In re the Matter of: Daniel R. Plamann, petitioner, Respondent, vs. Rebecca Ruth Klaphake, Appellant. A05-1601, Court of Appeals Unpublished, April 18, 2006.

This opinion will be unpublished and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

A05-1601

In re the Matter of:

Daniel R. Plamann, petitioner,

Respondent,

vs.

Rebecca Ruth Klaphake,

Appellant.

Filed April 18, 2006

Affirmed

Lansing, Judge

Meeker County District Court

File No. 47-F4-04-000331

Kim Keithahn, Thomton, Sperry, Jensen & Keithahn, Ltd., 329 East Highway 12, P.O. Box 841, Litchfield, MN 55355 (for respondent)

Russell R. Cherne, Pennington & Lies, P.A., 1111 North First Street, P.O. Box 1756, St. Cloud, MN 56302-1756 (for appellant)

Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Halbrooks, Judge.

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

LANSING, Judge

Rebecca Klaphake appeals from an order granting Daniel Plamann sole physical custody of their minor child. Klaphake argues that the district court abused its discretion by making findings that are unsupported by the evidence and by not following the custody evaluator’s recommendation for joint physical custody. Because the district court’s findings have support in the record and the court made detailed findings demonstrating full consideration of the factors addressed in the custody study, we affirm.

F A C T S

Daniel Plamann and Rebecca Klaphake are the parents of MBP, who was born in December 2001. Klaphake and Plamann’s initial relationship was brief and ended during Klaphake’s pregnancy. The couple reconciled when a paternity test, administered shortly after MBP’s birth, established that Plamann is MBP’s father. At that time, Klaphake was living in her sister’s home. Plamann visited the home frequently and helped Klaphake’s sister, a daycare provider, care for MBP while Klaphake was at work. Klaphake moved to another sister’s home in July 2002.

During 2002 Plamann built a house, and Plamann, Klaphake, and MBP moved into the house in the fall of 2002. They lived there as a family until January 2004, when Plamann and Klaphake separated. After the separation, Klaphake and MBP moved back in with Klaphake’s second sister. In May 2004 Klaphake and MBP moved to the home of Klaphake’s new boyfriend, where they were residing at the time of the custody hearing in December 2004.

Plamann petitioned the district court in April 2004 for sole physical custody of MBP and alternatively requested joint physical custody. Klaphake also requested sole physical custody. After a preliminary hearing, the district court granted Klaphake temporary custody pending the outcome of a custody study and an evidentiary hearing.

At the contested hearing, Klaphake and Plamann stipulated to joint legal custody and presented evidence supporting their opposing claims for sole physical custody. The custody study recommended joint physical custody. Following the hearing, the district court issued an order evaluating the statutory custody factors and determining that it was in MBP’s best interests for Plamann to have sole physical custody. The district court denied Klaphake’s request to file a motion for reconsideration and also denied her motion for amended findings or a new trial. Klaphake appeals the district court’s order, arguing that the court made findings unsupported by the record and abused its discretion by not following the custody evaluator’s recommendation.

D E C I S I O N

Under Minnesota law, the paramount consideration in determining child custody is the best interests of the child. Minn. Stat. § 518.17, subd. 3(a)(3) (2004); Olson v. Olson, 534 N.W.2d 547, 549 (Minn. 1995). When determining custody, a district court must evaluate the child’s best interests by considering “all relevant factors,” including the thirteen factors listed in Minn. Stat. § 518.17, subd. 1(a) (2004). See Pikula v. Pikula, 374 N.W. 2d 705, 713 (Minn. 1985) (listing cases that require specificity of district court findings on statutory best-interests factors).

Appellate review of a custody determination is restricted to whether the district court abused its discretion by incorrectly applying the law or by making findings that lack evidentiary support. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996). Fact findings that form the basis for the custody decision are not set aside unless clearly erroneous, and we review the custody decision in the light most favorable to the district court’s findings. Minn. R. Civ. P. 52.01; Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn. 1993).

The district court in this case made specific findings on each statutory best-interests factor and concluded that giving Plamann sole physical custody would be in MBP’s best interests. The district court found that most of the factors weighed equally in favor of both parents, but found that the factors addressing MBP’s adjustment, stability, and permanence weighed in favor of Plamann and that Plamann has a greater disposition than Klaphake to encourage contact between MBP and the noncustodial parent. On the primary-caretaker factor, the district court found in Klaphake’s favor.

Klaphake argues that the district court’s findings on seven factors are unsupported by the evidence. The challenged factors are the intimacy of the relationship between each parent and the child; the interaction and interrelationship of the child with the parents and others who may affect the child’s best interests; the child’s adjustment to home, school, and community; the length of time the child has lived in a stable and satisfactory environment; the permanence of the custodial home; the incidence of domestic abuse; and the comparative dispositions to encourage contact between the child and the other parent. See Minn. Stat. § 518.17, subd. 1(a)(4)-(8), (12), (13). We address the challenges in the order in which they are listed.

The district court found that the best-interests factors addressing the intimacy of the relationship between MBP and each parent and MBP’s interaction with other persons in her life weighed equally in favor of both parents. The district court took into account MBP’s “slightly stronger attachment” to Klaphake because MBP had spent more time with Klaphake in her early months and during the period when Klaphake had temporary custody. See id. § 518.131, subd. 9(a) (2004) (stating temporary order “[s]hall not” prejudice rights to be adjudicated at subsequent hearing). But the district court weighed these factors equally based on MBP’s close relationship with each parent. MBP was three years old at the time of the hearing, and both parents had been active in her life and participated in her upbringing. The custody evaluator observed that both parents have a close and loving relationship with MBP and that she had positive interactions with her paternal and maternal extended families. MBP’s maternal aunts provided daycare for her, and she also spent a significant amount of time with her paternal grandparents. Klaphake’s arguments are more directed toward her status as primary parent. The district court evaluated the primary-parent factor as weighing in favor of Klaphake, and the evidence supports this evaluation.

The district court found that the factors addressing MBP’s adjustment to her home and the time spent in a stable environment weighed in favor of Plamann. Between MBP’s birth and the time of the hearing, Klaphake lived in five different homes, most of which were the existing households of others. She lived with one sister, then with a second sister, then with Plamann, then again with her second sister, and then with her current boyfriend. These moves were driven to some extent by financial forces and the move from Plamann’s house was apparently at his behest. The financial forces were in turn affected by Klaphake’s frequent job changes and the failure to obtain her GED. Nonetheless, the district court is required to evaluate stability, continuity, and the child’s adjustment to changes, and the court properly took into account Klaphake’s inability to maintain a home for a consistent period of time and her dependency on others to provide her with a place to live. Plamann, by contrast, owns a home in which he plans to stay and in which MBP has lived for nearly half of her life. He has had a steady job for several years. The custody evaluator noted that, although Klaphake excelled at meeting MBP’s daily needs, “her ability to provide permanence has been limited,” and that, at the time of the hearing, Plamann could offer a higher degree of stability.

Klaphake argues that the district court improperly considered her employment and residential history in considering the best-interests factors related to stability and permanence. A district court should not consider job stability if it does not affect the parent’s relationship with the child. Kotila v. Kotila, 351 N.W.2d 661, 663 (Minn. App. 1984). Caselaw does not, however, suggest that job stability may never be considered as a component of a best-interests analysis. See, e.g., Weatherly v. Weatherly, 330 N.W.2d 890, 892 (Minn. 1983) (observing that “[j]ob stability, in this case, . . . is not indicative of respondent’s emotional stability in the context of the parent-child relationship” (emphasis added)). The custody evaluator testified that Klaphake’s pattern of change would negatively affect MBP if it continued. Further, the district court did not rely exclusively on Klaphake’s employment or residential history in weighing these factors, but rather on general problems with consistency that emerged from the evidence as it related to Klaphake’s ability to provide a stable environment for MBP.

Klaphake also argues that the court disregarded evidence of domestic abuse by Plamann. The two incidents of alleged domestic abuse involved Klaphake’s contention that Plamann had thrown a remote control at her, injuring her wrist, and that, during an argument, Plamann threw their mattress outside. Plamann acknowledged both incidents, conceding that in an argument that arose while watching television, he threw the remote control to Klaphake and that he “might have flipped it . . . a little harder than it should have been.” But he denied throwing the remote control at her. Klaphake consulted a doctor following the incident, and the doctor’s notes confirm Plamann’s version of the incident. Klaphake told her doctor it was an accident, stating that Plamann “tried to throw the remote to her and it ended up striking [her wrist].” Plamann testified that during a separate argument triggered by his frustration with Klaphake’s financial irresponsibility, he slid or pushed their mattress out to the front steps and told her to leave. Klaphake’s testimony confirmed that this confrontation was oral and not physical. The custody evaluator, whose experience included working with domestic-abuse cases as an evaluator and guardian ad litem, concluded that domestic abuse was not a factor in the familial relationship. Consistent with this evaluation, Klaphake’s proposed parenting plan acknowledged that Plamann is a fit parent, which weighs against an allegation that these actions would constitute domestic abuse negatively affecting MBP.

The final best-interests factor that Klaphake challenges is the comparative disposition of each parent to encourage contact with the other parent. The district court found that Plamann is more likely to encourage contact than Klaphake. The temporary-custody arrangement allotted Plamann visiting time that primarily included alternating weekends. Klaphake testified that she was willing to allow Plamann more time during the regular week and an additional three weeks in the summer. But the proposed parenting plan Klaphake submitted to the court allows visitation only on alternating weekends, one week in summer, and holidays “like the [schedule] we have.” Although Klaphake points to a few instances in which she allowed Plamann to spend extra time with MBP, she explained to the custody evaluator that, as MBP’s mother, she should have sole custody and make the decisions in MBP’s life. Plamann, by contrast,indicated a greater willingness to have both parents active in MBP’s life.

The evidence supports the district court’s findings on the contested best-interests factors. Klaphake argues that, overall, the district courtfavored Plamann by emphasizing facts that cast her in a negative light and disregarding facts that reflected negatively on Plamann. We discern no bias in the district court’s findings. The district court’s findings repeatedly underscore that Klaphake is a good parent and has a strong and positive relationship with her daughter. The court noted that this case presented “an unusually difficult custody decision.” The record establishes that the district court made credibility findings that affected the weight given to conflicting testimony. But credibility determinations are within the discretion of the district court and are required when testimony conflicts. Vangsness v. Vangsness, 607 N.W.2d 468, 472, 474 (Minn. App. 2000). The findings on each of the contested factors are drawn from the testimony and the custody evaluation and do not support a claim of improper bias.

Klaphake’s final argument is that the district court abused its discretion by rejecting the custody evaluator’s recommendation for joint physical custody. A district court is not bound by an expert’s recommendation, and the court may reject the recommendation, without explanation, if it makes detailed findings that demonstrate full consideration of the factors addressed in the custody study. Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991). We have held, however, that when the court does not follow the evaluator’s recommendation, the need for particularized findings is heightened. Rogge v. Rogge, 509 N.W.2d 163, 166 (Minn. App. 1993) (finding error when district court did not follow custody-study recommendation and failed to address all statutory best-interests factors), review denied (Minn. Jan. 28, 1994).

The custody evaluator provided a report that summarized her observations of Klaphake and Plamann and her opinion of their individual interactions with MBP. She then evaluated the facts based on the best-interests factors of Minn. Stat. § 518.17, subd. 1(a), and recommended that the court grant joint physical custody. She based her recommendation on the belief that the parties could eventually cooperate, and a joint-custody arrangement would be in MBP’s best interests. The district court specifically addressed each statutory best-interests factor and provided an accompanying memorandum explaining why it determined granting Plamann sole physical custody was in MBP’s best interests. See Rutanen, 475 N.W.2d at 104 (finding no error when district court did not follow custody-study recommendation but made detailed findings demonstrating that it “conscientiously and thoroughly considered the best interests of the children consistent with all factors set forth in Minn. Stat. § 518.17” before granting custody).

The district court rejected the evaluator’s recommendation because it disagreed with her belief that the parties could successfully cooperate and exercise joint physical custody in a way that would serve MBP’s best interests. The record provides substantial evidence of Klaphake and Plamann’s inability to agree on parenting methods and to effectively cooperate in joint parental decision-making. We also note that Klaphake did not request joint physical custody, and the district court was not asked to make the additional findings required for joint custody. See Minn. Stat. § 518.17, subd. 2 (2004) (listing additional findings necessary when district court contemplates joint custody).

The district court carefully evaluated the evidence and provided a detailed analysis of the best-interests factors in light of the evidence. Appellate review does not allow us to reweigh the evidence. Instead, we determine whether the district court abused its discretion by making findings unsupported by the evidence or the applicable law. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). We conclude that the district court did not abuse its discretion in making the custody decision.

Affirmed.