This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Joyce Ann Preston, petitioner,



Dale William Preston,


Filed July 29, 1998


Schumacher, Judge

Hennepin County District Court

File No. DC219612

Corrine D. Lynch, One Paramount Plaza, Suite 260, 7801 East Bush Lake Road, Bloomington, MN 55439-3109 (for appellant)

Dale William Preston, 14218 Towers Lane, Eden Prairie, MN 55347 (pro se respondent)

Considered and decided by Schumacher, Presiding Judge, Short, Judge, and Norton, Judge.*

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



Appellant Joyce Ann Preston (mother) contends that trial court abused its discretion when it awarded joint physical custody of the parties' two children and ordered her to sell or mortgage the family homestead to pay respondent Dale William Preston (father) a property settlement. We affirm.


Mother and father were married in September 1982 and separated in June 1996. They have two children: J.P., born January 27, 1985, and C.P., born February 10, 1989.

While the dissolution action was pending, the court issued an order for protection (OFP) for mother, based on several incidents that had arisen between the parties, often in the presence of their children. Trial was then delayed to allow the county to conduct a custody evaluation. In the meantime, the trial court noted the parties' problems with communication and interaction and issued a temporary order granting sole physical custody to mother and joint legal custody. The custody evaluation recommended sole legal and physical custody to mother.

After a two-day trial, the trial court evaluated the statutory factors and ordered joint physical custody and sole legal custody to mother. The court awarded the marital homestead to mother with a lien of $42,600 to father. Because the court found that father needed his share of the marital homestead immediately in order to establish his own stable household for the children, the court ordered mother to satisfy the lien or place the homestead on the market by August 1, 1998.

Mother brought a motion to amend the judgment and decree and for amended findings on the issues of custody and homestead. The court denied the motion. Mother appeals.


1. Mother contends the trial court improperly denied her posttrial motion for "Amended Judgement and Decree." The trial court held that mother did not request an actual amendment of findings, but rather sought reconsideration of its decision. See Lewis v. Lewis, 572 N.W.2d 313, 315 (Minn. App. 1997) (motion for amended findings that "does no more than reargue a prior motion is really a motion to `reconsider'"), review denied (Minn. Feb. 19, 1998). But see Minn. R. Gen. Pract. 115.11 (effective January 1, 1998, rule allows motions to reconsider under certain circumstances). The court also noted that mother had not moved for a new trial nor had she moved to reopen the judgment and decree.

Among other issues raised in her motion, mother informed the court that, since the court issued the judgment and decree, father had left his girlfriend's residence and was living with his parents. Mother's motion may have been for reconsideration in light of the fact that stability of the home was a factor in determining custody and father's living situation was a new development. See Minn. R. Gen. Pract. 115.11 1997 advisory comm. cmt. (motion to reconsider may be appropriate when intervening legal developments have occurred, but will not be allowed to expand record to include facts that had been available during prior motion). We need not reach to decide that issue, however, because we have construed mother's motion and supporting affidavit as for amended findings. She directed the trial court to several claimed defects in the findings, explained why they were defective, and explained why the court should have adopted the proposed new findings. See Lewis, 572 N.W.2d at 315-16 (explaining purpose and form of motion for amended findings). Therefore, we may address those issues on appeal. Minn. R. Civ. App. P. 104.04, subd. 2; Bougie v. Bougie, 494 N.W.2d 485, 487 (Minn. App. 1993) (timely motion for amended findings in marital dissolution case extends time to seek review of appealable judgment).

2. Mother challenges the joint physical custody determination. The ultimate consideration in determining custody is the best interests of the children. Pikula v. Pikula, 374 N.W.2d 705, 711 (Minn. 1985). In order to determine the best interests of the children, the court must consider the statutory factors set forth in Minn. Stat. § 518.17, subd. 1 (1996). The court must make detailed findings that explain how these factors led to the conclusion that the custody determination would serve the children's best interests. Id.

Although joint legal custody is generally presumed to be in the children's best interests, joint physical custody is generally not favored. Wopata v. Wopata, 498 N.W.2d 478, 482 (Minn. App. 1993). Indeed, joint physical custody is appropriate only in exceptional cases because of the inherent divisiveness involved. Brauer v. Brauer, 384 N.W.2d 595, 598 (Minn. App. 1986) (holding joint physical custody is not mandated by law, but may be appropriate in rare case when evidence supports it).

Furthermore, when domestic abuse has occurred between the parents, the statute creates a rebuttable presumption that joint legal or physical custody is not in the best interests of the children. Minn. Stat. § 518.17, subd. 2. If the court grants joint legal or physical custody over either party's objection, the court must make specific findings on the additional factors in subdivision two and explain how these factors led to the court's determination that joint custody would serve the children's best interests. Id. Our review of a custody determination is limited to whether the trial court abused its discretion by improperly applying the law or making findings that have no basis in the evidence. Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993). We must examine the evidence in the record in a light most favorable to the trial court's findings. Id. at 521.

The custody evaluator recommended sole legal custody to mother because the parties were unable to communicate and cooperate about rearing their children. The trial court followed this recommendation. With regard to physical custody, however, the trial court rejected the custody evaluator's recommendations because the evaluator gave no rationale for its recommendation. The trial court did not abuse its discretion because it explained its reasons for rejecting the custody evaluation and conducted its own analysis of the facts to determine the children's best interests. See Roehrdanz v. Roehrdanz, 410 N.W.2d 359, 362 (Minn. App. 1987) (trial court acted within its discretion when it rejected recommendation of custody study but explained rationale in findings), review denied (Minn. Oct. 28, 1987).

The trial court made detailed findings on each of the factors in Minn. Stat. § 518.17, subd. 1. These findings reflect the children's connection to and love for both parents and their extended families and their desire to maintain those relationships. Evidence in the record supports these findings.

The court also made findings on each of the factors in Minn. Stat. § 518.17, subd. 2. The findings reflect the court's consideration of the ultimate best interests of the children in this difficult situation. The court balanced the parties' strengths and weaknesses to arrive at a custody arrangement that would allow the children equal time with both parents, because the court found that spending equal time would serve the children's best interests. See In re Welfare of A.D., 535 N.W.2d 643, 648 (Minn. 1995) (trial court's opportunity to assess witness credibility is superior to that of appellate court and is crucial to determination of children's best interests).

The trial court made the requisite findings under Minn. Stat. § 518.17, subds. 1 and 2. Nothing in the trial court's decision rises to the level of an abuse of discretion. Although we may have decided this case differently, we may not substitute our judgment for that of the trial court when reviewing custody determinations. Lenz v. Lenz, 430 N.W.2d 168, 169 (Minn. 1988) (reversing court of appeals' custody decision because record adequately supported trial court's findings); see also McCabe v. McCabe, 430 N.W.2d 870, 873 (Minn. App. 1988) (appellate court defers to trial court's ability to evaluate the witnesses' credibility and evidence), review denied (Minn. Dec. 30, 1988). Simply because the evidence also would have supported different findings does not mean the trial court's findings constitute an abuse of discretion. McCabe, 430 N.W.2d at 873. 3. Mother contends the trial court abused its discretion when it ordered her to satisfy the lien or place the marital homestead on the market by August 1, 1998. We defer to the trial court's broad discretion in dividing property and will only overturn that decision if it has no acceptable basis in fact. Rohling v. Rohling, 379 N.W.2d 519, 522 (Minn. 1986). The court must consider the division of property in light of all the facts of a given case. Yackel v. Yackel, 366 N.W.2d 382, 384 (Minn. App. 1985). When evidence supports the trial court's decision, we must affirm even though we may have come to a different conclusion. Rohling, 379 N.W.2d at 522.

In reaching its decision here, the trial court factored in father's financial need for the lien proceeds to establish a household for the children, mother's equity in the unencumbered marital homestead, and the children's need for a home with each of the parents. Under these circumstances, we conclude that the trial court did not abuse its discretion in requiring mother to satisfy the lien or place the house on the market by August 1, 1998.