This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In Re the Marriage of:

Lois Arlene Anderson, petitioner,



James Herbert Anderson,


Filed December 24, 1996

Affirmed as modified

Harten, Judge

Cottonwood County District Court

File No. F0-94-288

John D. Scholl, Christina M. Wietzema, Bernardy and Scholl, 419 Ninth Street, P.O. Box 426, Worthington, MN 56187 (for respondent)

Michael P. Kircher, Sunde, Olson, Kircher and Zender, 108 Armstrong Boulevard South, P.O. Box 506, St. James, MN 56081-0506 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Crippen, Judge, and Harten, Judge.



This appeal is from a dissolution judgment granting sole legal custody, establishing visitation, and awarding attorney fees. We affirm as modified.


1. Appellant challenges the factual support for the district court's award of sole legal custody to respondent. The standard of review of a court's custody determination is whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993). The district court properly considered the relevant statutory factors:

(a) The ability of parents to cooperate in the rearing of their children;

(b) Methods for resolving disputes regarding any major decision concerning the life of the child, and the parents' willingness to use those methods;

(c) Whether it would be detrimental to the child if one parent were to have sole authority over the child's upbringing; and

(d) Whether domestic abuse * * * has occurred between the parents.

Minn. Stat. § 518.17, subd. 2 (1996). Where domestic abuse is found, courts shall apply a rebuttable presumption that joint custody is not in the best interests of the children. Id. The district court found domestic abuse had occurred and appellant does not dispute this finding. Instead, appellant argues that he overcame any presumption against joint legal custody. The district court, as factfinder, however, is free to discredit the testimony presented by appellant. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).

The district court adopted the finding made by the guardian ad litem addressing factor (c). While the guardian's finding did not specifically address whether it would be harmful to have appellant excluded from child-rearing decisions, the district court's findings as a whole reflect that it considered this factor in reaching its decision. See Rosenfeld v. Rosenfeld, 311 Minn. 76, 83, 249 N.W.2d 168, 172 (Minn. 1976) (upholding custody determination where record as a whole supported determination). The district court heard testimony from appellant's expert that it would be harmful to the children if appellant was excluded from child-rearing decisions but the district court rejected appellant's proposed finding on this issue. See Nelson v. Dor, 239 Minn. 423, 432, 58 N.W.2d 876, 881 (1953) (court's denial of proposed finding is equivalent to adverse finding on issue).

2. Appellant objects to the visitation schedule adopted by the district court. Courts have broad discretion to determine what is the child's best interest in the area of visitation. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995). The goal of visitation is to "enable the child and the noncustodial parent to maintain a child to parent relationship that will be in the best interests of the child." Minn. Stat. § 518.175, subd. 1 (1996). Here, the district court ruled that appellant was entitled to "reasonable visitation * * * as set out in the Guardian's report."

Appellant argues that because the guardian failed to observe him alone with his children, her recommendation is unpersuasive. We defer to the district court, however, on issues of witness credibility and weight of the testimony. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).

Appellant also argues that it was error for the district court to "delegate" the visitation decision to the guardian. "[T]he court may appoint a guardian ad litem * * * [to] advise the court with respect to * * * visitation." Minn. Stat. § 518.165, subd. 1 (1996). Appellant relies on In re the Welfare of T.J.M., 413 N.W.2d 221 (Minn. App. 1987). Assuming the legal relevance of T.J.M., the basis for its holding does not control the instant case. Here, the district court did not delegate the issue of visitation. Instead, it relied on the guardian's recommendation (advice) and concluded that the guardian's specific visitation schedule was in the children's best interests. The district court knew what the visitation schedule was and knew what facts the guardian relied on to reach her recommendation; T.J.M. is thereby distinguished.

3. Appellant claims that the district court's award of attorney fees was error. Courts have broad discretion to award attorney fees. Solon v. Solon, 255 N.W.2d 395, 397 (Minn. 1977). The district court's award of attorney fees was based solely on appellant's conduct.

Nothing in this section precludes the court from awarding, in its discretion, additional fees * * * against a party who unreasonably contributes to the length or expense of the proceeding.

Minn. Stat. § 518.14, subd. 1 (1996). We believe that joint legal custody of the children became a bona fide issue after the parties agreed that respondent would have sole physical custody. Albeit appellant's claim for joint legal custody was weak, we are unable to conclude that it was frivolous. We therefore vacate the award of attorney fees to respondent and modify the district court judgment accordingly.

Affirmed as modified.