This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In the Matter of the Welfare of:

S.S., Child.

Filed July 15, 1997


Schultz, Judge


Nobles County District Court

File No. F895837

Marc G. Kurzman, Kurzman, Grant & Ojala, 219 Main Street S.E., Suite 403, Minneapolis, MN 55414 (for appellant)

William J. Wetering, Hedeen, Hughes, Wetering & Kness, 1206 Oxford Street, P.O. Box 9, Worthington, MN 56187-0009 (for respondent)

Considered and decided by Short, Presiding Judge, Toussaint, Chief Judge, and Schultz, Judge.



Appellant Robin Folkers contests the trial court's award of sole physical custody of S.S. to the child's father, respondent Glen Stoel. Because the trial court did not abuse its discretion in awarding custody, we affirm.


A trial court has broad discretion in deciding custody issues. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). 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).


Appellant contends the trial court abused its discretion in awarding respondent sole physical custody of S.S. because the record contained unanswered questions as to an allegation of an inappropriate sexual reactions by respondent when holding S.S.. When there is evidence on the record raising unanswered questions pertaining to the best interests of a child, the trial court has a duty to uncover reliable evidence to show the best interests of the child. See Lucas v. Lucas, 389 N.W.2d 744, 747 (Minn. App. 1986) (case remanded to allow trial court to demand further evidence or seek child welfare study where record raised unanswered questions as to potential dangers to child's best interests); see also Nazar v. Nazar, 505 N.W.2d 628, 633 (Minn. App. 1993) ("trial court must seriously examine any allegation of child abuse before determining custody"), review denied (Minn. Oct. 28, 1993).

The record indicates that at the time the guardian ad litem completed her second custody evaluation, appellant mentioned that respondent had inappropriate sexual reactions when holding the child. The guardian telephoned appellant to inquire further. Although the guardian had contacted appellant several times over the past year, this was the first she mentioned this information. The guardian did not find the allegation credible, but nevertheless contacted respondent. He firmly denied it. The guardian noted the allegation in her report, but did not change her custody recommendation.

Appellant has failed to show an abuse of discretion by the trial court. Her statement to the guardian ad litem was not an allegation of sexual abuse; it did not allege any harm to the child or any ongoing problems. In fact, appellant testified that she wanted to make sure that there would be visitation between the child and respondent and she encouraged it. She did not indicate any concerns about her daughter's safety. Thus, the evidence does not necessarily rise to the level requiring the trial court to inquire further.

In addition, the court had evidence suggesting that the allegation was not true. The guardian testified that she did not find the allegation credible. She had met with the parties several times and appellant had never mentioned it. The guardian had observed respondent and the child interact; the child was very comfortable with her father and the two had a good relationship. She saw nothing inappropriate. Also, the guardian informed the court that the father firmly denied the allegation.

Even if true, the allegation would not require reversal for abuse of discretion. Prior abuse of a child does not necessarily preclude awarding custody to the abusive parent. See Uhl v. Uhl, 413 N.W.2d 213, 217 (Minn. App. 1987) (affirming award of custody to parent with prior record of abuse). The trial court found respondent to be a good parent, quite involved in his daughter's life, and an appropriate disciplinarian. Appellant's testimony, as well as other evidence, supported these determinations. We therefore see no abuse of discretion.


Appellant also contends the trial court abused its discretion in awarding custody to respondent where the record indicated that he had previously, by spanking, abused another child and had been convicted of domestic assault. As mentioned above, this court has affirmed a trial court's finding that a parent who had been abusive to her children was fit and proper for an award of custody. Id. at 217. In Uhl, the abuse reported was not serious and was nonrepetitive, and the court found it significant that the parent was amenable to therapy and willing to change her behaviors. Id. at 216-17.

In this case, the trial court took testimony and made findings on the two incidents. The findings noted that respondent regretted severely spanking appellant's other child and that he realized that he should have walked away from the situation. Respondent admitted that he lost his temper and he went to a parents' group as a result of this incident. The findings also noted that respondent hit and pushed appellant through a storm door, which led to his arrest in 1994 for domestic assault. Respondent pleaded guilty to the charge and completed the court-ordered treatment in connection with the conviction. The court determined that both parties contributed to this incident and noted this was the only incident of physical violence between the parties in the record.

In determining that it was in the best interests of the child to award sole custody to respondent, the court stated that it was aware of respondent's past, but recognized that

he is attempting to change his ways and that he is now the more stable of the parents. [Appellant], though a fit parent, is still trying to find direction in her life. The Child needs the stability that [respondent] can provide.

Because the evidence supports the trial court's findings and because the findings support the court's decision, we see no abuse of discretion.


Appellant argues that the trial court failed to make meaningful or adequate findings to support the custody award. In awarding custody, the trial court must consider a child's best interests under Minn. Stat. § 518.17, subd. 1(a) (1996). The trial court need not, however, make a finding on each statutory factor. Nazar, 505 N.W.2d at 633. "It is sufficient if the findings as a whole reflect that the trial court had taken the statutory factors into consideration so far as they are relevant in reaching its decision." Rosenfeld v. Rosenfeld, 311 Minn. 76, 83, 249 N.W.2d 168, 172 (1976).

The trial court's order included nine pages of factual findings that address the statutory factors. Because the findings directly correspond with the requirements of Minn. Stat. § 518.17 and because they adequately support the custody decision, we affirm.


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