may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Paula Anne Schroeder,
n/k/a Paula Ann Berge, petitioner,
Gary George Schroeder,
Filed July 21, 1998
Affirmed as modified
Otter Tail County District Court
File No. F3961060
Nathalie S. Rabuse, Jody Ollyver DeSmidt, Walling & Berg, P.A., 121 South Eighth Street, Suite 1550, Minneapolis, MN 55402 (for appellant)
Paul Thorwaldsen, Thorwaldsen, Guam, Beeson, Malmstrom & Sorum, 1105 Highway 10 East, P.O. Box 1559, Detroit Lakes, MN 57502-1599 (for respondent)
William P. Kain, Schmidt & Lund, Daniel Building, 11 North Seventh Street, St. Cloud, MN 56303 (guardian ad litem)
Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Foley, Judge.*
*Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 10.
Paula A. Schroeder, now known as Paula A. Berge, appeals the district court's postdecree order awarding sole physical custody of the parties' children to respondent Gary G. Schroeder. Appellant also challenges the district court's refusal to amend the visitation schedule. Because the record supports the district court's findings on the best interests factors, we affirm the physical custody award. We also affirm the visitation schedule, but we modify the provision of the decree pertaining to telephone visitation.
During the marriage, both parties and Jay Berge were employed at the Fergus Falls Regional Treatment Center. On December 15, 1995, Jay Berge's then wife informed respondent that appellant and Jay Berge were having an affair. That same day, appellant left Fergus Falls with Jay Berge without prior notice to respondent or the parties' children. Appellant stated she left because she feared for her life and safety, indicating that respondent had to be physically restrained by his coworkers after he learned of the affair. At the modification hearing, respondent's coworker testified that respondent indicated he was "out to get" Jay Berge, but stated that respondent did not threaten appellant. The coworker testified that respondent did not have to be restrained and was not violent.
Appellant returned to Fergus Falls at the end of December 1995 and stayed with the children for approximately one week. Appellant then moved to the Twin Cities area with Jay Berge. Appellant and Jay Berge obtained employment in St. Paul and at the time of the modification hearing were living in Woodbury with their son, J.S.B.
Appellant visited the children in Fergus Falls approximately every other weekend until June 1996, when the children moved to appellant's residence for the summer. The parties' original dissolution decree was entered in June 1996, pursuant to their stipulation. The decree awards the parties joint legal and physical custody of the children. The decree provides that during the school year, S.G.S. will live with respondent during the week and with appellant every weekend, and that physical custody of H.A.S. shall be alternated on a weekly basis. The decree states that during the summer, physical custody of both children shall be with appellant during the week and with respondent during the weekends.
The decree further provides:
It is the parties' intent to review this schedule for the 1996-97 school year. Either party may seek review of the custody arrangement to review the custody award, and the Court may determine custody as if on an initial decision without applying the standard for modification in Minnesota Statutes Section 518.18.
During the summer of 1996, the children visited respondent on only two weekends, and on two other occasions respondent met the children for lunch. Over appellant's objections, the children returned to respondent's home at the end of the summer to begin school in Fergus Falls.
After the children returned to Fergus Falls, visitation disputes arose. Appellant testified that respondent denied her access to the children on some weekends and refused to assist with transportation. Respondent denied interfering with appellant's visitation, stating that visitation did not occur on some weekends because of the children's involvement in other activities and due to severe weather that winter.
In November 1996, appellant filed a motion to modify custody but then dismissed it in January 1997. Appellant testified that she dismissed the motion because respondent told her that if she dropped the motion, he would let her have the children. Respondent denied making any such promise. Appellant filed her current motion for an award of sole physical custody in April 1997.
Witnesses at the evidentiary hearing included the parties, Jay Berge, respondent's fiancée, and the children's day care providers in Fergus Falls and Woodbury. Respondent also presented the testimony of Dr. R. P. Ascano, a psychologist with a doctorate in clinical psychology, who performed a parental capacity evaluation of both parties and a collateral evaluation of Jay Berge. Dr. Ascano also evaluated the children. The record also includes psychological evaluations of respondent and his fiancée by psychologist C. L. Moore.
The guardian ad litem submitted his report after the evidentiary hearing. He recommended awarding physical custody to appellant on the grounds that the children's relationship with appellant is more intimate and that appellant is more likely than respondent to encourage and permit the children's contacts with the other parent.
The district court awarded sole physical custody to respondent and determined appellant's visitation schedule. Because the hearing judge retired, a successor judge heard appellant's posthearing motion. The successor judge denied the motion, noting that the hearing judge had the opportunity to assess the credibility of all the witnesses and that the court's detailed findings were not clearly wrong.
Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993). Because the dissolution decree incorporated the parties' written stipulation that the standard for modification under Minn. Stat. § 518.18 would not be applied to future motions to review the custody arrangement, the district court properly based its decision on the "best interests" factors specified in Minn. Stat. § 518.17, subd. 1(a) (Supp. 1997).
Appellant argues that the district court abused its discretion in failing to address the guardian ad litem's report and recommendation. Where the district court has conducted a thorough best interests analysis on the record, it does not abuse its discretion when it awards custody contrary to the recommendation of the custody report without explaining its rationale for rejecting the recommendation. Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991). Appellant contends that Rutanen is distinguishable because the custody recommendation in this case was made by the guardian ad litem. The guardian is an attorney and there was no showing that he has any special expertise in custody matters. Rutanen applies because a guardian's recommendation is not entitled to more deference than the recommendation of a professional custody evaluator.
Appellant concedes that the district court made detailed findings on the best interests factors. Appellant argues, however, that many of the court's critical findings are contrary to the record.
Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the [district] court to judge the credibility of the witnesses.
Minn. R. Civ. P. 52.01. "Clearly erroneous means `manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.'" Novack v. Northwest Airlines, Inc., 525 N.W.2d 592, 597 (Minn. App. 1995) (quoting Northern States Power Co. v. Lyon Food Prods., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975)). The appellate court must examine the evidence in the light most favorable to the district court's findings. Ayers, 508 N.W.2d at 521.
District courts "stand in a superior position to appellate courts in assessing the credibility of witnesses." In re Welfare of M.D.O., 462 N.W.2d 370, 374-75 (Minn. 1990). The district court's superior ability to assess witness credibility is "particularly true" where the court's
opportunity to observe the parent and other witnesses who are called to testify is so crucial to an accurate evaluation of what is best for the child.
In re Welfare of A.D., 535 N.W.2d 643, 648 (Minn. 1995).
In this case, the district court stated that it
observed the manner and appearance of the parties throughout the proceedings in the nature of looks, scowls, smiles, actions, and reactions and judged the credibility of each party accordingly.
Appellant cites ten examples of respondent's alleged conflicting or false testimony that she argues raise serious doubts as to respondent's credibility. Appellant's examples and a review of the record are summarized as follows.
First, appellant claims respondent gave conflicting testimony as to whether he or appellant prepared the family meals. Our review of the record indicates that respondent essentially testified that appellant usually prepared the meals and respondent cleaned up afterwards, but that respondent fed the children and cared for them during the evening on those occasions when appellant came home from work in a depressed and tired state and immediately went to bed. Construed in the light most favorable to the district court's findings, respondent's testimony is not conflicting.
Second, appellant claims that respondent falsely told Drs. Moore and Ascano that there was no history of chemical dependency in his family of origin. Respondent testified that a sister was treated for chemical dependency approximately 12 years ago, that he was unaware until the evidentiary hearing that one brother had a problem with alcohol approximately seven years ago, and that it might be true that another brother had been treated for chemical dependency. Given the remoteness of respondent's siblings' alleged chemical dependency problems, the record does not compel the conclusion that respondent intended to mislead the evaluators. There is no showing that respondent has a chemical dependency problem himself.
Third, appellant claims that respondent's testimony was conflicting regarding whether he had some discussion with appellant pertaining to child support. Our review of the record indicates that respondent essentially testified that he was uncertain or could not recall discussing child support with appellant. Respondent's testimony on this point does not compel the conclusion that respondent lacks credibility.
Fourth, appellant claims respondent falsely reported to Dr. Ascano that respondent has an associate of arts degree. But Dr. Ascano's testimony indicates that the misstatement in his written report resulted from Dr. Ascano's error and not from a misrepresentation by respondent.
Fifth, appellant claims respondent falsely told Drs. Ascano and Moore that respondent was forced into marrying his first wife because she was pregnant. But the record does not contradict respondent's testimony that he and his first wife married because she claimed that she was pregnant.
Sixth, appellant states that respondent and the children's day care provider in Fergus Falls gave conflicting testimony about what respondent told her concerning the access schedule under the original decree. But the record does not compel a conclusion that the discrepancy in the testimony on this point results from a deliberate misrepresentation by either respondent or the day care provider.
Seventh, appellant claims that respondent's May 16, 1997, affidavit falsely characterizes respondent's reaction to an ear infection suffered by appellant in June 1990. In the affidavit, respondent denies appellant's allegation in her affidavit that he became extremely violent and upset because appellant could not care for S.G.S. during the illness. Respondent also states in the affidavit that he was not sure whether appellant really had an ear infection because so many times when appellant became depressed she would just say that she was sick. Appellant's physician's later verification that appellant was suffering from an ear infection is not inconsistent with respondent's initial belief that appellant was suffering from depression.
Eighth, appellant argues respondent gave conflicting testimony about disciplining his three children from his first marriage. Our review of the record indicates that respondent simply clarified his testimony regarding events that occurred years ago in accordance with the testimony given by one of respondent's adult children.
Ninth, appellant argues that respondent has made disingenuous claims about the dangers of the round trip between Fergus Falls and Woodbury as an excuse to keep the children away from appellant. Respondent testified he believes that the trip between Fergus Falls and Woodbury is dangerous because of the traffic on the interstate, indicating that on two occasions while transporting the children, the rear tire of a semi ahead of respondent's vehicle blew out. Respondent's concerns about traffic on the interstate do not demonstrate that he is not credible or that he would seek any excuse to prevent the children from seeing appellant.
Tenth, appellant contends that respondent lied when he testified that until the spring of 1997, appellant did not ask for H.A.S. to spend alternating weeks with her, as provided by the access schedule in the original decree. Appellant contends this statement is clearly a lie because respondent was aware of appellant's November 1996 motion to change custody.
Appellant's November 1996 motion seeks sole legal and physical custody of the children, but it does not specifically request enforcement of the provision of the decree alternating H.A.S.'s residence between the parties on a weekly basis. It was not until the April 1997 motion that appellant sought compensatory visitation and enforcement of the weekly transfer of H.A.S. between the parties. Respondent's knowledge of the November 1996 modification motion does not demonstrate that respondent testified falsely on the issue of when appellant requested access to H.A.S. on alternating weeks.
In summary, appellant's claims of false or conflicting testimony by respondent generally pertain to peripheral matters remote in time, or to matters susceptible of more than one interpretation. In view of the deference afforded to the district court in assessing the credibility of witnesses, appellant has not established that the district court erred in refusing to discredit respondent's testimony.
The district court is required to consider 13 factors in determining the children's best interests. Minn. Stat. § 518.17, subd. 1(a). Appellant does not dispute the district court's findings that the factors of the wishes of the parents as to custody and the children's cultural background do not favor either party. See Minn. Stat. § 518.17, subd. 1(a)(1), (11) (parents' wishes and children's cultural background). Appellant disputes the district court's findings on the other 11 factors, arguing that they are not supported by the record.
The district court is to consider "the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference." Minn. Stat. § 518.17, subd. 1(a)(2). Appellant does not dispute the district court's finding that H.A.S. was too young to express a preference. Regarding S.G.S., the district court found that this factor favors respondent slightly. The district court indicated it would give no weight to the conflicting testimony of lay witnesses regarding S.G.S.'s expressed preference. The district court found that the testimony of Dr. Ascano illustrates S.G.S.'s preference to live with respondent.
Appellant argues that the district court's finding is contrary to the record because Ascano testified that S.G.S. does not have an emotional preference for either parent. Ascano did testify, however, that S.G.S. has shown a consistent emotional preference in terms of environment in favor of Fergus Falls. A child's statement of geographical preference may also imply a custodial preference. Maxfield v. Maxfield, 452 N.W.2d 219, 223 (Minn. 1990). Based on Dr. Ascano's testimony regarding S.G.S.'s consistent express preference to live in Fergus Falls, the district court did not abuse its discretion in resolving this factor in respondent's favor.
The district court weighed the "primary caretaker" factor in favor of respondent. See Minn. Stat. § 518.17, subd. 1(a)(3) (primary caretaker). The district court did not err in focusing on the period between the parties' separation and the modification hearing in determining the primary caretaker. See Sefkow v. Sefkow, 427 N.W.2d 203, 211-12 (Minn. 1988) (when there is a lengthy period of time between date of parties' separation and date of custody hearing, intervening events are crucial in determining child's best interests). The record supports the district court's finding that respondent is the primary caretaker because respondent served as sole caretaker of the children from December 15, 1995, to mid-May 1996, and the children have resided with respondent for approximately two-thirds of the time since May 1996.
The district court found that the children have demonstrated intimate relationships with both parties. See Minn. Stat. § 518.17, subd. 1(a)(4) (intimacy of relationship between each parent and the child). Appellant challenges the district court's finding that the children's relationship with respondent appears to be "slightly better" than their relationship with appellant, based on the many outdoor activities S.G.S. enjoys with respondent and H.A.S.'s demonstrations of affection toward respondent. Dr. Ascano testified that the testing of S.G.S. showed a small margin in favor of respondent with respect to which parent S.G.S. perceived as more nurturing.
We cannot say that the district court's finding on the intimacy factor is clearly erroneous. Because the district court found that there was only a slight difference, it does not appear that this factor substantially influenced the custody award.
The district court is required to consider "the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child's best interests." Minn. Stat. § 518.17, subd. 1(a)(5). The district court found that this factor favors respondent because the children's positive relationships with their half-brother, J.S.B., do not outweigh the many benefits of contacts with the children's extended family in the Fergus Falls area. The district court's finding is supported by the testimony of respondent, who stated that he and the children attend family gatherings at respondent's mother's home near Fergus Falls, and that respondent has also taken the children to visit appellant's family members in the Fergus Falls area.
There are three factors pertaining to the parties' respective abilities to provide continuity and stability for the children. These factors are "the child's adjustment to home, school, and community"; "the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity"; and "the permanence, as a family unit, of the existing or proposed custodial home." Minn. Stat. § 518.17, subd. 1(a)(6), (7), (8). The district court found that both parties are capable of providing a satisfactory environment in which to raise the children. The district court found that the continuity factors favor respondent because the children have lived in Fergus Falls for nearly all their lives, S.G.S. has attended school in Fergus Falls and has been active in boy scouts, and the children are members of and regularly attend a church in Fergus Falls.
Appellant argues the district court erred in relying on the stability of the children's home in Fergus Falls because respondent sold the home after the evidentiary hearing. Respondent testified at the hearing that he might move into the country because H.A.S. has indicated she would like a pony. Respondent stated that such a move would not change the school that S.G.S. attends. The continuity factors still favor respondent because there is no showing that respondent has moved away from the Fergus Falls area.
We agree with appellant that the district court's reliance on the respective number of marriages for the parties and appellant's brief period of unemployment after leaving Fergus Falls was misplaced. Appellant also challenges the district court's finding that her home is likely to be less permanent than respondent's home, based on Dr. Ascano's testimony that appellant's marriage to Jay Berge may fail because both appellant and Jay Berge have narcissistic personalities.
Although there was no evidence of marital discord between appellant and Jay Berge, the district court's finding that their relationship is more likely to be disrupted is supported by Dr. Ascano's testimony and was not contradicted by other expert testimony. Overall, the district court's findings that the continuity and stability factors favor respondent are affirmed, based on the length of time the children have lived in Fergus Falls and the desirability of maintaining continuity with their school and community.
The district court is required to consider the mental and physical health of all individuals involved, except that a disability shall not be determinative of the custody of the child unless the proposed custodial arrangement is not in the best interests of the child. Minn. Stat. § 518.17, subd. 1(a)(9). The district court weighed this factor in favor of respondent, based on Dr. Ascano's testimony that appellant has a narcissistic personality. Appellant argues that Dr. Ascano also found that she has superior parenting skills and that there is no indication that the character traits ascribed to her would affect her ability to parent.
Dr. Ascano testified that appellant has basic personality characteristics that may be described as someone who is egocentric, self-centered, and driven primarily by her needs and anxieties. These traits could affect appellant's ability to parent in situations where appellant's needs conflict with the needs of the children.
The district court found that both parties have equal capacity and disposition to give the children love, affection, and guidance, but that this factor favors respondent because he has maintained an active role in the education and religious involvement of the children. See Minn. Stat. § 518.17, subd. 1(a)(10) (love, affection, guidance, culture, and religion). The trial court's finding is supported by respondent's testimony and is not clearly erroneous.
The district court is required to consider the effect on the children "of the actions of an abuser, if related to domestic abuse, as defined in section 518B.01, that has occurred between the parents." Minn. Stat. § 518.17, subd. 1(a)(12). The district court resolved this factor in favor of neither party, finding that there had been no abuse, as defined by Minn. Stat. § 518B.01, established by either party that would in any way affect either child. Appellant argues that the district court's finding is erroneous because of evidence that respondent was abusive to both his first wife and appellant.
Respondent's first wife testified that respondent did not physically abuse her during the marriage, and she indicated that she was the aggressor in subsequent incidents of physical contact and that both parties were at fault. Moreover, there is no showing that respondent's conduct toward his first wife had any effect on S.G.S. and H.A.S. Further, although appellant claimed that respondent physically abused her, the district court did not credit the testimony. The guardian ad litem also did not consider the effect on the children of domestic abuse, because there was no substantiation for appellant's claims of abuse. The record supports the district court's finding on this factor.
"[E]xcept in cases in which a finding of domestic abuse as defined in section 518B.01 has been made," the district court must consider "the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child." Minn. Stat. § 518.17, subd. 1(a)(13). The district court found that each party is disposed to encourage and permit frequent and continuous contact by the other party. Appellant vigorously disputes the district court's finding on this factor, arguing that the district court erred as a matter of law in awarding custody to respondent where the record shows that respondent interfered with appellant's visitation.
At the modification hearing, appellant testified that the custody arrangement in the original decree was basically a temporary arrangement. The decree states that it is the parties' intent to review the schedule for the 1996-1997 school year, but the decree does not indicate how the review will be accomplished. Moreover, the decree does not specify how the children are to be transported between the parties' homes. Beginning in the fall of 1996, disputes arose between the parties regarding visitation and respondent's alleged failure to assist appellant with transportation.
At a May 21, 1997, hearing, the district court directed the parties to comply with the access schedule set forth in the decree and determined how the children would be transported. There was no showing that respondent failed to comply with the access schedule or the transportation arrangements following the May 21, 1997, hearing. The record supports the district court's findings that when there is a clear visitation order and the court has directed the manner in which the party should act, the parties are able to effectively implement visitation ordered by the court. The transcripts of taped telephone conversations between the parties provided by appellant do not demonstrate that there have been significant visitation disputes since the visitation schedule was clarified at the May 21, 1997, hearing.
Although the guardian ad litem found that appellant is more likely to encourage contacts with the other parent than respondent, the guardian ad litem did not indicate any concern that respondent would not comply with court-ordered visitation. Even if the district court should have found that appellant is more disposed to encourage the children's contact with the other parent, such an error would not warrant reversal, in view of the other factors favoring an award of custody to respondent. See Minn. R. Civ. P. 61 (court must disregard any error or defect which does not affect substantial rights of the parties).
In summary, the district court was required to choose between two competent, loving parents, both of whom have strengths and weaknesses. In view of respondent's role as the primary caretaker since the parties' separation, his greater involvement with the children's education and religion, the children's adjustment to the Fergus Falls community and their contacts with extended family members in that area, and appellant's narcissistic personality, we cannot say that the district court abused its broad discretion in awarding sole physical custody of the children to respondent.
The district court awarded appellant visitation the first and third weekends of every month during the school year. The district court stated that the children shall remain with respondent from June 1 to July 15 during the summer months and that appellant would be awarded visitation from July 16 to August 31. The district court also awarded appellant visitation on alternating holidays from 10:00 a.m. until 7:00 p.m. Appellant challenges the visitation schedule, arguing that she should be awarded visitation every other weekend during the school year and additional summer visitation. Appellant contends that meaningful visitation is impossible on holidays from 10:00 a.m. to 7:00 p.m. because of the distance between the parties' homes, and that the visitation schedule does not include the Martin Luther King, Jr., holiday or the Minnesota Education Association weekend.
The district court is in a far better position than this court to establish a visitation schedule. Id. We cannot say that the visitation ordered amounts to an abuse of the district court's broad discretion.
Appellant also challenges the telephone visitation schedule. The district court directed that appellant shall have reasonable telephone visitation with the children, and ordered respondent to provide appellant with the general outline of the children's schedule and at least one time during the week when the children are likely to be at home and able to talk with appellant. The court directed appellant to bear the entire cost of this visitation.
The district court's August 25, 1997, order also provides that the children shall be allowed to call "respondent" on their own initiative at any reasonable time, and directed appellant to provide the children with a calling card so that she will bear the cost of this visitation. Appellant argues the children should be able to call her whenever they wish, indicating that she is willing to bear the burden of paying for the children's calls.
Because the telephone visitation schedule pertains to appellant's visitation, it appears that the provision indicating that the children shall be allowed to call "respondent" at their own initiative at any reasonable time is a clerical error. We affirm the visitation ordered by the district court, except that the provision regarding telephone visitation is modified to provide that the children shall be allowed to call appellant on their own initiative at any reasonable time, and that appellant shall provide the children with a calling card number so that she will bear the cost of this visitation.
Affirmed as modified.