This opinion will be unpublished and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
C6-98-510

In Re: David J. Schultz,
Appellant,

vs.

Jacqueline A. Schultz,
Respondent.

Filed October 20, 1998
Affirmed
Willis, Judge

Hennepin County District Court
File No. 31020

Terri A. Melcher, Larson & Melcher Law Offices, 6401 University Avenue N.E., Suite 201, Fridley, MN 55432 (for appellant)

Pamela L. Green, 2738 Winnetka Avenue North, New Hope, MN 55427 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant challenges the district court's denial of his motion for custody of his daughter, K.S., and his motion to vacate the decree awarding custody to respondent. We affirm.

FACTS

Appellant David J. Schultz (father) lived with respondent Jacqueline A. Schultz (mother) for approximately six years before marrying her in 1989. Mother at that time had three daughters, whose father had died in an accident: C.M., who is now 17 years old; J.R.M., now age 16; and J.M., now age 13. The parties dissolved their marriage in 1990 but attempted a reconciliation in 1993, after learning that they had conceived a daughter, K.S., who is now four years old and the subject of this appeal.

The parties separated permanently in 1994. Father petitioned for a declaration of paternity, and both parties sought custody of K.S. The parties were granted joint legal custody, and mother was granted temporary sole physical custody.

After an evidentiary hearing in April and June 1996, the district court granted permanent physical custody of K.S. to mother, finding in an order dated August 1, 1996, that (1) K.S. has a close relationship with her three half-sisters; (2) although mother had a history of alcohol abuse and "unchecked chemical dependency could negatively affect the children in the future," there was no evidence that mother's drinking had endangered K.S., especially in view of mother's having functioned effectively in a detail-oriented data entry job and "successfully raised four children as a single parent"; and (3) that psychologists who had testified had "well founded" concerns about father's attempts to "bully and manipulate" mother. Mother testified at the hearing that alcohol continued to be a challenge for her but that she was not currently drinking. The court concluded that mother

shall participate in an aggressive chemical dependency aftercare program including random UA's, verified AA attendance and verified participation in psychotherapy in order to remain sober. The random UA's shall be initiated and carried out by Court Services. [Mother] shall provide proof of participation in these program[s] to the Court with copies of documentation to [father] on a quarter annual basis. In the event that [mother] is unable to comply with these provisions, this shall constitute grounds for modification of the following Order.

In the fall of 1996, both C.M. and J.R.M. entered residential chemical dependency treatment programs. Both also ran away from mother's home several times during fall 1996 and winter 1997, and C.M. attempted suicide. In April 1997, J.R.M. asked father if she could live with him; C.M. followed after leaving the boyfriend with whom she had been living, and father filed a petition for custody of both his stepdaughters.

In May 1997, father again moved for custody of K.S. In an affidavit, Jeff Eye, who had been mother's boyfriend from fall 1995 to August 1996, averred that mother regularly drank to intoxication during the period when K.S.'s custody was being litigated and "was quite proud of herself that she was managing to drink and indicate to the Court that she was sober at the same time." C.M. and J.R.M. both submitted affidavits stating that mother regularly drank and kept alcohol available when the girls were home from treatment on weekend passes, and mother arrived drunk to transport the girls home from Alcoholics Anonymous meetings. C.M. stated that mother instructed the girls not to answer the phone when caller ID indicated that Hennepin County was calling to arrange urinalysis. Another witness submitted an affidavit indicating that mother purchased a case of beer in spring 1997. At the consolidated evidentiary hearing on both of father's petitions, C.M. did not testify, on the recommendation of her psychologist, but J.R.M. and Eye testified consistently, other than minor clarifications, with their affidavits.

On cross-examination, mother admitted that she had lied to the court about her sobriety at the time of the 1996 custody hearing. She also admitted that between August 1996 and September 1997, she participated in no chemical dependency treatment and attended only two AA meetings, for which she had produced no verification. Mother admitted C.M. and J.R.M.'s allegation that she regularly drank three to five beers after returning from work and before going to bed at 8:00 or 8:30 p.m., but mother claimed she was not intoxicated by this level of alcohol consumption.

Steven Johnson, a certified chemical dependency professional assigned to family court services, testified that he does not keep documentation of when he is unable to reach a client to arrange urinalysis, making it impossible to prove C.M.'s charge that mother avoided calls from Hennepin County. Both Johnson and Dr. Frederick Weisz, C.M.'s and J.R.M.'s psychologist, testified that a parent's alcoholism places a child at risk of neglect and lack of supervision and also increases the risk that the child will later abuse alcohol; Johnson stated that in his opinion a parent who regularly consumed alcohol was not able to care properly for a four-year-old. Both Johnson and Weisz admitted on cross-examination that it was not certain that K.S. would develop problems as a result of mother's drinking, and neither Johnson nor Weisz had ever had direct contact with K.S.

Mother presented testimony from her supervisor at work that she had maintained an exemplary employment record and from K.S.'s daycare teacher that K.S. always appeared to be physically healthy, mentally well-adjusted, and well-cared-for. In fall of 1997, mother again entered chemical dependency treatment and arranged for urinalyses every other day from mid-August to mid-November. All of the tests were negative.

The district court found that father had established a substantial change in circumstances because (1) the "integrated family unit" of K.S. and her sisters no longer existed and (2) mother had failed to follow the requirements imposed by the previous court. The court specifically credited Eye's testimony that mother had lied to the court about her sobriety in 1996 and also credited much of J.R.M.'s testimony, concluding that mother is a "poor role model" who does not recognize the serious nature of her own problem and does not attach sufficient importance to her daughters' recovery. The court stated that it had considered "reopening the whole matter" on its own motion because of mother's fraud on the court but chose not to do so. The court made no findings on whether mother had driven after drinking or left the girls unsupervised for significant lengths of time. The court also credited the testimony of mother's employer and of K.S.'s daycare teacher. The court found Weisz's testimony to be speculative and concluded that:

This Court has the distinct impression that [father] would be a better parent for [K.S.], especially when it comes to role modeling and attending to [K.S.'s] emotional well being. However, this Court finds itself in the position of addressing a modification of custody, not making an initial custodial decision. The legislature has spoken and before this Court can upset the current scenario, it must first find that [K.S.'s] present environment is a danger to her, and the Court can find no evidence of current danger. The Court fears for [K.S.] if [mother] does not change her behavior and she does not turn out to be one of the more resilient children, but considering Dr. Weisz's inability to confirm with any degree of medical certainty that this Court's fears are well founded, the Court must very reluctantly conclude that [father] has not carried his burden of proving current endangerment.

Father then moved in January 1998 to vacate the custody decree on the ground of mother's 1996 fraud on the court, but the district court concluded that because father knew the factual basis for such a motion at the time that he moved to modify custody, his fraud claim was barred by res judicata. Father appeals the denial of his motions to modify custody and to vacate the judgment for fraud on the court; we affirm.

D E C I S I O N

I. Custody Modification

Modification of custody orders is governed by Minn. Stat.  518.18(d) (1996), which provides:

[T]he 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 a change to the child.

This court will reverse a custody determination only if the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law, and findings will be sustained unless clearly erroneous. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).

A. Failure to comply with conditions

Father argues that the district court erred in applying the standards of section 518.18(d)(iii) because the prior judge's custody order stated that mother's failure to comply with an aggressive treatment program "shall constitute grounds for modification of the following Order." Father argues that this statement is "the law of the case." But law of the case is a discretionary doctrine that applies where an appellate court has ruled on an issue and remanded; it is not normally applied by a trial court to its own prior decisions. Loo v. Loo, 520 N.W.2d 740, 744 n.1 (Minn. 1994).

Father is correct that the provision must be intended to have some effect. He contends, in essence, that the first court intended to bypass the requirements of section 518.18 and set a modification standard of its own. But this court has established that

[a]pplication of the standards outlined in Minn. Stat.  518.18 is not optional. The explicit language requiring consideration of specific factors is indicative of a legislative intent to impart a measure of stability to custody determinations.

Schaapveld v. Schaapveld, 398 N.W.2d 72, 74 (Minn. App. 1986) (citations and internal quotation omitted). If father's were the only possible interpretation, it would probably remain binding on the district court despite its impropriety. See Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370, 147 N.W.2d 100, 103 (1966) (stating that appealable order is final upon expiration of appeal deadline even if it is wrong). But other interpretations are possible.

Mother, and apparently the district court, reads the 1996 custody order as providing that her failure to complete treatment constitutes a substantial change in circumstances, the first of four elements required for a modification under section 518.18(d)(iii). Those elements are (1) a change in the circumstances of the child or custodian, (2) that a modification would serve the best interests of the child, (3) that the child's present environment endangers her physical or emotional health or emotional development, and (4) that the harm to the child likely to be caused by the change in custody is outweighed by the advantage of that change. Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992). Mother's interpretation is supported by the rule that a change in circumstances is measured against the last "judicially approved environment." Hassing v. Lancaster, 570 N.W.2d 701, 703 (Minn. App. 1997). Because the judicially approved environment in this case was placement with a sober mother who was undergoing chemical-dependency treatment, deviation from that expectation would qualify as a substantial change in circumstances.

The findings in the 1996 custody decree emphasize the court's lack of information about mother's drinking habits and any effect of those habits on her children; the court was plainly not convinced that mother's drinking alone was sufficient to support an award of custody to father. We conclude that the district court here did not err in determining that mother's failure to comply with the court order in itself satisfies only the element of changed circumstances. But we also note that mother was in fact sober and complying with the first court's order at the time that father's motion was denied; therefore, in the event of a future motion, mother's use of alcohol or failure to comply with the court's treatment order will continue to satisfy the element of changed circumstances. See id. (stating that change in circumstances is measured against last judicially approved environment).

B. Endangerment

Endangerment, as the term is used in section 518.18, requires a showing of a "'significant degree of danger'" to the child, but the "danger may be purely to emotional development." Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997) (quoting Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991)). This is a more stringent standard than the showing of a child's best interests required for an initial custody determination. Psyck v. Wojtysiak, 400 N.W.2d 409, 411 (Minn. App. 1987), review denied (Minn. Apr. 17, 1987). Mother argues that endangerment requires a showing of "actual adverse effects" on the child, quoting Dabill v. Dabill, 514 N.W.2d 590, 595-96 (Minn. App. 1994). But this court's holding in Dabill was that the evidence did not support a finding that interference with visitation established endangerment in view of both the lack of evidence of adverse effects and the fact that the interference apparently had ceased. Id. at 596. In other cases, this court has affirmed findings of endangerment in the absence of demonstrated adverse effects and based solely on a risk of future harm. See, e.g., Meier v. Connelly, 378 N.W.2d 812, 816 (Minn. App. 1985) (upholding finding of endangerment based on psychologist's testimony that father's persistent denial of visitation with mother of five year old "significantly increases" probability that child would have relationship problems as teenager and adult).

We therefore agree with father that the record in this case could have supported a finding of endangerment. But in close cases such as this, the district court's intimate knowledge of the case and ability to evaluate the credibility of witnesses become central considerations on appeal. See General v. General, 409 N.W.2d 511, 513 (Minn. App. 1987) (stating principle that judging witness credibility and weight accorded witness testimony are province of finder of fact). Here, the district court chose to grant greater weight to the testimony of K.S.'s daycare teacher, the disinterested witness who had the most contact with K.S., than to two expert witnesses who offered testimony about the general risks that an alcoholic parent presents to a child but could provide no firsthand information about this particular case. We cannot say that this decision was a clear abuse of discretion, and we therefore affirm the district court's conclusion that father failed to establish endangerment to a degree sufficient to require a modification of custody.

II. Fraud on the Court

The district court concluded that father's motion to vacate the custody order was barred by res judicata because father could have raised the issue at the time he moved to modify custody. The district court is correct that, as a general matter, res judicata prevents a party from relitigating issues that could have been raised in a prior proceeding. See Dorso Trailer Sales, Inc. v. American Body & Trailer, Inc., 482 N.W.2d 771, 773-74 (Minn. 1992). But res judicata is not rigidly applied; it may be rejected when its application would contravene an overriding public policy. AFSCME Council 96 v. Arrowhead Reg'l Corrections Bd., 356 N.W.2d 295, 299 (Minn. 1984) (quoting Tipler v. E.I. duPont deNemours & Co., 443 F.2d 125, 128 (6th Cir. 1971)). Case law establishes numerous exceptions to procedural rules in both child custody cases and cases involving fraud on the court. See, e.g., In re Welfare of C.R.B., 384 N.W.2d 576, 579 (Minn. App. 1986) (concluding that statutory time limits on motions to vacate judgments do not apply to motions to vacate for fraud on court), review denied (Minn. May 29, 1986); Johnson v. Johnson, 363 N.W.2d 355, 357 (Minn. App. 1985) (concluding that partial dissolution judgments that adjudicate child custody are appealable even without language directing immediate entry), review denied (Minn. May 6, 1985). The policy against procedural bars in child custody cases results from the paramount importance of the child's best interests in such cases, while the power to vacate a judgment for fraud on the court is a unique expression of the court's inherent powers. See Olson v. Olson, 534 N.W.2d 547, 549 (Minn. 1995) (stating primacy of best interests standard); Lindsey v. Lindsey, 388 N.W.2d 713, 716 (Minn. 1986) (explaining inherent power to vacate judgment for fraud on court).

But precisely because a court has the inherent discretion to vacate a judgment procured by fraud, the determination of whether to vacate a judgment for fraud on the court is reviewed only for an abuse of discretion. See Maranda v. Maranda, 449 N.W.2d 158, 164 (Minn. 1989) (applying abuse of discretion standard to decision to vacate stipulated judgment). Father moved to vacate the custody order only after the court stated that it had already considered the possibility of doing so on its own and had chosen not to do so. In deciding not to reopen the judgment either sua sponte or in response to father's subsequent motion, the district court apparently gave great weight to the fact that K.S. has resided with mother for her entire conscious life. See Geibe, 571 N.W.2d at 780 (stating that Minnesota law rests on presumption that stability of custody is in child's best interests). While we might have decided the issue differently, we cannot say that the district court abused its discretion in electing not to vacate the custody order.

Affirmed.