This opinion will be unpublished and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:
Kenneth Mark Retka, petitioner,


Melissa Kay Retka, n/k/a
Melissa Kay Behrendt,

Filed September 17, 1996
Huspeni, Judge

Benton County District Court
File No. FX-89-7

Sharon G. Benson, Central Minnesota Legal Services, 830 West St. Germain #300, P.Box 1598, St. Cloud MN 56302 (for Appellant)

Carol Lostetter, 24 East Division Street, P.O. Box 236, Buffalo, MN 55313-0236 (for Respondent)

Considered and decided by Huspeni, Presiding Judge, Randall, Judge, and Amundson, Judge.


Appellant Melissa Kay Retka, n/k/a Melissa Kay Behrendt, claims that the district court erred in transferring custody of the parties' son to respondent Kenneth Mark Retka. Respondent claims that appellant's appeal must be dismissed and that the district court erred in not granting him custody of the parties' daughter. Because we find no abuse of discretion in the district court's determinations, we affirm.

The September 1989 judgment dissolving the parties' marriage granted appellant physical custody of the parties' two children. In a December 1993 written agreement, the parties transferred custody of their son to respondent. In March 1994, appellant regained custody of son. In April 1994, respondent moved for custody of both children. A May 1994 order granted respondent temporary custody of the children. A custody study recommended retaining the dissolution judgment's custody grant while the guardian ad litem recommended that appellant retain custody of the parties' daughter but that respondent receive custody of their son. This was the first time in 10 years that the guardian ad litem had recommended divided custody. In October 1995, the district court granted son's custody to respondent and retained daughter's custody in appellant. Both parties appeal.

1. To perfect an appeal, the appealing party must file proof that a notice of appeal was served on the adverse party. Minn. R. Civ. App. P. 103.01, subd. 1(a). Citing the district court's statements that the parties' attorneys were "to cease" being counsel of record when the order was filed, respondent claims that appellant's appeal must be dismissed because she served her notice of appeal on respondent's trial counsel, not respondent himself. Appellant claims respondent waived this argument. Perfection of an appeal goes to this court's subject matter jurisdiction and cannot be waived. Gummow v. Gummow , 356 N.W.2d 426, 428 (Minn. App. 1984). 1

Before appellant filed her appeal, respondent's attorney served and filed notice of entry of the order and the amended judgment. In doing so, she signed documents stating that she was "Attorney for [respondent]." Also, a letter in the appendix to appellant's reply brief refers to consultations between counsel occurring after entry of the amended judgment. Because an attorney-client relationship existed between respondent and his attorney when appellant appealed, service of appellant's notice of appeal on respondent's counsel was proper. See Macawber Eng'g, Inc. v. Robson & Miller , 47 F.3d 253, 256 (8th Cir. 1995) (under Minnesota law, attorney-client relationship exists if there is an express or implied contract of representation or when a person seeks and receives legal advice in circumstances that would lead a reasonable person to rely on the advice); Minn. R. Civ. App. P. 125.02 (if a party is represented, service "shall be made on the attorney"). 2

2. Under the relevant portion of the custody modification statute, the district court "shall not" modify custody unless the child's present environment endangers the child's physical or emotional health. Minn. Stat. § 518.18(d)(iii) (Supp. 1995). Review of custody decisions "is limited to whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law." In re Welfare of H.M.S. , 541 N.W.2d 301, 303 (Minn. 1995). Appellant claims that the custody modification is defective because there is no finding that the parties' son was endangered in her custody. Respondent claims that appellant is estopped from making this argument because appellant drafted the defective findings. We cannot accept respondent's argument. See Bliss v. Bliss , 493 N.W.2d 583, 590 (Minn. App. 1992) (court "must scrupulously assure that findings and conclusions--whether they be the court's alone, one or the other party's, or a combination--are always detailed, specific and sufficient enough to enable meaningful review" (footnote omitted)), review denied (Minn. Feb. 12, 1993). 3

An explicit finding of endangerment is not needed for a custody modification if the findings show endangerment. Cf. Greenlaw v. Greenlaw , 396 N.W.2d 68, 72-73, 74 (Minn. App. 1986) (where district court did not specifically find endangerment, this court reviewed findings and reversed modification where findings did not show endangerment). Here, the district court found that, because of son's psychological condition, it is "important" that son "have a very structured life," that "[respondent's] rigid, structured parenting style appears to fulfill [son's] needs," and that "[appellant's] parenting style is relaxed and open[.]" That respondent uses a parenting style employing the degree of rigidity necessitated by son's condition, but appellant does not, constitutes an implicit finding that son's development would be endangered in appellant's custody.
Appellant claims that there is no evidence to support an implicit finding that son was endangered in her custody. See Dabill v. Dabill , 514 N.W.2d 590, 596-97 (Minn. App. 1994) (absent endangerment, custody modification must be reversed). Findings of fact are not set aside unless clearly erroneous. Minn. R. Civ. P. 52.01. The crux of appellant's argument is that the modification must be reversed because this case is similar to Niemi v. Schachtschneider , 435 N.W.2d 117 (Minn. App. 1989). There, on a conflicting record, this court affirmed a district court finding that the children were not endangered. Id. at 119. Here, appellant asks this court to reverse the implicit finding of endangerment. The testimony of son's pediatrician in response to questions both from counsel and the bench, as well as the testimony of the guardian ad litem, shows that the finding of endangerment is not clearly erroneous.
3. Respondent claims that because of daughter's close relationship with son, separating the children endangers daughter's emotional health and that he should have custody of the parties' daughter. The guardian ad litem stated that daughter was pleased with the visitation schedule, which allows daughter to see son; that daughter has close relationships with other children in appellant's custody; and that daughter's personality is similar to appellant's. The district court's refusal to find daughter endangered in appellant's custody is not clearly erroneous, and we affirm retention of daughter's custody in appellant. See id. , 435 N.W.2d at 119 (endangerment is a "threshold" for custody modification).
Noting that appellant did not seek sole legal custody of daughter, respondent challenges the award to appellant of daughter's sole legal custody. If joint legal custody "is contemplated or sought," the district court "shall" consider the parties' ability to cooperate in making decisions concerning a child. Minn. Stat. § 518.17, subd. 2 (1994). Here, the district court had to contemplate joint legal custody; the judgment awarded the parties joint legal custody of daughter, but respondent sought her "sole care and custody." The record contains evidence that the parties do not get along. Termination of joint legal custody of daughter is consistent with case law. See Wopata v. Wopata , 498 N.W.2d 478, 482 (Minn. App. 1993) (inability to cooperate regarding child is fatal to joint legal custody).

1 We reject appellant's claim that service was proper under Atwood v. Atwood , 253 Minn. 185, 195, 91 N.W.2d 728, 736 (1958), which holds that where a court retains jurisdiction over an issue, service on a party's last known counsel of record is sufficient. Proper service of a notice of appeal is required to establish this court's jurisdiction. Hansing v. McGroarty , 433 N.W.2d 441, 442 (Minn. App. 1988), review denied (Minn. Jan. 25, 1989).

2 Generally, review of district court rulings is confined to the district court record. See, e.g., Thiele v. Stich , 425 N.W.2d 580, 582-83 (Minn. 1988). Here, the letter in the appendix to appellant's reply brief is not being used to review a district court ruling. Also, this court has considered documents submitted for the first time on appeal when the documents were "critical" to this court's ability to decide the case. Rigwald v. Rigwald , 423 N.W.2d 701, 704 n.5 (Minn. App. 1988). Because the service requirement is jurisdictional, knowledge of whether respondent's counsel represented respondent when appellant appealed, and hence whether counsel could be served with the notice of appeal, is critical to our ability to decide the case.

3 Appellant's reply brief states that when appellant's counsel drafted a proposed order, counsel intentionally omitted a finding of endangerment because she did not think that the record supported such a finding. By proposing an order known to have inadequate findings, counsel violated her obligations under case law. See Bliss , 493 N.W.2d at 590 n.6 (party drafting a proposed order must "conscientiously review and revise this document prior to submission to the trial court to assure that the Moylan v. Moylan , 384 N.W.2d 859, 865 (Minn. 1986), and Stich v. Stich , 435 N.W.2d 52, 53 (Minn. 1989), [findings] requirements are met").