C3-02-1197

In re:

Barbara Joy Morales Pelzer, petitioner,

Appellant,

vs.

Curtis Alexander Morales,

Respondent.

Filed March 11, 2003

Affirmed

Willis, Judge

Ramsey County District Court

File No. F90028

John G. Westrick, Tammy L. Merkins, Westrick & McDowall-Nix, PLLP, 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for appellant)

Kevin J. McGrath, Mark E. Mullen, Jensen, McGrath & Mullen, PLLP, 1350 Wells Fargo Plaza, 7900 Xerxes Avenue South, Bloomington, MN 55431 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Willis, Judge, and Anderson, Judge.

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

WILLIS, Judge

Appellant-mother challenges the district court’s judgment and decree of dissolution that (1) awards the parties joint legal custody of their only child and (2) gives sole physical custody of the child to respondent-father. Because we conclude that the district court did not abuse its discretion, we affirm.

FACTS

Appellant Barbara Joy Morales Pelzer (“mother”) and respondent Curtis Alexander Morales (“father”) were married in April 1995 and are the parents of one child, a son, I.E.M., who was born in November 1995.

In January 2000, mother petitioned for dissolution of the marriage and requested sole legal and physical custody of I.E.M. In his answer, father requested joint legal and sole physical custody of I.E.M. For the pendency of the dissolution proceeding, the district court awarded mother temporary legal and physical custody of I.E.M. and gave father parenting time. The district court also (1) requested that the Ramsey County Domestic Relations Division complete a custody and visitation evaluation, (2) directed Domestic Relations to provide parenting-time supervision, (3) authorized Domestic Relations to request psychological evaluations of the parties, and (4) appointed a guardian ad litem (GAL) “to represent the best interests of [I.E.M.], and advise the Court with respect to custody and visitation.” Domestic Relations ultimately recommended that the district court award the parties joint legal custody and award mother sole physical custody of I.E.M.

In May 2002, the district court issued a judgment and decree of dissolution that (1) awarded the parties joint legal custody of I.E.M., (2) gave sole physical custody of I.E.M. to father, and (3) required mother to maintain health insurance for I.E.M. The district court issued the judgment and decree 10 days before it received the GAL’s report.

An important factor in the district court’s custody decision was mother’s mental health. Citing a report by a Domestic Relations psychologist, the district court found that mother suffers from a condition that causes her to “over-interpret[ ] physical symptoms in her son” and perhaps to “focus excessively and inappropriately on treatments and protective measures to deal with her son’s supposed symptoms.” In addition, the district court was apparently concerned by the number of doctors treating I.E.M. and the large number of prescription medications that I.E.M. takes.

Mother appeals, arguing that the district court abused its discretion by (1) giving father sole physical custody of I.E.M., (2) awarding the parties joint legal custody of I.E.M., (3) issuing the judgment and decree before it received the GAL’s report, and (4) requiring mother to provide health insurance for I.E.M.

D E C I S I O N

Appellate court review of a district court’s child-custody determination is limited to whether the district court abused its discretion by making findings of fact unsupported by the evidence or by improperly applying the law. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996); see also Minn. R. Civ. P. 52.01 (stating that when reviewing findings due consideration should be given to the district court’s opportunity to judge witness credibility).

Mother argues that the district court abused its discretion by awarding sole physical custody of I.E.M. to father. A district court’s custody determination must be in the “best interests of the child.” See Minn. Stat. § 518.17, subd. 1(a) (2002). In determining what is in the best interests of the child, a district court must consider all relevant factors, including the 13 factors listed in section 518.17, subdivision 1(a). Id. “The court may not use one factor to the exclusion of all others.” Id. But the law currently “leaves scant if any room for an appellate court to question the [district] court’s balancing of best-interests considerations.” Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000).

A. Findings of fact

The district court made detailed findings on each of the factors listed in section 518.17, subdivision 1(a). Mother contends that the district court’s findings of fact are unsupported by the evidence with respect to the following statutory factors: (1) the child’s primary caretaker; (2) the intimacy of the relationship between each parent and the child; (3) the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child’s best interests; (4) the mental and physical health of all individuals involved; and (5) the capacity and disposition of the parties to give the child love, affection, guidance, and to continue educating and raising the child in the child’s culture, religion, or creed, if any. See Minn. Stat. § 518.17, subd. 1(a)(3-5), (9-10).

Our review is limited to whether the district court’s findings have evidentiary support in the record. See Silbaugh, 543 N.W.2d at 641. We have reviewed the record and conclude that all of the district court’s findings on the five disputed factors have evidentiary support. Thus, we decline to set aside the district court’s findings.

B. Domestic Relations’ custody recommendation

Mother asserts that the district court abused its discretion by not explaining why it rejected Domestic Relations’ recommendation that she be awarded sole physical custody of I.E.M. In contested custody proceedings, the district court “may order an investigation and report concerning custodial arrangements for the child.” Minn. Stat. § 518.167, subd. 1 (2002). A district court may, in its discretion, refuse to accept a study’s recommendation for custody. See Roehrdanz v. Roehrdanz, 410 N.W.2d 359, 362 (Minn. App. 1987), review denied (Minn. Oct. 28, 1987). But a refusal to accept a study’s recommendation requires that the district court either (1) express its reasons for rejecting the recommendation or (2) make detailed findings that examine the same factors that the study examined. See Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991). Here, the Domestic Relations report and the district court’s judgment and decree examine the same factors: the criteria provided by section 518.17, subdivision 1(a). Thus, the district court did not abuse its discretion by not explaining why it rejected Domestic Relations’ custody recommendation.

C. Parenting time

Mother argues that the district court “erred” by awarding father sole physical custody of I.E.M. when mother “has parenting time with the child at least 50% of the time.” As support for this proposition, mother cites cases in which this court has treated an award of sole legal custody with substantial visitation (such as four days per week) to the noncustodial parent as an award of “de facto joint legal custody.” See, e.g., Ozenna v. Parmelee, 377 N.W.2d 483, 487-88 (Minn. App. 1985). Mother appears to argue that an award of de facto joint legal custody by itself constitutes reversible error.

Here, the judgment and decree awards parenting time to mother, who is presently unemployed and receiving disability, “each weekday during the time [father] is working and every other weekend from Friday at 6 p.m. until Sunday at 6 p.m.” But the district court also found, and mother does not dispute, that father is unemployed. Even if we assume that mother correctly states the law with respect to de facto joint legal custody, we cannot conclude on this record that I.E.M. would actually remain with mother more than 50% of the time. Thus, we conclude that mother’s argument with respect to parenting time does not provide a ground for reversal.

II.

Mother challenges the district court’s award of joint legal custody. Joint legal custody means that “both parents have equal rights * * * to participate in major decisions determining the child’s upbringing, including education, health care, and religious training.” Minn. Stat. § 518.003, subd. 3(b) (2002). In making a custody determination, the district court “shall use a rebuttable presumption that upon request of either or both parties, joint legal custody is in the best interests of the child.” Id. § 518.17, subd. 2 (2002). If a district court awards joint legal custody over the objection of one party, it must make detailed findings on (1) the ability of the parents to cooperate in raising the child, (2) the parents’ methods for resolving major disputes concerning the child’s upbringing, (3) whether an award of sole legal custody would be detrimental to the child, and (4) whether domestic abuse has occurred between the parents. Id.

Here, the district court made findings on the statutory factors. Mother challenges the findings on two of these factors: (1) whether awarding her sole legal custody would be detrimental to I.E.M. and (2) whether there are methods for resolving major disputes available. Once again, our review is limited to whether the district court’s findings have evidentiary support in the record. See Silbaugh, 543 N.W.2d at 641. After reviewing the record, we conclude that the district court’s findings have evidentiary support. Thus, we will not disturb the district court’s decision on joint legal custody.

III.

Mother contends that the district court abused its discretion by issuing the judgment and decree of dissolution before it received the GAL’s report. To prevail on appeal, a party must show both error and that the error caused prejudice. Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975); see also Minn. R. Civ. P. 61 (providing that harmless error is ignored). Here, the GAL’s report recommended an award of joint legal custody and giving sole physical custody to father. Because the GAL’s report recommends a custody determination identical with the one that the district court actually made, any failure to consider the report was not prejudicial to mother.

IV.

Mother challenges that part of the judgment and decree that requires her to provide health insurance for I.E.M. Mother maintains that she cannot provide coverage for I.E.M. because her current health-care provider will not cover I.E.M. because he does not live with mother more than 50% of the time. As support for this contention, mother cites a letter from the provider, discussing its coverage policy, but mother concedes that this letter was not submitted to the district court, and the record does not indicate that mother made a similar argument to the district court. Thus, this issue is not properly before us. See Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988). But we note that mother can either (1) petition the district court under Minn. Stat. § 518.145, subd. 2 (2002), to reopen the judgment and decree or (2) petition the district court under Minn. Stat. § 518.64, subd. 2 (2002), which allows for modification of child-support orders, on the theory that “[t]he medical needs of a minor child, including insurance coverage, are in the nature of child support,” Casper v. Casper, 593 N.W.2d 709, 714 (Minn. App. 1999) (quotation omitted).

Affirmed.