This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
In re the Marriage of:
Alana Lynn Hayes, petitioner,
Shawn Michael Hayes,
Filed June 26, 2007
Dakota County District Court
File No. F9-05-12681
Gary G. Liebmann, Liebmann Law Office, P.A., 12400 Portland Avenue South, Suite 180, Burnsville, MN 55337 (for respondent)
Mark A. Olson, Olson Law Office, 2605 East Cliff Road, Suite 100, Burnsville, MN 55337 (for appellant)
Considered and decided by Kalitowski, Presiding Judge; Minge, Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Shawn Michael Hayes challenges the district court’s decision to grant sole physical custody of the parties’ minor children to respondent and its finding that the court-appointed custody evaluator’s credibility and impartiality were compromised during the custody evaluation. We affirm.
D E C I S I O N
Our review of custody decisions is
narrow and “limited to 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 (
We will sustain a district court’s
findings unless they are clearly erroneous.
Appellant argues that the district court
abused its discretion by choosing not to award the parties joint physical
custody. “There is neither a statutory
presumption disfavoring joint physical custody, nor is there a preference
against joint physical custody if the district court finds that it is in the
best interest of the child and the four joint custody factors support such a
determination.” Schallinger v. Schallinger, 699 N.W.2d 15, 19 (
Here, the district court
specifically found that the parties would be unlikely to agree on parenting
issues. In order to justify an award of
joint physical custody, the district court would have been required to make a
finding regarding “the ability of parents to cooperate in the rearing of their
Appellant argues that the district court abused its discretion by awarding sole physical custody to respondent based on the inappropriate “tender years” doctrine. See Minn. Stat. § 518.17, subd. 3(a)(3) (2006) (stating that no parent should be a preferred custodian on the basis of sex). Appellant notes the district court’s statement that, “given the age of the children, it is in their best interest that [respondent] have sole physical custody of the children with [appellant] having very liberal parenting time.” But the record indicates that the district court provided detailed findings regarding the best interests of the children and its award of sole physical custody to respondent is supported by its findings. Thus we cannot conclude that the district court improperly relied on the tender years doctrine in making its decision.
We conclude that the district court did not abuse its discretion by awarding sole physical custody of the parties’ children to respondent.
Appellant argues that the district court clearly erred by finding that the court-appointed custody evaluator’s credibility and impartiality were compromised during the custody evaluation and abused its discretion by relying on this finding to disregard the evaluator’s recommendation.
In reviewing a district court’s
order, this court will reverse the determination only if it is based on an
error of law or on an abuse of discretion that results in a conclusion that is
against logic and the facts on record. Rutten v. Rutten, 347 N.W.2d 47, 50-51 (
Appellant argues that the district
court did not base its finding regarding the custody evaluator’s credibility on
sufficient evidence. But the district
court is in the best position to evaluate the credibility of a witness and we
defer to the district court’s credibility determination. See
Moreover, even if the district
court’s finding is error, it is only reversible error if it prejudiced
Here, the district court made detailed, independent findings regarding the best-interest factors that support its decision to grant respondent sole physical custody of the parties’ children. Thus, the district court’s finding regarding the impartiality of the custody evaluator, even if erroneous, is not reversible error.