This opinion will be unpublished and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:

Patricia M. Nelson, petitioner,



Calvin O. Nelson,


Filed November 18, 1997


Kalitowski, Judge

Roseau County District Court

File No. F59295

Alan B. Fish, P.A., 109 2nd Street N.E., Roseau, MN 56751 (for appellant)

John C. Novacek, 204 LaBree Avenue North, P.O. Box 494, Thief River Falls, MN 56701 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Short, Judge, and Foley, Judge.[*]



Appellant Patricia Nelson and respondent Calvin Nelson were divorced in 1992. The judgment and decree awarded joint legal and physical custody of N.N. to the parties. In 1996, after respondent had moved to Oregon, both parties sought sole physical custody of N.N. In May 1997, after an evidentiary hearing, the district court amended the judgment and decree to award sole physical custody of N.N. to respondent. On appeal, appellant contends that (1) the district court did not apply the correct standard for determining custody; and (2) the district court erred in awarding custody to respondent. We affirm.



"Determining the proper statutory standard to be applied presents a question of law." Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993). Where parties have agreed by stipulation to certain custodial designations, the parties are bound by the resulting legal implications of those designations. Id. at 520. In modifying a prior joint physical custody order where one party seeks to move the residence of the child to another state, the court applies the best interests standard under Minn. Stat § 518.18(e). Id.

Appellant argues that the district court erred in applying the "best interests" standard rather than the "endangerment" standard of Minn. Stat. § 518.18(d) (1996). We disagree. The parties stipulated to joint physical and legal custody in their marital termination agreement. Although respondent admitted at trial to voluntarily abandoning the joint physical custody arrangement when he moved to Oregon in 1993, respondent took steps to exercise his joint custodial rights beginning in the summer of 1994. Further, there was no legal determination that the joint custody arrangement had ended. Following Ayers, the district court correctly applied the best interests standard.


The appellate court's review of "custody determinations is limited to whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law." Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). This court must sustain the district court's findings unless they are clearly erroneous. Id. We must also view the evidence in the light most favorable to the district court's findings. Rinker v. Rinker, 358 N.W.2d 165, 167 (Minn. App. 1984). The best interests of the child is the guiding principle in all custody cases. Pikula v. Pikula, 374 N.W.2d 705, 711 (Minn. 1985). When the court considers the factors enumerated in Minn. Stat. § 518.17, it "may not use one factor to the exclusion of all others." Minn. Stat. § 518.17, subd. 1(a) (1996).

Appellant argues that the district court erred by making findings of fact that were not supported by the evidence and were clearly erroneous. We disagree. The district court provided a detailed analysis of each statutory factor and concluded that awarding physical custody to respondent was in N.N.'s best interests. The court relied upon the guardian ad litem's report in reaching this conclusion, and the record contains sufficient evidence to support the court's findings of fact. While there may be conflicting evidence, findings will not be disturbed on appeal "unless they are manifestly and palpably contrary to the evidence as a whole." Kennedy v. Kennedy, 403 N.W.2d 892, 897 (Minn. App. 1987) (citing Kucera v. Kucera, 275 Minn. 252, 254-55, 146 N.W.2d 181, 183 (1966)). Because its findings are supported by the evidence and are not clearly erroneous, we conclude the district court did not abuse its discretion in making its custody determination.

Appellant argues that the district court erred in not considering the "sheer quantitative difference in the quality and amount of care provided by each parent" in contravention of Weatherly v. Weatherly, 330 N.W.2d 890, 892 (Minn. 1983) (finding that the district court may not disregard negative evidence concerning respondent and ignore evidence that favors appellant). We disagree. The district court considered the nature and length of time that N.N. spent with appellant under the stability and continuity factor in Minn. Stat § 518.17, subd. 1(a)(7) (1996). Further, appellant's reliance on Weatherly is misplaced. Here, the district court provided a balanced discussion of the positive and negative aspects of both parents. Thus, the court correctly applied the law in its analysis of the best interests factors.

Appellant argues that the district court improperly considered the conduct of appellant's live-in significant others in violation of Minn. Stat. § 518.17, subd. 1(b) (1996) ("The court shall not consider conduct of a proposed custodian that does not affect the custodian's relationship to the child."). We disagree. Here, the court considered evidence that both a former and a present live-in partner of appellant have abused alcohol while living with appellant and N.N. The court also noted that appellant's present live-in partner's testimony concerning his current alcohol use was inconsistent. The court must consider the "interaction and interrelationship of the child with * * * any other person who may significantly affect the child's best interests." Minn. Stat. § 518.17, subd. 1(a)(5) (1996). Because alcohol abuse by a person living with appellant may affect N.N.'s best interests, the district court properly considered this in its analysis.


[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.