This opinion will be unpublished and

may not be cited except as provided by

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




In Re the Matter of:

Guy Logan Rogers,



Jolene Seymour Erickson,

f/k/a Jolene Seymour Booth,


Filed April 27, 1999


Peterson, Judge

Scott County District Court

File No. 9613006

Michelle L. Heimkes, Jaspers, Moriarty and Walburg, P.A., 206 Scott Street, Shakopee, MN 55379 (for appellant)

Mark Gray, 1422 West Lake Street, Suite 320, Minneapolis, MN 55408-2656 (for respondent)

Considered and decided by Peterson, Presiding Judge, Davies Judge, and Halbrooks, Judge.



Appellant-mother Jolene Erickson challenges the award of child custody to respondent-father Guy Rogers. We affirm.


The parties have an acrimonious relationship and have been in almost constant litigation since father sought custody of their son in August 1996. After a hearing, the district court awarded father sole legal and physical custody despite the guardian ad litem's recommendation and the county's custody report, both of which suggested that mother be awarded custody.


Absent a motion for a new trial, review is limited to whether the evidence supports the findings of fact and whether the findings of fact support the conclusions of law and the judgment. Erickson v. Erickson, 434 N.W.2d 284, 286 (Minn. App. 1989). Custody awards are based on a child's "best interests." Minn. Stat. § 518.17, subd. 3(a)(3) (1998). Review of custody awards is limited to "whether 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). De novo review of the entire record is inappropriate. Id.

1. The district court essentially found the recommendations of the custody evaluator and the guardian ad litem to be not credible. Because we defer to district court credibility determinations, we reject mother's challenges to those determinations. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (appellate courts defer to district court's credibility determinations); Alstores Realty, Inc. v. State, 286 Minn. 343, 353, 176 N.W.2d 112, 118 (1970) (weight and credibility of witness testimony, including that of the experts, is "for the trier of fact"). Also, a custody award contrary to expert recommendations can be affirmed if the district court explains why it rejected the recommendations or makes detailed findings on the best interests factors. Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991). Here, the custody award is supported by the district court's explanation of its reasons for awarding custody contrary to the expert's recommendations and by detailed findings on the child's best interests.

2. Mother challenges several best-interest findings. See Minn. Stat. § 518.17., subd. 1(a) (listing best interests factors). Findings of fact are not set aside unless, when the record is viewed in the light most favorable to the findings, the findings are clearly erroneous. Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn. 1993); Minn. R. Civ. P. 52.01. On appeal, when a party challenges a district court's findings, the party "shall" summarize the evidence "tending directly or by reasonable inference to sustain" the challenged findings. Minn. R. Civ. App. P. 128.02, subd. 1. That the record might support findings other than those made by the district court does not demonstrate that the district court's finding are defective. See Elliott v. Mitchell, 311 Minn. 533, 535, 249 N.W.2d 172, 174 (Minn. 1976) (affirming findings, but noting evidence might have supported another conclusion).

Mother alleges that, under Weatherly v. Weatherly, 330 N.W.2d 890 (Minn. 1983), the finding that the primary parent factor does not support awarding custody to either party is unsupported. Because the parties separated more than two years before trial, any error in the primary-parent findings is harmless. See Sefkow, 427 N.W.2d at 212 (primary parent of young child to be determined "as of" separation and "[o]nly if" separation was close to trial does primary parent analysis have "any viability"); Minn. R. Civ. P. 61 (harmless error to be ignored). Also, Weatherly is factually distinguishable.

The district court found the stability factor of Minn. Stat. § 518.17, subd. 1(a)(7), favors father "slightly." Apparently to address her varied employment history, mother seeks treatment similar to that accorded a working mother in Berndt v. Berndt, 292 N.W.2d 1 (Minn. 1980). Berndt's holding, however, is that "the ultimate test in all custody cases is the best interests of the child." 292 N.W.2d at 2. Here, after considering the evidence, including mother's employment history, the district court concluded the child's best interests favored awarding custody to father. Mother's cite to Tasker v. Tasker, 395 N.W.2d 100, 104 (Minn. App. 1986) for the proposition that neither father's consistent employment nor his residential stability are dispositive regarding the emotional stability of his relationship with the child takes Tasker out of context. Tasker states that while a "`stable' job is not indicative of emotional stability[,]" it "was not improper" for the court to consider a party's willingness to seek and retain employment and weigh that against the other party's history of unemployment. Id. Viewing the record in the light most favorable to the findings, mother has not shown the district court's stability findings to be clearly erroneous.

The district court found that the permanence-of-the-family-unit factor under Minn. Stat. § 518.17, subd. 1(a)(8), favors awarding custody to father. Mother challenges this finding by pointing to evidence in the record that could support a finding in her favor. Under Elliott, however, this is not sufficient to show the district court's finding to be clearly erroneous.[1]

Mother argues that the district court's findings under Minn. Stat. § 518.17, subd. 1(a)(9), regarding the parties' mental and physical health contain some misstatements and omissions regarding the parties' use of alcohol and their attendance at aftercare. We cannot say, however, that the alleged misstatements and omissions are, individually or in the aggregate, more than de minimus. See Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (refusing to remand for de minimus error); Minn. R. Civ. P. 61 (harmless error to be ignored). Also, the record shows that the expert's statements addressing mother's alcohol use were based on mother's substantial under-statement of the amount she drinks while the expert's statements regarding father's alcohol use were based on a more accurate indication of how much he drinks.

Based on guardian ad litem testimony that father and his mother show "negativity" toward mother, mother challenges the finding that father is better able to place the child's needs before his own than is mother. See Minn. Stat. § 517.17, subd. 1(a)(10) (requiring consideration of capacity of "parties" to love child). Because the statute requires consideration of "the parties'" ability to love the child, and because the negativity is not alleged to impinge on father's ability to love the child, the relevance of any "negativity" between the parties or between mother and father's mother is unclear.

The district court found that mother sought to limit father's contact with the child and made false statements about the child's paternity but that father had not attempted to restrict mother's access to the child. See Minn. Stat. § 518.17, subd. 1(a)(13) (requiring consideration of parties' dispositions to encourage contact between child and non-custodial parent). Mother asserts father hid the child. A one-time hiding of the child by father is less severe than mother's multiple attempts to limit father's visitation and her attempt to deny him access to the child by making false assertions about the child's paternity.[2]

Because mother has not shown the best-interests findings to be clearly erroneous, we cannot say the custody award is contrary to the child's best interests.


[1] A similar analysis addresses mother's allegations regarding the parties' psychological evaluations.

[2] Mother also alleges the district court should not have addressed which parent is more likely to encourage contact between the child and the other parent because a finding of domestic abuse was made. See Minn. Stat. § 518.17, subd. 1(a)(13) (precluding consideration of parties' dispositions to encourage contact between child and other parent if abuse occurred). The January 1997 restraining order states it will be enforced "as though domestic abuse occurred" but lacks a finding of abuse. Also, while both parties testified at trial to incidents that could have supported a finding that the other committed abuse, the custody findings lack a finding of abuse. Absent a finding of abuse, the district court was not precluded from considering this factor.