may not be cited except as provided by
Minn. Stat. sec. 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Sue M. Dalton, f/k/a Sue M. Lamkin, petitioner,
Stephen W. Lamkin,
Filed February 11, 1997
Washington County District Court
File No. F5-93-3150
Stephen W. Lamkin, 324 5th Street N., Hudson, WI 54016 (Pro Se).
Considered and decided by Short, Presiding Judge, Randall, Judge, and Davies, Judge.
Appellant challenges the district court's decision granting custody to respondent, arguing that the district court's findings of fact are not supported by the weight of the evidence. We affirm.
After initially being allowed supervised visitation only, respondent was granted unsupervised visitation on May 23, 1994. During the last weekend of August 1994, appellant withheld visitation from respondent, claiming it was due to an injury J.L. had received to his toe on the previous visit with respondent. When appellant went to meet respondent on September 16, 1994, for a scheduled visitation exchange at the Bayport Police Station, appellant again failed to bring J.L. On September 30, 1994, the trial court awarded temporary physical and legal custody to respondent, finding that appellant, by her own admission, had denied respondent visitation with J.L. contrary to the court's order.
The custody trial was held on October 23, 1995. Testimony was taken from the parties, the guardian ad litem, and respondent's father. By stipulation, the report from Marlene Praslow of the Domestic Relations Division was entered into evidence.
The district court issued its Order Amending Judgment and Decree on January 30, 1996. After considering the statutory factors and making detailed findings of fact pursuant to Minn. Stat. § 518.17 (1996), the trial court awarded the parties joint legal custody of J.L. and sole physical custody of J.L. to respondent. The trial court concluded that the best interests of J.L. were met by awarding respondent sole physical custody because J.L. has experienced a stable environment at his paternal grandparents' home and has an intimate, loving relationship with them, and he is secure with his living environment, his school, and the community. Appellant moved the court for amended findings or a new trial, arguing that the trial court's findings were not supported by the record. Following a hearing on the matter, the trial court issued a Second Order Amending Judgment and Decree on May 1, 1996.
The record is clear that respondent's parents play a significant role in rearing J.L. Respondent testified that he is employed by Lund Martin Construction and that he usually leaves the house around 5:30 a.m. and returns from work around 4:30-4:45 p.m. Consequently, respondent's mother is responsible for waking J.L., feeding him, and getting him to and from school. She also prepares most of the dinner-time meals for J.L.
Although respondent's parents are a large part of J.L.'s daily life, the testimony at trial established that respondent is active in parenting J.L. Among other things, he arranges J.L.'s medical appointments when necessary, shops for J.L.'s clothes, prepares J.L. meals on occasion, puts J.L. to bed in the evening, plays with and shares quality time with J.L., and supervises and participates in J.L.'s schooling.
Appellant argues that the trial court's findings of fact are unsupported by the evidence. Here, the trial court considered in detail the statutory factors listed in Minn. Stat. § 518.17, and concluded that the best interests of J.L. are served by maintaining his current living arrangement and by awarding sole physical custody to respondent. The court found that J.L. has experienced a stable environment while living at his grandparents' home which has led to an intimate, loving relationship with them, and that J.L. is secure with his living arrangement, his school, and the community. These findings are supported by the record and are not clearly erroneous.
Appellant also argues that the trial court improperly applied the primary caretaker standard. The primary caretaker doctrine is an extension and refinement of the statutory criteria and the statute requires a "multifaceted inquiry into 'all relevant factors.'" Sefkow v. Sefkow, 427 N.W.2d 203, 212 (Minn. 1988). The court may not use one factor to the exclusion of the others, and "although the 'primary caretaker factor' is significant, it cannot be used as a presumption in determining a child's best interests." Schumm, 510 N.W.2d at 14.
The primary caretaker factor cannot be used to the exclusion of the statutory factors listed in Minn. Stat. § 518.17.
While the trial court failed to make findings as to which parent, if any, was J.L.'s primary caretaker prior to the parties' dissolution and as to that parent's fitness, the trial court made extensive findings, pursuant to the statutory criteria, that J.L.'s best interests would be served by granting respondent sole physical custody. These findings are supported by the record. The trial court properly exercised its discretion in awarding respondent sole physical custody of J.L.
[ ]1 Although respondent has failed to submit a brief, Rule 142.03 of the Minnesota Rules of Civil Appellate Procedure provides that in such circumstances, "the case shall be determined on the merits."