STATE OF MINNESOTA

IN COURT OF APPEALS

C6-02-285

Steven Hanke, Jr.,

Respondent,

vs.

Jacalyn June Crawford,

Appellant.

Filed October 1, 2002

Affirmed

Randall, Judge

Hubbard County District Court

File No. FX-99-30

Sean J. Rice, 8800 Highway 7, Suite 408, St. Louis Park, MN 55426 (for appellant)

William F. Jones, Post Office Box 48, Park Rapids, MN 56470 (for respondent).

Considered and decided by Randall, Presiding Judge, Harten, Judge, and Shumaker, Judge.

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

RANDALL, Judge

Appellant Jacalyn Crawford challenges the award of sole legal and physical custody of their child to respondent Steven Hanke, arguing that the record does not support various best-interest findings made by the district court. Appellant further argues that the district court's findings were insufficient to support awarding custody to the father. We affirm.

FACTS

F.N.C.H. was born on December 23, 1996, during the parties' relationship. In August 1999, appellant moved to South Dakota. A custody action was filed and a trial was held on September 22 and 23, 1999. The district court granted joint temporary legal and physical custody of the parties' minor child and ordered alternate parenting time of three weeks. The court order provided that the court would revisit custody in two years when the minor child was to enter preschool. The subsequent custody hearing was held in September 2001. On September 14, 2001, the court granted sole physical and legal custody to respondent. On October 1, appellant filed a motion requesting that the court amend its findings. That motion was heard on October 12. On December 20, the court denied appellant's motion. Appellant challenges the district court's order arguing that there are insufficient facts to support the district court's findings that it was in the best interest of the parties' minor child to award sole physical and legal custody to respondent father, and that the district court's failed to make detailed findings of fact. This appeal follows.

D E C I S I O N

Sufficiency of the Findings

To modify custody, a court must find that a change in the circumstances has occurred since the entry of the previous custody order. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981). In addition, a court must find that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child. Minn. Stat. § 518.18(d) (2000). Appellate court review of a custody determination is limited to "whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law." Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996) (quotation omitted).

Appellant argues that the district court failed to make sufficient findings to support its modification of custody. A trial court's findings must be stated with sufficient particularity and adequately demonstrate consideration of pertinent statutory factors. Rosenfeld v. Rosenfeld, 311 Minn. 76, 83, 249 N.W.2d 168, 171-72 (1976).

Although the district court's findings on the best interests of the child could have been more in depth, the record contains sufficient evidence to support its findings that sole custody to respondent was in the child's best interest. See Green v. Green, 364 N.W.2d 383, 387 (Minn. App. 1987) (lack of specific findings does not require remand where record presents facts supporting district court's decision). Here, the record contains a guardian ad litem report, affidavits by various individuals attesting to the parents' parenting styles, a trial, and a two-year history with the parties, which the court relied on when making its custody determination. Further, the district court's September 14, 2001, order modifying custody specifically incorporated the findings of fact from the October 29, 1999, custody order, thus addressing various statutory factors that were not specifically detailed in its September 14, 2001 order. In 1999, the court found that the child was well cared for by her parents, addressed the parents' mental health, the permanence and stability of the family, and the disposition of the parents to give love and affection. See Minn. Stat. § 518.17 (stating factors a district court should consider in custody determinations).

Sole Custody and Best Interests

Custody awards are based on a child's "best interests." Minn. Stat. § 518.17, subd. 3(a)(3) (2000). A district court has broad discretion to provide for the custody of the parties' children. Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989); Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). Findings of fact will not be set aside unless clearly erroneous. Minn. R. Civ. P. 52.01.

A finding is "clearly erroneous" if the reviewing court is "'left with the definite and firm conviction that a mistake has been made.'" When determining whether findings are clearly erroneous, the appellate court views the record in the light most favorable to the trial court's findings.

Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000) (citations omitted).

Appellant argues that there is insufficient evidence to support the district court's finding that it was in the child's best interest to award sole physical and legal custody to respondent. Appellant contends that the guardian ad litem's report, which the district court relied on when making its custody determination, was biased in respondent's favor and that the evidence does not support the district court's determination that appellant thwarted the ability of the parents to cooperate in rearing the couple's minor child.

Respondent argues there are sufficient facts to support a determination that it was in the best interests of the child for sole physical and legal custody to respondent because of (1) the interaction and interrelationship of the child with the parent or parents, siblings, and any other person who may significantly affect the child's best interests; (2) the child's adjustment to home school and community; (3) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity; and (4) the permanency of the family unit of the existing or proposed custodial home.

An appellate court will reverse a custody determination only if it concludes that 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). We review a district court's findings of fact in the light most favorable to those findings and will not reverse them unless they are clearly erroneous. Id. Further, this court does not reweigh the evidence. Rather, it determines whether the evidence as a whole sustains the district court's findings. In re Salkin, 430 N.W.2d 13, 16 (Minn. App. 1988), review denied (Minn. Nov. 23, 1988).

The record supports the district court's findings that awarding sole physical and legal custody of the parties' child to respondent is in the child's best interests. The district court found the father could better provide a stable and consistent home life and "an opportunity to develop consistent friendships at school and at home." Here, the district court had the benefit of addressing the issue of custody in 1999 and telling the parents the matter would be revisited in two years. During the intervening two-year period the court received supplemental reports to work with. The court, besides numerous affidavits for both sides discussing the parties' parental styles, had the benefit of a July 19, 2001 report by Guardian ad Litem Pamela Gregory, which recommended that it was in the child's best interests for respondent to be given sole physical custody of the parties' child. Contra, the record contains a July 11, 2001, treatment summary and child interview form by Joann M. Adney, M.S.W., and a September 11, 2001, custody evaluation by Julie Inman Darger, M.S. recommending that appellant be awarded sole physical custody of the child. Two common threads were apparent in all three reports: that it was in the child's best interest that one parent be awarded sole physical custody and that the parents needed to learn to cooperate in rearing their child. The court also had available a February 9, 2000, Visitation Expediter Report recommending that the weekend visits (every three weekends) be eliminated because of the animosity between appellant and respondent. The expediter, however, took no position in which parent should be awarded sole physical custody.

Appellant argues that the favorable characterization of respondent by the Guardian Ad Litem is overly biased in respondent's favor. But we simply note that in support of its findings, the court relied not only on the reports and various affidavits proffered by the parties, but had the benefit of hearing testimony and assessing witness credibility during the trial. The court had the opportunity to hear testimony from and assess the credibility of the parties themselves, the guardian ad litem, the child's Headstart teacher, the visitation expediter, and a private therapist. Weight of testimony and witness credibility are determinations on which we give deference to the district court. See Minn. R. Civ. P. 52.01 (stating deference must be given to district court's opportunity to judge credibility of witnesses). We recognize appellant's argument that the reports by Joann M. Adney, MSW and the custody evaluation by Julie Inman Darger, MS. were not given great weight by the district court in its custody determination. But weight to be given oral or documentary testimony is also a credibility determination, which is given great deference by an appellate court. Id.

The district court's findings are clear that although both parties are loving and concerned parents, respondent is more likely to provide a stable and consistent environment for the child, particularly in light of the hostility between the parties. On appellant's behalf, we point out that the district court did not find that appellant was unfit to care for and provide for the child but did "not believe if the [appellant] were given custody she would do anything to promote the father-daughter relationship" or "foster the relationship with her brother or stepmother." The court did not find the probable corresponding interference with appellant's parental rights if respondent was given custody.

This is case where it is important for the parents of a six-year-old child living in two states to cooperate both in the child's upbringing and in the child's relationship to both parents, the father and the mother.

A relevant portion of the trial court's memorandum of law is set out below to make it clear that in this close case, it was interference with the other parent's parental rights, not unfitness as a parent, that turned the tide in favor of the father.

The decision of the Court, while not an easy one because of its dramatic impact on the parties, nonetheless is crystal clear. Two years ago when the Court made its Order, the Court wanted the parties to cooperate in a parenting plan that would work for the minor child. It is evident from the testimony of the guardian, the visitation expediter and the Petitioner these efforts have been thwarted by the Respondent.

While the Court does not question the love of the Respondent for the child nor does it have significant concerns about her ability to parent, it has significant concerns about her approach to joint parenting and cooperative efforts for the benefit of the child. This has been perhaps the most significant factor in the Court's decision. The Court finds the Petitioner will do what is necessary to insure the Respondent will stay part of the minor child's life. The Court does not believe if the Respondent were given custody she would do anything to promote the father-daughter relationship. The Court acknowledges she would follow the orders of the Court, but does not believe she would foster the relationship of the child with her father, brother or stepmother.

After a thorough review of the record, the trial court's findings, and its conclusions of law, the record supports the district court.

Affirmed.