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:
Debra A. Rheaume, petitioner,
Craig A. Rheaume,
Filed September 1, 1998
Sherburne County District Court
File No. F29601166
Patti J. Jensen, Lindquist, Jeffrey & Jensen, 306 American Federal Building, 124 Demers Avenue NW, East Grand Forks, MN 56721 (for respondent)
Considered and decided by Amundson, Presiding Judge, Willis, Judge, and Holtan, Judge.
Appellant Debra A. Rheaume challenges the district court's findings that: (1) appellant committed acts of domestic abuse during the parties' marriage when it had already made a finding of no abuse in its temporary order; (2) the evidence weighed in favor of awarding physical custody to respondent; (3) appellant's child support obligation included her overtime wages; and (4) respondent was entitled to an award of attorney fees. We affirm.
"Res judicata bars a second suit for the same claim by parties or their privies." Riverbluff Dev. Co. v. Insurance Co. of N. Am., 412 N.W.2d 792, 795 (Minn. App. 1987). The function of res judicata is "to prevent repetitious litigation." Walden Bros. Lumber, Inc. v. Wiggin, 408 N.W.2d 675, 677 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987). In Minnesota, this doctrine encompasses two related legal concepts: claim preclusion (merger or bar) and issue preclusion (collateral estoppel). Id. Claim preclusion bars a "subsequent action or suit" when predicated on the same cause of action already determined by a prior judgment. Hauser v. Mealey, 263 N.W.2d 803, 806 (Minn. 1978). Issue preclusion applies to "separate actions" that involve different claims, but identical parties and issues. Wiggin, 408 N.W.2d at 677. "Res judicata and collateral estoppel can only be applied where there has been a previous adjudication, that is, a judgment in a prior suit." Id.
The function of a temporary order for relief is to preserve the status quo until an opportunity is afforded to decide the matter upon the merits. Korf v. Korf, 553 N.W.2d 706, 709 (Minn. App. 1996). The Minnesota Supreme Court has recognized that an award of temporary alimony and expenses, allowed by a trial court in a pending divorce action, were meant only as a "stopgap" to allow the spouse to survive and carry on the suit until there could be a "final determination of the action on the merits." Johnson v. Johnson, 256 Minn. 33, 38, 97 N.W.2d 279, 283 (1959). Therefore, the court concluded that because such an allowance was not "a final adjudication of the rights of the parties" it was not res judicata, barring the court from further jurisdiction over such matters. Id. Indeed, the statute governing temporary orders dictates that such an order "[s]hall not prejudice the rights of the parties or the child which are to be adjudicated at subsequent hearings in the proceeding." Minn. Stat. § 518.131, subd. 9(a) (1996).
Appellant cites the case of Rigwald v. Rigwald, 423 N.W.2d 701 (Minn. App. 1988), to support her argument that the district court's temporary order was final and appealable because of its reference to the domestic abuse act. Although this court in Rigwald recognized the appealable nature of orders made in domestic abuse proceedings, it also recognized that temporary relief orders in dissolution cases are not appealable. 423 N.W.2d at 705. Further, this court stated in Rigwald that even if appealable, domestic abuse orders that involve custody "do not preclude a custody decision in dissolution or separation proceedings * * *." Id. at 705. Additionally, this court has noted that a temporary order will not "limit a court's ability to fashion a final dissolution order." In re J.M.K., 507 N.W.2d 459, 461 (Minn. App. 1993).
Finally, although appellant argues that both the guardian ad litem and the custody study personnel relied on this finding of "no abuse" as conclusive and did not further address the abuse issue, it is evident from the court's temporary order that it intended to give this issue further consideration. In its order, the district court stated:
Given the allegations of both parties, the facts of this case do warrant the appointment of a guardian ad litem and also a custody study.
This language indicates that the district court anticipated more discusssion with respect to the abuse allegations. The district court properly determined that the doctrine of res judicata did not bar it from revisiting the domestic abuse allegations at the dissolution hearing.
Appellant contends that the evidence does not support the district court's findings with respect to its custody determination. In its findings, the district court addressed each of the factors set forth in Minn. Stat. § 518.17 (1996). In her argument, appellant singles out five of the section 518.17 factors that she alleges were improperly assessed by the district court. Appellant challenges the district court's findings with respect to the following: (1) the reasonable preference of the child; (2) the child's primary caretaker; (3) the stability of the home and the desirability of maintaining continuity; (4) the mental and physical health of the involved individuals; and (5) the effect on the child of the actions of an abuser, if related to domestic abuse.
Appellant first argues that the district court improperly chose to ignore the children's preference. The decision of whether to interview a child to establish his or her preference is within the discretion of the district court. Uhl v. Uhl, 395 N.W.2d 106, 110 (Minn. App. 1986); Madgett v. Madgett, 360 N.W.2d 411, 413 (Minn. App. 1985). At the time of the dissolution hearing, the children were seven and four years old. The court found that neither child was old enough to express a preference. Given the ages of the children, appellant has not shown that the district court abused its discretion in this decision.
In applying a best interests analysis, we recognize much must be left to the discretion of the trial court. Some statutory criteria will weigh more in one case and less in another and there is rarely an easy answer.
Maxfield v. Maxfield, 452 N.W.2d 219, 223 (Minn. 1990).
Second, appellant challenges the district court's finding with respect to the "primary caretaker" factor. The district court ultimately resolved this factor in favor of respondent. The court did note, however, that prior to the parties' separation, the role of primary caretaker was shared by respondent and appellant, with appellant assuming this role while respondent, an airline pilot, was away on flights, but that respondent assumed the primary caretaker role when he was at home. The evidence in the record supports this finding, indicating that both parents took an active role in parenting responsibilities during the parties' marriage.
The court also found that after the parties' separation, respondent became the boys' primary caretaker. It is this finding, or rather the weight the district court afforded this finding, that appellant disputes. Appellant argues that the court should have limited its primary caretaker analysis to the time prior to the separation. She contends that a consideration of the timeframe following the separation is unfair because the court, in its temporary order for relief, allowed respondent to move five hours away, making it impossible for her to continue participating in daily parenting responsibilities.
Generally, in an initial custody determination, the primary caretaker is to be determined as of the separation of the parties. Sefkow v. Sefkow, 427 N.W.2d 203, 211 (Minn. 1988). Where, however, there has been a lengthy time between the date of the parties' separation and the custody hearing, the intervening events are not only relevant, but are crucial in determining the child's best interest. Id. at 212.
In this case, the custody hearing was more than ten months after the parties' separation. This time period was long enough for the two children to establish a new routine with their father in Grand Forks, with the older child attending first grade, although cut short by the 1997 flood, and the younger child attending an area preschool program. Respondent was also the boys' primary caretaker during the summer months of 1996. Based on the record, the district court's finding that respondent is the children's primary caretaker is not clearly erroneous.
Appellant next challenges the district court's findings with respect to the stability of respondent's home. With respect to this factor, the court determined that, although the children had adjusted to their home in St. Cloud, they also had adjusted to their routine, home, and community in Grand Forks. Appellant, however, contends that she can provide the children with a more stable home life because her work schedule allows her to be home evenings and most weekends. Therefore, although appellant would require daycare for the children during the weekdays, she generally does not require childcare in the evenings or over the weekends, unlike respondent, who must hire a nanny to stay overnight with the children while he is away on flights. Appellant alleges the court did not give appropriate consideration to the greater regularity of her work hours relative to respondent's work hours.
The record indicates that the court weighed all of these considerations, as well as others, such as the children's close relationship with their paternal grandmother, who lives near Grand Forks. Both parents work outside the home and would require childcare for the children while at work. Further, the district court noted that although the children would have most evenings with appellant, they also have lengthy periods at home with respondent between his flights. It was for the district court to weigh all of these factors, along with ascertaining the credibility of the witnesses. This court will not engage in any second-guessing of the district court's findings, unless it is obvious that they had no rational basis. The district court had a rational basis for finding that respondent provided the boys with a stable home situation.
Appellant also disputes the district court's findings with respect to the mental and physical health of both herself and respondent. Appellant argues that the district court placed too much emphasis on her various psychological reports and too little emphasis on her concerns about respondent's alcohol consumption. It is apparent that the court weighed both concerns, devoting seven pages to these issues in its findings. Based on the record, it does not appear that the court abused its discretion it making its assessment of these concerns and how they factored into the children's best interests.
Finally, appellant argues that the district court improperly weighed the domestic abuse factor, placing too much emphasis on her own actions and too little emphasis on respondent's disciplinary methods. Based on the substantial evidence in the record on this issue, however, the district court's finding that appellant had committed acts of domestic abuse was not clearly erroneous. In light of all the evidence in the record, we cannot say that the district court's custody decision was clearly erroneous.
For purposes of child support calculations, "net income" does not include
Compensation received by a party for employment in excess of a 40-hour work week, provided that:
(i) support is nonetheless ordered in an amount at least equal to the guidelines amount based on income not excluded under this clause; and
(ii) the party demonstrates, and the court finds, that:
(A) the excess employment began after the filing of the petition for dissolution;
(B) the excess employment reflects an increase in the work schedule or hours worked over that of the two years immediately preceding the filing of the petition;
(C) the excess employment is voluntary and not a condition of employment;
(D) the excess employment is in the nature of additional, part-time or overtime employment compensable by the hour or fraction of an hour; and
(E) the party's compensation structure has not been changed for the purpose of affecting a support or maintenance obligation.
Minn. Stat. § 518.551, subd. 5(b)(2) (1996). The record is devoid of evidence that would allow this court to reach a determination regarding whether appellant's overtime was voluntary. The district court was faced with a similar absence of facts from which to make a determination when considering appellant's motion for amended findings. The district court properly denied appellant's request for a reduction in her child support obligation.
*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 Appellant's job as a registered nurse requires occasional weekend hours.
 Respondent has made a general request for appellate attorney fees in his brief. Absent a formal motion before the court, we will not consider an award of appellate attorney fees in this matter.