Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Richard Carlton Kelsey, petitioner,
Sandra Kay Kelsey,
Filed March 10, 1998
Watonwan County District Court
File No. FX9140
Ruth M. Harvey, Chesley, Kroon, Chambers, Ingman & Harvey, 310 Belle Ave., P. O. Box 327, Mankato, MN 56002-0327 (for appellant)
Michael P. Kircher, Sunde, Olson, Kircher and Zender, 108 Armstrong Blvd. S., P. O. Box 506, St. James, MN 56081-0506 (for respondent)
Considered and decided by Huspeni, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.
Appellant challenges the modification of physical custody of the parties' three children. Because we see no abuse of discretion, we affirm.
During their marriage, appellant Sandra Tatro, f.k.a. Sandra Kelsey, and respondent Richard Kelsey had three children, two boys, D.K. born in 1983 and M.K. born in 1986, and a girl, E.K., born in 1988. The children were raised in Madelia, attended Catholic church and, when old enough, parochial school. About the time E.K. was born, appellant experienced bipolar psychological disorders for which she received intermittent treatment and medication. This led to the parties separating for some months, which the children spent with respondent.
The marriage was dissolved in 1992. Although the custody evaluation recommended that respondent have physical custody during the school year and appellant have it during the summer, the court granted physical custody to appellant. She said she intended to remain in Madelia, keep the children in the same school, and continue to raise them as Catholics. A few months later, however, appellant moved the children to St. Peter, enrolled them in public school, and twice changed their church affiliation to other denominations. Appellant did not inform respondent of the changes in school or church.
Prior to the dissolution, appellant began a relationship with Alfredo Espinoza, with whom she had a child, K.E., in 1994. Espinoza, convicted of selling cocaine, is in prison, where appellant took the children to visit him several times. These visits disturbed the older children. Appellant also became associated with Jose Salazar, then 18, who has been convicted of criminal sexual conduct with a 14-year-old. In violation of a court order of which she was aware, appellant (taking the children with her) drove the victim to meet with Salazar.
During K.E.'s infancy, appellant kept her older son, D.K., then 11, home from school to care for K.E. and his siblings, then aged 9 and 6. D.K. was kept out of school 11 days during the 1994-95 school year and 11 days during the 1995-96 school year to care for one or more of the other children.
In St. Peter, the children lived first in an apartment, then in a fourplex from which they were evicted because, while the children were left unattended, a toilet overflowed and damaged the building, and because appellant failed to keep the apartment clean. They then moved to the home of appellant's counselor for some months, during which the children spent three weeks with respondent while appellant went to Texas to visit Espinoza, then stayed in a motel for a week, and finally moved into a Habitat for Humanity home.
Although all three children did well in school, M.K. suffered from encopresis (inability to control the bowel). When the children were with appellant, the relationship between D.K. and M.K. was antagonistic. The parties agreed that M.K. would spend the 1996-97 school year with respondent. However, in October 1996, appellant decided not to return M.K. after visitation. Respondent involved the court to have M.K. returned. While staying with respondent, M.K. began seeing a therapist, became significantly happier, and his encopresis ceased to be a problem.
Respondent moved for a modification of custody for all three children. Among the witnesses at the hearing were the parties, a court-appointed psychologist (who had conducted an evaluation and custody study), and the children's guardian ad litem. Two previously unnoticed witnesses, counselors of appellant, testified only in rebuttal.
The psychologist provided a lengthy written report in which she found that appellant had a peer relationship rather than a parent relationship with D.K., that D.K. was concerned about appellant and wanted to remain in her custody because of his school and his friends, that E.K. also wanted to remain in appellant's custody because of school and friends, that M.K. wanted to remain with respondent, and that both D.K.'s and M.K.'s evaluations revealed areas of concern to which respondent was sensitive. The psychologist expressed concern that D.K. and E.K. may have been pressured. The psychologist found that appellant had been the primary caretaker; that D.K. and E.K. have intimate relationships with both parents, but M.K. has an intimate relationship only with respondent; that all three children are attached to respondent's extended family; that all three do well in school; that respondent has the more permanent home situation; that appellant is focused on her own emotional needs and prevented by this from seeing the impact of her behavior on the children; that appellant has been unwilling to maintain a therapeutic relationship; that while both parents could provide love and affection, respondent could better provide guidance and stability; and that appellant has prevented respondent from having access to the children.
The psychologist noted in regard to Minn. Stat. § 518.18 (1996), that appellant had agreed to a modification when M.K. went to live with respondent, that M.K. became integrated into respondent's family, and that appellant reneged her consent without regard for the fact that M.K. has improved since being with respondent and without perceiving the effect of her acts on M.K. The psychologist described all three children as anxious and fearful, and recommended that M.K. remain with respondent and that D.K. and E.K. reside with him during the school year, noting that the negative effects of changing schools will be more than compensated by the more stable environment respondent provides.
The district court adopted the psychologist's recommendations, basing its decision on testimony and on her report.
1. Custody modification
An appellate court will not reverse a custody determination unless 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). A trial court's findings will be sustained unless they are clearly erroneous. Id.
The trial court concluded that modification of custody is necessary to serve the best interests of the parties' children after making findings on the 13 factors set out in Minn. Stat. § 518.17 (1996). Appellant challenges the findings as biased and claims the court found that all factors favored respondent and ignored points in appellant's favor. Actually, of the 13 factors, the court found two irrelevant, four favoring neither party, and seven favoring respondent. All of the findings of the trial court are supported by evidence in the record.
2. Interpretation of Minn. Stat. § 518.18(d)
The construction of a statute is clearly a question of law and thus fully reviewable by an appellate court. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985).
Appellant contends that the court misapplied Minn. Stat. § 518.18(d)(iii) (1996) by considering not the children's "present environment," but the past environment. In particular, appellant argues that while it "may have been inappropriate for appellant to leave a baby in [D.K.'s] charge when he was nine or ten," now that he is fourteen it is acceptable to leave a twelve-year-old, a nine-year-old, and a four-year-old in his care. We find little merit in appellant's characterization of the findings. The trial court's observations regarding appellant's impulsiveness and instability, M.K.'s improvement since moving from appellant's to respondent's home, appellant's unwillingness to allow respondent reasonable and predictable visitation, and appellant's tendency to relate to all the children, especially D.K., as a peer rather than a parent, clearly address the present environment. The trial court did not focus solely on past events and conditions.
3. The court's reliance on the psychologist's report and testimony
A trial judge is given wide latitude in determining whether there is sufficient foundation upon which an expert may state an opinion. Even if this court would have reached a different conclusion as to the sufficiency of the foundation, the decision of the trial judge will not be reversed absent clear abuse of discretion.
Benson v. Northern Gopher Enters., 455 N.W.2d 446 (Minn. 1990) (citation omitted). Appellant claims the psychologist never laid adequate foundation for her opinions because in her report she uses the term "appears" instead of "states with a reasonable degree of certainty," e.g., the "children appear to be anxious and fearful" rather than "the children are anxious and fearful," and appellant's skills "appear to be particularly well suited to more unstructured [i.e., non-school] time with the children" rather than "they are more suited to unstructured time." We see no merit in appellant's argument on this issue. The psychologist used unequivocal language in her testimony.
Further, the psychologist testified that she has been doing custody evaluations for 16 years; she conducted 12 interviews of the parties and the children, she reviewed 43 documents, and she spoke with 11 people other than the parties and the children. The trial court did not abuse its wide discretion in holding that there was adequate foundation for the testimony and report of the psychologist.
4. The findings in the original dissolution action
Appellant objects to the fact that the trial court and the psychologist did not adopt the findings of the court in the dissolution action, particularly the finding that appellant was not then suffering from mental illness. The psychologist testified, however, that she did not accept the continuing validity of the 1992 finding. The psychologist's findings were based on her extensive professional evaluation of appellant; she had no basis for disregarding the results of her own investigation in favor of what the court found in 1992. There was no abuse of discretion in the court's reliance on the psychologist's findings and recommendations.
5. Restriction of the testimony of two of appellant's witnesses
Appellant was asked before trial to identify any expert witnesses she planned to call. She identified neither the social worker who had worked with her and the children nor the counselor who had provided a home for her and the children after their eviction. The psychologist indicates in her report, presented two months before trial, and in her testimony, that she relied in part on information received from these individuals. After the psychologist had testified, appellant's counsel asked to have the social worker and counselor testify. The court permitted them to testify only in rebuttal of what the psychologist had said, not as independent professionals who had worked with appellant. Appellant alleges that the trial court abused its discretion in so limiting this testimony. We disagree.
"When a party seeks to introduce expert testimony not previously noticed, determination of the appropriate remedy is within the trial court's discretion." Rediske v. Minnesota Valley Breeder's Ass'n, 374 N.W.2d 745, 750 (Minn. App. 1985). Rediske affirmed a trial court's refusal to hear previously unnoticed expert testimony rather than grant a continuance to the party objecting to the testimony. Id. at 751. Here, appellant had already been granted two continuances. As in Rediske, the trial court here acted within its discretion.
 The report was based on extensive interviews and testing of the parties, interviews of the children, and observations of the children's interactions with both parents.
 The guardian ad litem's report echoed the psychologist's findings as to the greater stability provided by respondent, D.K.'s assumption of a parenting role, and the negative impact of this on his relationship with M.K. The guardian ad litem also noted that M.K., when interviewed at appellant's home in June 1997, expressed a preference for staying with her.
 The psychologist identified seven causes of the children's fearfulness: (1) being left in D.K.'s care frequently and for extended periods; (2) being exposed to appellant's relationships with men; (3) being exposed to individuals whose criminal activities conflicted with the children's religious upbringing; (4) appellant's involvement of the children in her arguments with respondent; (5) appellant's own unresolved emotional needs, rebellious acting out, and pleasure seeking; (6) appellant's emotional reliance on D.K.; and (7) the ongoing conflict between the parties.
 Among the trial court's findings: appellant, as the primary parent, has unduly involved D.K. in caring for and being responsible for the other children and has established a peer relationship rather than a parent-child relationship with him; that respondent has good relationships with all three children and is more sensitive to and aware of their needs; that all three children have strong relationships with respondent's extended family and have been uncomfortable with the men with whom appellant has had relationships since the dissolution; that respondent will provide a more stable environment; that appellant does not acknowledge her mental health problems or their effect on her children; that respondent has parent-child relationships with the children while appellant is "more of a friend or peer * * *"; that respondent is more reliable in attending the children's activities and makes time to care for them in illness or emergency; and that there was "substantial evidence that [appellant] has interfered with, shortened, and denied visitation between [respondent] and the children." Finally, the court found that respondent and his witnesses were more credible than appellant and her witnesses.
 This section provides that: [T]he court shall retain the custody arrangement established by the prior 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 advantage of a change to the child.
 Respondent argues that because appellant did not object to the alleged lack of foundation for the psychologist's report and testimony during trial, she waived her right to do so now. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding that this court may not consider what was not presented to or considered by the trial court). However, because it is at least arguable that appellant raised the issue of foundation in her written final argument, we will address it.
 Her testimony included the following: "[Appellant] does not have insight that she has any problems at all"; "[Appellant] continues to engage in behavior that causes her difficulty in her life"; "[Appellant] lacks any awareness of the critical issues involved in parenting in terms of offering kids guidance and helping them appropriately resolve these dilemmas." On this record, the recurrence of "seems" and "appears" is a question of style rather than of substance.