This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-98-75

Preston J. Crews,

Appellant,

vs.

Jacqueline McKenna,

n/k/a Jacqueline Kuchta,

Respondent.

Filed July 7, 1998

Affirmed

Holtan, Judge*

Hennepin County District Court

File No. PA 28202

John R. Hill, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Norwest Financial Center, 7900 Xerxes Avenue South, Bloomington, MN 55431-1194 (for appellant)

Matthew L. Fling, 5100 Eden Avenue, Suite 306, Edina, MN 55346 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Shumacher, Judge, and Holtan, Judge.

*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, 10.

U N P U B L I S H E D O P I N I O N

HOLTAN, Judge

Appellant challenges the district court's order modifying physical custody of the parties' children and challenges the district court's refusal to grant a new trial. We affirm.

FACTS

Appellant Preston Crews and respondent Jacqueline McKenna, n/k/a Jacqueline Kuchta, are the parents of B.C., born June 18, 1984, and S.C., born May 2, 1992. Crews and Kuchta lived together from 1989 to August 1993, but were never married. Kuchta moved to Michigan with the children in August 1993. Crews was adjudicated the father of both B.C. and S.C. on September 15, 1993, and Kuchta was given temporary sole physical custody.

After a custody evaluation, Hennepin County Court Services recommended awarding Kuchta sole physical custody, subject to possible visitation by Crews. Because Crews objected to this recommendation, the matter was continued for an evidentiary hearing. In August 1994, Crews filed a motion to have Kuchta found in contempt for her refusal to allow visitation. After a custody and visitation hearing, at which Kuchta did not appear, the district court granted Crews permanent physical custody in a November 22, 1994, order and reserved the contempt issue. The children could not be located, however, and were not actually placed in Crews's physical custody.

After the children and Kuchta were located in June 1995, Kuchta filed a motion to vacate the November 22, 1994, order. The court denied this motion, but ordered a custody and visitation study to determine if the children would be endangered by living with Crews. Kuchta was granted temporary physical custody on November 9, 1995. After an evidentiary hearing in September 1996, the court issued an order to amend the paternity judgment on December 5, 1996, and awarded the parties permanent joint physical custody. Crews moved to amend the December 5, 1996, order or for a new trial, and the district court denied these motions on March 3, 1997. Crews now appeals the resulting judgment.

D E C I S I O N

1. Custody

On review of a custody determination, an appellate court is limited to determining whether the district court abused its discretion. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). The district court findings may be rejected only if they are clearly erroneous. Id.

The court shall not modify a prior custody order unless it finds, upon the basis of facts, * * * that have arisen since the prior order or that were unknown to the court at the time of the prior order, that a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child. In applying these standards the court shall retain the custody arrangement established by the prior order unless:

* * *

(iii) 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 change to the child.

Minn. Stat. 518.18(d) (1996). "Present environment" refers "to the last judicially created environment." Hassing v. Lancaster, 570 N.W.2d 701, 703 (Minn. App. 1997).

Here, the district court awarded Crews permanent, sole physical custody on November 22, 1994. The district court modified this award on December 5, 1996, by granting the parties permanent, joint physical custody. Crews argues that the district court abused its discretion by modifying the November 22, 1994, order.

The district court found that the children's emotional health would be endangered and their emotional development would be impaired if they were placed in Crews's sole physical custody, "as the children continue to exhibit fear and anxiety in response to visiting with [Crews]." Crews insists that the district court's finding of endangerment contradicts the evidence in the record.

Susan DeVries, the court-appointed psychologist, observed B.C. three times individually, once with Kuchta and her husband, and four times with Crews between August and December 1995.[1] DeVries determined that B.C. was "extremely fearful" of visiting Crews because of a number of emotional, physical, and sexual abuse allegations. DeVries found that although there was no credibility to the sexual abuse claims and some of the physical abuse allegations, there was "a kernel of authenticity" to B.C's fears. DeVries noted that Crews acted in an intimidating and stressful manner. She further stated that, at the time of her evaluation, she believed living with Crews would hurt B.C.'s emotional well-being. Based on her observaitons of S.C.'s "demonstrated anxiety and panic about visitation," DeVries also concluded that S.C. would be endangered if placed in Crews's custody.

Dr. Thomas Vance, a psychologist retained by Crews, met with the children three times between June and July 1996. He observed that S.C. talked very little during the sessions and that B.C. was not fearful of Crews when Crews was in the room. Dr. Vance testified that he believed the children were comfortable in Crews's presence and that the children would be fine with Crews after an initial period of adjustment.

Crews insists that Kuchta influenced the children's behavior. Crews points to the district court's July 12, 1995, order granting Kuchta temporary physical custody, in which the court found the following:

That given [Kuchta's] previous actions as outlined in the Court file and her complete hostility against [Crews], it is not unexpected that the children would now be fearful of [Crews] since they have been under [Kuchta's] complete control for two years.

The guardian ad litem testified that purposefully keeping children from the other parent would create an image that the other parent "is less than favorable." Crews points out that Dr. Alsdurf, the court-appointed psychologist, indicated his concern about the recklessness of Kuchta's judgment and that DeVries noted some of B.C.'s behavior evidenced "parental alienation syndrome."

Crews notes that Dr. Alsdurf found, and the district court agreed, that there was nothing to indicate that Crews was not able "to interact with his children in a reasonable supportive and caring manner." Crews further notes that the district court determined that Kuchta's assertions that Crews physically and sexually abused the children were unsubstantiated. Dr. Vance determined that B.C. did not appear to have been abused, and DeVries, Roderick Franks (the custody evaluator), and the guardian all found the allegations were not credible.

Although the district court noted that the children have had more contact with Crews since DeVries's report and determined that there had been progress made towards reunifying the children with Crews, the court concluded that "it would endanger the children's emotional well-being and development to enforce the last custody order and return them to [Crews's] sole custody." The court also noted B.C.'s desire to live with Kuchta and determined the children would be emotionally harmed if they were separated.

The ultimate consideration in custody determinations is the best interests of the children. Berndt v. Berndt, 292 N.W.2d 1, 2 (Minn. 1980); see Minn. Stat. 518.17, subd. 1(a) (listing best interest factors). Crews makes no argument about whether or not modification was in the children's best interests. As Kuchta notes, however, the district court examined each factor and made extensive findings in determining the best interests of the children.

Joint physical custody is generally not a preferred form of custody. Wopata v. Wopata, 498 N.W.2d 478, 482 (Minn. App. 1993). This court has stated that "[a] grant of joint physical custody will only be appropriate in 'exceptional cases.'" Id. at 483 (quoting Brauer v. Brauer, 384 N.W.2d 595, 598 (Minn. App. 1986)).

When joint custody is sought or contemplated, the district court must consider the following factors in addition to the best interest factors:

(a) The ability of parents to cooperate in the rearing of their children;

(b) Methods for resolving disputes regarding any major decision concerning the life of the child, and the parents' willingness to use those methods;

(c) Whether it would be detrimental to the child if one parent were to have sole authority over the child's upbringing; and

(d) Whether domestic abuse * * * has occurred between the parents.

Minn. Stat. 518.17, subd. 2 (1996). Where the district court finds that the parents cannot cooperate, this court has refused to uphold joint physical custody awards. See Wopata, 498 N.W.2d at 483 (reversing and remanding joint custody award where evidence indicated parents could not cooperate).

Here, the district court made specific findings on the statutory factors in deciding whether joint physical custody would be appropriate, including a finding that the parties could not cooperate. The court also found that permitting one parent to have sole authority over the children's upbringing would be detrimental to the children. These findings are supported by the record. The court determined that a visitation expeditor would be necessary in this case to resolve visitation disputes and concluded that domestic abuse had not occurred between the parents.

The district court's finding that the parties cannot cooperate, combined with its finding that giving sole physical custody to one parent would be detrimental to the children, functionally required the district court to engage in a balancing test. On the unfortunate facts of this case, the district court was forced to balance the damage that these parents will do to their children if the children are put in the joint physical custody of parents who refuse to cooperate against the damage that these parents will do to their children if the children are put in the sole physical custody of one parent. Because both the finding that the parties refuse to cooperate and the finding that it would be detrimental for the children to be in the sole physical custody of one parent are supported on this record,[2] the district court was truly put in a position where it had to exercise its judgment and discretion. On this record, and in light of the district court's thorough findings, extensive analysis, and explicit recognition of the unique custodial circumstances of this case, we cannot say that the district court abused its discretion by ordering joint physical custody in an attempt to minimize the damage these parents will do to their own children.[3]

2. New Trial

Crews argues that the district court abused its discretion by refusing to grant his motion for a new trial after the court entered its December 5, 1996, order.[4] The December 5, 1996, order was made in a postdecree proceeding to determine whether, under Minn. Stat. 518.18, the original decree should be modified. A motion for a new trial in a postdecree modification proceeding under Minn. Stat. 518.18 "is not authorized," and the denial of such a motion is not appealable. Huso v. Huso, 465 N.W.2d 719, 721 (Minn. App. 1991).

Affirmed.

[1]The reports of DeVries, Dr. Alsdurf (the court-appointed psychologist), and Roderick Franks (the custody evaluator) are not in the file presented to this court. It is appellant's duty to ensure this court has a complete record. See Truesdale v. Friedman, 267 Minn. 402, 404, 127 N.W.2d 277, 279 (1964) (stating "the party seeking review has the duty to see that the appellate court is presented with a record which is sufficient to show the alleged errors"). Here, neither party disputes the contents of these reports and the authors of the reports testified before the district court. Therefore, the record is otherwise adequate to allow review of the district court's findings and our review shows those findings to be supported by the record. See Minn. R. Civ. P. 52.01 (district court findings not set aside unless clearly erroneous).

[2] Because the finding that putting the children in the sole physical custody of one parent would be detrimental to the children is supported by the record, it follows that implementing the judicially approved custodial arrangement to which the children are currently subject (i.e., sole physical custody in father) will endanger the children. See Minn. Stat. 518.18(d)(iii) (to modify custody, "present environment" must endanger children); Hassing, 570 N.W.2d at 703 ("present environment" in Minn. Stat. 518.18(d)(iii) refers to judicially approved custodial environment).

[3] The parties do not raise, and we do not address, the propriety of the legal custody award.

[4] Crews does not challenge the district court's denial of his motion for amended findings.