This opinion will be unpublished and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:

Robert Rudy Andree, Jr., petitioner,



Linda Faye Andree,

n/k/a Linda Faye Draper,


Filed March 18, 1997

Affirmed in part, reversed in part, and remanded

Short, Judge

Nicollet County District Court

File No. F19335

Todd W. Westphal, MacKenzie & Gustafson, Ltd., P.O. Box 360, St. Peter, MN 56082-0360 (for respondent)

LaMar Piper, Damain D. Sandy, Piper Law Firm, 615 Second Avenue South, P.O. Box 109, St. James, MN 56081 (for appellant)

Considered and decided by Amundson, Presiding Judge, Short, Judge, and Harten, Judge.


SHORT, Judge

This dissolution case involves a postdecree motion for change of custody and modification of child support. Under a 1993 dissolution judgment, Linda F. Draper and Robert R. Andree received joint physical custody of the parties' two children. In 1994, when Draper relocated to another city to live with her boyfriend, the parties voluntarily changed their custody arrangement such that, during the school year, the parties' daughter lived with Draper and their son continued to live with Andree. In 1996, Andree moved the court to formally adopt the parties' custody arrangement. Draper responded by seeking modification of Andree's child support obligation.

On appeal from the trial court's modification of custody and denial of a change in support, Draper argues the trial court: (1) abused its discretion in modifying custody by relying on nonstatutory factors, failing to apply the endangerment standard, and making erroneous findings; and (2) erroneously excluded Robert Andree's part-time income in calculating Andree's support obligation. We affirm in part, reverse in part, and remand.


A trial court has broad discretion when determining child custody and support. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). Our review is limited to whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. Id.


To warrant modification of a custody order, a party must establish: (1) a change has occurred in the circumstances of the child or parent; and (2) modification is necessary to serve the child's best interests. Minn. Stat. § 518.18(d) (1996). Draper argues the trial court abused its discretion by considering the parties' 1994 custody arrangement and Draper's plan to move to Arkansas. However, the custodial desires of a child's parent or parents are factors properly considered by the trial court in its determination of the child's best interests. Minn. Stat. § 518.17, subd. 1(a)(1) (1996). Furthermore, the length of time a child lives in a stable environment and the desirability of maintaining continuity are proper factors for the court's consideration. Id., subd. 1(a)(7) (1996). Therefore, we cannot say the trial court abused its discretion when it considered the parties' voluntary custody arrangement and Draper's intent to move in determining the children's best interests.

Draper also argues the trial court erred by modifying custody of the parties' son without applying the endangerment standard. We disagree. Under Minn. Stat. § 518.18(d)(iii) (1996), a trial court may modify custody only if a child's present environment endangers the child's physical or emotional health or development. The record demonstrates: (1) the parties argued the endangerment standard at trial; (2) Draper admitted her boyfriend emotionally abused her and the two argued in front of the children; (3) on one occasion, Draper's boyfriend came home intoxicated and ejected Draper and the children from the house at two o'clock in the morning; and (4) the parties' son, who was residing with Andree, performed well in school, while their daughter's school performance deteriorated while she resided with Draper. Although the trial court did not follow the better practice of expressly referring to the endangerment standard in its order, its findings indicate proper application of the standard. See Abbott v. Abbott, 481 N.W.2d 864, 867 (Minn. App. 1992) (stating trial court's findings must indicate it considered factors listed in Minn. Stat. §§ 518.17-.18). Under these circumstances, we cannot say the trial court erred by failing to consider the endangerment standard.

Draper further argues the trial court's findings concerning her desire to move to Arkansas, her emotional instability, the parties' voluntary custody arrangement and their daughter's deteriorated school performance are without record support. However, the record shows: (1) in 1994, the parties voluntarily agreed their son would continue to live with Andree during the school year; (2) the son's preference to live with his father was one consideration in making this arrangement, and not a condition; (3) when Draper's mother in Arkansas became ill, Draper told Andree she planned to move to Arkansas and wanted to take both children; (4) in 1996, Draper sought medical care for stress and received a prescription for tranquilizers and other medication; (6) Draper stated her boyfriend emotionally abused her; and (7) Draper acknowledged her daughter's grades had dropped while living with her. Viewing this evidence in a light most favorable to the trial court's findings and deferring to the trial court's opportunity to judge credibility, the record contains ample evidence to support the trial court's findings. See Minn. R. Civ. P. 52.01 (affording due regard to opportunity of trial court to judge credibility of witnesses); Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn. 1993) (requiring court review evidence in light most favorable to findings).

Draper argues the trial court erred in concluding other factors outweighed her son's current preference to live with his mother. While a child's custodial preference is a factor to be considered by the trial court in assessing the child's best interests, it is not necessarily dispositive. See Lundell v. Lundell, 387 N.W.2d 654, 658 (Minn. App. 1986) (explaining child's custodial preference is only one factor among many a court uses to assess best interests); see, e.g., Imdieke v. Imdieke, 411 N.W.2d 241, 242 (Minn. App. 1987) (noting 12-year-old child's preference to live with father was not determinative), review denied (Minn. Oct. 30, 1987).


Draper also argues the trial court erroneously calculated Andree's guidelines child support obligation because it excluded $6,695.19 from Andree's income, an amount earned in excess of his full-time job. Under the guidelines, a trial court must make certain findings before it excludes compensation earned in excess of a 40-hour work week from a party's "net income." See Minn. Stat. § 518.551, subd. 5(b)(2)(ii) (1996) (enumerating requisite findings). Because the trial court failed to make the statutorily required findings, we cannot say whether the court abused its discretion in excluding Andree's part-time income. We are also troubled by the trial court's factoring of Andree's afterborn children into its calculation of present guidelines support. See Bock v. Bock, 506 N.W.2d 321, 324 (Minn. App. 1993) (forbidding trial court from factoring subsequent children into guidelines calculation to determine whether prior support obligation is presumptively unfair). Under these circumstances, we must remand the child support issue to the trial court to make the requisite findings. See Merrick v. Merrick, 440 N.W.2d 142, 146 (Minn. App. 1989) (reversing and remanding award of child support where trial court's findings were insufficient for review).

Affirmed in part, reversed in part, and remanded.