may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Donna Joy Selin,
f/k/a Donna Joy Rindahl, petitioner,
Dale Arthur Rindahl,
Filed March 30, 1999
Affirmed and Motion Granted
Chisago County District Court
File No. F1961189
Rita Clare Steinhagen, The Law Office of Rita Clare Steinhagen, P.O. Box 200, North Branch, MN 55056-0200 (for respondent)
Douglas G. Sauter, Douglas G. Sauter & Associates, P.A., 199 Coon Rapids Blvd., Suite 108, Coon Rapids, MN 55433 (for respondent)
John R. Schulz, Matthew A. Slaven, Collins, Buckley, Sauntry & Haugh, P.L.L.P., W-1100 First National Bank Bldg., St. Paul, MN 55101-1379 (for appellant)
Robert G. Rancourt, Rancourt Law Office, P.O. Box 759, Lindstrom, MN 55045-0759 (for appellant)
Considered and decided by Peterson, Presiding Judge, Davies, Judge, and Halbrooks, Judge.
Appellant in this dissolution proceeding contests judgments awarding to respondent sole physical and legal custody of the parties' two children, establishing visitation, dividing the parties' marital property and debt, and awarding attorney fees. We affirm, and grant respondent's motion for attorney fees on appeal.
The nine-year marriage of appellant Dale Arthur Rindahl and respondent Donna Joy Selin was dissolved by a December 1997 judgment. Respondent was granted sole legal and physical custody of the parties' two minor children. The trial court later declined appellant's request that it personally interview the parties' children regarding their custody preferences.
In a subsequent amended judgment, the trial court declined to award spousal maintenance and divided the parties' assets and debts equally. The trial court ordered that proceeds from the sale of the marital homestead be used to pay the parties' marital debt, with the remainder divided equally. The trial court ordered appellant to pay respondent $25,000 in attorney fees from his portion of the sale proceeds. In September 1998, an $8,405 deficiency judgment was entered against appellant, reflecting the difference between his portion of the sale proceeds and the attorney fees the trial court had ordered him to pay from his portion of the sale proceeds. This appeal followed.
Appellant argues that the trial court abused its discretion by awarding respondent sole legal and physical custody of the parties' two minor children. The trial court has broad discretion to provide for the custody of the parties' children. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). Reversal of a custody determination is warranted only if "the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law." Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).
A custody determination must reflect "the best interests of the child." Minn. Stat. § 518.17, subd. 3 (1998). In determining the best interests of the child, the trial court must consider and evaluate 13 statutory "relevant factors." Id., subd. 1. Here, the trial court made detailed findings on each factor and explained how these findings led it to conclude that granting sole legal and physical custody of the parties' children to respondent was in the children's best interests.
The evidence supports the trial court's determination that respondent is most capable of providing the parties' children with a loving and healthy domestic environment. Appellant cannot overcome this evidence with false accusations against respondent of drug dealing, sexual misconduct, and child abuse. The trial court did not abuse its discretion by determining that the best interests of the parties' children would be served by awarding sole legal and physical custody to respondent.
The trial court has extensive discretion in deciding visitation issues and will not be reversed absent an abuse of discretion. Manthei v. Manthei, 268 N.W.2d 45, 45-46 (Minn. 1978).
Appellant contends that the trial court's award of visitation is insufficient. But the trial court granted appellant visitation on nearly 40% of the days in the year. This award of visitation is sufficient to ensure that appellant will be able to maintain a relationship with his children. The trial court did not abuse its discretion in determining visitation.
Appellant argues that the court abused its discretion because it did not personally interview the parties' children, then aged 8 and 5, regarding their custody preferences. One factor to consider in custody disputes is the reasonable preferences of minor children regarding custody. Minn. Stat. § 518.17, subd. 1(a)(2). But the decision to interview children personally to ascertain their custody preferences rests within the discretion of the trial court. Madgett v. Madgett, 360 N.W.2d 411, 413 (Minn. App. 1985); see also Minn. Stat. § 518.166 (1998) (court may interview child in chambers to ascertain child's reasonable custodial preference). See Minn. Stat. § 645.44, subd. 15 (1998) ("`[m]ay' is permissive"). And declining to interview a child is particularly advisable where, as here, there is evidence that the child has "been coached and already subjected to the persuasions of one or both parents" regarding custody. Schwamb v. Schwamb, 395 N.W.2d 732, 735 (Minn. App. 1986).
The order granting custody of the parties' children to respondent shows that the trial court carefully considered the children's preferences in making its final custody determination. See Madgett, 360 N.W.2d at 413 (noting that personal interview is not only way to determine child's custody preference). The trial court did not abuse its discretion by declining to interview the parties' children personally.
Appellant hired an independent custody evaluator, but discharged her before trial. Respondent filed, and the trial court granted, a motion to gain access to the evaluator's records. Respondent called the evaluator to testify at trial, and the evaluator was cross-examined by appellant's counsel. Appellant now argues that Minn. R. Civ. P. 26.02(d)(2) should have barred admission of the evaluator's testimony. That rule provides that:
(2) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35.02 or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
Applicability of this rule depends on whether the evaluator was an "expert" witness, and appellant concedes there is no mention of his "intention to endorse [the evaluator] as an expert witness" in his answers to respondent's interrogatories and his witness list. Appellant appears to argue that the evaluator somehow became an expert witness after he discharged her, although she had not been an expert witness while in his service. That suggestion is illogical, and rule 26.02(d)(2) is irrelevant to these circumstances. The trial court did not err by admitting the evaluator's testimony.
Appellant argues that the trial court abused its discretion in its division of the parties' marital homestead property and marital debt.
A. Marital Homestead Property
The trial court has broad discretion in dividing property. Rutten, 347 N.W.2d at 50. "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 its discretion." Id. While it owes no deference to the trial court's legal determination that property is marital or nonmarital, an appellate court must affirm the findings of fact used to support that determination unless clearly erroneous. Freking v. Freking, 479 N.W.2d 736, 739 (Minn. App. 1992).
Appellant claims that the land on which the parties' marital homestead was constructed belonged solely to him and that the value of that land should have been awarded to him and not divided between the parties. Appellant claims that his parents, who live on the parcel adjacent to the property in question, intended to give the property to him alone. But the warranty deed from appellant's parents granted the property to appellant and respondent as husband and wife. We conclude that appellant did not provide sufficient evidence to rebut the presumption that the property on which the marital homestead was built was marital. See Olsen v. Olsen, 562 N.W.2d 797, 801 (Minn. 1997) (conveyance to married parties as joint tenants compelling evidence of donor's intent to give property to both parties). The trial court did not abuse its broad discretion by dividing the proceeds from the sale of that piece of marital property equally between the parties.
B. Division of Marital Debt
The trial court's division of marital debt is reviewed under an abuse-of-discretion standard. Justis v. Justis, 384 N.W.2d 885, 888-89 (Minn. App. 1986), review denied (Minn. May 29, 1986). The division must be "just and equitable." Id.
The trial court divided the parties' total marital debt equally, with a single exception: the trial court ordered appellant to repay a $1,500 credit union loan obtained by appellant without respondent's knowledge. The collateral for this loan was a van, jointly owned by the parties, which was repossessed after appellant failed to repay the loan. The trial court determined that appellant had not, as he claimed, used the loan principal to pay joint household expenses. We credit the trial court's determination of witness credibility. Minn. R. Civ. P. 52.01. The trial court's division of the parties' marital debt was "just and equitable" and is affirmed.
In marriage dissolution proceedings, a trial court may award attorney fees against a party who has "unreasonably contribute[d] to the length or expense of the proceeding." Minn. Stat. § 518.14, subd. 1 (1998). An award of attorney fees under the statute "rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion." Jensen v. Jensen, 409 N.W.2d 60, 63 (Minn. App. 1987).
Finding that appellant's actions "unreasonably contributed to the length and to the expense" of the proceedings and were "calculated to punish, slander, and demean" respondent, the trial court awarded respondent $25,000 in attorney fees and denied appellant's request for an award of attorney fees. Appellant argues that this was an abuse of discretion.
We disagree. Appellant's behavior at trial and outside the courtroom, which could only have been intended to obstruct the resolution of the parties' conflicts, forced respondent to incur significant legal expenses to defend herself. The trial court's decision to award attorney fees to respondent, and refusal to award such fees to appellant, was not an abuse of discretion.
Respondent moved for an award of attorney fees on appeal. Minn. Stat. § 549.211, subd. 3 (1998), and Minn. Stat. § 518.14, subd. 1, authorize this court to grant attorney fees to a party if the adverse party has asserted a frivolous claim for the purpose of harassment and delay. Because of the trial court's earlier findings, and because appellant's arguments on appeal are so wholly lacking in merit that they could only have been intended to harass respondent and delay the equitable resolution of the parties' disputes, respondent's motion is granted.
Respondent's counsel shall provide, and serve on appellant, sufficient documentation to enable this court to timely determine the appropriate amount of fees. Minn. R. Civ. App. P. 139.06, subd. 1. Appellant's response, if any, shall be served in accordance with Minn. R. Civ. App. P. 139.06, subd. 2.
Affirmed and motion granted.