This opinion will be unpublished and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
State, St. Louis County, o/b/o
Susan Putnam, petitioner,
Frank Richard Klein,
Filed September 17, 1996
St. Louis County District Court
File No. F691300629
Kristine A. Schulte, George M. Roehrdanz, 212 Ridgewood Avenue, Minneapolis, MN 55403 (for appellant)
James Perunovich, Perunovich Law Offices, 311 East Howard Street, Suite 2, Hibbing, MN 55746 (for respondent)
Considered and decided by Amundson, Presiding Judge, Toussaint, Chief Judge, and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Susan Putnam claims that the district court erred in modifying custody because it based its ruling partially on events predating the existing custody order and because the district court erred in finding that the prerequisites for custody modification were met. We affirm.
Appellant Susan Putnam had a child in April 1990. An April 1991 order adjudicated respondent Frank Klein the child's father and awarded Putnam custody. Putnam later moved from St. Louis County to Hennepin County. In October 1994, Klein sought custody, claiming that the conditions in Putnam's home endangered the child. In November, the district court signed a stipulated order retaining physical custody in Putnam. In February 1995, Klein got a phone call from the child's baby sitter stating that the child had been abused. The next day, Klein obtained an ex parte order for temporary custody. St. Louis County experts examined the child's bruises and stated that the child had been abused. After a hearing, the district court awarded custody to Klein. Putnam appeals.
D E C I S I O N
Putnam claims that Klein failed to prove the prerequisites for a custody modification.
See Auge v. Auge
, 334 N.W.2d 393, 397 (Minn. 1983) (burden in modification proceedings is on party opposing the current custody arrangement). A district court "shall not" modify custody unless facts arising after the current custody order, or unknown to the court when that order was issued, show, among other things, a substantial change in circumstances, that the child's present environment endangers the child, and that modification will serve the child's best interests. Minn. Stat. § 518.18(d) (1994). Our review of custody orders is limited to whether the trial court abused its discretion by making findings unsupported by the evidence or by applying the law improperly.
See In re Welfare of H.M.S.
, 541 N.W.2d 301, 303 (Minn. 1995).
I. Timing of Alleged Change in Circumstances
The order indicates that the custody modification was not based on the conditions at Putnam's home before the 1994 order but on the fact that those conditions "continued to exist" thereafter. Because the district court modified custody based on circumstances that did not arise after the 1994 order, the question becomes whether the district court was aware of those circumstances when it issued the 1994 order.
Putnam claims that because the district court "knew" of the "facts" alleged in the affidavits supporting Klein's 1994 motion, the district court's adoption of the stipulation was functionally a ruling that the circumstances existing in 1994 were acceptable. While the district court was aware of the allegations in the affidavits when it approved the 1994 stipulation, the memorandum attached to the order currently on appeal shows that the district court understood the parties' stipulation to mean that the circumstances alleged in the affidavits were exaggerated and that the then-existing circumstances were "at least adequate for the raising of a child."
Because it was not until the 1996 order that the district court found Putnam's home to be unacceptably unclean and unsafe, the true nature of the conditions at Putnam's home was unknown to the district court when it issued the 1994 order approving the parties' stipulation.
II. Changed Circumstances
Putnam claims that Klein did not present any evidence addressing the conditions at her home after the 1994 order. The district court found that after the 1994 order, the child had been physically abused. Also, Klein testified that when he picked up the child for a 1994 Christmas visit the child was ill; Putnam did not give Klein any medication for the child; the blanket Putnam gave Klein for the child was "so filthy and full of dog and cat hair" that he threw it out when he got home; and during the visit, the child was withdrawn and Klein had to call the child's name "five or six times" to get his attention. Further, Klein testified that when he picked up the child in February 1995, Putnam gave him clothes for the child which were "with the other clean clothes" but that "all of the underwear" Putnam gave him for the child "had chunks of feces stuck in them;" and the child was bruised when Klein picked him up. Klein also testified that when the child visited Putnam in summer 1995, he gave her medicine for the child because he had an ear infection and that when the child returned from the visit, the medicine bottle was still full. This testimony suggests, albeit indirectly, that after the 1994 order Putnam's house was dirty; the child's clothes and bedding were unclean; Putnam did not properly attend to the child's medical needs; the child was physically abused; and these circumstances caused the child not to react to caregivers.
See Ayers v. Ayers
, 508 N.W.2d 515, 521 (Minn. 1993) (appellate courts review the evidence in the light most favorable to the district court's findings). Finally, we reject Putnam's claim that finding five, describing conditions at Putnam's home, pertains only to conditions existing before the 1994 order. The district court explicitly found otherwise.
Focusing primarily on the alleged abuse, Putnam claims that Klein did not show that the child would be endangered if the child was returned to her custody because the alleged abuser has moved seven hours away from her home. Even if abuse is no longer likely, the district court's findings and Klein's testimony about the conditions at Putnam's home after the 1994 order show that child's health could still be endangered by the lack of cleanliness and her failure to attend to the child's medical needs.
We reject Putnam's claim that the district court's abuse-related findings are defective. The cases Putnam cites requiring detailed findings on abuse, the risk of future abuse, and the child's needs as a result of the abuse are distinguishable. They involve custody awards that put or left the children in an allegedly abusive environment. Here, the custody award takes the children out of the allegedly abusive environment.
Putnam claims that there is no evidence that returning the child to her would be dangerous and that none of Klein's witnesses could say that returning the child to Putnam would endanger the child. Klein's witnesses did not address the environment at Putnam's home because they had limited or no contact with her. The district court, however, awarded Klein custody even though two Hennepin County reports indicating that Putnam was not a danger to the child were presented to the district court in the confidential portion of the district court file. The district court apparently found those reports outweighed by the other evidence.
See J.L.B. v. T.E.B
., 474 N.W.2d 599, 603 (Minn. App. 1991),
(Oct. 11, 1991) (appellate courts defer to district court determinations of weight to be given evidence).
IV. Best Interests
Putnam claims that the district court failed to make adequate best interests findings.
Minn. Stat. § 518.17, subd. 1(a) (1994) (listing best interests factors). In her brief, Putnam only complains about a few of the allegedly missing findings. Her reply brief, however, addresses most of the best interests factors. Thus, Putnam waived her claims on the best interests factors not raised in her appeal brief.
See McIntire v. State
, 458 N.W.2d 714, 717 n.2 (Minn. App. 1990) (issues not raised or argued in brief cannot be revived in reply brief),
(Minn. Sept. 28, 1990),
498 U.S. 1090 (1990). After review of the record, we conclude that the record supports the district court's findings and that the findings support the custody award.
V. Other Issues
Consistent with the testimony of experts from St. Louis County, the district court "specifically" found that the child's bruises were the result of abuse and rejected the claim of Putnam and her expert that the bruises were caused by the child falling against a table. Because the record contains a reasonable basis for the testimony of both experts, we defer to the district court's finding.
See Ferguson v. Ferguson
, 357 N.W.2d 104, 107 (Minn. App. 1984) ("where conflicting opinions of expert witnesses have a reasonable basis in fact, the trier of fact must decide who is right, and the decision will not be overturned on appeal").
Finally, Putnam claims that the parties' 1994 stipulation means that it is res judicata that the prior circumstances were acceptable for custody purposes. We disagree. Even if the elements of res judicata were satisfied here, that fact would not require the doctrine's application.
See AFSCME Council 96 v. Arrowhead Regional Corrections Bd.
, 356 N.W.2d 295, 299 (Minn. 1984) (res judicata not rigidly applied and its application is qualified or rejected when its application would contravene an overriding public policy).
To conclude otherwise would be to reach the improbable conclusion that the district court allowed Putnam to retain custody of the children despite believing that the allegations in the affidavits were accurate; i.e., that the conditions at Putnam's home included a "filthy" house; dog feces on the carpet, in the child's room, and on the child's blanket; an "over-powering odor of cat and dog urine;" cats urinating in the sink used by the child; rotting food in the house; knife fights between Putnam's boyfriend and her tenant occurring in front of the child and in which Putnam involved herself; fights between Putnam's tenant and the child over the child's toys; the children crying because of the events in the house; Putnam having an alcohol problem; the children being left with Putnam's boyfriend who also drinks and uses drugs in front of the children; Putnam staying out until 2:30 a.m. at bars; Putnam not being able to control the child and giving the child over-the-counter medication to make him sleep longer; the police being called because the child (then age 4) and the child's friend (then age 2) were on the home's roof naked while Putnam's boyfriend was asleep in the house; and the child losing weight and being developmentally delayed.