This opinion will be unpublished and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
Stephanie Lyn Bengson,
County of Clay,
John Ronald Paulson, Jr.,
Filed September 24, 1996
Clay County District Court
File No. F69350687
Stephanie Lyn Bengson, 1202 34th Ave. S., #304, Moorhead, MN 56560 (Pro se Appellant)
Robert J. Schaefer, 501 Main Ave., Moorhead, MN 56560 (for Respondent)
Considered and decided by Davies, Presiding Judge, Klaphake, Judge, and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
Stephanie Bengson argues that the district court erred in modifying a paternity decree to award father legal and physical custody of her son. We affirm.
Appellant Stephanie Bengson is the mother of J.A.B., born in July 1993. Respondent John Paulson was adjudicated to be J.A.B.'s father. In November 1994, the district court awarded legal and physical custody of J.A.B. to mother, subject to father's right to reasonable visitation. In late December 1994, father brought a contempt motion, arguing that mother had denied him visitation. In January 1995, the court awarded father compensatory visitation, but made no finding on the contempt issue.
In April 1995, father moved for a modification of custody on grounds that mother continued to deny him visitation, interfered with visitation by harassing him and his family, and made efforts to undermine his relationship with the son. A two-day evidentiary hearing was held in July 1995.
On August 1, 1995, the district court granted father's motion and awarded him legal and physical custody of J.A.B., subject to mother's right to visitation. The court put a time limit on the custody award, however, setting a review hearing 90 days later. Three days later, after a special review hearing, the court also ordered that mother's visitation be supervised. The special hearing revealed that on August 2, 1995, mother had personally delivered to father's new mother-in-law, his brother, and two of his friends: paternity test results, a letter denigrating father, and a mocking chain letter. Similar documents were mailed anonymously to father and his employers and other relatives and friends. The letter to father himself also contained a card stating that father had given the sender something to live for--revenge. At the special hearing, the court stated that mother's involvement in these incidents had been proven to its satisfaction and that there was no evidence to suggest that anyone was "framing her" on the alleged harassment.
In October 1995, the court held the 90-day review hearing. After noting that mother had refused to release the results of her psychological tests, the court removed the 90-day limitation on the August 1, 1995, award of legal and physical custody to father, thereby making the custody award permanent.
D E C I S I O N
We will not reverse a custody decision unless the district court "abused its discretion by making findings unsupported by the evidence or by improperly applying the law."
Dabill v. Dabill
, 514 N.W.2d 590, 594 (Minn. App. 1994). We must uphold the district court's findings of fact unless they are clearly erroneous.
Sefkow v. Sefkow
, 427 N.W.2d 203, 210 (Minn. 1988).
The record on appeal consists only of the papers filed in the district court, the exhibits, and the transcripts of the proceedings. Minn. R. Civ. App. P. 110.01. We therefore decline to consider the many facts mother includes in her briefs that were not presented to the district court.
See Thiele v. Stich
, 425 N.W.2d 580, 582-83 (Minn. 1988) ("[A]n appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below.").
Once custody and visitation have been established in a paternity action, motions for modification of custody are governed by the criteria in Minn. Stat. §
Morey v. Peppin
, 375 N.W.2d 19, 25 (Minn. 1985). A district court
Minn. Stat. § 518.18(d) (Supp. 1995).
shall not modify a prior custody order unless it finds, upon the basis of facts, including unwarranted denial of, or interference with, a duly established visitation schedule, that have arisen since the prior order or that were unknown to the court at the time of the prior order, that a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child. In applying these standards the court shall retain the custody arrangement established by the prior order unless:
(iii) the child's present environment endangers the child's physical or emotional health or impairs the child's emotional development and the harm likely to be caused by a change in environment is outweighed by the advantage of a change to the child.
A. Change in Circumstances
Mother argues that she never interfered with father's visitation or his relationship with his son. The district court, however, specifically found that examples of mother's interference included: (1) telephoning father's parents 30 times and making a false police report that father was drinking and driving one afternoon when he was exercising visitation; (2) appearing at the home of father's fiance's parents at 5:00 a.m. and demanding to see father and J.A.B.; (3)her own apartment, then blaming father for the damage; (4) making a false police report that father was using drugs, thus seeking to keep J.A.B. from attending father's wedding (The district court had explicitly ordered mother to allow visitation on this day.); (5)and swearing at father in front of J.A.B.; (6)the boy's hand and pointing it at father while calling father an expletive and telling the boy that father was not his father, only a sperm donor; (7) telling a police officer that she would raise J.A.B. to hate his father; and (8) during the custody investigation, telling the guardian ad litem that she did not want father to have any visitation.
Mother argues that her involvement in many of these incidents was never proven and that she offered reasonable explanations for the other episodes. But because great deference must be given to the district court's credibility determinations, we accept these findings.
, 427 N.W.2d at 210.
B. Best Interests
Mother argues that the district court's findings that she was the boy's primary caretaker and had a good relationship with J.A.B. show that the court erred in concluding that a custody modification served J.A.B.'s best interests. On this issue, mother's reliance on
Pikula v. Pikula
, 374 N.W.2d 705, 712 (Minn. 1985), is misplaced, for the primary caretaker factor relied on in
is no longer dispositive of best interests. After
was decided, the legislature amended the best interests analysis in Minn. Stat. § 518.17 to provide that "[t]he primary caretaker factor may not be used as a presumption in determining the best interests of the child." 1990 Minn. Laws ch. 574, §§ 13-14. Minn. Stat. § 518.17 (1994) also provides that the district court may not rely on any one best interests factor to the exclusion of the others.
Here, the district court stated that mother had failed to instill in the court confidence that she would encourage J.A.B.'s relationship with father, whereas father had not evinced any intent to hinder mother's relationship with the child. The district court properly considered J.A.B.'s relationship with each of his parents, each parent's ability to foster J.A.B.'s relationship with the other parent, and the effect on J.A.B. of mother's behavior toward father, along with the other best interests factors. It thus did not abuse its discretion in reaching this decision.
Mother also argues that it was not in J.A.B.'s best interests to separate him from his younger brother.
But "the welfare of the child is paramount, and the decision to split custody is not conclusively erroneous."
, 427 N.W.2d at 215. As in
, the other factors here outweigh the need for J.A.B. and his brother to live together.
C. Endangerment and Harm Versus Benefits
Finally, mother argues that the district court erred in determining that the harm likely to be caused by the change in custody was outweighed by its benefit to the child and that J.A.B.'s present environment endangered his emotional health or impaired his emotional development. But "[a] custodial parent's efforts to undermine the children's relationship with the non-custodial parent may endanger the children."
Smith v. Smith
, 508 N.W.2d 222, 227 (Minn. App. 1993). Here, the district court's findings that mother repeatedly interfered with father's visitation and created an environment that impaired the development of J.A.B.'s relationship with father are amply supported by the record. These findings, in turn, support the district court's decision that J.A.B.'s environment endangered his emotional health and that the benefits of the change outweighed the harm caused by the custody change.
Mother relies on
, 514 N.W.2d at 595, to argue that a finding of endangerment from the denial of visitation requires a showing of actual adverse effects on the child. But in
we concluded that the record did not support the finding of endangerment based solely on interference with visitation because there had been no
interference with visitation and because there was no evidence showing that the past denial of visitation had adversely affected the children.
at 596. In the present case, mother's recent attempts to interfere with visitation, coupled with her stated intent and actual efforts to undermine J.A.B.'s relationship with father, were sufficient to distinguish this case from
and to support the district court's decision that mother's custody endangered J.A.B.'s emotional health.
Mother moves to supplement the record with a recent court order adjudicating father to be the father of the younger son, M.R.B., born to mother on December 31, 1994. We deny the motion, but based on other evidence in the record have assumed his paternity.