STATE OF MINNESOTA
IN COURT OF APPEALS
Robert Allen Wagner, petitioner,
Lesa Marie Wagner,
Filed June 29, 1999
Hennepin County District Court
File No. 217768
David Gronbeck, Law Offices of David Gronbeck, 120 South Sixth Street, Suite 1710, Minneapolis, MN 55402 (for appellant)
Ellen Dresselhuis, Dresselhuis Law Office, P.A., Enterprise Building, 2738 Winnetka Avenue North, New Hope, MN 55427-2850 (for respondent)
Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Willis, Judge.
Appellant challenges the denial of her motion to remove the district court judge in the parties' marriage dissolution action, the award of legal custody of all four of the parties' children and physical custody of the two younger children to respondent, the allocation of marital debts, and the award of attorney fees. Respondent seeks review of the spousal maintenance award and attorney fees on appeal. Because we see no basis for removing the district court judge and find no abuse of judicial discretion, we affirm.
Since the summer of 1998, J.W. and C.W. have been living with appellant in Alabama, where she had a year-long position with the National Guard. Respondent now lives in Arizona with the twins, with whom appellant has frequent visitation.
Appellant challenges the award of physical custody of the twins and legal custody of all four children to respondent, the denial of her motion to remove the district court judge, the allocation of marital debt, and the award of attorney fees. Respondent challenges the denial of his motion to eliminate appellant's spousal maintenance and seeks attorney fees on appeal.
An appellate court will not reverse a custody determination unless 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 trial court's findings will be sustained unless they are clearly erroneous. Id.
Pursuant to the district court's order, Lucius Luther, a custody evaluator, did an evaluation and prepared a report. Respondent requested and financed an adverse custody evaluation and report prepared by Dr. Suzanne Wright, a psychologist. Based in part on the custody evaluators' reports and testimony, the district court initially awarded the parties joint physical custody of all four children. But after hearing the parties' post-trial motions, the district court altered the award to give respondent legal custody of all four children and custody of the twins, then 9, while appellant had legal custody of J.W., then 15, and C.W., then 12. Appellant now seeks sole legal and physical custody of all four children.
The district court acknowledged that split custody is not favored but found it to be in the best interests of these children because (1) appellant had turned J.W. and C.W. against respondent, (2) J.W. and C.W. refused to live with respondent, (3) the children assign primarily negative feelings toward one another (according to Wright's study), and (4) visitation can be arranged so the children have weekends and vacation time together.
Appellant first contends that the present custodial arrangement is "unworkable" because respondent, as legal custodian of J.W. and C.W., will make decisions for them that appellant, their physical custodian, is obliged to follow. But respondent has had little contact with J.W. and C.W. since they moved with appellant to Alabama a year ago. Appellant presents no evidence that respondent has made any questionable decisions concerning them or otherwise interfered with her physical custody of them. Except for the lack of contact between J.W. and C.W., the current arrangement does not appear to be unworkable.
Appellant next contends that the arrangement is "legally impermissible." This assertion is based on the lack of caselaw supporting a child's legal custody with one parent and the same child's physical custody with the other parent. But the fact that a situation is legally unprecedented does not mean it is legally impermissible. Moreover, giving appellant sole legal and sole physical custody of J.W. and C.W. would mean that respondent had no rights at all where they are concerned, which in turn would enable appellant to further alienate them from him. Notwithstanding its being somewhat awkward, the award of legal custody of J.W. and C.W. to respondent and physical custody to appellant is supported by the facts in the record; this application of the law, while apparently unprecedented, is not erroneous.
Appellant next challenges the district court's application of Minn. Stat. § 518.17, subd. 1 (1998), setting out 13 factors for determining the best interests of a child in custody disputes. Minn. Stat. § 518.17, subd. 1(2), provides that the court is to consider "the reasonable preference of the child * * *." The district court said that it initially "disregarded the children's preferences due to the extreme amount of manipulation to which the children had been subjected primarily by [appellant]" and acknowledged that the preferences of the older children could not be disregarded because they refused to live with respondent. Appellant claims that the district court disregarded the twins' preferences.
As a threshold matter, the record is not clear that the twins had strong preferences. In its section dealing with reasonable preferences of the children, the court services report said that T.W. "does not feel * * * able to commit to either parent" and gave no preference for A.W. An affidavit respondent provided to the court showed that the twins are doing well in school in Arizona, where they now live with respondent. Moreover, the child's preference is only one of the 13 statutory factors. Awarding the twins' custody to respondent does not mean that the district court ignored their preferences.
Minn. Stat. § 518.17, subd. 1(13), provides that in determining a child's best interests,
except in cases in which a finding of domestic abuse as defined in section 518B.01 had been made, [the court should consider] the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.
The district court found that "[t]estimony was heard regarding several incidents where [appellant] undermined [respondent's] visitation with the children" and enticed them to remain with her rather than go with respondent for visitation, but that "[t]here is no evidence that [respondent] has undermined [appellant's] relationship with the children."
Appellant argues that the district court should not have made this finding or considered this factor because the "domestic abuse" exception applies. But there was no finding of domestic abuse. Rather, the district court found:
[Appellant] testified that domestic abuse has occurred between the parties. [Respondent] indicated that one such "incident" occurred where he pushed [appellant] on to the parties' bed. This one limited incident is not a basis to limit [respondent's] access to the children.
Nor is it a basis to deem irrelevant appellant's history of undermining respondent's relationship with the older children.
Finally, appellant argues that the district court ignored its findings on the factors set forth in Minn. Stat. § 518.17, subd. 1, when it awarded custody of the twins to respondent, because she ascertains that five statutory factors are neutral, only two favor granting custody to respondent, and six favor granting custody to her. But appellant provides no support for the view that numerical superiority of factors is dispositive in a best-interests analysis.
None of appellant's objections demonstrates either that the district court erroneously applied the law or that its findings are unsupported by the evidence. There was no abuse of discretion, and we will not disturb the custody award.
2. The Motion to Remove
The chief judge denied appellant's motion to have the presiding judge either recuse herself or be removed for cause. Because motions to remove a judge involve a mixture of law and fact, de novo review is appropriate. See Meyering v. Wessels, 383 N.W.2d 670, 672 (Minn. 1986).
Appellant offers two arguments in support of her motion. First, she contends that the presiding judge should be removed because of "an intentional disregard for the law." But a judge's failure to rule in accord with the law is corrected by appeal, not by removal of the judge. Second, appellant argues that there has been a judicial pattern of unfairness toward her and of favoritism toward respondent. While we agree with appellant that lack of impartiality is grounds for removal of a judge, see Reserve Mining Co. v. Lord, 529 F. 2d 181 (8th Cir. 1976), we agree with the chief judge that there was no persuasive basis for granting appellant's motion.
3. Debt Allocation
Appellant contends that the district court erred in allocating the parties' debt. A court has broad discretion in dividing property and will not be reversed absent an abuse of discretion. Rutten v. Rutten, 347 N.W.2d 47, 50-51 (Minn. 1984).
The district court noted that it had received "[m]inimal information" on the parties' debts and that neither party was able to pay the debts. It therefore distributed debts "in accordance with the income of the parties." Appellant objects to the district court's failure to take additional testimony relative to the debts, but does not specify what testimony was lacking or why it was not provided. We see no abuse of discretion in the district court's allocation of debt.
4. Attorney Fees
The district court awarded appellant $1,000 in attorney fees. An award of attorney fees under Minn. Stat. § 518.14, subd 1 (1998), rests almost entirely within the district court's discretion and will not be disturbed absent a clear abuse of discretion. Jensen v. Jensen, 409 N.W.2d 60, 63 (Minn. App. 1987). Appellant objects not to the award itself but rather to the absence of findings relative to the award. But the second amended judgment, which contained the award, included a detailed analysis of the parties' respective financial positions, and it is clear that the district court considered the proper factors. We see no abuse of discretion in the attorney fees award.
5. Spousal Maintenance Award
Respondent asserts that the district court abused its discretion in failing to amend its findings to eliminate his maintenance obligation. The standard of review for spousal maintenance awards is whether the trial court abused its broad discretion. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). Section 518.552, subd. 1, provides that a court may award spousal maintenance to a party who lacks sufficient property to provide for his or her reasonable needs or is unable to provide adequate self-support. Section 518.552, subd. 2, provides factors to consider, among them, "the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance * * *." When the district court ordered respondent to pay appellant $500 per month maintenance for three years, appellant's annual income was about $20,000 and respondent's about $65,000. Thus, the maintenance award was supported by the evidence and was not an abuse of discretion; there is no basis for reversal.
Respondent asserts that the parties' circumstances have changed significantly since the award was made: respondent lost his job, is attempting to develop a business, and appellant's income is at a much higher level. Changes in a party's earnings, however, are relevant not to an appeal from an award of spousal maintenance but to a motion to modify such an award. See Minn. Stat. § 518.64, subd. 2 (1998) (maintenance may be modified upon a showing of substantially increased or decreased earnings of a party). Respondent's appropriate remedy is a motion for modification on the basis of changed earning capacity.
6. Respondent's Attorney Fees on Appeal
Respondent seeks "bad faith" attorney fees on appeal. Such fees are available pursuant to Minn. Stat. § 518.14, subd. 1 (1998) (a court may award fees against a party who "unreasonably contributes to the length or expense of the proceeding.") or to Minn. Civ. P. 11 (a court may award fees against a party who interposes a pleading or motion "to harass or cause unnecessary delay or needless increase in the cost of litigation."). This litigation has been protracted and acrimonious. But appellant's major issue, the custody issue, is not frivolous. Respondent offers no support for his view that this court may impose attorney fees as a sanction for the "cumulative effect" of misconduct prior to an appeal. We therefore deny respondent's motion for attorney fees on appeal.
 Appellant argues that the notes of a therapist who interviewed the twins in Minnesota prior to their move in September 1998 indicated that they did not want to live with respondent. But by the time the court made its decision, the notes were stale and the district court did not abuse its discretion by relying on more recent information.
 Appellant also claims that Dr. Wright testified that respondent acknowledges his history of domestic abuse. This mischaracterizes Dr. Wright's testimony; she actually testified that respondent was "forthright in discussing" the incident and "very clear in accepting responsibility for his behavior."
 In particular, we do not agree with appellant that the judge's refusal to permit appellant's counsel to cross-examine Wright on information obtained during Wright's interviews of the children was an instance of unfairness. That information was provided to the judge in a sealed envelope labeled "confidential." The judge likened it to an in-camera interview and said she had read the material but did not rely on it.