This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).


In re the Marriage of:
Bonnie Lynn Balach, petitioner,


Jack E. Shapiro,

Filed July 9, 1996
Parker, Judge

St. Louis County District Court
File No. F1-94-600321

Bonnie Lynn Balach, Pro Se, 1267 Brandlwood Road, White Bear Lake, MN 55110

Larry M. Nord, Orman & Nord, 1301 Miller Trunk Highway, Suite 400, Duluth, MN 55811 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Parker, Judge, and Randall,




Appellant-father Jack Shapiro challenges the district court order granting respondent-mother Bonnie Balach primary physical custody of the parties' two minor children. Father also challenges the district court's denial of his motion to reopen the trial record. We affirm.


1. A district court has broad discretion to provide for the custody of the parties' children. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). An appellate court will not reverse a custody determination unless the district court "abused its discretion by making findings unsupported by the evidence or by improperly applying the law." Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).

Minn. Stat. ' 518.17, subd. 1(a) (1994), lists several factors that courts must consider in determining the "best interests of the child," including:

(1) the wishes of the child's parent[s] * * *;

(2) the reasonable preference of the child, if * * * the child is of sufficient age to express a preference;

(3) the child's primary caretaker;

(4) the intimacy of the relationship between each parent and the child;

(5) the interaction and interrelationship of the child with parent[s], siblings, and any other person who may significantly affect the child's best interest;

(6) the child's adjustment to home, school, and community;

(7) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

(8) the permanence, as a family unit, of the existing or proposed custodial home;

(9) the mental and physical health of all individuals involved * * *;

(10) the capacity and disposition of the parties to give the child love, affection and guidance, and to continue educating and raising the child in the child's culture and religion or creed, if any;

(11) the child's cultural background;

(12) the effect on the child of the actions of an abuser if related to domestic abuse * * *; and

(13) except in cases in which a finding of domestic abuse * * * the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.

This statute prohibits courts from using one factor to the exclusion of all others. Minn. Stat. ' 518.17, subd. 1(a).

The district court explicitly made findings on each of the statutory factors. In regard to the primary caretaker, the district court found that whenever the parties lived apart during their marriage, mother was the primary caretaker. The court stated that "[i]t is * * * significant that [the children] have moved back and forth repeatedly so as to be always with [mother]."

Father argues the district court erred by finding that mother was the primary caretaker. Father, relying on Pikula, asserts that the court, in determining who was the primary caretaker, should have looked at the time period when the parties separated, rather than looking to the times when the children lived in St. Paul with their mother. See 374 N.W.2d at 714.

The primary parent is determined at the time of the parties' separation. Id. at 714 n.3. This rule was designed so that the parent without physical custody of the children between separation and trial is not prejudiced. Maxfield v. Maxfield, 439 N.W.2d 411, 415 (Minn. App. 1989), aff'd, 452 N.W.2d 219 (Minn. 1990). This rule, however, does not mean that courts should concentrate only on the time of separation and ignore everything else that has occurred during the marriage.

In McKee-Johnson v. Johnson, 429 N.W.2d 689, 692 (Minn. App. 1988), rev'd on other grounds, 444 N.W.2d 259 (Minn. 1989), the appellant-father asked the court to place great emphasis on who was the primary caretaker at the time of separation. This court upheld the trial court's custody decision, reasoning that the trial court did not err by considering that the mother took a leave from employment for the child's first 18 months. Id. Likewise, we conclude the district court did not err by considering that when the parties did not live together, the children lived with their mother. See also Sefkow v. Sefkow, 427 N.W.2d 203, 211 (Minn. 1988) (where the evidence could support the conclusion that either the mother or the father was the primary caretaker or that there was no primary caretaker, this court must defer to the trial judge).

Father also asserts that the district court erred by ignoring the testimony of the witnesses who had intimate knowledge of both parents. "Deference must be given to the opportunity of the trial court to assess the credibility of the witnesses." Sefkow, 427 N.W.2d at 210 (citing Minn. R. Civ. P. 52.01). In this case, there was testimony that both parties would make good custodial parents. Giving deference to the district court's credibility determinations, we cannot say that the district court erred in granting mother physical custody of the children.

Finally, father argues the district court erred by disregarding the guardian ad litem's report and testimony. The district court may, in his discretion, decline to follow a guardian ad litem's custody recommendations. See Roehrdanz v. Roehrdanz, 410 N.W.2d 359, 362 (Minn. App. 1987), review denied (Minn. Oct. 28, 1987). Because the district court provided detailed findings on the statutory factors and explicitly stated that he had considered the guardian ad litem's report, the court cannot be said to have abused discretion by refusing to follow the guardian ad litem's recommendation. See id.; Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991).

2. Father argues it was an abuse of discretion for the court to refuse to reopen the trial record to take into account the fact that mother had left her job with Minnesota Power. "Only in unusual circumstances will a remand be made for current information." Schumm v. Schumm, 510 N.W.2d 13, 15 (Minn.App. 1993). The motion papers brought the change to the attention of the court, and the decision not to allow additional evidence-taking is within the district court's discretion. Id. at 16.

Father asserts that mother's job status relates to the stability of the children's environment and absent information on her current job status, the court could not accurately determine whether the findings on stability were currently valid. Father contends that it was "obvious" that the district court had mother's job status in mind when ordering the judgment. He asserts that the court's conclusion that mother shall carry health insurance for the children relies on the fact that mother was receiving health insurance from her employer, Minnesota Power.

The judgment, however, does not explicitly rely on mother's job with Minnesota Power in providing that she shall continue to carry health insurance for the children. In addition, the findings discussing stability do not mention either the mother's job or the father's job. Thus, it is not "obvious" that the district court relied on mother's specific job with Minnesota Power in determining that she should be granted physical custody of the children.

Given the broad discretion that the district court has in determining whether to reopen the trial record, we conclude the district court did not abuse that discretion by refusing to reopen the trial record.