CX-99-1573

Jeremiah James Rudolph, petitioner,

Respondent,

vs.

Patricia Jo Gaffney,

Appellant.

Filed May 16, 2000

Reversed and remanded

Crippen, Judge

Becker County District Court

File No. F99650625

William Kirschner, 118 Broadway, Suite 604, Fargo ND, 58102 (for appellant)

James W. Shoemaker, P.O. Box 1026-1009 Lake Avenue, Detroit Lakes, MN 56502 (for respondent)

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

U N P U B L I S H E D O P I N I O N

CRIPPEN, Judge

Modifying the prior custody placement of the parties’ three-year old child, the trial court placed sole legal and physical custody with respondent Jeremiah Rudolph; in 1996, when respondent’s paternity was adjudicated, the court established joint legal custody of the child and placed physical custody with appellant Patricia Gaffney. Appellant contends that the modification must be reversed because the court did not make findings under Minn. Stat. § 518.18(d)(iii) (1998) on whether the child was endangered and whether the custody modification would be more advantageous than harmful for the child. Because these findings are absent and, on this record, cannot be inferred, we reverse and remand.

FACTS

Respondent alleged the parties’ child was endangered in appellant’s custody, obtained an ex parte order awarding him temporary custody, and sought permanent custody of the child. After a hearing, the trial court placed custody of the child with his father based on an analysis of the child’s best interests, finding that (a) when with appellant, the child “does not act appropriately” and has been occasionally uncontrollable; (b) the child missed a large amount of school when living with his mother; (c) appellant’s home was “untidy and unorganized” and she did not promptly attend to laundry and dishes; (d) appellant had an adjustment disorder, accompanied by a problem in relating to her child; and (e) appellant’s guidance has been “ineffective” to control the child’s behavior. The trial court’s order lacks findings addressing the custody-modification standard set out in Minn. Stat. § 518.18 (1998).

DECISION

We will not alter a custody-modification decision “unless the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.” Frauenshuh v. Giese, 599 N.W.2d 153, 156 (Minn. 1999) (citation omitted). By alleging that the court erroneously modified custody without making findings under Minn. Stat. § 518.18, appellant alleges the court improperly applied the law.

Frauenshuh makes application of the custody-modification standard of Minn. Stat. § 518.18 mandatory. See Frauenshuh, 599 N.W.2d at 159 (holding that requirements of Minn. Stat. § 518.18 for modification of custody apply “even where” parties “stipulated to a different standard in their dissolution decree”).^[1] Because there are no findings showing that the trial court applied Minn. Stat. § 518.18, the question becomes whether the lack of findings under that statute is harmless. See Minn. R. Civ. P. 61 (requiring harmless error to be ignored).

The portion of Minn. Stat. § 518.18 under which respondent apparently sought to modify custody requires both that the child be endangered in his current custodial circumstances and that the modification be more advantageous than harmful to the child. Minn. Stat. § 518.18(d)(iii). Whether a child is in the “significant degree of danger” required for the child to be “endangered” is a finding of fact. See Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991) (noting legislature “likely intended to demand a showing of a significant degree of danger”); see also Lilleboe v. Lilleboe, 453 N.W.2d 721, 724 (Minn. App. 1990) (stating “[a] finding of present endangerment must be based on the particular facts of each case”). Appellate courts do not find facts on appeal. Kucera v. Kucera, 275 Minn. 252, 254, 146 N.W.2d 181, 183 (1966). Therefore, unless this record compels a finding of endangerment, we cannot infer that finding. Cf. Warwick v. Warwick, 438 N.W.2d 673, 677-78 (Minn. App. 1989) (inferring finding of bad faith where record mandated it).

The trial court’s findings show that it accepted and rejected various aspects of the testimony of each party and of certain witnesses. Given the parties’ allegations and the acrimonious nature of their dispute, much of the fact-finding required to resolve this case depends on credibility judgments. Appellate courts do not make these determinations. See Roy Matson Truck Lines, Inc. v. Michelin Tire Corp., 277 N.W.2d 361, 362 (Minn. 1979) (stating that trial court, sitting without jury, is “sole judge” of credibility and may accept all or part of any witness’s testimony). Thus, despite the fact that respondent and other witnesses made allegations and expressed opinions that, if believed, would support a finding of endangerment, this record does not compel a finding of endangerment. The lack of an explicit finding of endangerment precludes appellate affirmance of the decision to grant respondent’s endangerment-based motion to modify custody. See Dabill v. Dabill, 514 N.W.2d 590, 596 (Minn. App. 1994) (stating that modification of custody under Minn. Stat. § 518.18(d)(iii) “requires” finding that children’s present environment “endangers their health or emotional development”). The custody modification must be reversed and the case remanded for the trial court to address the question of endangerment.

Because the lack of a finding of endangerment precludes affirming the custody modification, we need not address whether we can infer a finding that modification will be more beneficial than harmful for the child. But such a finding is required if custody is to be modified. Bettin v. Bettin, 404 N.W.2d 807, 808 (Minn. App. 1987).

It is discretionary with the trial court to decide whether the record should be reopened on remand. And we express no opinion on the weight of the evidence bearing on respondent’s modification motion.

Reversed and remanded.

^[1] Frauenshuh was issued after the district court decided this matter.