Holmberg v. Holmberg

529 N.W.2d 456, 1995 WL 144594
CourtCourt of Appeals of Minnesota
DecidedMarch 28, 1995
DocketC3-94-1637
StatusPublished
Cited by3 cases

This text of 529 N.W.2d 456 (Holmberg v. Holmberg) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holmberg v. Holmberg, 529 N.W.2d 456, 1995 WL 144594 (Mich. Ct. App. 1995).

Opinion

529 N.W.2d 456 (1995)

In re the Marriage of Sandra Lee HOLMBERG, Petitioner, Appellant,
v.
Ronald Gerald HOLMBERG, Respondent.

No. C3-94-1637.

Court of Appeals of Minnesota.

March 28, 1995.
Review Denied May 31, 1995.

*457 Lawrence H. Crosby, Crosby & Associates, St. Paul, for appellant.

Peter S. Hendrixson, Alexandra B. Klass, Dorsey & Whitney, Minneapolis, for respondent.

Richard Ross Hermes, Buffalo, for the children.

Considered and decided by CRIPPEN, P.J., PETERSON, and MANSUR,[*] JJ.

OPINION

CRIPPEN, Judge.

Appellant disputes the trial court's dissolution judgment that respondent provide custodial care for the parties' minor daughter, appellant alleging that respondent had sexually abused the daughter and other family members. The trial court found that respondent had sexually abused a minor niece ten years ago but had not abused the daughter. We affirm the placement decision.

*458 FACTS

Appellant and respondent have three minor children: two sons and a daughter, C.H., who is now age seven. After 14 days of testimony, the trial court issued a carefully detailed order placing legal and physical custody of all three children with respondent. The court found that there was no credible evidence that respondent had sexually abused C.H. But the court also found that, ten years ago, respondent had "likely" engaged in "inappropriate sexual touching" with his then ten year old niece. The court also heard testimony from two of appellant's sisters that respondent had engaged in inappropriate sexual behavior with them 20 years ago, but the court found their testimony less credible and the events too remote in time. There was no evidence of further abuse allegations against respondent until now.

In addition to findings relating to the allegations of sexual abuse, the trial court made complete findings on the other statutory factors relating to custody determinations, including: (1) at the time of trial, respondent was C.H.'s primary caretaker and had also been active in raising C.H. prior to the parties' separation; (2) it was in the best interests of the children to remain together; (3) appellant was considering moving to Arizona if the children were placed with her, which the court found would be disruptive to the children; (4) appellant had employed physically abusive discipline with her children; (5) although appellant had not been diagnosed with a mental illness or personality disorder, her emotional health was questionable; and (6) although appellant had not intentionally or maliciously made false allegations of sexual abuse, her allegations were not substantiated and, although she failed to acknowledge the consequences, her continued pursuit of these unsubstantiated allegations had a detrimental effect on C.H. and her other children. The trial court was also given the recommendation of the guardian ad litem and a custody evaluator, both of whom recommended that custody of the children be placed with respondent.

Appellant does not challenge the placement of the two older children nor any of the trial court's findings on the other statutory factors.

ANALYSIS

I. CUSTODY

Findings of fact made by the trial court must be sustained unless clearly erroneous. Minn.R.Civ.P. 52.01. When the appellant challenges a custody placement by disputing the trial court's "ultimate" findings, and other findings are accepted or adequately supported by the record, the scope of appellate review is limited to the question of whether the trial court abused its exercise of discretion. Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn.1990). If the trial court may have misapplied the law in determining ultimate facts or mixed questions of law and fact, we are to carefully review how the trial court "explain[s]" the tie between its findings on custody factors and its conclusions. Id. (citing Minn.Stat. § 518.17, subd. 1).

A. Alleged Sexual Abuse of C.H.

A parent who has sexually abused his or her children is "disqualifie[d] * * * as a custodial parent." In re Welfare of Bergin, 299 Minn. 218, 218 N.W.2d 757, 758 (Minn. 1974). Thus, in reviewing the trial court's custody order, the first issue is whether the trial court clearly erred in finding that respondent had not abused C.H. The record requires a conclusion that the trial court's finding had sufficient evidentiary support.

C.H. was twice examined for physical signs of sexual abuse and neither exam revealed any physical symptoms of abuse. Nor did appellant report observing any physical signs of sexual abuse.

Wright County Social Services staff and Sheriff's Department officers conducted a joint investigation into appellant's allegations. C.H. was interviewed outside the presence of her parents, without their knowledge, by persons with experience in investigating sexual abuse. During this interview, C.H. made confusing and inconsistent statements on the subject of whether respondent had touched her inappropriately. At times, C.H. stated that appellant told her to say *459 that respondent and her brothers had been touching her inappropriately, and at other times she denied that appellant had told her to say these things. C.H. also stated that her grandparents and appellant had touched her inappropriately. The investigator's concluded that C.H. was confused on this issue and that sexual abuse could not be substantiated.

The trial court appointed an expert child sexual abuse evaluator, Dr. Sandra Hewitt, to conduct psychological evaluations of appellant, respondent, and their children. Dr. Hewitt concluded that there were no signs that C.H. had been sexually abused. Although C.H. would verbally indicate that respondent was "naughty," she could not provide any details or put the actions in context. C.H. did not indicate any sexual touching when presented with projective storytelling cards. Nor were her emotional reactions consistent with a child who had been sexually abused. She did not express any fear of respondent, either when she was alone with Dr. Hewitt or when respondent was physically present. C.H. also told Dr. Hewitt that appellant had told her to say that respondent was "naughty."

There was also testimony from Dr. Dorothy Edelson, who was appointed to supervise visitation between appellant and C.H. and act as C.H.'s therapist. Dr. Edelson testified that C.H. had not provided her with any information that would suggest that C.H. had been sexually abused nor had she observed any clinical symptoms of abuse.

There was no expert testimony affirming appellant's allegations and the evidence presented by appellant is not conclusive. Appellant testified that C.H. told her on several occasions that respondent was touching her inappropriately. But appellant claims C.H. first made these statements prior to the parties' separation, and she never reported her suspicions to anyone until after the divorce had been commenced and respondent indicated he would be seeking custody of the children.

Appellant and others testified that C.H. was visibly upset whenever she had to leave appellant and was reluctant to return to respondent. Appellant also reported that C.H. was acting immature and exhibiting age-inappropriate behavior. Dr. Hewitt acknowledged that C.H. exhibited certain emotional problems as described by appellant, but noted that C.H. also exhibited separation anxiety whenever she had to leave her father.

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Related

Marriage of Holmberg v. Holmberg
578 N.W.2d 817 (Court of Appeals of Minnesota, 1998)

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Bluebook (online)
529 N.W.2d 456, 1995 WL 144594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holmberg-v-holmberg-minnctapp-1995.