This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1445

 

In re the Marriage of: Michael Ray Sjodin, petitioner,
Appellant,

vs.

Candice Lee Sjodin,
Respondent.

 

Filed January 10, 2006

Affirmed

Minge, Judge

 

Benton County District Court

File No. 05-F7-98-001199

 

 

John G. Westrick, Kirk M. Anderson, Westrick & McDowall-Nix, PLLP, 450 Degree of Honor Building, 325 Cedar Street, St. Paul, MN 55101 (for appellant)

 

David W. Buchin, Buchin Law Office, P.A., 16 North Ninth Avenue, St. Cloud, MN 56330 (for respondent)

 

            Considered and decided by Minge, Presiding Judge; Willis, Judge; and Worke, Judge.

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

 

MINGE, Judge

            Appellant alleges that the district court abused its discretion by failing to make adequate findings and conclusions when it denied appellant’s motion to modify child custody.  Because we find that the record supports the district court’s findings, we affirm.

FACTS

When the marriage between appellant Michael Ray Sjodin and respondent Candice Lee Sjodin was dissolved in 1996, the district court granted respondent sole legal and physical custody of their only child, C.L.S., and granted appellant reasonable visitation rights.  In October 2002, the district court suspended appellant’s parenting time because of abuse allegations made by C.L.S., then eight years old, to her therapist, Mary Kay Carle.  Except for one two-hour supervised visit, appellant did not see C.L.S. for 15 months.  However, C.L.S. recanted her abuse allegations to Dr. Palmer, a therapist engaged by appellant to investigate C.L.S.’s allegations.  Thus, in December 2003, the district court reinstated appellant’s parenting time.  Both parties agree that they currently manage visitation reasonably well and that appellant has parenting time in excess of that ordered by the district court.

In January 2004, appellant filed a motion requesting sole physical custody, alleging child endangerment.  Appellant premised his motion on Palmer’s opinion that respondent coached C.L.S. into making abuse allegations, arguing that this amounted to emotional abuse of C.L.S, and that there was a change in circumstances because appellant’s visitation was suspended for 15 months.  After concluding that appellant made a prima facie showing of endangerment, the district court held an evidentiary hearing.  At the conclusion of the hearing, the district court denied appellant’s modification request, finding that there was no change in circumstances and because a custody modification was not in C.L.S.’s best interests.  Appealing that judgment, appellant argues that the district court erred by failing to make explicit findings regarding endangerment.  

D E C I S I O N

            The issue in this case is whether the district court abused its discretion by failing to modify child custody.  Appellate review of custody determinations is limited to determining 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).  Findings of fact are only set aside if clearly erroneous, and the record is viewed in the light most favorable to the findings.  Frauenshuh v. Giese, 599 N.W.2d 153, 156 (Minn. 1999).  “It is not this court’s duty to weigh all of the evidence and come to an independent conclusion concerning the children’s best interests.”  Gustafson v. Gustafson, 376 N.W.2d 290, 293 (Minn. App. 1985).  Questions of law are reviewed de novo.  In re Custody of N.A.K., 649 N.W.2d 166, 174 (Minn. 2002).

            Appellant claims that because he had made a prima facie showing of endangerment, the district court was required to modify custody unless it made explicit findings that the endangerment did not adversely affect the child’s best interests.  To support a modification of custody, Minnesota law requires more than simply a finding that modification would be in the best interests of the child.  State ex. rel. Gunderson v. Preuss, 336 N.W.2d 546, 547-48 (Minn. 1983).  Minnesota law provides that:

If the court has jurisdiction to determine child custody matters, the court shall not modify a prior custody order or a parenting plan provision which specifies the child’s primary residence unless it finds . . .  that a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child.  In applying these standards the court shall retain the custody arrangement or the parenting plan provision specifying the child’s primary residence that was established by the prior order unless:

            . . . .

(iv) the child’s present environment endangers the child’s physical or emotional health or impairs the child’s emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.

Minn. Stat. § 518.18(d)(iv) (2004) (emphasis added).  The moving party must make a prima facie showing on each criterion before the district court will order an evidentiary hearing.  Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981); see also Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997).

Based on the evidentiary hearing, the district court must “first make a two-fold finding: (1) that a change has occurred in the circumstances of the child or his custodian, and (2) that the modification of custody is necessary to serve the best interests of the child.”  Gunderson, 336 N.W.2d at 548.  Then the district court considers evidence of endangerment and balances the harm.  Id.  Although the district court cannot modify custody without making findings on each factor, the converse is not true.  The district court is not obligated to specifically address the remaining considerations if it denies a modification motion because, for example, a change in circumstances is lacking or modification is not in the best interests of the child.  In any event, to a certain extent these considerations overlap.  Endangerment, harm, best interests of the child, and change in circumstances will share a factual basis.  If one is present or compromised, it is likely that others are as well.  We will address the two factors that were addressed by the district court.

            Change in Circumstances

            Whether a change in circumstances exists is a case-by-case determination.  Sharp v. Bilbro, 614 N.W.2d 260, 263 (Minn. App. 2000).  “A change in circumstances must be significant and must have occurred since the original custody order; it cannot be a continuation of conditions existing prior to the order.”  Geibe, 571 N.W.2d at 778; see also Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989) (stating that “[t]he change of circumstances must be a real change and not a continuation of ongoing problems”), review denied (Minn. June 21, 1989).  In addition, interference with visitation or argument over a visitation schedule does not, standing alone, constitute a change in circumstances.  “A denial or interference with visitation is not controlling in a custody-modification proceeding, but such events are to be considered along with the custody-modification standard” set out in the statute.  Sharp, 614 N.W.2d at 263; see also Nice-Petersen, 310 N.W.2d at 472.

Here, appellant argues that the court-ordered suspension of his parenting time for 15 months is a change in circumstances because respondent was the source of the abuse allegations and was, therefore, interfering with appellant’s visitation rights.  However, there was a factual dispute over respondent’s culpability in causing C.L.S. to allege abuse and notwithstanding the loss of 15 months of parenting time, appellant now enjoys parenting time in excess of the court-ordered parenting time schedule.  In light of all of these considerations, the district court had discretion to determine whether the alleged change in circumstances was supported by the facts.  We conclude the district court did not abuse its discretion by determining that no change had occurred which would necessitate a custody modification.

Best Interests of the Child

            The district court made comprehensive findings to determine whether custody modification was necessary to serve C.L.S.’s best interests.  “In addition to the substantial change in circumstances, the modification must be necessary to serve the children’s best interests.”  Gustafson, 376 N.W.2d at 293; see also Frauenshuh, 599 N.W.2d at 158-59 (stating that children’s best interests are “paramount” concern in deciding custody issues); Pikula v. Pikula, 374 N.W.2d 705, 711 (Minn. 1985) (“The guiding principle in all custody cases is the best interest of the child.”).

The district court determines the best interests of the child by applying the factors listed in Minn. Stat. § 518.17, subd. 1 (2004).  The statute does not require specific findings on each and every factor.  Nazar v. Nazar,505 N.W.2d 628, 633 (Minn. App. 1993), review denied (Minn. Oct. 28, 1993). 

Here, the district court made numerous findings regarding C.L.S.’s best interests.  Because the parties cannot agree, C.L.S. has expressed no preference, and both parties professed to have a close relationship with C.L.S.; the district court focused on stability as a critical factor.  Not only has C.L.S. lived with respondent since the divorce, there was evidence that respondent is more willing to follow the therapeutic management plan and provide C.L.S. with adequate therapy sessions and that appellant interfered with this process.  The district court was also concerned by appellant’s lack of adequate housing, and the fact that C.L.S. would share a bed with appellant during visits.  Appellant suggests that the district court impermissibly focused on evidence which reflected negatively on appellant, citing Weatherly v. Weatherly,330 N.W.2d 890 (Minn. 1983), for support.  In Weatherly, the district court ignored evidence that the custodial father physically abused the child due to chemical dependency problems.  330 N.W.2d at 892.  Here, the district court weighed testimony from two experts, and chose to believe one opinion over the other.  This is not improper; rather,  “the trial court is uniquely situated to determine the truthfulness of a witness.”  Corwin v. Corwin, 366 N.W.2d 321, 325 (Minn. App. 1985).  Based on the record, we conclude that the district court did not abuse its discretion in determining that a modification in custody was not in C.L.S.’s best interests.

Here, the district court initially found that appellant made a prima facie showing of the four statutory criteria and then held an evidentiary hearing.  Just because there is a prima facie showing adequate to require an evidentiary hearing does not mean there is a presumption that modification of custody should occur.  The district court has discretion to evaluate the record and make its decision on custody.  Here, it concluded that there had not been a substantial change in circumstances and that a custody modification was not in the child’s best interests.  Because the district court found no substantial change in circumstances and that modification was not in C.L.S.’s best interests, it was not compelled to make further findings on endangerment.  See Nice-Petersen, 310 N.W.2d at 472 (affirming a denial of modification without holding an evidentiary hearing where the appellant’s affidavits did not establish a change in circumstances).

Endangerment

            Appellant’s modification motion focused on endangerment, which is a “threshold” requirement for custody modification.  Dabill v. Dabill, 514 N.W.2d 590, 595 (Minn. App. 1994).  Even if the district court finds that there is a change in circumstances and the modification is in the best interests of the child, the district court will not grant a motion to modify based on endangerment unless it finds actual endangerment.  Gunderson, 336 N.W.2d at 548.  “Endangerment requires a showing of a ‘significant degree of danger,’ but the danger may be purely to emotional development.”  Geibe, 571 N.W.2d at 778 (citation omitted); accord Tarlan v. Sorensen, 702 N.W.2d 915, 923 (Minn. App. 2005).

            Appellant argues that because the district court’s order does not use the word “endanger” it is facially deficient and that this, therefore, constitutes reversible error.[1]  Even if the district court were required to consider endangerment in this case, as we previously observed, there is overlap between endangerment and the other factors.  A close reading of the district court’s findings and conclusions regarding change in circumstances and best interests of the child reveals that the district court did not find that the present environment “endangers” C.L.S.[2]  To the contrary, the district court found that the harms associated with changing custody greatly outweighed any potential benefits.  It is hard to imagine a case where the district court would find that modification is not in the best interests of the child but simultaneously also find endangerment.  Neither the record nor the district court’s factual findings support a finding that C.L.S. is in a “significant degree of danger” while residing with respondent.  See Geibe, 571 N.W.2d at 778.

            Findings

Finally, appellant claims that the district court’s judgment is erroneous, arguing that the findings of fact were too conclusory and cannot support the judgment.  However, the record demonstrates that the district court weighed the testimony of both the parties and expert witnesses to arrive at the factual findings.  “Where a decisive finding of fact is supported by sufficient evidence and is adequate to sustain the conclusions of law, it is immaterial whether some other findings are not so sustained.”  Hanka v. Pogatchnik, 276 N.W.2d 633, 636 (Minn. 1979) (citing Locksted v. Locksted, 208 Minn. 551, 552, 295 N.W. 402, 404 (1940)).

            Affirmed.