In Re the Marriage of: Stephen D. Blake, petitioner, Appellant, vs. Mary E. Blake, Respondent. C1-98-320, Court of Appeals Unpublished, September 22, 1998.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-98-320

In Re the Marriage of:

Stephen D. Blake, petitioner,

Appellant,

vs.

Mary E. Blake,

Respondent.

Filed September 22, 1998

Affirmed

Klaphake, Judge

Winona County District Court

File No. F5-94-611

Karin L. Sonneman, Sonneman & Sonneman, P.A., 111 Riverfront, Ste. 202, Winona, MN 55987 (for appellant)

Lawrence Downing, Kerry A. Truax, Lawrence Downing & Associates, 330 Norwest Ctr., 21 First Ave. S.W., Rochester, MN 55902 (for respondent)

Bruce Nelson, Robertson, Blanik & Nelson, 206 Norwest Bank Bldg., P.O. Box 167, Winona, MN 55987 (for guardian ad litem Mary Borgen)

Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Thoreen, Judge.^*

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

KLAPHAKE, Judge

Stephen D. Blake appeals from a January 1998 amended judgment and decree dissolving his marriage to respondent Mary E. Blake. Because the trial court did not abuse its discretion or otherwise misapply the law in its rulings, we affirm.

D E C I S I O N

Appellant challenges the trial court's issuance of an April 1995 ex parte order removing him from the family home and awarding respondent temporary custody of the parties' youngest child,[1] who is severely disabled and requires round-the-clock nursing care. He insists that the temporary order affected the ultimate decision in this case because it prevented him from having any relationship with his children for more than two years and thus precluded him from presenting any current evidence regarding his parenting abilities. Although a temporary relief order is not appealable as of right, we may review such an order when, as is suggested in this case, it affects a judgment. See Minn. R. Civ. App. P. 103.04 (appellate courts may review any order involving merits or affecting judgment or any other matter "as the interest of justice may require"); Korf v. Korf, 553 N.W.2d 706, 709 n.1 (Minn. App. 1996).

The trial court expressly found that appellant's "past and continuing actions * * * are endangering the children's physical and mental health, and emotional development" and that there is "reasonable fear of domestic violence and retaliation."

These findings were sufficient to exclude appellant from the family home and grant custody of the youngest child to respondent. See Minn. Stat. § 518.131, subd. 3(a) (1996) (ex parte order may exclude party from family home if showing made of "immediate danger of physical harm to the other party or the children"), 3(b) (1996) (ex parte order may grant custody if finding made of "immediate danger of physical harm to the minor children"). In addition, these findings were adequately supported by respondent's affidavit, which stated that appellant had harassed members of the youngest child's nursing staff and that social services had recommended that the two older children be placed in other residences until appellant was removed from the home, and which incorporated respondent's many past affidavits, including an affidavit supporting an application for a domestic abuse restraining order against appellant. See id. at subds. 7, 8 (1996) (temporary orders are made "solely on the basis of affidavits and argument of counsel" and court "shall be guided" by best interests factors when determining custody).

Finally, appellant was given an opportunity to be heard at a hearing held within a few weeks after the ex parte order was issued. See Minn. Stat. § 518.131, subd. 4 (1996) (hearing on ex parte order must be held "at the earliest practicable date"). He did not request more particularized findings on the children's best interests at that hearing, nor did he do so in any of the other pretrial hearings held on his motions challenging the ex parte order. He cannot now challenge the ex parte order for lack of findings. See Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).

Appellant further argues that he was severely prejudiced by issuance of the ex parte order, which he claims was based on false and unsubstantiated allegations. See Minn. Stat. § 518.131, subd. 9(a) (1996) (temporary order "[s]hall not prejudice the rights of the parties * * * which are to be adjudicated at subsequent hearings in the proceeding"). To insure that there was some basis for respondent's allegations regarding the turmoil in the family home caused by appellant's treatment of the nursing staff, the guardian ad litem's attorney conducted an investigation and issued a report, which confirmed respondent's allegations. The evidence presented at trial further confirmed the allegations. Under these circumstances, appellant cannot claim that he has been unduly prejudiced by issuance of a temporary order designed to serve the best interests of his children during the pendency of the divorce proceedings.

II.

On appeal, our review of custody determinations is limited to whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. Lenz v. Lenz, 430 N.W.2d 168, 169 (Minn. 1988) (affirming trial court's custody determination, which "closely parallel[ed] the extensive court services study," even though supreme court "would prefer more extensive findings [by the trial court] on the child's best interests"). The trial court must consider the best interests of the children in light of the factors set out in Minn. Stat. § 518.17, subd. 1 (Supp. 1997).

Appellant argues that the trial court failed to articulate its findings clearly and specifically on each factor and that it merely incorporated the recommendations made by the custody evaluator on each factor. We disagree. The trial court made extensive and detailed findings to support its custody determination. In particular, the court indicated that it had considered the testimony of the parties and their witnesses. The court also summarized the reports and recommendations of the custody evaluator, the guardian ad litem, and the guardian ad litem's attorney. The court specifically adopted those reports and recommendations, including the custody evaluator's recommended findings on the statutory factors. Finally, the court found that "placing all of the children under the sole legal and physical custody of [respondent] best serves their best interests and is reasonable and feasible in this situation." Under these circumstances, the trial court did not abuse its discretion by making findings unsupported by the record or by reaching a decision contrary to that record. Cf. Lawver v. Lawver, 360 N.W.2d 471, 473 (Minn. App. 1985) (particularized findings required, especially when trial court contradicts recommendations of custody study and splits custody of siblings).

Affirmed.

^*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] In September 1994, the parties had agreed that respondent would have custody of the two older children and that they would share temporary custody of the youngest. Thus, this ex parte order changed only the custody status of the youngest child.