This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Dawn Johnson, petitioner,
Marcus Brandon Johnson,
Carlton County District Court
File No. 09-F6-04-000672
Matthew K. Begeske, John B. Schulte, Begeske Law Offices, 713 Board of Trade Building, 301 West First Street, Duluth, MN 55802 (for appellant)
Dennis J. Korman,
Nicholas B. Schutz, Korman Law Office,
Considered and decided by Wright, Presiding Judge; Stoneburner, Judge; and Minge, Judge.
Appellant argues that because the record does not support the district court’s application of the best-interest factors, the district court abused its discretion by granting custody to respondent. Appellant requests that this court remand with instructions to either (1) award her physical custody and adjust child support; or (2) appoint a guardian ad litem and hold a new trial. Because the district court did not abuse its discretion and because appellant is not entitled to the appointment of a guardian ad litem, we affirm.
Appellant Michele Dawn Johnson (now known as Michele Dawn Baker) (mother) and respondent Marcus Brandon Johnson (father) were married in May 1991, and they have two minor children together. They separated in January 2004, and dissolution proceedings began in June 2004. The parties shared custody of the children during the dissolution proceedings. At trial each sought sole physical custody. The district court considered psychological evaluations of each party, heard testimony from both parties and from supportive character witnesses, considered the 13 best-interests-of-the-child factors set forth in Minn. Stat. § 518.17, subd. 1(a) (2006), and awarded sole physical custody of the children to father. The parties then filed countermotions for amended findings of fact and conclusions of law. Mother argued that the district court’s decision was not supported by the evidence and was contrary to law, and she requested a new trial. Father asked the district court to deny mother’s motion, and he proposed amended findings and conclusions. The district court denied mother’s motions and adopted some of father’s proposed amendments. This appeal follows.
The first issue is whether the district court’s failure to appoint a guardian ad litem sua sponte was a reversible abuse of discretion. Father argues that this court does not have discretion to review the district court’s failure to appoint a guardian ad litem. Father further argues that mother did not raise this issue at the district court and waived it for purposes of this appeal.
Generally, this court will
not consider issues that were not raised before the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (
The district court has
discretion to appoint a guardian ad litem in dissolution proceedings where
custody is an issue.
Mother concedes that a guardian ad litem was not required under Minn. Stat. § 518.165, subd. 2. Instead, mother argues that a guardian ad litem would have helped the district court to evaluate the credibility of the parties. Although appointment of a guardian ad litem may have been helpful with credibility determinations, there is no showing that appointment was required in this case. Accordingly, we conclude that the district court did not abuse its discretion by failing to appoint a guardian ad litem sua sponte.
The second issue is whether
the district court abused its discretion in granting custody to father. In making a custody determination, the
district court must consider the 13 best-interests-of-the-child factors set
forth in Minn. Stat. § 518.17, subd. 1(a) (2006). District courts have broad discretion to
award custody. Schallinger v. Schallinger, 699 N.W.2d 15, 18 (
Appellate review of a
custody determination 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, 641 (
Here, the district court heard substantial testimony regarding the parties’ allegations that the children were abused while in the other party’s care. Mother concedes that the parties presented conflicting testimony and evidence on this issue. Likewise, father concedes that “the District Court was left with the unenviable task of determining how much weight to assign divergent testimony.” Thus, the district court had to determine which parent was more credible and which parent could provide a more stable environment for the children.
In its amended findings, the district court was troubled that mother resided with her boyfriend F.M. in his home. The record supports the district court’s concerns. F.M.’s former wife petitioned for an order for protection against him, and during those proceedings, she alleged that F.M. was drinking excessively, was behaving erratically, and had threatened to shoot her and himself if she left. Although F.M. and his wife ultimately stipulated to a “No Finding” order for protection, she did not recant the claim. The guardian ad litem report filed in that order for protection proceeding indicated that F.M. had used “meth.” In that same proceeding, mother admitted that F.M. told her that he had received a ticket for using an “illegal drug.”
Mother argues that she did
not need to prove that F.M. was a good person in order to gain custody. However, in seeking sole physical custody, once
F.M.’s character was challenged, the district court properly considered whether
mother’s living situation with F.M. would provide a stable, permanent, and
desirable living environment for the children. See
The district court determined that respondent could provide a more stable living situation for the children than mother. Mother argues that the district court improperly based this determination on father’s continued residence in the family home. In reviewing the record, we conclude that the district court did not abuse its discretion in considering father’s living situation. We also conclude that there is sufficient evidence in the record supporting the district court’s determination that father would provide a more stable living environment than mother.
Mother also argues that other
factors weighed in favor of granting her custody. For example, she argues that because the
district court found that she “was the primary caretaker during the time the
parties resided together,” she should have received custody. But the district court went on to find that
“[s]ince the parties separated, they have shared physical custody. As a result both parties have performed the
duties involved in primary caretaking.” Thus,
this factor does not clearly weigh in favor of either party. Even if mother had previously been the
primary caretaker, a district court “may not use one factor to the exclusion of
all others, and, although the primary caretaker factor is significant, it
cannot be used as a presumption in determining a child’s best interests.” Schumm
v. Schumm, 510 N.W.2d 13, 14 (
Mother also cites factors relating to the children’s familial relationships as weighing in her favor. But these factors did not clearly weigh in favor of either party. The record indicates that the children have a strong bond with father and his parents. Moreover, the record indicates that because mother’s extended family lives in another part of the country, the children have had minimal contact with her side of their family. These considerations favor father. But the district court also found that father and his family were not likely to encourage contact between the children and mother. This finding weighs in favor of mother. Overall, the children’s familial relationships are complex, and the district court did not find that those relationships clearly favored either parent’s request for custody.
Finally, appellant claims that the district court “grossly misstate[d] the evidence” by finding that father did not have any mental health problems. Father’s psychological evaluation does indicate that he was defensive at times and unable to identify weaknesses in his parenting. But the evaluation does not indicate that he is unable to be a good parent, and it does not indicate that he has any personality or psychological disorders. Furthermore, the psychological evaluations indicate that, although each party has some personality or psychological issues, each is capable of performing essential parenting skills. Ultimately, the psychological evaluations do not express a custodial recommendation or preference. We conclude that on this record, the district court did not misstate the evidence in its determination regarding father’s mental health.
In sum, few of the best-interests factors weighed strongly in favor of either party. The district court heard testimony, was most influenced by concerns over stability and mother’s living situation with F.M., made credibility determinations, and granted sole physical custody to father. Because there is sufficient evidence in the record supporting that decision, we conclude that the district court did not abuse its discretion in granting custody to father.