This opinion will be unpublished and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:

Kris Ann Petroski, petitioner,



Jerome Joseph Petroski,


Filed June 1, 1999

Affirmed; motion denied

Klaphake, Judge

Washington County District Court

File No. F9-97-2088

Kevin K. Shoeberg, Woodbury Business Center, Ste. 600, 1890 Wooddale Dr., Woodbury, MN 55125 (for appellant)

Susan Danner Olson, Eckberg, Lammers, Briggs, Wolff & Vierling, P.L.L.P., 1835 Northwestern Ave., Stillwater, MN 55082 (for respondent)

Considered and decided by Klaphake, Presiding Judge, Crippen, Judge, and Willis, Judge.



In this appeal of a marital dissolution, appellant Kris Ann Petroski claims (1) the trial court abused its discretion in awarding physical custody of the parties' son and daughter to respondent, and (2) irregularities in the proceedings mandate a new trial. Respondent Jerome Petroski requests attorney fees on appeal. Because the trial court made findings supported by the evidence and properly applied the law, we affirm the custody determination. Because appellant has failed to demonstrate irregularities in the proceedings or otherwise show that she was denied a fair trial, we affirm the trial court's denial of her motion for a new trial. Finally, we deny respondent's request for attorney fees on appeal.


1. Custody Determination

"Appellate review of custody determinations 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) (citations omitted). A child's best interests are of foremost importance in determining custody. Minn. Stat. § 518.17, subd. 1(a) (1998).

Appellant generally argues that the trial court's findings are too summary in nature, amount to simple recitations of testimony, and are inadequate. We disagree. The trial court acknowledged that it was required to make findings on all statutory factors, and it made those findings. See id. (requiring specific findings on statutory factors in child's best interests). The amended findings elaborate further on certain statutory factors and demonstrate the court's consideration of them. The findings show that the court carefully considered the evidence presented and made credibility determinations in adopting portions of certain witnesses' testimony. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1998) (appellate courts defer to district court credibility determinations). Contrary to appellant's claim, the court could properly rely on documentary evidence presented at trial, which included reports of the custody evaluator and psychologists who evaluated the family members. See Minn. Stat. § 518.167, subd. 4 (1998) (custody evaluator's report "may be received in evidence"); Minn. R. Civ. P. 52.01 (findings of fact may be based on oral or documentary evidence); Scheibe v. Scheibe, 308 Minn. 449, 450, 241 N.W.2d 100, 101 (1976) (court may base custody decision, in part, on custody evaluation report if evaluator available for cross-examination). While appellant points out isolated contradictions in the experts' testimony, it is clear from the findings that only certain aspects of their testimony persuaded the court. See Minn. Stat. § 518.168(c) (1998) (in custody proceedings tried to court, court shall determine facts as well as questions of law).

Appellant also argues that the trial court did not sufficiently explain how the statutory factors led to its conclusions, as required by Minn. Stat. § 518.17, subd. 1(a). The obvious weight the court gave to certain factors, as indicated by its more lengthy and detailed findings on those factors, demonstrates the factors upon which the court's ultimate decision rests. The court's findings are sufficient to support is custody determination. See Schumm v. Schumm, 510 N.W.2d 13, 15 (Minn. App. 1993) (trial court made adequate findings on mother's disability, which supported decision to award custody to father).

Appellant further challenges the findings on particular statutory factors. First, appellant claims that the trial court failed to make findings on which party was the children's primary caretaker. See Minn. Stat. § 518.17, subd. 1(a)(3). An amended finding states:

The parties have both provided day to day care of the children. Historically, [appellant] provided the majority of the children's daily care. It was agreed upon by the parties that [appellant] would leave her employment to care for the children.

This finding accurately reflects the changes in the parties' lives in the past few years and up to the time of dissolution. Appellant was the primary caretaker, but the testimony of several witnesses establishes that when she became involved with another man, Michael Moeller, he became the focal point in her life, and she spent less time with the children. See Maxfield v. Maxfield, 452 N.W.2d 219, 221-22 (Minn. 1990) (trial court may consider which parent was primary caretaker after separation of parents, especially if duration between separation and trial is lengthy). Although the trial court did not make any findings on how its custody determination would impact the parties' daughter because of her strong bond with appellant, any such finding is not necessarily required or dispositive on the issue of custody. See Minn. Stat. § 518.17, subd. 1(a) (court may not use one factor to exclusion of others, and primary caretaker factor may not be used as presumption in determining best interests). The evidence further established that respondent has always been actively involved in parenting to the extent permitted by his employment. Thus, the trial court's primary caretaker finding is not clearly erroneous. See Minn. R. Civ. P. 52.01 (findings must be affirmed unless clearly erroneous).

Second, appellant contends the trial court failed to include the underlying facts supporting its finding on the son's preference to live with respondent. See Minn. Stat. § 518.17, subd. 1(a)(2). The record supports this finding, however, because the boy expressed the preference to his psychologist and to the custody evaluator. Thus, the finding is not clearly erroneous. At three years of age, the parties' daughter was too young to express a preference, as the trial court found.

Third, appellant contends the trial court's findings on continuity and stability factors are clearly erroneous. Id. at subd. 1(a)(6)-(8). This claim is without merit. Because respondent was granted physical custody, the children are in the same home, school, church, and community in which the family lived for more than seven years. Appellant, on the other hand, argues that if she were granted physical custody, the effect on the children's lives caused by her move from Stillwater to Annandale would be minimal and offset by her continuing ability to minimize their time in daycare due to her flexible work schedule. To the extent that the trial court heard contradictory evidence on this point, its decision is supported by the evidence and thus is not clearly erroneous. See Maxfield, 452 N.W.2d at 220 (trial court's findings recognize "disequilibrium" caused by moving family).

Fourth, appellant claims that there is no evidence that Michael Moeller had an adverse effect on the children or on appellant's ability to parent. See Minn. Stat. § 518.17, subd. 1(a)(5). To the contrary, the psychiatric evaluations of Moeller raised concerns as to his possible endangerment of the children due to his volatile personality, appellant's favoring Moeller over her children, and appellant's son's reaction to his mother's preference. Appellant attempts to minimize Moeller's two criminal convictions, which include a 1997 offense of making terroristic threats against his former employer and a 1995 offense of fifth-degree domestic assault. It is undisputed that appellant has now married Moeller, and we conclude that these concerns are valid. See Simonson v. Simonson, 292 N.W.2d 12, 13 (Minn. 1980) (reversing, as not in child's best interests, district court's decision to award custody of child to mother who was cohabiting with man who had criminal record of sexually molesting children).

Finally, appellant argues the trial court improperly failed to follow the recommendation of the custody evaluator. The evaluator recommended that if one party moved from the Stillwater area, the "non-moving parent be granted primary physical custody during the school year." The trial court's custody arrangement followed this recommendation, but did not allow the moving parent to have primary custody during the summer. In its findings, the court recognized joint custody arrangements are disfavored and stated that as the parties have "shown no ability to cooperate in their parenting," joint physical custody was not in the children's best interests. This finding supports the court's decision not to allow joint physical custody. See Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991) (in exercise of discretion, court may refuse to accept custody study recommendation; in so doing, the court should make particularized findings supporting its decision). The trial court did not abuse its discretion in declining to follow the custody evaluator's recommendation, and the findings support its decision.

2. New Trial Request

Appellant claims that her attorney's failure to offer certain evidence constituted an irregularity in the proceedings. A court may grant a new trial for an irregularity in the proceedings if "the moving party was deprived of a fair trial." Minn. R. Civ. P. 59.01(a). "Irregularity in the proceedings" is defined as "`failure to adhere to a prescribed rule or method of procedure not amounting to an error in a ruling on a matter of law.'" Boschee v. Duevel, 530 N.W.2d 834, 840 (Minn. App. 1995) (quotation omitted), review denied (Minn. June 14, 1995). The failure of appellant's attorney to call other possible witnesses on the custody issues, including Michael Moeller, does not constitute an irregularity in the proceedings. In any case, appellant was allowed to introduce evidence on custody and has not shown that she was denied a fair trial.

Appellant also claims that her attorney failed to introduce current evidence of her monthly expenses. As the parties waived maintenance and appellant's monthly expenses had no impact on the issues decided by the court, this issue is waived.

Appellant requests a new trial because the custody decision is contrary to law. See Minn. R. Civ. P. 59.01(g). As the trial court's findings are sufficient and supported by the evidence, there is no basis for granting a new trial for errors of law.

Finally, there is no basis for granting appellant a new trial "in the interests of justice" because of appellant's perceived weaknesses in her attorney's handling of this case. Justice also requires finality in custody matters. See Wopata, 498 N.W.2d at 484 (appellate court notes that need for early and final resolution of child custody determination is critical).

3. Attorney Fees on Appeal

Respondent requests attorney fees on appeal, citing Minn. Stat. § 518.14, subd. 1 (1998). Under this statute, a party is entitled to fees only if necessary to "carry on or contest the proceeding" or if a party "unreasonably contributes to the length or expense of the proceeding." Id. Respondent has not demonstrated that appellant has the ability to pay his attorney fees. See id. Further, as appellant's claims are colorable and pertain to a difficult issue, they are not unreasonable. Therefore, we deny respondent's motion for attorney fees on appeal. See Geibe v. Geibe, 571 N.W.2d 774, 782 (Minn. App. 1997) (in denying respondent's attorney fee request, appellate court did not find appellant's claims frivolous, although it ruled against appellant); Walker v. Walker, 553 N.W.2d 90, 97 (Minn. App. 1996) (in denying motion for attorney fees despite affirming district court decision, court noted party's arguments were not "of such a nature that would require" award of attorney fees to other party).

Affirmed; motion denied.