This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-958

 

In re the Marriage of:

 

Alana Lynn Hayes, petitioner,

Respondent,

 

vs.

 

Shawn Michael Hayes,

Appellant.

 

Filed June 26, 2007

Affirmed

Kalitowski, Judge

 

Dakota County District Court

File No. F9-05-12681

 

Gary G. Liebmann, Liebmann Law Office, P.A., 12400 Portland Avenue South, Suite 180, Burnsville, MN 55337 (for respondent)

 

Mark A. Olson, Olson Law Office, 2605 East Cliff Road, Suite 100, Burnsville, MN 55337 (for appellant)

 

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

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Shawn Michael Hayes challenges the district court’s decision to grant sole physical custody of the parties’ minor children to respondent and its finding that the court-appointed custody evaluator’s credibility and impartiality were compromised during the custody evaluation.  We affirm.

D E C I S I O N

I.

            Our review of custody decisions is narrow and “limited to 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) (citation omitted).  District courts make custody determinations based on the best interests of the children, and balance 13 factors enumerated in Minn. Stat. § 518.17, subd. 1 (2006).  The district court must make detailed written findings regarding its consideration of the best-interest factors.  Id. The 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).

            We will sustain a district court’s findings unless they are clearly erroneous.  Minn. R. Civ. P. 52.01.  We view the record in the light most favorable to the trial court’s findings of fact.  Vangsness, 607 N.W.2d at 474.  “That the record might support findings other than those made by the [district] court does not show that the court’s findings are defective.”  Id.  When there is conflicting evidence, we defer to the district court’s determinations of credibility.  Minn. R. Civ. P. 52.01; Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).  Here, the district court made findings on each element of the best-interests standard and awarded respondent sole physical custody of the parties’ minor children. 

            Appellant argues that the district court abused its discretion by choosing not to award the parties joint physical custody.  “There is neither a statutory presumption disfavoring joint physical custody, nor is there a preference against joint physical custody if the district court finds that it is in the best interest of the child and the four joint custody factors support such a determination.”  Schallinger v. Schallinger, 699 N.W.2d 15, 19 (Minn. App. 2005), review denied (Minn. Sept. 28, 2005); see also Minn. Stat. § 518.17, subd. 2 (2006).  But when the difficulties between the parents are so significant and pervasive as to preclude cooperation, awarding joint physical custody is an abuse of discretion.  Minn. Stat. § 518.17, subd. 2(a); Greenlaw v. Greenlaw, 396 N.W.2d 68, 73-74 (Minn. App. 1986). 

            Here, the district court specifically found that the parties would be unlikely to agree on parenting issues.  In order to justify an award of joint physical custody, the district court would have been required to make a finding regarding “the ability of parents to cooperate in the rearing of their children.”  Minn. Stat. § 518.17, subd. 2(a).  The district court decided that it could not make such a finding and instead found that they could not agree.  Accordingly, we conclude that the district court properly determined that joint physical custody is not appropriate in this case.   

            Appellant argues that the district court abused its discretion by awarding sole physical custody to respondent based on the inappropriate “tender years” doctrine.  See Minn. Stat. § 518.17, subd. 3(a)(3) (2006) (stating that no parent should be a preferred custodian on the basis of sex).  Appellant notes the district court’s statement that, “given the age of the children, it is in their best interest that [respondent] have sole physical custody of the children with [appellant] having very liberal parenting time.”  But the record indicates that the district court provided detailed findings regarding the best interests of the children and its award of sole physical custody to respondent is supported by its findings.  Thus we cannot conclude that the district court improperly relied on the tender years doctrine in making its decision.

            We conclude that the district court did not abuse its discretion by awarding sole physical custody of the parties’ children to respondent.   

II.

            Appellant argues that the district court clearly erred by finding that the court-appointed custody evaluator’s credibility and impartiality were compromised during the custody evaluation and abused its discretion by relying on this finding to disregard the evaluator’s recommendation.

            In reviewing a district court’s order, this court will reverse the determination only if it is based on an error of law or on an abuse of discretion that results in a conclusion that is against logic and the facts on record.  Rutten v. Rutten, 347 N.W.2d 47, 50-51 (Minn. 1984).  A district court’s findings “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the [district] court to judge the credibility of the witnesses.”  Minn. R. Civ. P. 52.01.  A finding is “clearly erroneous” when this court has “the definite and firm conviction that a mistake has been made.”  Vangsness, 607 N.W.2d at 472 (citation omitted).  When determining whether findings are clearly erroneous, this court views the record in the light most favorable to the findings.  Id.

            Appellant argues that the district court did not base its finding regarding the custody evaluator’s credibility on sufficient evidence.  But the district court is in the best position to evaluate the credibility of a witness and we defer to the district court’s credibility determination.  See Minn. R. Civ. P. 52.01.

            Moreover, even if the district court’s finding is error, it is only reversible error if it prejudiced appellant.  Minn. R. Civ. P. 61.  And the district court has discretion whether to follow a custody recommendation.  See Minn. Stat. § 518.167, subd. 1 (2006); Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991) (“[a]s an exercise of [ ] discretion, the [district] court may refuse to accept the study’s recommendation for custody”).  A district court need not reach the same conclusion as a custody evaluator, provided that the district court’s detailed findings support the conclusion that its custody determination is in the best interests of the children.  Id. 

            Here, the district court made detailed, independent findings regarding the best-interest factors that support its decision to grant respondent sole physical custody of the parties’ children.  Thus, the district court’s finding regarding the impartiality of the custody evaluator, even if erroneous, is not reversible error.

            Affirmed.