Susan Danner Olson, Eckberg, Lammers, Briggs, Wolff, & Vierling, P.L.L.P., 1835 Northwestern Avenue, Stillwater, MN 55082 (for respondent)

Considered and decided by Toussaint, Presiding Judge, Randall, Judge, and Norton, Judge.

Appellant challenges the district court's order granting respondent physical custody of the parties' children and challenges attorney fees awarded to respondent.

We affirm in part and reverse in part.

The district court dissolved the marriage in its April 8, 1997 order. The court awarded the parties joint legal custody of their children and awarded respondent sole physical custody of the children. Appellant was also ordered to pay respondent $14,000 in attorney fees.

Following appellant's motion for amended findings of fact or a new trial, the district court issued findings and an order to amend the judgment and decree and denied appellant's request for a new trial. This appeal followed.

In making custody decisions, the district court must determine what is in the best interests of the children by considering each of the statutory factors under Minn. Stat. § 518.17, subd. 1(a) (1996). No factor may be applied to the exclusion of the others, and although significant, the "primary caretaker factor" is not an irrebuttable presumption of the children's best interests. Schumm v. Schumm, 510 N.W.2d 13, 14 (Minn. App. 1993); Minn. Stat. § 518.17, subd. 1(a).

A. Statutory Factors

Appellant concedes that the court made extensive, detailed findings using the statutory factors under Minn. Stat. § 518.17, subd. 1(a). Appellant argues, however, that the evidence does not support a number of these findings.

1. Primary Caretaker

Appellant first argues the court erred in finding respondent was the children's primary caretaker until appellant was awarded temporary custody on April 1, 1996. Appellant insists the court ignored the evidence that at the time of the parties' separation, respondent was working outside the home and appellant performed all the nighttime tasks of feeding, bathing, and putting the children to bed. Appellant also argues that the court erred as a matter of law because it relied on a historical basis to determine who was the primary caretaker and not on the conditions at the time of separation. Further, appellant asserts the court erred by ignoring the role he played while the children were in his custody from April 1, 1996 until the district court's order on April 8, 1997.

In determining which parent is the primary caretaker, the court should consider which parent took primary responsibility for the children's everyday needs. Pikula, 374 N.W.2d at 713. The district court should ascertain which parent was the primary caretaker when the dissolution proceeding began. Id. at 714. This timing refers to when events leading to the dissolution physically disrupted the family relationship, "e.g., at the time of the parties' separation or the interruption of the functioning full family unit." Id. at 714, n.3. However, the Pikula analysis is viable only when the date the dissolution proceedings began is "reasonably close to the actual trial." Sefkow v. Sefkow, 427 N.W.2d 203, 212 (Minn. 1988).

Respondent did not work outside the home from the time the parties' first child was born in 1989 until July 1995 when she began working from 3:00 p.m. to midnight, Monday through Thursday, and 3:00 to 6:30 p.m. on Fridays. Appellant worked full-time outside the home throughout the marriage. Through the summer of 1995, respondent watched the children during the day, and appellant watched them in the evenings. Respondent eventually altered her schedule to begin work at 4:00 p.m., and in November 1995 began working only part-time. Although appellant petitioned for a dissolution in September 1995, the parties did not separate until March 1996.

Appellant correctly notes that the district court did not address in its findings the fact that respondent began working outside the home in July 1995. The record, however, supports the district court's conclusion that respondent was the primary caretaker. Respondent did stay home to care for the children until July 1995, and the evidence does not support a finding that appellant took over all the parental duties when respondent began working. The court-appointed custody evaluator and psychologist both indicated that they believed respondent was the primary caretaker, and the court heard testimony from 16 other witnesses, including both parties. Further, although the children spent one year in appellant's custody following the parties' separation, the children continued to see their mother regularly, and the children, ages six and four when appellant received sole physical custody, spent a great portion of their lives with their mother as the primary parent. Cf. Sefkow, 427 N.W.2d at 212 (holding date of separation should not be the pivotal date where approximately nine year-old daughter had spent several years with her father after parents' separation).

Based on all the evidence, the court could have considered the fact that respondent worked outside the home at the time of the parties' separation and the fact that respondent had sole physical custody for one year and still concluded that respondent was the primary caretaker. Thus, we cannot say the district court clearly erred in this finding.

2. Intimacy of Relationships

Appellant argues the district court erred in finding that a stronger emotional attachment existed between respondent and the children than between appellant and the children. He alleges the court disregarded evidence reflecting negatively on the children's relationship with respondent and evidence indicating the children's good relationship with appellant. He insists that because the children first reported sexual abuse by a babysitter to appellant, the court erred in its findings under this factor. The court found the children had a stronger tie to respondent noting that, in regards to the sexual abuse, the children asked to speak to respondent after talking with appellant.

There is substantial support in the record for the district court's findings on intimacy, including the testimony of the custody evaluator and the guardian ad litem who both made home visits. According to the testimony, there was more physical contact and verbal interaction between respondent and the children than between appellant and the children. The district court did not clearly err in finding respondent had a greater emotional attachment to the children than appellant.

3. Mental and Physical Health

a. Mental and Physical Health of D.S.

Appellant argues the district court erred in finding respondent's smoking did not cause or contribute to D.S.'s periodic cough. The district court concluded that there was no support for any allegation that respondent's smoking was bad for D.S. and noted that respondent desired to quit.

There is support in the record for appellant's contention that respondent should not smoke around the children; evidence indicates that three doctors have informed respondent of this information. Respondent's trial testimony indicates she does sometimes smoke in the house and in the car when the children are with her.

Although doctors have recommended that respondent not smoke around the children, no evidence was presented to indicate her smoking directly caused or contributed to D.S.'s cough. Additionally, respondent indicated she intended to quite smoking, and it is the district court's role to judge witness credibility. See Minn. R. Civ. P. 52.01 ("due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses"). In light of this information, the district court's finding that respondent's smoking was not harmful to D.S. was not clear error. We note that regardless of whether respondent was awarded physical custody or visitation rights, she will have to make a personal decision about her smoking habits around the children.

b. Mental and Physical Health of Respondent

Appellant argues the district court erred by refusing to find respondent's displays of anger affected her mental stability. Appellant insists the court failed to address the fact that respondent displayed her anger and received treatment for it long before these proceedings.

The district court relied on testimony by Stephen Perry, a psychologist who has counseled respondent at various times since 1990. Perry testified that he was not concerned about respondent's mental stability. The court also determined that nothing in Perry's counseling notes suggested that respondent has mental or emotional problems that would affect the best interests of the children.

Although there is evidence that respondent has had continual problems dealing with anger, there is no evidence she has taken this anger out on the children. Further, the district court's finding can be supported by Perry's testimony. Therefore, the district court reasonably relied on expert testimony and did not clearly err by finding respondent's mental health should not affect the custody decision.

Disposition of Each Party to Encourage and Permit Other Party's

Contact with the Children

Appellant argues the district court erred in finding that respondent has a greater ability to encourage contact between appellant and the children because no evidence supports such a finding. He asserts the court erred by basing this finding on appellant's compliance with the temporary order. Additionally, appellant explains that he voluntarily increased the time the children and respondent spent together during the summer of 1996 while he had sole physical custody. Finally, he contends that respondent's proposed findings indicate her desire to limit his contact with the children.

The district court determined that "[r]espondent has the greater ability to encourage frequent and continuing contact between the children and [appellant]." The court noted that while the children were in appellant's custody he showed a tendency "to exclude respondent and to limit the children's contact with respondent to the minimal schedule for visitation set out in the Temporary Order."

There is evidence that appellant voluntarily expanded the visitation schedule while he had custody of the children. Also, a comparison of the findings of fact and conclusions of law respondent and appellant proposed to the district court indicates that appellant requested a more liberal visitation schedule for respondent if appellant was awarded custody, compared to the schedule respondent proposed the court adopt if she was awarded custody. Additionally, as appellant notes, the district court should not properly use compliance with its own temporary order against appellant.

Although the district court's findings under this factor are thin, appellant did have custody for a year prior to the district court's final order, and the district court had the opportunity to review appellant's behavior during this time. Further, error in this finding alone does not require reversal of the district court's custody award. See Minn. R. Civ. P. 61 (harmless errors do not require reversal).

We note that, following a divorce, it is incumbent upon parents not to place total reliance on the courts to engineer the family's life. Despite the grant of sole physical custody to one parent and visitation to the other, parents have a responsibility to their children to act in their best interests and to promote the children's continued relationship with both parents.

5. Conclusion

The district court considered each of the statutory factors as required under Minn. Stat. § 518.17, subd. 1(a). The court's findings regarding the effect of respondent's smoking on D.S.'s health and appellant's disposition to encourage respondent's contact with the children are weak. Despite this, in light of the other findings by the district court which support its custody decision, we cannot say the district court abused its discretion by awarding custody to respondent.

B. Expert Witness Testimony

Appellant alleges that the district court erred in refusing to consider the testimony of appellant's expert witness, Dr. Perkins, a forensic psychologist. Appellant called Dr. Perkins to review the other trial experts' evaluations and to give his opinion on the parties' ability to parent the children. The court determined his "testimony was of no value in assessing the accuracy or reliability of the evaluations done by other witnesses," and, because he did not personally meet with either party or the children, his "opinions as to the parenting skills of the parties lack[ed] foundation." Appellant contends the district court's refusal to consider this testimony is indicative of the court's continual disregard for "all evidence which reflected negatively on respondent." See Weatherly v. Weatherly, 330 N.W.2d 890, 892 (Minn. 1983) (holding the district court should not disregard all evidence that reflects poorly on one party).

Decisions to admit expert testimony are within the district court's discretion; these decisions will be affirmed on appeal absent an abuse of discretion. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996). When deciding whether to admit such testimony, the district court must determine whether the expert has been proven competent to provide an opinion on the matter at issue and "whether the opinion [is] based on facts

sufficient to form an adequate foundation." Law v. Essick Mfg. Co., 396 N.W.2d 883,

887 (Minn. App. 1986), review denied (Minn. Jan. 27, 1987).

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made know to the expert at or before the hearing.

Minn. R. Evid. 703(a).

Although it appears that Dr. Perkins was competent to evaluate the other experts' reports, given the discretion accorded the district court in evaluating experts, we hold the district court did not commit reversible error in refusing to consider Dr. Perkins's testimony.

Appellant argues that Dr. Lund, the court-appointed psychologist, utilized the tender years doctrine and therefore, the court was gender-biased because it adopted her recommendations. Appellant also asserts that the court's adoption of Dr. Lund's opinion violated his equal protection rights under the state and federal constitution. He notes that when this was pointed out to the court in appellant's motion to amend the findings of facts, the court refused to remove the offending language from its findings and stated only that its custody decision was not gender-biased.

In its findings of fact, the district court described the distinction Dr. Lund made between "primary parenting" and "psychological parenting." According to the court, Dr. Lund stressed that

young children have a stronger psychological connection with their mothers and [expressed] the concern that the court-ordered separation from their mother can be very damaging from a child development perspective.

Respondent points out that the language used by the court is not the exact language used by Dr. Lund. In Dr. Lund's written report submitted to the custody evaluator, she states:

It would seem that when a court does not allow a mother who has been the primary caretaker to have any contact with her children for up to seven days at a time, they must have had strong reasons. From a child development perspective, this can be very damaging, especially to a child who is as young as four years old.

There is no evidence in the record that Dr. Lund actually made the specific representations that the district court indicates she made.

It is unfortunate that the district court paraphrased Dr. Lund's statements so that they appear gender-biased. However, Dr. Lund's actual statement was not gender-biased, and the court stated in its amended findings of fact that it based its custody decision on the "totality of the evidence presented." We find no error on this issue.

Appellant additionally argues that the district court's findings regarding the parties' ability to make day-care accommodations indicate gender-bias. The court found that

appellant works full-time and had arranged his schedule so that he could bring the children to school and daycare and pick them up. The court found respondent was working part-time and planned to alter her schedule so she could be home with the children.

Here, the district court was simply stating each parent's availability for the children. It was within the court's discretion to believe respondent's statement that she intended to alter her schedule for the children. Further, the record supports the court's findings about appellant's schedule.

An attorney fees award is within the district court's discretion and will not be reversed on appeal unless the district court abused its discretion. Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987). The district court must award attorney fees to a party if that party demonstrates the award is necessary for the good faith participation in the litigation, the party cannot afford attorney fees, and the opposing party has the means to pay them. Minn. Stat. § 518.14, subd. 1 (Minn. 1996). Fees may also be awarded "against a party who unreasonably contributes to the length or expense of the proceeding." Id.

The court found appellant's net monthly income is $2,558.01, and his monthly expenses before maintenance, child support, and daycare are $1,330 a month. The court ordered him to pay monthly spousal maintenance of $350 for the next four years, $767 each month in child support, and $195.10 for daycare each month. As appellant correctly notes, this leaves him with a shortfall of $84.09 each month before he pays any attorney fees. The court did find that he has worked as a foreman in the past and earned additional wages, and the court determined it was likely he would do so again in the future. Also, twice a year he receives a vacation pay benefit of $1.00 for each hour he has worked. The court ordered him to pay child support of 30% of his additional wages and vacation pay benefit. Nothing in the record indicates appellant has sufficient liquid assets available to help in paying attorney fees. Rather, the record indicates he was forced to rely on his family for assistance with his own attorney fees.

The attorney fees for both parties in this case were extremely high. Prior to this appeal, appellant incurred attorney fees and costs of $56,120.67, and respondent incurred attorney fees and costs of $23,123.75 with one attorney and $27,854.95 with another.

We conclude the district court abused its discretion in awarding respondent attorney fees. Although the court does state that some of appellant's allegations were exaggerated or unfounded, the court's findings indicate that both parties' actions lengthened the proceedings. Further, the court awarded fees to respondent immediately after finding respondent did not have the ability to pay all of her attorney fees, but made no finding as to whether or not appellant had the capability to pay the $14,000 and provided no explanation as to how it arrived at this figure. Without evidence that appellant could pay the $14,000, a need-based award cannot be supported. See Minn. Stat. § 518.14, subd. 1(2) (requiring finding that party against whom fees one sought has means to pay them). Finally, the district court made no findings as to whether any of respondent's attorney fees were the result of duplicate efforts by her two different attorneys. See Kennedy v. Kennedy, 376 N.W.2d 702, 705 (Minn. App. 1985) (remanding attorney fees award for determination of whether any fees resulted from duplicated efforts by counsel, as respondent made two attorney changes during litigation). We, therefore, reverse the district court's attorney fees award.

If an appeal in a dissolution case is frivolous or in bad faith, the reviewing court may award attorney fees. Dabrowski v. Dabrowski, 477 N.W.2d 761, 766 (Minn. App. 1991). Attorney fees must be awarded if a party cannot afford to participate without an attorney fees award and the other party is capable of paying these fees. Minn. Stat. § 518.14, subd. 1.

We decline to order attorney fees on appeal for either party. No evidence has been presented to show appellant has the financial capability to pay respondent's attorney fees. A need-based award cannot be supported. Further, appellant's claims were not frivolous or in bad faith; nor were respondent's.

Affirmed in part, reversed in part.