This opinion will be unpublished and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:

Michael Joseph Schultz, petitioner,



Michelle Marie Goetz,


Filed May 25, 1999


Randall, Judge

Ramsey County District Court

File No. P-F9-92-50980

Ronald Resnik, 6200 Shingle Creek Parkway, Suite 340, Brooklyn Center, MN 55430 (for appellant)

James J. Street, Janet C. Werness, Southern Minnesota Regional Legal Services, Inc., 300 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for respondent)

Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Huspeni, Judge.[*]



Appellant challenges the district court's order[1] awarding sole physical and legal custody of the parties' child to respondent. Appellant also challenges the district court's order directing him to pay child support arrearages. We affirm.


Appellant Michael Joseph Schultz and respondent Michelle Marie Goetz are the parents of a minor child, C.S., who was born March 15, 1987. The parties were never married but lived together from approximately the time of C.S.'s birth until October 1992. C.S. initially lived with Schultz following the separation, and Schultz was awarded temporary custody pending a custody evaluation. The parties stipulated to temporary joint physical and legal custody in October 1993, and the court ordered the same on November 1, 1993. On November 30, 1994, the district court ordered an updated custody evaluation. After the evaluation, the parties meditated their dispute and agreed to joint legal and physical custody. The joint-custody arrangement failed, and in March 1996 the district court awarded Goetz temporary sole physical custody and ordered joint legal custody. An evidentiary hearing was held, and on September 14, 1998, the district court granted Goetz sole legal and physical custody of C.S. Schultz was ordered to pay child support arrearages and continuing child support.


I. Custody

The district court is afforded broad discretion in deciding custody matters. Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989). It is within a district court's discretion to refuse to accept a custody study's recommendation. Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991). Review on appeal "is limited to whether the trial court improperly applied the law or issued findings unsupported by the evidence," and the district court's findings will be upheld unless they are clearly erroneous. Durkin, 442 N.W.2d at 151-52 (citations omitted).

Schultz insists that the district court abused its discretion because it did not follow the recommendations of the court-appointed psychologist and custody evaluators and instead awarded Goetz custody of C.S.

The district court considered each of the statutory best-interests factors and made detailed findings on each factor. See Minn. Stat. § 518.17, subd. 1(a) (1998) (listing factors); see also Rutanen, 475 N.W.2d at 104 (upholding district court's decision, which rejected custody study recommendation, after determining district court made detailed findings on statutory best-interests factors). Notably, the district court recognized that C.S. and his mother have lived in the same home throughout this litigation and that C.S. has a significant relationship both with his mother's two younger children and with children in his mother's neighborhood. See Minn. Stat. § 518.17, subd. 1(a)(5)-(8) (listing following best-interests factors: child's relationships with others; child's adjustment to home, school, and community; length of time child has lived in stable environment; and permanence of family unit at custodial home). In contrast, at the time of the evidentiary hearing, Schultz testified that he was attempting to sell his home in Blaine and planning to buy a home in North Branch. Schultz did not know the name or location of the school C.S. would attend in North Branch and did not know what special-education services were offered by the schools in that community. The court recognized that C.S. had a good relationship with Schultz's former fiancée and her daughter but noted that Schultz was separating from his fiancée.

Schultz asserts that the district court abused its discretion by refusing to consider C.S.'s custodial-parent preference. See Minn. Stat. § 518.17, subd. 1(a)(2) (listing reasonable preference of child as best-interests factor). The district court determined that C.S. had been "heavily coached" by Schultz and refused to consider C.S.'s preference. This was a credibility decision. The district court is in the best position to judge credibility. See Minn. R. Civ. P. 52.01 (stating due regard must be given to district court's opportunity to judge witness credibility).

Schultz further argues that the district court failed to recognize that C.S. identifies more strongly with Schultz and failed to recognize that Schultz would provide C.S. with a more structured environment. See Minn. Stat. § 518.17, subd. 1(a)(4), (10) (listing intimacy of parent-child relationship and parents' ability and disposition to give child love, affection, and guidance as best-interests factors). Contrary to Schultz's assertions, the district court noted the relationships and the structured activities that Schultz participates in with C.S. The court went on to find, however, that Goetz tended to C.S.'s emotional needs. The court also expressed concern over Schultz's displayed disdain towards Goetz and other women in front of C.S. The court noted that Schultz's behavior, which included profane and vulgar language, had been cited in each custody report over the past four years and that the court services officer testified that such behavior would be detrimental to C.S.

Schultz also insists that the district court abused its discretion by not considering Goetz's alcohol and drug abuse. See Minn. Stat. § 518.17, subd. 1(a)(9) (listing parties' mental and physical health as best-interests factor). The court recognized that, although there had previously been some concerns about Goetz's chemical abuse, Goetz had completed a treatment program. The court additionally noted Goetz's introduction of negative results from a 1997 drug test and testimony from Goetz's employer and Goetz's neighbor, who stated that they had seen no evidence of substance abuse by Goetz.

Schultz next asserts that the district court failed to recognize that both parties were "equally guilty of a highly conflicted relationship." See Minn. Stat. § 518.17, subd. 1(a)(12) (listing effect of domestic abuse between parents and/or others on child as best-interests factor). Despite Schultz's assertion, the district court's finding that Schultz abused Goetz in front of C.S. is supported by a custody evaluator's report completed in May 1997 that states that although both parties are hostile to each other and make derogatory comments about one another, this was especially a concern with regard to Schultz. The evaluator stated:

[Schultz's] anger blinds [him] to his own shortcomings and personal responsibility for the present conflict. As recently as May 10, [Schultz] allegedly verbally attacked [Goetz] at her home, screaming profanities at her while [C.S.] watched. [Schultz] uses what he believes to be the gross transgressions of [Goetz] to justify his completely unacceptable behavior.

Finally, Schultz contends that there is no evidence to support the district court's finding that Schultz has attempted to disrupt Goetz's relationship with C.S. See Minn. Stat. § 518.17, subd. 1(a)(13) (listing parents' disposition to encourage and permit contact between child and other parent as best-interests factor). In support of its finding, the district court cited remarks made by Schultz about Goetz in front of court services officers, an incident where Schultz took C.S. out of school to ask him about Goetz's home, and an argument in front of C.S. in which Schultz referred to Goetz's other children as illegitimate. The court's finding is further supported by the May 1997 custody evaluation, which observed that Schultz

is hostile towards [Goetz] beyond the point of logic; it is very possible he will restrict [C.S.'s] access to his mother if the child resides primarily in his home.

Contrary to Schultz's arguments, the district court's findings on the statutory factors are supported by the record. Thus, despite the fact that the district court's custody decision differed from the psychologist's and custody evaluators' recommendations, the district court did not abuse its discretion by awarding Goetz sole legal and physical custody of C.S.

II. Child Support

A district court has discretion in calculating child-support awards. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). A district court's findings will not be disturbed on appeal unless they are clearly erroneous. Minn. Civ. P. 52.01.

Schultz argues that the district court erred in its determination of his net income in 1997 and that, therefore, its determination of child-support arrearages was erroneous. Schultz asserts that the district court erred in determining that he had a net monthly income of $7,197.60 in 1997. He insists that the district court simply "guessed" when assigning this figure.

Contrary to Schultz's contention, the district court did not "guess" when it determined Schultz's net monthly income for 1997. Instead, the court specifically stated that its findings were based on Schultz's 1997 income tax returns. Relying on these returns, the district court found that Schultz's gross income in 1997 from wages, interest, tax refunds, and pensions and annuities was $118,277. The district court then determined that Schultz's net income in 1997 was $86,371.20 and that he had an average net monthly income of $7,197.60. The court found that the maximum income available for child support purposes was $5,635. Finally, the court determined that because C.S. spent more time with Schultz than a usual visitation schedule, child support in 1997 should have been $1,000 each month, the amount an obligator making $4,000 each month would be required to pay in support. See Minn. Stat. § 518.551, subd. 5(b) (1998) (stating obligor who makes monthly net income of $1,001-$5,000 shall pay 25% of income to support one child).

We note that Schultz's tax returns are not contained in the district court file. Schultz has not raised this issue on appeal, however, and has therefore waived any argument on this issue. See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (stating issue not argued in briefs is waived). Further, even assuming this issue was properly raised, it is clear the district court relied on Schultz's tax returns, and a remand to the district court would be unnecessary. Cf. Grein v. Grein, 364 N.W.2d 383, 387 (Minn. 1985) (refusing to remand for specific findings in child custody case where district court "would undoubtedly make findings that comport with the statutory language"). Additionally, this court can consider Schultz's tax returns. An appellate court may consider evidence not contained in the record if it is conclusive and uncontroverted and if it is offered to affirm the district court's decision. Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583-84 (Minn. 1977). Schultz does not dispute the accuracy of his income tax returns, and they are offered for the purpose of affirming the district court.

Because all of the district court's findings related to Schultz's 1997 income are supported by Schultz's federal income tax returns, there is no support for Schultz's assertion that the district court determined his net income by simply "guessing." Therefore, the district court's finding that Schultz's child support obligation for 1997 was $1,000 per month was not clearly erroneous.

Finally, Schultz argues that because he paid child support before trial, pursuant to a court order, the court's calculation of arrearages is erroneous. This assertion is unsupported by explanation or argument. Thus, the issue has been waived. See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135, (1971) (stating assertion of error not supported by argument or authority is waived unless prejudicial error is obvious).


[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Appellant states that he is appealing from a judgment; however, no judgment was entered on the September 14, 1998, order. Neither party recognizes this on appeal. Although appellant has seemingly appealed from a nonexistent judgment, the order itself was appealable. See Angelos v. Angelos, 367 N.W.2d 518, 520 (Minn. 1985) ("[A]ny final orders--those denying as well as granting modifications of custody, visitation, maintenance, and support--are appealable as of right."). An appeal from an order must be made within 30 days after the adverse party serves written notice of filing of the order. Minn. R. Civ. App. P. 104.1 (This rule was revised, effective January 1, 1999, and parties now have 60 days, but the former rules were in effect at the time this appeal was filed). Here, one day after the order was filed, the adverse party (respondent) served a document on appellant entitled, "Notice of Entry of Judgment and Decree." This notice does not meet the minimum requirements of a proper notice of filing because its title inaccurately states that a judgment, rather than an order, was filed. See Garcia v. Commissioner of Pub. Safety, 572 N.W.2d 311, 312 (Minn. App. 1997) (stating notice must call attention to what has been filed and noting "[p]roper practice is for the notice to be a separate paper, appropriately captioned, with an adequate description of the order or decision filed and the date of filing" (emphasis added) (citation omitted)). Because respondent did not serve proper notice of filing on appellant, appellant's failure to file a notice of appeal until December 11, almost 90 days after the order was filed on September 14, did not render this appeal untimely. See Curtis v. Curtis, 442 N.W.2d 173, 176 (Minn. App. 1989) (stating where no notice of filing was served, 30-day time limit for appeal under Rule 104.01 did not start to run and appeal was not untimely).