This opinion will be unpublished and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:

Stacy M. Owen, petitioner,



Sheila R. Owen,


Filed August 11, 1997


Schumacher, Judge

Crow Wing County District Court

File No. F49650

James P. Fossum, 804 Laurel Street, Suite 2B, Post Office Box 552, Brainerd, MN 56401 (for Appellant)

Thomas R. Borden, Post Office Box 411, Brainerd, MN 56401 (for Respondent)

Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Schumacher, Judge.



Appellant Stacy M. Owen (father) challenges the trial court's award of custody to respondent Sheila R. Owen (mother). We affirm.


Father and mother married in 1992 and had a child in 1994. The parties separated in November 1995, and father petitioned to dissolve the marriage. In April 1996, the district court awarded father temporary physical custody of the child. After an October 1996 trial, the district court awarded mother physical custody of the child. Father, who did not move for a new trial, appeals.


Generally, review of custody awards "is limited to whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law." Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). On appeal, the record is viewed in the light most favorable to the trial court's findings. Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn. 1993). Absent a motion for a new trial, 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). To successfully challenge a finding of fact, father must show the finding is clearly erroneous. Minn. R. Civ. P. 52.01.

1. Viewed in the light most favorable to the trial court's findings, the record supports the finding that father occasionally punched inanimate objects in anger. To the extent father testified otherwise, the trial court's finding that father did so was an implicit determination that father's testimony on this subject was not as credible as mother's. We defer to trial court credibility determinations. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). The trial court's findings show that the court was aware of the claims father makes to this court about the occasions he punched other people and that there is no claim that father hit mother or the child.

2. Because father did not make a posttrial motion for amended findings or a new trial, we reject his claims that the trial court should have made findings on mother's limited contact with the child since the separation and the credibility of the parties' testimony on various issues. See Frank v. Illinois Farmers Ins. Co., 336 N.W.2d 307, 311 (Minn. 1983) (where trial court failed to make findings or a conclusion on an issue and the omission was not brought to trial court's attention in a posttrial motion, there was nothing for the appellate court to review); Berquam v. Berkner, 374 N.W.2d 802, 803 (Minn. App. 1985) (where trial court's alleged failure to "find the facts specially" was not brought to trial court's attention, the issue could not be raised for the first time on appeal). We note, however, that: (a) the trial court's findings show it was aware of the allegedly limited amount of mother's contact with the children; (b) the alleged inconsistencies in mother's testimony do not go directly to custody; and (c) the trial court's setting of mother's support arrears shows it addressed mother's financial contribution to the parties' child. See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (party alleging trial court erred must show error and that the error prejudiced the complaining party).

3. The trial court did not err by not considering the time father was the child's primary caretaker after father was awarded the child's temporary custody. See Minn. Stat. § 518.131, subd. 9(a) (1996) (a temporary order "shall not" prejudice the rights of a party to be adjudicated at a later hearing); see also, Franzen v. Borders, 521 N.W.2d 626, 630 (Minn. App. 1994) (applying Minn. Stat. § 518.131, subd. 9(a) to reject claim that the district court erred by setting support in an amount inconsistent with the amount in a temporary order).

4. Father also claims the trial court erred in finding any change in the child's day-care provider (as a result of changing custody to mother) would not have a significant impact on the child. Initially, mother indicated that she did not intend to change the child's day-care provider. Further, father mischaracterizes the trial court's finding. The trial court actually found that changing the child's day-care provider had not been shown to be harmful to the child. If the child is endangered by a change of the day-care provider, father may move to reacquire custody. See Minn. Stat. § 518.18 (d)(iii) (1996) (custody may be modified if, among other things, a child's current environment endangers the child).