This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-95-2451

In Re the Marriage of:

Mary Ellen DeCrans, petitioner,

Respondent,

vs.

Thomas A. DeCrans,

Appellant.

Filed June 4, 1996

Affirmed

Kalitowski, Judge

Washington County District Court

File No. F194689

Richard A. Stebbins, Legal Assistance of Washington County, Suite 103, 275 South 3rd Street, Stillwater, MN 55082 (for Respondent)

Mark Nygaard, Nygaard & Longe, 210 Ivy League Place, 475 North Cleveland Avenue, St. Paul, MN 55104 (for Appellant)

Considered and decided by Kalitowski, Presiding Judge, Toussaint, Chief Judge, and Holtan, Judge.*

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

Appellant Thomas A. DeCrans claims the award of custody of six of the parties' seven children to respondent Mary E. DeCrans is not supported by the required findings or the law. He also claims the trial court abused its discretion in setting support and maintenance, dividing property, and not receiving certain evidence. We affirm.

D E C I S I O N

I.

In awarding custody, the trial court must consider a child's best interests under Minn. Stat. 518.17, subd. 1(a) (1994), but it need not make a finding on each statutory factor. Nazar v. Nazar, 505 N.W.2d 628, 633 (Minn. App. 1993), review denied (Minn. Oct. 28, 1993). Review of custody awards is limited to determining whether the trial court abused its discretion by making findings not supported by the evidence or by improperly applying the law. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). On appeal, we view the record in the light most favorable to the trial court's findings. Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn. 1993).

Appellant claims that the trial court's findings do not adequately address the children's health or respondent's alleged history of physical abuse of the children. See Minn. Stat. 518.17, subd. 1(a)(9) (1994) (court must consider "mental and physical health of all individuals involved"). We disagree.

The trial court awarded custody after addressing each of the statutory best interest factors and specifically finding that: (1) it received "significant testimony" on the mental and physical health of the parties and the children; (2) respondent is in therapy; (3) the children are in therapy to address the parties' dysfunctional relationship and its impact on the family; (4) many of respondent's psychological problems resulted from her trying to raise seven children while her relationship with appellant was "severely strained"; (5) respondent's condition and her ability to care for the children have improved since the parties separated; and (6) respondent, "although not without flaws, has adequate mental and physical health to be the primary legal and physical custodian of the six youngest children." We conclude the trial court's findings are adequate.

Appellant claims that the trial court erred in awarding respondent custody because of her alleged history of physical abuse and because of her psychological condition. We disagree.

The issues of alleged physical abuse and respondent's psychological condition were thoroughly litigated during the eight-day trial. On appeal, the fact-specific nature of appellant's arguments make them improper requests for this court to retry these issues. See Pikula, 374 N.W.2d at 710 ("de novo review of the entire record * * * is inappropriate"). To the extent that evidence on these issues conflicts, the trial court credited the evidence supporting an award of custody to respondent. We defer to trial court credibility determinations. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988); see Straus v. Straus, 254 Minn. 234, 235, 94 N.W.2d 679, 680 (1959) (appellate courts defer to district court resolution of fact issues presented by conflicting affidavits). Further, most of the alleged physical abuse involved respondent and the child whose custody was granted to appellant. Prior abuse of a child does not necessarily preclude awarding that parent custody of other children. Uhl v. Uhl, 413 N.W.2d 213, 217 (Minn. App. 1987).

Appellant claims that respondent's testimony was contradictory and that the custody studies by the county and the guardians ad litem were based on incomplete information. See Uhl v. Uhl, 395 N.W.2d 106, 110-11 (Minn. App. 1986) (otherwise credible expert testimony defective if based on incomplete information). We note that appellant raised these issues in cross-examination and his posttrial motions and we defer to the trial court's conclusions that the critical aspects of respondent's testimony were credible and the custody studies were adequate.

II.

Appellant also claims the trial court did not make findings to support its award of split custody. See Sefkow, 427 N.W.2d at 215 (split custody is disfavored). In splitting custody, the trial court considered that: (1) the parties agreed appellant would have custody of the eldest child but disagreed on the other children's custody; (2) the younger children wanted to remain together; and (3) the county custody evaluator stated that appellant should not be awarded custody of all of the children. We conclude the trial court did not abuse its discretion in awarding split custody.

III.

Appellant claims the trial court should not have relied on statements of the children's custodial preferences but should have determined their custodial preferences by interviewing them under Minn. Stat. ' 518.166 (1994). We disagree. Although appellant's expert suggested the children's custodial preferences were coached and the reasons the children gave for wanting to live with respondent involved unhealthy "parentification" issues, the trial court found that the parentification concerns were "inadequately established." In addition, the various statements as to the children's custodial preferences were consistent. We conclude the trial court did not abuse its discretion by not interviewing the children. See Kramer v. Kramer, 372 N.W.2d 364, 366 (Minn. App. 1985) (no abuse of discretion by not interviewing children where custodial preferences noted in custody reports), review denied (Minn. Oct. 11, 1985).

IV.

Appellant claims the finding that respondent's mental health is improving is not supported by "credible evidence." He also challenges the findings that respondent supports raising the children as Catholics and that she was an advocate for the eldest child. The first two findings are supported by the record and we defer to the trial court concerning credibility determinations. See Sefkow, 427 N.W.2d 210. The third finding is irrelevant because respondent is not challenging the award of custody of the eldest child to appellant.

V.

Appellant claims that because the parties did not agree to appointment of a visitation expediter, the trial court could not appoint one. See Minn. Stat. 518.1751, subd. 1 (1994) (appointment of visitation expediter requires parties' agreement). The judgment states that the parties shall obtain a visitation expediter "pursuant to Minn. Stat. 518.1751" if either party implements the statute. Because the parties can only obtain a visitation expediter "pursuant to" the statute and the statute requires an agreement, the judgment is not inconsistent with the statute.

VI.

Appellant claims that income should be imputed to respondent and that she should pay child support for the child in his custody. See Minn. Stat. 518.551, subd. 5b(d) (1994) (court to impute income to voluntarily unemployed support obligor). Respondent testified that if she worked part time she would lose her food stamps. Because of respondent's history of minimal earnings, the trial court did not clearly err in not finding respondent's "career change" to full-time custodian of six children to be voluntary unemployment.

VII.

Findings on the support factors listed in Minn. Stat. 518.551, subd. 5(c) (Supp. 1995), are required in determining whether to deviate from the child support guidelines. Minn. Stat. 518.551, subd. 5(i) (Supp. 1995). Because the trial court did not order support deviating from the guidelines, we reject appellant's claim that the trial court erred by setting support without making such findings.

VIII.

Appellant claims entitlement to a monthly pension deduction in addition to a contribution to his federal retirement account. See Minn. Stat. 518.551, subd. 5(b) (Supp. 1995) (net income for support purposes allows reasonable pension deduction). The trial court rejected the proposed deduction as "unwarranted under the circumstances." In light of the fact the parties must support themselves, seven children, and two households on appellant's net monthly income of $3,278.02 and respondent's food stamps, we cannot conclude the trial court erred.

IX.

Maintenance awards are not altered on appeal unless the trial court abused its "wide discretion." Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). While Minn. Stat. 518.552 (1994) lists factors to be considered in determining the amount and duration of maintenance, the issue is basically the recipient's need balanced against the obligor's financial condition. Erlandson, 318 N.W.2d at 39-40.

The trial court did not err by using appellant's lack of testimony regarding his expenses to draw "adverse inferences" about his ability to pay maintenance. See Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987) (maintenance obligor "cannot complain" where his failure to enter evidence leads to denial of motion to modify maintenance). In addition, the trial court properly ignored the expenses appellant claimed in his motion for amended findings or a new trial. See Rathbun v. W.T. Grant Co., 300 Minn. 223, 238, 219 N.W.2d 641, 651 (1974) (amended findings); Antonson v. Ekvall, 289 Minn. 536, 539, 186 N.W.2d 187, 189 (1971) (new trial).

Appellant claims that his permanent maintenance obligation is excessive because it leaves him with a monthly deficit and gives respondent a monthly income exceeding the amount on which she and the children have lived since 1994. That respondent and the children have been able to survive on limited income does not necessarily mean that the amount on which they were forced to live is an accurate representation of their reasonable expenses. See County of Nicollet v. Haakenson, 497 N.W.2d 611, 615 (Minn. App. 1993) (in child support context, distinguishing expenses actually paid on behalf of child from child's legitimate needs). Given appellant's limited financial resources, we cannot say the trial court abused its wide discretion by setting maintenance in an amount allegedly causing appellant to have a deficit. See, e.g., Podany v. Podany, 267 N.W.2d 500, 502-03 (Minn. 1978) ($800 maintenance award affirmed where obligor had net monthly income of $1,983 and $1,847 in claimed monthly expenses).

X.

Asset valuations are findings of fact and will be affirmed if within the limits of credible estimates made by competent witnesses. Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975). The trial court's valuation of the parties' home is within the valuations set out in the realtors' market analyses and is affirmed. In valuing appellant's thrift plan, the trial court noted that appellant took out a loan against the plan and credited respondent with a half interest in the plan's pre-loan value. Appellant admits that the trial court apparently intended to value the plan as of a date before the loan. Given the length of time this case has been in litigation, we cannot say that such a valuation date is improper.

XI.

Whether to admit evidence is discretionary with the trial court and entitlement to a new trial for improper evidentiary rulings requires the complaining party to show prejudicial error. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). The trial court did not abuse its discretion by refusing to let appellant call the children to testify at trial. See Minn. Stat. 518.166 (judges may interview children about their custodial preference); 9A Uniform Laws Annotated, Comment to Uniform Marriage and Divorce Act sec. 404 (purpose of interview is to let judge learn custodial preference without "subject[ing] the child to the formality of the courtroom and the unpleasantness of cross-examination").

Appellant also claims that certain documents that the court refused to receive into evidence should have been admitted because they would have refuted respondent's testimony in "many instances." Absent an identification of the testimony at issue, we are unable to analyze appellant's claim.

Affirmed.


Footnotes

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, sec. 10.