This opinion will be unpublished and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

C0-96-854

In Re the Marriage of:

Michael Allan Thompson, petitioner,

Respondent,

vs.

Joyce Leona Thompson,

Appellant.

Filed November 5, 1996

Affirmed

Peterson, Judge

Stearns County District Court

File No. F8943968

Yancy A. Jencsok, St. Cloud Area Legal Services, 830 West St. Germain #300, St. Cloud, MN 56301 (for Appellant)

Jan Tarvestad, 2219 Chelmsford Lane, Walden Woods, St. Cloud, MN 56301 (for Respondent)

Thomas Kramer, 26 North Sixth Avenue, Suite 300, P.O. Box 1765, St. Cloud, MN 56302 (Guardian Ad Litem)

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

PETERSON, Judge

Appellant-mother Joyce Leona Thompson claims that the trial court erred by awarding her and respondent-father Michael Allen Thompson joint legal and physical custody of their child instead of awarding her the child's sole physical and legal custody. We affirm.

FACTS

Mother is mentally impaired due to a head injury she suffered as a child. She married father and they had a child in October 1988. The child has special needs. The parties' relationship involved abuse and several orders for protection against father. When the parties separated in May 1994, mother retained custody of the child. Father sought to dissolve the parties' marriage in November 1994. A January 1996 dissolution judgment found that mother was the child's primary parent and awarded the parties joint legal and physical custody of the child. Mother did not seek a new trial and appeals.

D E C I S I O N

Absent a motion for a new trial, our review is limited to whether the evidence supports the findings of fact and whether the findings of fact support the conclusions of law and the judgment. Erickson v. Erickson, 434 N.W.2d 284, 286 (Minn. App. 1989). Findings of fact are not set aside unless clearly erroneous. Minn. R. Civ. P. 52.01.

1. Mother claims that the best interest factors, except those relating to her mental health, show that she should have physical custody of the child. See Minn. Stat. § 518.17, subd. 3(a)(3) (1994) (custody to be awarded based on child's "best interests"); id., subd. 1 (1994) (listing best interests factors). She also challenges the trial court's refusal to award her sole legal and physical custody of the child and claims that the district court did not explain why the prior domestic abuse did not preclude a joint custody award. The record, including the experts' testimony and reports, and findings show that (a) the child is disabled; (b) the child has a close relationship with mother; (c) mother is disabled; (d) mother admitted using on several occasions poor judgment concerning the child that could have endangered the child;[1] (e) mother's disability impacts her ability to provide for the child; (f) father is not disabled; (g) while there was domestic abuse between the parties, the most recent order for protection was 22 months ago and since then, the parties have had significant contact with each other during visitation with only minimal problems; and (h) if problems reoccur, the county could act as an intermediary between the parties or, if mother chose to do so, the parties could mediate their dispute. On this record, the trial court did not abuse its discretion by concluding that leaving the child in mother's sole custody might be detrimental to the child or that the prior domestic abuse did not preclude awarding the parties joint legal and physical custody of the child. See Lenz v. Lenz, 430 N.W.2d 168, 169 (Minn. 1988) (appellate court will affirm custody determination when the evidence supports the findings and the trial court properly applied the law).

2. Mother claims that the trial court overemphasized the unfavorable findings regarding her mental health and underemphasized her status as the child's primary caretaker.

[T]he golden thread running through any best interests analysis is the importance, for a young child in particular, of its bond with the primary parent as this relationship bears on the other [best interests] criteria.

Maxfield v. Maxfield, 452 N.W.2d 219, 223 (Minn. 1990). A party's status as a child's primary caretaker, however, "may not be used as a presumption in determining the best interests of the child." Minn. Stat. § 518.17, subd. 1(a). The authority mother cites to claim that her psychological condition should not preclude her from being the child's sole physical custodian is distinguishable. The trial court did not misbalance the best interests factors as mother claims.

3. Mother seeks sole custody claiming she does not endanger the child and is not an unfit parent. Because this case involves a custody award rather than a custody modification, we reject mother's claim. See Minn. Stat. § 518.17, subd. 3(a)(3) (custody awarded based on child's best interests) (emphasis added); Minn. Stat. § 518.18(d)(iii) (Supp. 1995) (generally, custody modification requires endangerment) (emphasis added).[2]

4. Mother claims that the trial court's finding that her psychological condition impairs her ability to care for the child is inconsistent with the findings that she was the child's primary caretaker and did a good job providing for the child, as well as the award of joint physical custody. The trial court's findings regarding mother's care of the child indicate that mother provided for the child to the best of her ability but that mother's limitations, combined with the child's special needs, preclude awarding her sole custody. The award of joint physical custody is consistent with the trial court's concerns about mother's ability to meet the child's special needs and recognition of the close relationship between mother and the child.

5. Mother claims that joint custody is improper because it will require her to deal with father who abused her and that the trial court did not explain why joint custody was proper in this context. See Minn. Stat. § 518.17, subd. 2 (1994) (domestic abuse raises presumption joint custody not in child's best interests). The trial court found "sufficient evidence" to rebut the presumption against joint custody, that the child's best interests required joint physical custody, and that "a sole custody arrangement would not be in the best interest of the [child.]" These ultimate findings support an award of joint physical custody. They are also supported and explained by the other findings that mother has a close relationship with the child but that her condition impacts her ability to meet the child's special needs, that mother admitted to occasionally poor judgment that could have endangered the child, and that the parties have not had recent disputes. These findings, in turn, are consistent with the record. The award of joint custody is not defective because it requires mother to deal with father or because the reasons for the award are not apparent. See Holmberg v. Holmberg, 529 N.W.2d 456, 458 (Minn. App. 1995) (when reviewing ultimate facts or mixed questions of law and fact, appellate courts review trial court's explanation of connection between findings and conclusions), review denied (Minn. May 31, 1995).

6. Mother claims that the trial court did not adequately address the joint-custody factors of Minn. Stat. § 518.17, subd. 2, and that the parties' lack of dispute resolution methods precludes an award of joint custody. The trial court considered the joint custody factors; it found that the parties lack dispute resolution methods because they may not yet have had to develop them. Further, the trial court's discussion of the prior orders for protection shows that it considered them when it found that the parties did not have current disagreements. To the extent the parties' testimony conflicts, we defer to the trial court's adoption of father's testimony rather than mother's. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).[3]

7. Mistakenly claiming that the custody study was written in 1994, mother argues that it is stale. The study was written in 1995. Further, its critical aspects are consistent with the more current reports of the guardian ad litem.

8. Mother claims that because of the prior domestic abuse, the trial court erred by referring the parties to mediation. See Minn. Stat. § 518.619, subd. 2 (1994) (precluding mediation without counsel if domestic abuse occurred). The trial court, however, did not mandate mediation but stated that

[u]ltimately, the decision as to whether or not to mediate would be left to [mother], with the advice of [mother's] counsel.

Affirmed.

[ ]1To the extent mother disputes the trial court's characterization of the incidents in which she showed poor judgment, she is asking this court to reweigh the evidence and/or reassess the credibility of the relevant witnesses. Both are beyond our scope of review. See Lenz v. Lenz, 430 N.W.2d 168, 169 (Minn. 1988) (appellate court cannot substitute its judgment for that of trial court); Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (appellate courts defer to trial court credibility determinations).

[ ]2 If mother invokes the endangerment standard because she believes the custody award in the judgment "modified" the then-existing temporary custody award, she is incorrect. See Minn. Stat. § 518.131, subd. 9(a) (1994) (temporary orders "shall not" prejudice rights of parties to be adjudicated at subsequent hearings).

[ ]3 A similar deference to the trial court addresses mother's claim that father has abused her since the dissolution started. Our deference to the trial court on this issue is particularly great in light of mother's psychological condition, which makes it difficult for her to remember the correct chronology of events.