STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1669

Michele Dawn Johnson, petitioner,
Appellant,

vs.

Marcus Brandon Johnson,
Respondent.

Filed May 29, 2007

Affirmed

Minge, Judge

Carlton County District Court

File No. 09-F6-04-000672

Matthew K. Begeske, John B. Schulte, Begeske Law Offices, 713 Board of Trade Building, 301 West First Street, Duluth, MN 55802 (for appellant)

Dennis J. Korman, Nicholas B. Schutz, Korman Law Office, 6 – 11th Street, Cloquet, MN 55720 (for respondent)

Considered and decided by Wright, Presiding Judge; Stoneburner, Judge; and Minge, Judge.

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

MINGE, Judge

Appellant argues that because the record does not support the district court’s application of the best-interest factors, the district court abused its discretion by granting custody to respondent. Appellant requests that this court remand with instructions to either (1) award her physical custody and adjust child support; or (2) appoint a guardian ad litem and hold a new trial. Because the district court did not abuse its discretion and because appellant is not entitled to the appointment of a guardian ad litem, we affirm.

FACTS

Appellant Michele Dawn Johnson (now known as Michele Dawn Baker) (mother) and respondent Marcus Brandon Johnson (father) were married in May 1991, and they have two minor children together. They separated in January 2004, and dissolution proceedings began in June 2004. The parties shared custody of the children during the dissolution proceedings. At trial each sought sole physical custody. The district court considered psychological evaluations of each party, heard testimony from both parties and from supportive character witnesses, considered the 13 best-interests-of-the-child factors set forth in Minn. Stat. § 518.17, subd. 1(a) (2006), and awarded sole physical custody of the children to father. The parties then filed countermotions for amended findings of fact and conclusions of law. Mother argued that the district court’s decision was not supported by the evidence and was contrary to law, and she requested a new trial. Father asked the district court to deny mother’s motion, and he proposed amended findings and conclusions. The district court denied mother’s motions and adopted some of father’s proposed amendments. This appeal follows.

D E C I S I O N

The first issue is whether the district court’s failure to appoint a guardian ad litem sua sponte was a reversible abuse of discretion. Father argues that this court does not have discretion to review the district court’s failure to appoint a guardian ad litem. Father further argues that mother did not raise this issue at the district court and waived it for purposes of this appeal.

Generally, this court will not consider issues that were not raised before the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988); see Jacobson v. $50,900 in U.S. Currency, 728 N.W.2d 510, 522-23 (Minn. 2007) (discussing application of Thiele). Despite this limit, we may review a matter as the interest of justice may require. Minn. R. Civ. App. P. 103.04; see Putz v. Putz, 645 N.W.2d 343, 350 (Minn. 2002) (applying rule 103.04). Recognizing that full consideration of child custody issues is important to the parties and the children, we briefly address the issue.

The district court has discretion to appoint a guardian ad litem in dissolution proceedings where custody is an issue. Minn. Stat. § 518.165, subd. 1 (2006); Reed v. Albaaj, 723 N.W.2d 50, 59 (Minn. App. 2006). A district court is required to appoint a guardian ad litem in a dissolution proceeding when the district court has reason to believe that the child is a victim of domestic child abuse or neglect. Minn. Stat. § 518.165, subd. 2 (2006). Otherwise, appellate courts review the failure to appoint a guardian ad litem for an abuse of discretion. See Reed, 723 N.W.2d at 59.

Mother concedes that a guardian ad litem was not required under Minn. Stat. § 518.165, subd. 2. Instead, mother argues that a guardian ad litem would have helped the district court to evaluate the credibility of the parties. Although appointment of a guardian ad litem may have been helpful with credibility determinations, there is no showing that appointment was required in this case. Accordingly, we conclude that the district court did not abuse its discretion by failing to appoint a guardian ad litem sua sponte.

II.

The second issue is whether the district court abused its discretion in granting custody to father. In making a custody determination, the district court must consider the 13 best-interests-of-the-child factors set forth in Minn. Stat. § 518.17, subd. 1(a) (2006). District courts have broad discretion to award custody. Schallinger v. Schallinger, 699 N.W.2d 15, 18 (Minn. App. 2005), review denied (Minn. Sept. 28, 2005). The district court’s custody determination must be based on a balancing of the best interests of the child. Vangsness v. Vangsness, 607 N.W.2d 468, 476-77 (Minn. App. 2000).

Appellate review of a custody determination 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) (quotation omitted). We will sustain the district court’s findings of fact unless they are clearly erroneous. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). A finding is clearly erroneous if the reviewing court is “left with the definite and firm conviction that a mistake has been made.” Prahl v. Prahl, 627 N.W.2d 698, 702 (Minn. App. 2001) (quotation omitted). In reviewing custody determinations, we defer to the district court’s assessment of witness credibility. Minn. R. Civ. P. 52.01; Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).

Here, the district court heard substantial testimony regarding the parties’ allegations that the children were abused while in the other party’s care. Mother concedes that the parties presented conflicting testimony and evidence on this issue. Likewise, father concedes that “the District Court was left with the unenviable task of determining how much weight to assign divergent testimony.” Thus, the district court had to determine which parent was more credible and which parent could provide a more stable environment for the children.

In its amended findings, the district court was troubled that mother resided with her boyfriend F.M. in his home. The record supports the district court’s concerns. F.M.’s former wife petitioned for an order for protection against him, and during those proceedings, she alleged that F.M. was drinking excessively, was behaving erratically, and had threatened to shoot her and himself if she left. Although F.M. and his wife ultimately stipulated to a “No Finding” order for protection, she did not recant the claim. The guardian ad litem report filed in that order for protection proceeding indicated that F.M. had used “meth.” In that same proceeding, mother admitted that F.M. told her that he had received a ticket for using an “illegal drug.”

Mother argues that she did not need to prove that F.M. was a good person in order to gain custody. However, in seeking sole physical custody, once F.M.’s character was challenged, the district court properly considered whether mother’s living situation with F.M. would provide a stable, permanent, and desirable living environment for the children. See Minn. Stat. § 518.17, subd. 1(a)(7). Mother argues that there is no evidence to substantiate the claims against F.M. other than father’s testimony, which appellant says lacks credibility. Mother’s claim ignores the other evidence. And in any event, credibility determinations are left to the district court. We also note that the district court placed considerable weight on the fact that mother failed to call F.M. as a witness or otherwise rehabilitate his character despite knowing for a long time that his background and interaction with the children was important to the district court’s custody determination.

The district court determined that respondent could provide a more stable living situation for the children than mother. Mother argues that the district court improperly based this determination on father’s continued residence in the family home. In reviewing the record, we conclude that the district court did not abuse its discretion in considering father’s living situation. We also conclude that there is sufficient evidence in the record supporting the district court’s determination that father would provide a more stable living environment than mother.

Mother also argues that other factors weighed in favor of granting her custody. For example, she argues that because the district court found that she “was the primary caretaker during the time the parties resided together,” she should have received custody. But the district court went on to find that “[s]ince the parties separated, they have shared physical custody. As a result both parties have performed the duties involved in primary caretaking.” Thus, this factor does not clearly weigh in favor of either party. Even if mother had previously been the primary caretaker, a district court “may not use one factor to the exclusion of all others, and, although the primary caretaker factor is significant, it cannot be used as a presumption in determining a child’s best interests.” Schumm v. Schumm, 510 N.W.2d 13, 14 (Minn. App. 1993) (quotation omitted). Thus, the district court was not required to grant custody to mother on the basis of this factor alone.

Mother also cites factors relating to the children’s familial relationships as weighing in her favor. But these factors did not clearly weigh in favor of either party. The record indicates that the children have a strong bond with father and his parents. Moreover, the record indicates that because mother’s extended family lives in another part of the country, the children have had minimal contact with her side of their family. These considerations favor father. But the district court also found that father and his family were not likely to encourage contact between the children and mother. This finding weighs in favor of mother. Overall, the children’s familial relationships are complex, and the district court did not find that those relationships clearly favored either parent’s request for custody.

Finally, appellant claims that the district court “grossly misstate[d] the evidence” by finding that father did not have any mental health problems. Father’s psychological evaluation does indicate that he was defensive at times and unable to identify weaknesses in his parenting. But the evaluation does not indicate that he is unable to be a good parent, and it does not indicate that he has any personality or psychological disorders. Furthermore, the psychological evaluations indicate that, although each party has some personality or psychological issues, each is capable of performing essential parenting skills. Ultimately, the psychological evaluations do not express a custodial recommendation or preference. We conclude that on this record, the district court did not misstate the evidence in its determination regarding father’s mental health.

In sum, few of the best-interests factors weighed strongly in favor of either party. The district court heard testimony, was most influenced by concerns over stability and mother’s living situation with F.M., made credibility determinations, and granted sole physical custody to father. Because there is sufficient evidence in the record supporting that decision, we conclude that the district court did not abuse its discretion in granting custody to father.

Affirmed.

Dated: