This opinion will be unpublished and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

A05-2068

 

In re the Marriage of:

 

Tue Moua, petitioner,

Appellant,

 

vs.

 

Naocha Yang,

Respondent.

 

Filed September 19, 2006

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. DC 202728

 

Lawrence H. Crosby, Jay D. Olson, Crosby & Associates, Roseville West, 2277 Highway 36 West, Suite 234E, St. Paul, MN 55113-3830 (for appellant)

 

Naocha Yang, 571 53rd Avenue Northeast, Fridley, MN 55421 (pro se respondent)

 

            Considered and decided by Shumaker, Presiding Judge; Kalitowski, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Tue Moua challenges the district court’s decision to grant respondent Naocha Yang sole legal and sole physical custody of the parties’ child, C.Y., arguing that the district court abused its discretion by (1) modifying the previous custody order; and (2) allowing the guardian ad litem to testify.  We affirm.

D E C I S I O N

 

I.

 

            A district court has broad discretion in determining whether to modify child custody.  Sharp v. Bilbro, 614 N.W.2d 260, 263 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000).  This court “will not reverse a custody determination 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).  We will sustain a district court’s findings of fact unless they are clearly erroneous.  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).

            To modify a prior custody order, the district court must find that a change has occurred in the circumstances of the child or custodian and modification would serve the best interests of the child.  Minn. Stat. § 518.18(d) (2004).  But in applying this standard, the district court shall retain the custody arrangement of the prior order unless certain statutory factors are present, including the fact that “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).

            Here, appellant-mother argues that the district court abused its discretion in modifying the previous custody order and granting respondent-father sole legal and sole physical custody of the parties’ son, C.Y.  We disagree.

            1.         Change in circumstances

            To modify a custody order, the district court must find that a change of circumstances occurred since the date of the original order.  Minn. Stat. § 518.18(d).  “A change in circumstances must be significant” and “cannot be a continuation of conditions existing prior to the order.”  Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997).

            Appellant argues that the district court failed to identify any changes in circumstances.  But “[a] child’s strong preference to change residence after a custody decree can constitute a change in circumstances.”  Id.  And here, the district court found that C.Y. expressed a “strong preference” to live with respondent because appellant is physically aggressive towards C.Y. and disciplines him by hitting him.  The record supports the court’s finding.  C.Y. told the court that he wants to live with his father and that his mother punishes him by hitting him.  And C.Y.’s guardian ad litem (GAL) and the county custody evaluator both testified that C.Y. seemed terrified at the prospect of returning to his mother’s house because of how she treats him.

            Furthermore, a custodial parent’s move out of state is a change in circumstances that triggers provisions of the custody-modification statute.  Sefkow v. Sefkow, 427 N.W.2d 203, 214 (Minn. 1988).  Here, the record indicates that appellant and her husband have moved to Arkansas.  Thus, we conclude that the district court did not clearly err in finding that a change of circumstances has occurred.

            2.         Best interests

            The district court may not modify a custody order unless modification serves the child’s best interests.  Minn. Stat. § 518.18(d).  The court determines the best interests of the child by considering all relevant factors, including the 13 statutory factors listed in Minn. Stat. § 518.17, subd. 1 (2004).  “[C]urrent law leaves scant if any room for an appellate court to question the trial court’s balancing of best-interests considerations.”  Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000).

            Here, the district court made extensive findings with respect to each of the best-interest factors under Minn. Stat. § 518.17, subd. 1.  The court observed that “[b]oth parents have the capacity and disposition to provide love, affection, and guidance to [C.Y.].”  But the court also found that C.Y. has a strong preference to live with his father because of how appellant disciplines him.  The record indicates that both parents physically discipline their children, but appellant hits more often and harder, using whatever object she has in her hand.  As a result, C.Y. perceives his mother as cruel and has “very substantial fears” of returning to his mother’s custody.  Thus, the court found that “[C.Y.’s] emotional development is at risk if he is required to continue to live with her.”  These findings are supported by the testimony of C.Y’s GAL and the county custody evaluator. 

            The district court further found that appellant has been C.Y’s primary caretaker since the parties’ divorce and that respondent suffers from depression.  But the court found that respondent now appears committed to providing C.Y. with a home.  Since C.Y. moved into respondent’s home, C.Y. has seemed happier, more outgoing, and well adjusted.  In addition, C.Y. has strong ties to his extended family in Minnesota, including his siblings and half-siblings.

            Appellant argues that respondent and his family coached C.Y. to tell the court that he wants to live with his father and that appellant disciplines her children “as any caring parent does.”  But C.Y.’s GAL testified that she believes C.Y.’s statements about being afraid of returning to his mother’s home.  And the district court found that C.Y. is “clearly frightened of his mother.”  This court gives deference to the district court’s opportunity to assess the credibility of witnesses.  Sefkow, 427 N.W.2d at 210.  Because the record supports each of the district court’s findings, we conclude that the district court’s findings establish that modification of the custody order is in C.Y.’s best interests.

            3.         Endangerment

            The district court shall retain the custody arrangement of the prior order unless “the child’s present environment endangers the child’s physical or emotional health or impairs the child’s emotional development.”  Minn. Stat. § 518.18(d)(iv).  “The concept of endangerment is unusually imprecise.”  Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991) (quotation marks omitted).  “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 (quotation omitted); see also Eckman v. Eckman, 410 N.W.2d 385, 389 (Minn. App. 1997) (upholding modification based on child’s isolation in father’s home and preference for mother).

            Appellant argues that “the allegations of excessive discipline were not substantiated” and that there is no evidence to show that C.Y. is in “significant danger” in appellant’s custody.  But appellant fails to address the evidence that C.Y. was emotionally endangered by her behavior. 

            Here, several witnesses testified that appellant has hit C.Y., and as a result, C.Y. was “terrified” of returning to his mother’s home.  And the custody evaluator testified that “I haven’t seen a child act like that regarding a parent in any of the other custody settings I’ve ever done.  That kind of behavior is usually associated with children who have been abused.”

            Appellant contends that this case is similar to Johnson v. Smith, 374 N.W.2d 317 (Minn. App. 1985), review denied (Minn. Nov. 18, 1985), where this court determined that the child was not endangered despite his mother’s physical discipline.  But in Johnson, this court also determined that “[t]he boy has no fear of his mother.”  374 N.W.2d at 320.  In contrast, here, the district court found that “[C.Y.] is clearly frightened of his mother” and he has “very substantial fears of how he is treated by [appellant] and
. . . of being returned to her custody.”  On this record, we conclude that the district court did not clearly err in finding that C.Y. is emotionally endangered in appellant’s custody.

            4.         Balance of harms

            The district court may not modify a custody order unless the harm caused by a change of custody is outweighed by the advantage of the change.  Minn. Stat. § 518.18(d)(iv).  “[T]he balance of harms[] may sometimes be implicit in the other factors.”  Geibe, 571 N.W.2d at 778 (citing Eckman, 410 N.W.2d at 389 (upholding modification where the court did not make explicit findings on advantage of change)).

            Appellant argues that modifying custody will only harm C.Y. because “[C.Y.] did very well with his mother” and respondent’s involvement with his family has been “extremely limited.”  But the court found that respondent now appears committed to providing C.Y. with financial support and a home.  The record further shows that C.Y. is frightened of his mother and that he prefers to live with his father.  In respondent’s home, C.Y. seems happier and has regular contact with his brother, sister, and two half-brothers.  In contrast, if C.Y. moved to Arkansas with appellant, he would no longer be near much of his extended family.  On this record, we conclude that the district court did not clearly err in finding that the advantage of the custody change outweighs the harm caused by the change.

            This court’s function is not to reweigh the evidence; rather, it is to determine if 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 as a whole supports the district court’s findings.  Thus, we conclude that the district court did not abuse its discretion in determining that granting respondent sole custody of C.Y. was in C.Y.’s best interests and in not allowing appellant to move C.Y. to Arkansas.

II.

 

            Absent an erroneous interpretation of the law, the question of whether to admit evidence is within the district court’s discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).  Minnesota law provides that:

[a] guardian ad litem shall carry out the following responsibilities:

 

            (1) conduct an independent investigation to determine the facts relevant to the situation of the child and the family, which must include, unless specifically excluded by the court, reviewing relevant documents; meeting with and observing the child in the home setting and considering the child’s wishes, as appropriate; and interviewing parents, caregivers, and others with knowledge relevant to the case;

            (2) advocate for the child’s best interests . . . ;

            (3) maintain the confidentiality of information related to a case . . . ;

            (4) monitor the child’s best interests throughout the judicial proceeding; and

            (5) present written reports on the child’s best interests that include conclusions and recommendations and the facts upon which they are based.

 

Minn. Stat. § 518.165, subd. 2a (2004). 

            Here, appellant argues that the GAL failed to perform these duties because the GAL’s investigation was insufficient and she did not submit a written report.  Thus, appellant argues that the district court should have disregarded the GAL’s testimony.   But appellant did not object to the GAL’s testimony at trial, and therefore, the issue is not properly before this court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that appellate courts will generally not consider matters not argued and considered in the district court). 

            Moreover, the GAL conducted an independent investigation as required by Minn. Stat. § 518.165.  The record shows that the GAL met with C.Y. twice at school and spoke with the following people on the phone:  C.Y., both parties, C.Y.’s classroom teacher, the social worker, C.Y.’s sister, and C.Y.’s sister-in-law.  Based on the information that she collected, the GAL submitted a letter to the court, agreeing with the recommendations of the custody evaluator.  Thus, we conclude that the GAL conducted a proper investigation and that the district court did not abuse its discretion by admitting her testimony.

            Affirmed.