This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




In re the Marriage of:

Jesse Allen Nordby, petitioner,



Debra Jean Nordby,


Filed January 26, 1999


Kalitowski, Judge

Swift County District Court

File No. F796283

Ronald R. Frauenshuh, Jr., 129 N.W. Second Street, Ortonville, MN 56278 (for appellant)

John H. Burns, Western Minnesota Legal Services, 620 Litchfield Avenue SW, Suite 101, P.O. Box 1866, Willmar, MN 56201-1866 (for respondent)

Considered and decided by Anderson, Presiding Judge, Kalitowski, Judge, and Shumaker, Judge.



In this dissolution action appellant Jesse Allen Nordby challenges the district court's decision to award sole physical custody of the parties' minor child to respondent Debra Nordby. Appellant contends the court erred by: (1) allowing evidence of conduct that occurred after the temporary hearing; (2) allowing evidence of domestic abuse that had no effect on the child; and (3) making findings unsupported by the evidence. We affirm.


A trial court has broad discretion to resolve custody issues. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). There must be a clearly erroneous conclusion that is against logic and the facts on record before this court will find that the trial court abused that discretion. Id. Whether to admit evidence also rests within the broad discretion of the trial court, and an evidentiary ruling

will not be disturbed unless it is based on an erroneous view of the law or constitutes an abuse of discretion. Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party's ability to demonstrate prejudicial error.

Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990) (citation omitted).


The focal point in any custody decision is the best interests of the child. Schumm v. Schumm, 510 N.W.2d 13, 14 (Minn. App. 1993). The primary caretaker determination is an important factor in determining the best interests of the child. See Pikula v. Pikula, 374 N.W.2d 705, 714 (Minn. 1985) (custody should be awarded to the primary caretaker absent a strong showing of unfitness); Minn. Stat. § 518.17, subd. 1(a)(3) (1997). Generally, in an initial custody determination, the primary caretaker is determined as of the time of the separation of the parties. Sefkow v. Sefkow, 427 N.W.2d 203, 211 (Minn. 1988). When there is a lengthy period of time between the date of the parties' separation and the date of the custody hearing, however, the intervening events are not only relevant, but crucial in determining the child's best interests. Sefkow, 427 N.W.2d at 212.

On the other hand, this court has stated that

the parent with temporary physical custody prior to trial is not allowed to "build a case" by arguing that "I must be the primary parent as I had sole physical custody of the children the last few months."

Maxfield v. Maxfield, 439 N.W.2d 411, 415 (Minn. App. 1989), aff'd, 452 N.W.2d 219 (Minn. 1990). Appellant contends that under Maxfield, the district court should not have allowed evidence of respondent's behavior after the date of the parties' temporary hearing because doing so allowed respondent to "build a case" for custody. We disagree.

The supreme court, when it affirmed Maxfield, relied on several findings of fact based on postseparation events. See Maxfield v. Maxfield, 452 N.W.2d 219 (Minn. 1990). Moreover, this court has twice permitted the trial court to examine events that occurred after legal proceedings had commenced. See Holmberg v. Holmberg, 529 N.W.2d 456, 458 (Minn. App. 1995) (considering the husband's and wife's activities since dissolution in determining the primary caretaker); Schumm, 510 N.W.2d at 14-16 (examining information on the mother's current mental health and the father's recent change in employment).

Further, cases limiting consideration of postseparation evidence relate specifically to a determination of the primary caretaker, and not to other postseparation evidence relevant to a custody determination. To determine the best interests of a child, it is appropriate that the court get as complete a picture as possible of the living situations of each parent. We conclude the district court did not abuse its discretion in allowing evidence of postseparation conduct.


In determining the best interests of the child, the court must consider

the effect on the child of the actions of an abuser, if related to domestic abuse, as defined in section 518B.01, that has occurred between the parents * * *.

Minn. Stat. § 518.17, subd. 1(a)(12) (1997). The statute goes on to say, "[t]he court shall not consider conduct of a proposed custodian that does not affect the custodian's relationship to the child." Minn. Stat. § 518.17, subd. 1(b) (1997). Here, appellant contends the district court erred by allowing evidence of domestic abuse, because the incident did not affect the child. We disagree.

During the parties' marriage, there was one incident of domestic abuse. Respondent testified that the child was crying and fearful during the incident. In its findings of fact, the district court stated that appellant's actions frightened both respondent and the child. In deciding to allow the evidence, the court concluded that the incident "tends to make it more probable that the child's emotional and physical well-being are threatened by the [appellant]."

Because at the time of the incident of abuse the child here was only one and a half years old, we cannot know with certainty whether the relationship between the child and his father was affected by the abuse. Appellant, however, cites no authority excluding evidence of abuse for this reason. Because we cannot say the district court erred in determining that the evidence of domestic abuse was relevant in determining the best interests of the child, we conclude the district court did not abuse its discretion by allowing the evidence of domestic abuse.


District courts "stand in a superior position to appellate courts in assessing the credibility of witnesses * * *." In re Welfare of M.D.O., 462 N.W.2d 370, 374-75 (Minn. 1990). This is particularly true in cases like the present one where

the trial court's opportunity to observe the parent and other witnesses who are called to testify is so crucial to an accurate evaluation of what is best for the child.

In re Welfare of A.D., 535 N.W.2d 643, 648 (Minn. 1995). The court looks at many factors in determining the best interests of the child. See Minn. Stat. § 518.17, subd. 1(a). Appellant contends the court erred in determining that many of those factors either favored respondent or favored neither party, and concludes the evidence does not support the district court's findings of fact and conclusions of law regarding the best interests of the child. We disagree.

It is undisputed that for the first 19 months of the child's life, appellant worked outside the home and respondent stayed home to care for the child. Witnesses testified that: (1) respondent was more intimate with the child than was appellant; (2) the child has a good relationship and is comfortable with both respondent's and appellant's extended family and significant others; (3) the child is more at ease returning to respondent's care in times of transition than to appellant's care; and (4) respondent has not consumed alcohol in the presence of the child nor cared for the child while intoxicated. Although appellant contests the testimony, the district court was in the best position to evaluate the credibility of the witnesses. Because the facts and testimony support the district court's findings, and the court did not abuse its discretion in determining the best interests of the child, we conclude the court did not err in awarding respondent sole physical custody.