may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
David T. Clark, petitioner,
Maureen E. Clark,
File No. F7882258
Stephen C. Aldrich, Martha A. Ballou, 701 Fourth Avenue South, Suite 1700, Minneapolis, MN 55415 (for appellant)
Lawrence D. Olson, Timothy D. Lees, Lawrence D. Olson & Associates, P.A., 2860 Snelling Avenue North, St. Paul, MN 55113 (for respondent)
Considered and decided by Davies, Presiding Judge, Short, Judge, and Forsberg, Judge.[*]
Maureen E. Clark appeals the trial court's decision to transfer permanent physical custody of her daughter to the child's father. We affirm.
To warrant modification of a custody order, a party must establish: (1) a change has occurred in the circumstances of the child or custodian; and (2) modification of the custody order is necessary to serve the child's best interests. Minn. Stat. § 518.18(d) (1996). Even if both tests have been met, the trial court must retain the custodian established by the original order unless 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 of environment is outweighed by the advantages of such a change. Minn. Stat. § 518.18(d)(iii) (1996); State ex rel. Gunderson v. Preuss, 336 N.W.2d 546, 548 (Minn. 1983).
After Maureen E. Clark and her former spouse divorced for a second time in 1988, a trial court awarded Clark physical custody of the parties' two children. In 1995, Clark's former spouse moved the trial court to change custody of the children, based, in part, on a psychologist's report verifying the daughter's depression and the former spouse's belief that Clark was physically and emotionally abusing both children. Following a two-day evidentiary hearing, the trial court granted the former spouse's motion with respect to custody of the twelve-year-old daughter, but denied it with respect to the eight-year-old son. The trial court denied Clark's motion for a new trial or amended findings.
On appeal from the custody modification orders and the denial of her motion for a new trial or amended findings, Clark argues there is no record support for the trial court's determination that she poses a danger to her daughter's physical and emotional health. We disagree. The record demonstrates: (1) Washington County Child Protection Services investigated and substantiated a report of physical abuse by Clark against her daughter; (2) the daughter's school psychologist believed Clark had medically neglected and physically abused her daughter; (3) Clark's former spouse and his sister had witnessed Clark hitting and slapping both children and threatening them with physical harm; (4) psychological assessments performed on the daughter indicate she is depressed, insecure, and has dysfunctional coping skills; (5) the daughter expressly requested she be placed in her father's custody; (6) Clark paid her daughter to care for Clark's son and imposed on her daughter numerous "co-parenting" responsibilities that have exacerbated the daughter's depression; and (7) Clark has withdrawn her daughter from counseling programs on several occasions.
Furthermore, the court made specific findings pursuant to Minn. Stat. § 518.18, determining a change in custody would be in the daughter's best interests and concluding the advantages of a change in the daughter's environment outweighed any potential harms. While the trial court entertained conflicting testimony regarding some of the issues raised at the hearing, we must view the evidence in a light most favorable to the trial court's determination and defer to the trial court's opportunity to judge credibility. Minn R. Civ. P. 52.01; Hansen v. Hansen, 284 Minn. 1, 5, 169 N.W.2d 12, 15 (1969); see also Lenz v. Lenz, 430 N.W.2d 168, 169 (Minn. 1988) (recognizing impropriety of appellate court substituting its judgment of credibility for that of trial court). Under these circumstances, we cannot say the trial court abused its discretion in awarding physical custody of the parties' daughter to her father.
[ ] * Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.