Donna K. Dixon, Law Offices of Donna K. Dixon, Ltd., 116 North Main Street, Warroad, MN 56763 (for respondent)

Michael L. Jorgenson, Charlson, Marben & Jorgenson, P.A., 119 West Second Street, Thief River Falls, MN 56701 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Crippen, Judge, and Parker, Judge.

PARKER, Judge

Mr. Okland challenges provisions of the trial court’s order that limit him to supervised visitation with his children, award sole legal and physical custody to Mrs. Okland, modify his child support payment, divide the Oklands’ property, and grant the children as dependent exemptions to Mrs. Okland for state and federal income tax purposes. We affirm.

A trial court has broad discretion in determining how to serve the child's best interests in the area of visitation. Manthei v. Manthei, 268 N.W.2d 45, 45 (Minn. 1978) (per curiam). If the court finds visitation is likely to endanger a child, the court is to restrict visitation by the noncustodial parent "as the circumstances warrant." Minn. Stat. § 518.175, subd. 1(a) (1998).

Mr. and Mrs. Okland have four children. In August 1996, Mrs. Okland obtained an order for protection against Mr. Okland, which limited him to supervised visitation with the children. In September 1997, the court modified the order to allow Mr. Okland unsupervised visitation; but in February 1998, the court rescinded the September 1997 order based on a report to Pennington County law enforcement officials that alleged he had committed criminal sexual conduct against one of the children. In the dissolution judgment, the court restricted him to supervised visitation, primarily due to the report.

Mr. Okland asserts the communication from Pennington County was an ex parte communication and the court erred by relying on it. But an ex parte communication is a communication "from one side only." Bryan A. Garner, A Dictionary of Modern Legal Usage 232 (1987). Because Pennington County law enforcement is not a party to this action, it could not engage in ex parte communication. Mr. Okland confuses the court’s judicial notice of the prior February 1998 order with ex parte communication. See id. (discussing misuse of the term "ex parte" where "sua sponte" is intended). A court may take judicial notice of a fact "not subject to reasonable dispute" and "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Minn. R. Evid. 201(b). Mr. Okland, who testified about the allegations at the dissolution hearing, does not dispute the existence of the report or assert the February 1998 order is a resource whose accuracy can be questioned. Moreover, courts may appropriately take judicial notice of prior adjudicatory proceedings. In re Welfare of Clausen, 289 N.W.2d 153, 157 (Minn. 1980). The trial court did not abuse his discretion by taking judicial notice of the February 1998 order.

Mr. Okland also asserts the court failed to make sufficient findings to support the restriction on visitation. The court found he had been convicted of fifth degree assault against Mrs. Okland, that she had obtained an order for protection against him and that the order required supervised visitation, that "[t]he female children have exhibited abnormal sexual (sic) and excessive masturbation evidencing signs of sexual abuse," and that Mr. Okland had "a past history of alcohol abuse, emotional illness, and untruthfulness and an explosive, violent temper." These findings are sufficient to support the court’s determination that supervised visitation was in the best interests of the children. We note the trial court indicated in its order that Mr. Okland could petition for visitation modification. The court did not abuse its discretion in restricting him to supervised visitation with his children.

Mr. Okland asserts that the September 1997 order should collaterally estop Mrs. Okland from introducing the evidence of abuse prior to the September 1997 order. For purposes of argument, we assume that the general rules regarding collateral estoppel could apply here. See Loo v. Loo, 520 N.W.2d 740, 743-44 & n. 1 (Minn. 1994) (stating that while the doctrines of collateral estoppel and res judicata do not technically apply in many family cases, "the underlying principle that an adjudication on the merits of an issue is conclusive, and should not be relitigated, clearly applies"). Collateral estoppel and res judicata, however, are not rigidly applied and "[b]oth rules are qualified or rejected when their application would contravene an overriding public policy." AFSCME Council 96 v. Arrowhead Reg’l Corrections Bd., 356 N.W.2d 295, 299 (Minn. 1984) (quoting Tipler v. E.I. duPont deNemours & Co., 443 F.2d 125, 128 (6th Cir. 1971)). Given the allegation that father abused the children and the overriding public policy of protecting the children’s best interests, we cannot say that any consideration by the district court of pre-September 1997 abuse-related information was fatal to the visitation ruling. Cf. DeLa Rosa v. DeLa Rosa, 309 N.W.2d 755, 758 (Minn. 1981) (in family cases, district court has inherent power to grant relief as facts and equities require).

A trial court has broad discretion in custody issues. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). On appeal, "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." Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). A court’s award of custody is to be based on the best interests of the child. Minn. Stat. § 518.17, subd. 1 (1998); see Berndt v. Berndt, 292 N.W.2d 1, 2 (Minn. 1980). But a court "shall use a rebuttable presumption that joint legal or physical custody is not in the best interests of the child if domestic abuse * * * has occurred between the parents." Minn. Stat. § 518.17, subd. 2 (1998).

The trial court found domestic abuse had occurred and, based on this finding, awarded sole legal and physical custody to Mrs. Okland. Mr. Okland erroneously asserts that despite this rebuttable presumption, the court must make findings on the factors listed in Minn. Stat. § 518.17, subd. 2. A court need only make these findings if joint custody is awarded by the court over one party’s objection. Minn. Stat. § 518.17, subd. 2. The statute requires findings only if a party objects to joint legal or physical custody; it does not require findings if a party objects to sole legal or physical custody. Id.

Mr. Okland also asserts he effectively rebutted the presumption that joint custody was not in the best interests of the children. The trial court, however, is in the best position to weigh evidence, including the credibility of witnesses. Minn. R. Civ. P. 52.01. The court found Mr. Okland had been convicted of committing fifth degree assault against Mrs. Okland and that she obtained an order for protection against him. The court’s conclusion that joint legal custody is not appropriate and that Mrs. Okland’s sole legal and physical custody of the children is in the best interests of the children is supported by the evidence and is not clearly erroneous.

A trial court has broad discretion in the modification of child support and will be reversed only for an abuse of discretion. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986). To modify child support, a party must show there has been a substantial change in circumstances and that the change makes the existing award unreasonable and unfair. See Minn. Stat. § 518.64, subd. 2(a) (1998); Heaton v. Heaton, 329 N.W.2d 553, 554 (Minn. 1983). But a court will presume a change is substantial and that the current support is unreasonable and unfair if application of the child support guidelines to

Minn. Stat. § 518.64, subd. 2(b)(1) (1998).

Under the child support guidelines, Mr. Okland’s appropriate child support at the time of the dissolution hearing was $418 per month. See Minn. Stat. § 518.551, subd. 5 (1998) (setting guideline support amount). Previously, the August 1996 order for protection provided that he was to pay $490 per month, which the court reduced to $304 per month in August 1997 due to a substantial change in his circumstances.

The dissolution judgment set Mr. Okland’s child support at the guideline level. The difference between $418 per month and $304 per month, the amount under the prior order, is greater than a 20 percent increase and an increase of more than $50 per month, and, therefore, satisfies the requirements of Minn. Stat. § 518.64, subd. 2(b)(1). Mr. Oakland’s increase in earnings created a rebuttable presumption in favor of modification. Moreover, at the dissolution hearing he indicated he did not object to paying the guideline amount. The trial court did not abuse his discretion in modifying Mr. Okland’s child support obligation.

The trial court has broad discretion in valuing and dividing property. Maranda v. Maranda, 449 N.W.2d 158, 164 (Minn. 1989). Mr. Okland asserts the court erred in the value assigned to the two assets, in the date of valuation selected, and in the marital character assigned to certain payments on the assets.

Assigning a value to property is a finding of fact. Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975). Similarly, the value assigned to a debt on property is a finding of fact. See Justis v. Justis, 384 N.W.2d 885, 889 (Minn. App. 1986) (division of debt "treated in the same manner as division of assets") (citation omitted), review denied (Minn. May 29, 1986). A court’s findings of fact will not be set aside unless clearly erroneous. Minn. R. Civ. P. 52.01.

At the hearing, the court heard testimony that the Oklands’ mobile home had a fair market value of $6,300 as of the date of separation and a value of $5,500 as of the hearing date. It also heard testimony that set the debt on the mobile home at $2,900 and at $2,600. The court found the mobile home had a fair market value of $6,300 and that it was encumbered by a $2,300 debt. The court also heard testimony that set the fair market value of the van at $7,000 and at $5,000. The court found the van had a fair market value of $7,000. These findings are in the range of values in the evidence. Mr. Okland has not shown the trial court’s valuation findings on the mobile home or van to be clearly erroneous.

A court should value marital assets as of the date of the prehearing settlement conference, unless the parties agree to a different date or "the court makes specific findings that another date of valuation is fair and equitable." Minn. Stat. § 518.58 (1998). The Oklands did not hold a prehearing settlement conference, nor did they agree to a different date. Although the court, in the dissolution order, did not make a specific finding that the valuation date was fair, the court did find that "the valuation date of * * * the dissolution hearing is a proper date of valuation of the property" in the order denying Mr. Okland’s motion for a new trial. This subsequent finding satisfies Minn. Stat. § 518.58. We hold that in the absence of a designated valuation date under the statute, the court’s use of the hearing date as an appropriate default date for the valuation of marital property was not error.

Property acquired during a marriage is presumed to be marital property. Minn. Stat. § 518.54, subd. 5 (1998). To overcome this presumption a party must demonstrate by a preponderance of the evidence that the property is nonmarital. Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997). Mr. Okland asserts the division of the debt on the mobile home and van is unfair because his mother made payments on both assets after the parties separated. In effect, he asserts that the payments were nonmarital property.

Marital property includes property "acquired by the parties, or either of them, to a dissolution, * * * at any time during the existence of the marriage relation between them, * * * but prior to the date of valuation under section 518.58, subdivision 1." Minn. Stat. § 518.54, subd. 5 (emphasis added). The payments made by Mr. Okland’s mother, which occurred during the marriage relation and before the valuation date, satisfy the marital property definition. Furthermore, he did not establish by a preponderance of the evidence that the payments were nonmarital property. Although he called his mother to testify at the dissolution hearing, he did not ask her whether she intended to be repaid for the payments, whether she intended the payments to be a gift, or if she intended the payments to be a gift to him and not to Mrs. Okland. See Minn. Stat. § 518.54, subd. 5(a) (1998) (nonmarital property includes property acquired as a gift "made by a third party to one but not the other spouse"); Cronin v. Cronin, 372 N.W.2d 778, 781 (Minn. App. 1985) (downpayment on home made by parent was marital property), review denied (Minn. Oct. 11, 1985). The trial court did not abuse his discretion in the valuation or division of the Oklands’ property.

The federal and state income tax codes allow the custodial parent to claim children as dependents for income tax purposes. 26 U.S.C. § 152(e)(2) (1994) (providing exception to rule where custodial parent releases claim to the exemption); Minn. Stat. § 290.01, subd. 19 (1998) (adopting the federal Internal Revenue Code provisions). The "custodial parent is automatically entitled to the deduction unless he or she affirmatively waives the right * * *." Valento v. Valento, 385 N.W.2d 860, 863 (Minn. App. 1986), review denied (Minn. June 30, 1986). The trial court awarded Mrs. Okland sole legal and physical custody of the parties’ children. As the custodial parent, she had the dependent exemption under 26 U.S.C. § 152(e). Moreover, she has previously waived the right when she could not use the deductions. This demonstrates that she understands it is in the best interests of the children to waive the right, when she does not need it, to assist her former husband in meeting his child support obligations. The trial court did not err in awarding Mrs. Okland the dependent exemptions.