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:
Jefta Olupo, petitioner,
Olufunmilayo Adetoun Denise Olupo,
Filed July 6, 1999
Dakota County District Court
File No. F99414370
Maury D. Beaulier, 5001 West 80th Street, Suite 745, Bloomington, MN 55437 (for respondent)
John G. Westrick, Brian J. Clausen, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for appellant)
Joyce M. Grannis, Grannis & Grannis, P.A., 412 Southview Boulevard, Suite 100, South St. Paul, MN 55075 (guardian ad litem)
Considered and decided by Short, Presiding Judge, Peterson, Judge, and Schultz, Judge.[*]
In this appeal from an order denying her motion for a new trial or amended findings of fact, appellant-mother Olufunmilayo Adetoun Denise Olupo argues that the evidence does not support the findings and conclusions in the judgment granting respondent-father Jefta Olupo sole legal and physical custody of the parties' two children. We affirm.
The parties were married on May 5, 1990, in Nigeria. Seven days later, mother moved without father to the United States. On August 28, 1990, while mother was in California and father was still in Nigeria, the parties' son was born. In January 1991, father joined his family in California. Following an argument between the parties, father moved to Minneapolis in November 1991. In the fall of 1992, mother moved to Minneapolis, and the parties reconciled. On September 19, 1993, the parties' daughter was born in Minneapolis.
In March 1994, mother told father that she was moving with the children to Atlanta. However, mother took the children and moved to Nigeria. In August 1994, father began dissolution proceedings by serving mother by publication. Father obtained a default dissolution in October 1994. The dissolution judgment reserved the issues of child custody, visitation, child support, maintenance, and debt allocation. Father remarried in August 1995.
In December 1995, after learning the location of his children, father traveled to Nigeria. When he arrived, mother told him that she was leaving on a business trip to New York and asked him to watch the children until she returned in two weeks. In February 1996, mother had not returned, and father left their daughter in the care of mother's sister and moved back to Minneapolis with their son. In March 1996, father contacted mother's sister to tell her that he was ready to have his daughter sent to the United States, but the sister would not send the daughter without mother's permission.
Also in March 1996, mother called father from California and told him that she was coming to Minneapolis to visit their son. During this visit, father agreed to let mother take their son for a few days. Mother never returned the son to father's care. Mother later had their daughter sent to Minneapolis and began caring for both children. During this period, father was allowed regular visitation with the children.
In June 1997, the daughter had an accident at daycare and a dispute arose between the parties regarding the treatment of her injuries. Worried that his daughter was not receiving proper medical treatment, father took her away from mother's home. Mother petitioned for an order for protection. The court issued an ex-parte order for protection and ordered father to appear at a hearing on the petition. When the parties tried to address custody and child support issues during the hearing on the petition, the court declined to address the issues and referred the parties to the court that granted the default dissolution. Mother then moved to vacate the parties' dissolution judgment and decree and for custody of the children, child support, and maintenance. Father moved to deny mother's motion and for custody of the children and child support. The court scheduled an evidentiary hearing, appointed a guardian ad litem (GAL) to represent the children, granted mother temporary physical custody, and ordered that the parties share temporary legal custody.
Following an evidentiary hearing, the court ordered the parties to complete psychological evaluations. The court also ordered mother to provide her passport to father's counsel and stated that if mother failed to do so, the sanction would be a presumption that the children were not in mother's custody during the time that they were not in the United States.
Following a hearing, the court awarded father sole legal and physical custody of the children. Mother moved for amended findings or, alternatively, a new trial. The trial court denied the motion.
In a dissolution proceeding, a denial of a posttrial motion that combines a request for amended findings with a request for a new trial and is based on a claim that findings are not justified by the evidence or that conclusions are contrary to law will be treated as an appealable order. Weikle v. Weikle, 403 N.W.2d 682, 686 (Minn. App. 1987), review denied (Minn. June 30, 1987).
"The trial court is afforded broad discretion in making custody decisions." Wopata v. Wopata, 498 N.W.2d 478, 481 (Minn. App. 1993). An appellate court may 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 must be sustained unless they are clearly erroneous. Minn. R. Civ. P. 52.01. Where the evidence supports conclusions reached by the trial court, the appellate court must affirm, even if the evidence supports other conclusions as well. Sefkow v. Sefkow, 427 N.W.2d 203, 211 (Minn. 1988).
The ultimate consideration in determining custody is the best interests of the child. Pikula, 374 N.W.2d at 711.
The court must make detailed findings on each of the [best interests] factors [in Minn. Stat. § 518.17, subd. 1(a),] and explain how the factors led to its conclusion and to the determination of the best interests of the child.
Minn. Stat. § 518.17, subd. 1(a) (1998).
Although joint legal custody is generally presumed to be in the child's best interests, it is not appropriate where the evidence indicates that the parties lack the ability to cooperate and communicate. Wopata, 498 N.W.2d at 482. Joint physical custody is generally not favored. Id. When a grant of either joint legal or joint physical custody is contemplated, the court must consider additional factors that relate to the parties' ability to cooperate in raising their child. Minn. Stat. § 518.17, subd. 2 (1998).
1. Mother argues that the trial court's finding that the children are too young to express a reasonable preference regarding custody is clearly erroneous because the GAL recommended that mother be awarded sole physical custody and the parties be awarded joint legal custody. Mother contends that because the GAL is an advocate for the children, her recommendations stand as the children's preference. But mother does not cite any authority that requires a trial court to treat a GAL's recommendation as an expression of a child's preference. Mother has not shown that the trial court's finding is clearly erroneous.
Mother also argues that the trial court erred by rejecting out-of-hand the GAL's custody recommendation. But the trial court order refers to the GAL's observations of the children in both parties' homes, which demonstrates that the trial court considered the GAL's comments. There is no basis for us to conclude that the trial court did not consider the GAL's recommendation. Furthermore, the GAL was not directed to prepare a custody study. Consequently, her custody recommendation was not based on a complete custody study.
2. Mother argues that the trial court's finding that the primary caretaker factor did not favor either party is clearly erroneous. Mother argues that this determination is unequivocally refuted by the GAL's report and testimony and by the fact that the children have been in her sole custody since April 1995, spending only weekends and holidays with father.
Although the record indicates that mother had sole physical custody of the children for two years before the custody trial, it also indicates that father had sole caretaker responsibilities for their son for four months during 1996 and that both parties lived together and shared childcare responsibilities during different periods. Also, although the children were not with father for almost two years when mother took them with her to Nigeria in 1994, mother admitted that relatives cared for the children for at least part of this time while she was living in Great Britain. Because mother failed to produce her passport, the trial court presumed that the children were not in her care when she was living outside the United States. Finally, even though the trial court found that the children have probably spent more time with mother than with father, the court also found that this was partially due to the fact that mother has a history of making abrupt changes of residence. Mother's argument that changes in residence do not affect her status as primary caretaker ignores the fact that when she changed her residence, she sometimes took the children with her and away from father and, thus, prevented him from caring for the children.
Mother argues that the trial court drew a negative inference from the fact that she left the children in the care of relatives in Nigeria but did not draw a similar inference from the fact that father left their daughter with mother's sister in Nigeria and never arranged to bring the daughter to the United States. Mother's argument ignores evidence that father attempted to bring the daughter to the United States one month after leaving her in Nigeria, but mother's sister would not send the daughter without mother's consent.
The trial court properly considered the parties' parenting roles throughout the children's lives, not just the two years before trial. See Kerkhoff v. Kerkhoff, 400 N.W.2d 752, 756-57 (Minn. App. 1987) (trial court should consider all events up to the time of trial in determining an award of custody), review denied (Minn. Mar. 25 and Apr. 23, 1987). The trial court's finding that the primary caretaker factor did not favor either party was not clearly erroneous.
3. Mother argues that the trial court's finding that father has a more intimate relationship with the children in that he is more sensitive to their issues and needs is clearly erroneous. The GAL's report states:
The children appear to be very comfortable and relaxed with each parent. Both parents describe a close relationship with the children. Observations by collateral sources confirm that both parents have a close, loving relationship with the children.
However, mother's psychological evaluation concludes that mother
does not seem to have much insight into herself nor others and is quite unaware of the consequences of her actions on others. * * *
* * * [H]er history suggests that she is quite mercurial and liable to make impulsive decisions that could very well impact the children's sense of stability.
The trial court's finding that father has a more intimate relationship with the children was based on the comments in mother's psychological evaluation and is not clearly erroneous.
4. Mother argues that the trial court's finding that the children have not had a stable environment, except for the past year or less during which there has been a predictable schedule of parental access, is clearly erroneous. Mother cites father's testimony that he had regular visitation for at least two years before the trial to demonstrate that the children had been living in a stable environment for at least two years. Mother's argument ignores the trial court's specific finding that prior to one year before trial, mother moved frequently and left the children in the care of father or relatives for long periods of time. This finding is not clearly erroneous.
5. Mother argues that because the trial court relied on mother's past behavior instead of looking at her current situation, its finding that father has a more stable proposed home is clearly erroneous. Although the trial court considered mother's several residences and many jobs during the past few years, it also considered the fact that at the time of trial, mother was charged with welfare fraud and could be deported if convicted and was an illegal alien with no work authorization. The finding is not clearly erroneous.
6. The trial court found that mother's "behavior and demeanor during this hearing convince this Court she has serious psychological or psychiatric problems." Mother argues that this finding is clearly erroneous and that absent expert opinion, the trial court was not competent to make the finding. Mother notes that her psychological evaluation revealed no evidence of depression, psychological distress, disturbed thinking, or unusual thought content.
Mother argues that in making this finding, the trial court may have impermissibly relied on mother's reaction to a teddy bear in the courtroom. Mother contends that she has a deep-rooted fear of teddy bears, stemming from childhood, and that father knew this and intentionally brought a teddy bear into the courtroom to terrorize her.
Although it is true that the trial court was not competent to definitively diagnose mother's mental health, Minn. Stat. § 518.17, subd. 1(a)(9), required the trial court to consider and evaluate the mental health of all individuals involved. Mother has cited no authority that requires the trial court to ignore its direct observations of her behavior when considering and evaluating her mental health. The finding could not reasonably be construed as anything other than the court's own assessment based on its own observations. Furthermore, there is no basis to conclude that the finding was based only on mother's reaction to the teddy bear, and the trial court did not find that the mental and physical health factor favored either party.
7. Mother argues that the trial court's finding that she is less able to provide appropriate guidance to the children as her own life does not reflect any long-term planning regarding employment or residence is clearly erroneous. Mother cites evidence that indicates she is a highly intelligent, articulate, and ambitious woman. But the fact that the record contains evidence of mother's positive traits does not demonstrate that the trial court's finding is clearly erroneous. The trial court considered evidence that reflected favorably and unfavorably on both parties and determined that father is more able to provide appropriate guidance. This does not mean that mother has no ability to provide guidance. The finding is not clearly erroneous.
8. The trial court found:
[Mother] alleges [father] was abusive and has an existing Order for Protection. No findings were made that abuse had occurred.
The veracity of [mother's] allegations of domestic abuse has not been established.
Mother argues that this finding is clearly erroneous, that domestic abuse occurred between the parties, and that the trial court should have determined what effect the abuse had on the children. To support her claim that abuse occurred, mother cites an order for protection she obtained based on father's behavior.
But the court that issued the order for protection specifically found that father "denies the allegations contained in the Petition but agrees an Order for Protection may issue so that temporary custody and visitation can be addressed." An order extending the order for protection found only that, "There is sufficient basis to determine that there is a need for this Order." No specific finding that domestic abuse had occurred was ever made. The trial court's finding that the allegations of domestic abuse had not been established is not clearly erroneous.
9. Mother's final claim of an erroneous finding is that the record does not support the following finding:
[Mother] does not seem to recognize the importance of [father's] relationship with the children. She placed the children with her sister, in Nigeria, and did not inform [father] of their whereabouts or how to contact them.
But mother argues only that there is other evidence in the record that indicates she does recognize the importance of father's relationship with the children. Mother does not dispute the evidence about the Nigerian incident. The record supports the trial court's finding.
Finally, mother argues that the trial court improperly used a pending welfare fraud prosecution to undermine her credibility while ignoring father's judicially established fraudulent conduct. Although the trial court's order does not refer to the fact that when father used service by publication to begin the dissolution, he falsely stated that he did not know mother's whereabouts, the order specifically refers to other fraudulent conduct by father. The order also refers to fraudulent conduct by mother that is not related to the welfare fraud prosecution. There is no basis for us to conclude that in making its credibility determinations, the trial court improperly emphasized the pending welfare fraud prosecution. See Sefkow, 427 N.W.2d at 210 ("Deference must be given to the opportunity of the trial court to assess the credibility of the witnesses.").
The evidence supports the trial court's findings of fact and the findings of fact support the trial court's conclusion that granting father sole legal and physical custody is in the children's best interests.
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.