This opinion will be unpublished and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
C3-98-545

In Re the Marriange of:

Eugene Dykhuis, petitioner,
Appellant,

vs.

Margaret Steward,
Respondent.

Filed September 15, 1998
Affirmed
Crippen, Judge

Olmsted County District Court
File No. F6823415

Lawrence D. Downing, Kerry A. Truax, Suite 330 Norwest Center, 21 First Avenue S.W., Rochester, MN 55902 (for appellant)

Susan L. Lorimor, Legal Assistance of Olmsted County, 1812 Second Street S.W., Rochester, MN 55902 (for respondent)

Considered and decided by Harten, Presiding Judge, Crippen, Judge, and Davies, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

Appellant Eugene Dykhuis seeks review of the trial court's post-judgment order placing with respondent Margaret Steward the sole physical custody of the couple's child. Asserting primarily that the court wrongly adopted the child's preference, appellant also argues that the court erred in finding that he consented to the child's integration into respondent's home. Finding no error in the custody decision or other decisions challenged by appellant, we affirm.

FACTS

When the parties divorced in 1983, the court reserved judgment on permanent custody of their two-year-old child, J.L. Temporary custody was placed with her mother, respondent Steward. Six years later, when respondent was ordered to participate in drug abuse treatment, the parties stipulated that the child would be in appellant's custody, where she stayed for another six years. During the summer of 1995, J.L. ran away from appellant's home twice. In September 1995, after threatening to commit suicide if she was forced to return to appellant's home, J.L., age 14, moved in with respondent, where she has remained for three years. In April 1996, the parties stipulated that an evidentiary hearing should be conducted to determine permanent custody of their daughter, and this determination finally occurred in February 1998. J.L. is now age 17.

Finding that J.L. was integrated into respondent's family, that her mental health was endangered in appellant's home, that the harm likely to be caused by a change in environment was outweighed by the advantage of the change, and that J.L. clearly preferred living with respondent, the trial court placed physical custody of J.L. with respondent.

D E C I S I O N

In reviewing custody determinations, this court "is limited to whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law." Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993) (citations omitted). See Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn. 1990) (as to application of the law, recognizing independent review of questions purely of law, but calling for careful review of the trial court's explanation of its conclusions on either mixed questions of law and fact or decisions on ultimate facts). A court may modify custody upon finding (1) a change in circumstances has occurred; (2) a modification is necessary to serve the child's best interests; and (3) either both parties agreed to the change, the opposing party consented to the child's integration into the family of the petitioner, or the present situation endangers the child's health, and the advantages of a change outweigh the harm it would likely do to the child. Minn. Stat. 518.18(d) (1996).

1. Custody

Endangerment. Appellant asserts that the trial court erred by relying solely on J.L.'s stated preference for living with respondent and wrongly diminishing the importance of continuity of care. The choice of the child is a relevant consideration in determining whether the child's health or emotional development is endangered. Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997) (noting relevancy of a child's preference in three of four modification factors).1 And the preference of an older teenager is an "overwhelming consideration." Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991).

In this case, the trial court was confronted with an older teenager's threats of suicide and running away, her express desire to live with respondent, and appellant's unsubstantiated assertions that J.L.'s preference resulted wholly from respondent's manipulation and the prospect of avoiding the responsibilities that appellant imposed. Under these circumstances, we are satisfied that the trial court was compelled to yield to a 17-year-old's stated preference for living with her mother. And the court did not abuse its discretion in giving diminished weight to the claim that the child's choice was manipulated. Cf. Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 691 (Minn. App. 1989) (recognizing diminished significance of child's preference, at least for younger children, if the court is convinced stated preference is result of manipulation by noncustodial parent) (citation omitted), review denied (Minn. June 21, 1989). Finally, the trial court could not disregard the long period of temporary custody of the child that began in 1995; the resolve of a court to continue a previous care experience is diminished if the child-care arrangement is altered by protracted litigation over custody. See Sefkow v. Sefkow, 427 N.W.2d 203, 211-12 (Minn. 1988).

Balance of Harms. Without denying some problems in his own child care arrangement, appellant, an over-the-road truck driver who is seldom home, asserts that there is a greater potential for harm in respondent's home. Because his assertion is largely premised on respondent's past chemical abuse, it is not compelling evidence of her current ability to care for J.L. See In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980) (evidence of unfitness must address conditions at the time of hearing). The trial court did not abuse its discretion in determining that the choice of the child was a more significant factor.

Integration. Contending that he never agreed to J.L.'s integration into respondent's home, appellant states that respondent "took" J.L. following a fight he had with respondent. But there is no evidence in the record that respondent took J.L. against her will or coerced J.L. into moving in with her. See Gibson v. Gibson, 471 N.W.2d 384, 386 (Minn. App. 1991) (remarking that if a child has been integrated into another family, consent normally exists in the absence of "kidnapping, fraud, or coercion"), review denied (Minn. Aug. 12, 1991). Along with the fact that J.L. has been in respondent's home since September 1995, during which time appellant has maintained only limited contact with J.L., we conclude that the trial court did not err in finding that J.L. is now integrated into respondent's family with appellant's consent. See, e.g., Westphal v. Westphal, 457 N.W.2d 226, 229 (Minn. App. 1990) (child living in mother's home for two years was undisputed evidence of integration).

2. Child Support

Appellant argues that the trial court disregarded payments he made in determining that he owed arrearages. But the court specifically provided for a reduced award for the 11 months of November 1996 through September 1997, appropriately reflecting the calculation of payments made during those months. Appellant also maintains the trial court erred in refusing to address the issue of respondent's arrearages. Noting that nothing prevents appellant from being heard or bringing an appropriate motion on this topic, we find no error since no evidence of respondent's arrearages was submitted during the court proceeding.

3. Ex Parte Order

Because a final decision has been made rendering the temporary order of no current significance, appellant cannot succeed on a claim that the trial court erred in transferring custody of J.L. to respondent by ex parte order. Rigwald v. Rigwald, 423 N.W.2d 701, 705 (Minn. App. 1988) (referring to "unappealable temporary relief orders"); Minn. R. Civ. App. P. 103.03 (setting forth orders that are appealable).

4. Due Process

Appellant, contending that his right to be heard depended upon his enjoyment of the services of a lawyer, claims that he was denied due process because his attorney was not present at the beginning of the hearing. Although the trial court learned 25 minutes earlier that appellant's attorney was attending another hearing, the court convened the hearing as scheduled at 10:00 a.m., one-and-a-half hours before appellant's attorney arrived. Appellant's assertion has no merit: he had a hearing, his counsel was present for a portion of the hearing, he was given the opportunity to submit testimony and documentary evidence, and he responded affirmatively when asked if he was willing to proceed without his attorney. See Hunt v. Regents of Univ. of Minn., 460 N.W.2d 28, 33 (Minn. 1990) (stating general rule that error without prejudice does not require reversal).

Affirmed.

1. Appellant cites Englund v. Englund, 352 N.W.2d 800, 803 (Minn. App. 1984) as authority for disregarding the choice of a 16 year-old child. It is not evident in Englund (a) that the child's choice, which would also have separated his custody from that of his 17 year-old brother, was strongly held or (b) that the child lived with his mother, with whom he allegedly preferred to reside, when the motion proceedings occurred. And in the Englund opinion, this court found no occasion either to explore the statutory treatment of the best-interests standard or to discuss the nature and effect of child-choice evidence.