health.Ē† The court found that, although respondent has a record of alcohol use in the past, appellant failed to establish at trial that respondentís drinking continued to be a problem.†††

††††††††††† At trial, appellant introduced the court-ordered custody evaluatorís report into evidence.† That report begins with a recitation of respondentís evaluation after a DWI conviction two years before the trial, in October 2003; respondent refused a Breathalyzer test following the DWI arrest.† Respondent was diagnosed with borderline alcohol abuse.† ďNo formal treatment was recommended as [respondent] did not meet the criteria for chemical dependency.Ē† The report added:

[Respondent] reported that the night she was arrested, she had consumed four beers and several shots between the hours of 10:30 p.m. and when she was pulled over at 1:30 a.m.† [Respondentís probation officer] noted that she was concerned about the high BAC on the night of the offence (PBT .206).† [Respondentís probation officer] stated that it is her belief that if [respondent] was still able to function at a .206, she may be drinking slightly more than reported.† . . .† It was noted that [respondent] violated the terms of her probation by consuming alcohol on 1/2/04 and 1/3/04.

 

Respondent admitted to also consuming alcohol in November 2004.

††††††††††† Appellant attempted to present testimony from the private investigator who had observed respondentís drinking in November 2004.† The district court discouraged appellant from doing so, stating that because respondent admitted that she had been drinking that day, any information the witness could provide would be merely cumulative.† When appellant insisted, the court interrupted before appellantís attorney could begin questioning the witness and conducted the examination itself.† The investigator stated that he observed respondent consume five beers in five hours.† Because no minor children were seen with respondent on that date, the court allowed no further testimony from the investigator.† The court then challenged appellantís request to enter the investigatorís report into evidence.†

††††††††††† After the district court also discouraged appellant from calling the two older children to testify, speculating that the testimony would be cumulative, appellant rested.††††

††††††††††† Both custody evaluations were received in evidence and provide extensive testimony and speculation concerning respondentís drug and alcohol use around her children.† And although respondent claimed that she quit drinking after her 2003 DWI arrest, she then admitted to drinking on two more occasions after that and was videotaped on a third occasion.††

††††††††††† The court found that

[respondent] admits having consumed alcohol during the time the parties were married and acknowledges having been arrested for DUI in 2003.† [Respondent] pled guilty and was placed on probation for two years.† [Respondent] completed chemical dependency evaluations on November 11, 2003 and on December 10, 2003.† [Respondent] was diagnosed with Borderline Alcohol Abuse but no formal treatment was recommended as [respondent] did not meet the criteria for chemical dependency.† [Respondent] was found in violation of probation on January 3, 2004 and agreed to the following recommendations: 10-week out-patient treatment with the Riverwood Program, 24 hours on the adult work crew, and AA meetings as directed by her agent.† [Respondent] was also subject to random urinalysis.† [Respondent] attended the Sherburne County Awareness Panel and successfully completed the Riverwood program on April 12, 2004.† [Appellant] maintains that [respondent] continues to abuse alcohol and other mood-altering substances.† However, [appellant] has not provided evidence of any recent alcohol or drug use.† The court finds that [respondent] is in good general health.

 

Thus, the district court recognized the absence of up-to-date evidence on respondentís alcohol use, but the court charged this problem to a deficiency in evidence offered by appellant.†

††††††††††† The testimony and evidence produced at trial detailed a long history of alcohol-related misconduct, much of which occurred in the presence of or otherwise involved respondentís children.† One evaluatorís report included allegations of respondent drinking excessively and abusing the older children:

T.D.D. reported that before the separation, his mom drank everyday . . . .

 

††††††††††† . . . .

 

††††††††††† [A.C.D.] stated that when she was younger, she and her mom got along good.† She stated that after she turned 13, things changed.† She stated that a lot of that had to do with her mom drinking, using drugs, and having bad mood swings.† [A.C.D.] reported that before the separation, [respondent] called her stupid, hit her, slapped her, grabbed her hair, gave her bruises on her legs and face, tried to push her down the stairs, and gave her drugs and alcohol.† She stated that [respondent] gave her and her friends marijuana and they smoked it together.† She stated that [respondent] also gave them marijuana laced with methamphetamine.† [A.C.D.] indicated that she and [respondent] also drank together, usually beer or Bacardi, but Vodka on occasion.

 

††††††††††† . . . .

 

††††††††††† [Appellant] states that it is believed that [A.C.D.] was sexually abused while [appellant] was serving in the Persian Gulf.† He also reports that the children have told him that [respondent] has given illegal drugs to [A.C.D.] and her friends.† When asked whether [A.C.D.] had ever used drugs given to her by [respondent], [appellant] indicated that this evaluator would have to ask [A.C.D.] as he did not know.† He further reports that [respondent] smacked the children in the face as discipline and used men from the bar to discipline T.D.D.† He states that since the separation, there have been occasional bruises on A.S.D., but he believes these are normal.

 

††††††††††† According to records from Sherburne County Social Services, a report was made on 12/17/02 regarding alleged child maltreatment.† According to the reporter, [A.C.D.] reported that a verbal incident occurred between herself and her mom the night prior.† [A.C.D.] also reported that on 12/10/02 [respondent] allowed her to go out with a friend.† When [A.C.D.] returned home, [respondent] was very angry that [A.C.D.] went to a church group rather than the community center.† According to the report, [A.C.D.] and [respondent] began arguing, then [respondent] threw [A.C.D.] to the floor by her hair and then hit her with a closed fist and open hand on her side, arm, and back.† It was reported that [A.C.D.] covered her face, and her brother pulled [respondent] off [A.C.D.] after setting down [A.S.D.].† It was noted that [A.C.D.] still had a large bruise on her forearm from the incident.† [A.C.D.] reported that part of the issue was that [respondent] was drunk or had been drinking the night of the incident.

 

††††††††††† This record does not permit the district courtís finding that respondentís current alcohol consumption does not seriously affect her general health.† And on the hazard that is evident in the record, the court is not permitted, as is implied in its findings, to premise a finding of good health on a failure of appellant to meet a burden to show otherwise.†† Rather, the severity of respondentís alcohol-related history and its corresponding child-welfare implications put the court on notice that the finding on respondentís current health cannot be made without the courtís inquiry, if additional evidence of the parties does not suffice, on respondentís chemical dependency.† Nazar v. Nazar, 505 N.W.2d 628, 633-34 (Minn. App. 1993), review denied (Minn. Oct. 28, 1993), superseded by statute on other grounds,Minn. Stat. ß 518.551, subd. 5b(d) (Supp. 1991).† In addition, the district courtís refusal to allow ďcumulativeĒ evidence exacerbates its finding that alcohol usage does not adversely affect respondentís health.†

††††††††††† Other than the district courtís clear error of the health-of-the-parties factor, we find no reversible error. †See Wilson v. Moline, 234 Minn. 174, 182, 47 N.W.2d 865, 870 (1951) (stating that an appellate court need not ďdiscuss and review in detail the evidence for the purpose of demonstrating that it supports the [district] courtís findingsĒ and that its ďduty is performed when [it] consider[s] all the evidence Ö and determine[s] that it reasonably supports the findingsĒ); Vangsness, 607 N.W.2d at 474 n.1 (applying Wilson in a dissolution case).† We recognize that the health-of-the-parties findings affect the courtís ultimate best-interests finding and may affect its specific analysis of other best-interests factors, including the stability of the home, the safety of the child, and the capacity of respondent to give the child guidance.† The court abused its discretion by relying on a clearly erroneous finding of fact to support its grant of custody to respondent.† On remand, the court must take sufficient evidence to permit a finding on respondentís health.† The opening of the record should include evidence arising between the time of the judgment and the time of the proceedings on remand.† But we defer to the district courtís exercise of discretion on the scope of inquiries on remand, that is, whether sufficient evidence on the health of the parties makes it necessary to reconsider other best-interests factors that may be affected and the courtís ultimate finding on the custody of A.S.D., the youngest child of the parties.††††

††††††††††† We have reviewed but find no error on appellantís other concerns, including his complaints regarding the custody evaluation, the district court condoning respondentís move, the courtís perceived underestimation of the significance of disharmony in the relationships between respondent and the two older children, and the suspected instability of respondentís living situation.†

2.† Other Issues

 

††††††††††† Appellant argues that the district court erred by adopting the findings of the court-appointed custody evaluator.† Two custody evaluations were performed in this case:† one by a court-appointed custody evaluator and a second by a private custody evaluator paid for by appellant.† The court-appointed custody evaluator determined that respondent should receive physical custody of A.S.D.† The private custody evaluator recommended that appellant should retain custody of the child.

††††††††††† The district court has discretion whether to follow a custody recommendation.† Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991).† A district courtís refusal to follow the evaluatorís recommendation does not constitute an abuse of discretion, provided the district courtís detailed findings support the conclusion that its custody determination is in the best interests of the child.† Id.

††††††††††† Because the district court made its own findings regarding each of the best-interests factors, it did not err by merely coming to the same conclusion as the court-appointed custody evaluator and not the private custody evaluator.†

††††††††††† Appellant argues that the parenting schedule established by the district court is overly restrictive.† A district court has broad discretion when determining a parenting-time schedule and will not be overturned absent an abuse of discretion.† Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).† When requested by either parent, the district court must grant parenting time to ďenable the child and the parent to maintain a child to parent relationship that will be in the best interests of the child.Ē †Minn. Stat. ß 518.175, subd. 1(a) (2006).† Appellant provides no persuasive argument or authority that the district court abused its broad discretion on this issue.

††††††††††† The record supports appellantís contention that the district court should appoint a guardian ad litem for A.S.D.† Because the court did not believe that the child was ďa victim of domestic child abuse or neglect,Ē it was not required to appoint a guardian ad litem pursuant to Minn. Stat. ß 218.165, subds. 1-2 (2006).† But appointment of a guardian ad litem would permit the court to gain the insight of a neutral third party rather than continuing to rely on mutually accusatory statements by the parents.

††††††††††† Here, the child now is five or six years old, the parents actively disputed custody of the child, each parent alleged potential abuse by the other against the child, and the parents live 250 miles apart.† The two older children chose to live with appellant, alleging that respondent physically abused them, consumed alcohol regularly, and parented poorly.† Appointment of a guardian ad litem will materially serve the childís interests.

††††††††††† The dispositive error in the district courtís findings renders moot appellantís other arguments, including the denial of his modification motion. †Similarly, the disposition makes it unnecessary to address the courtís denial of appellantís motion to amend findings or grant a new trial.

††††††††††† Upon remand, the court may review its ultimate best-interests determination.† We suggest the court appoint a guardian ad litem to serve A.S.D.ís best interests.† In all other respects, we affirm the district courtís judgment.

††††††††††† Appellant moves to strike three documents in respondentís brief in case A06-0947:† two police reports and a conditional release form. Generally, we disregard documents in a partyís brief that are not part of the appellate record.† Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), affíd, 504 N.W.2d 758 (Minn. 1993).† The documents in question were intentionally omitted from the district court file and we grant appellantís motion to strike the documents, along with reference to them.† See AFSCME, Council No. 14 v. Scott County, 530 N.W.2d 218, 222-23 (Minn. App. 1995), review denied (Minn. May 16, June 14, 1995).

††††††††††† Because we have no occasion to address the issues in case A06-1418 (modification motion), we deny appellantís motion to strike in that matter without reaching its merits.† Based on appellantís claim that submission of these matters was in violation of court rules, he requests that this court award conduct-based attorney fees. Minn. Stat. ß 518.14, subd. 1 (2006) (permitting the award in the courtís discretion).† Because pro se respondent received no prior notice of potential sanctions for wrongful submission of materials, we deny this motion.

††††††††††† Affirmed in part, reversed in part, and remanded; motions granted in part and denied in part.



*† Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ß 10.