In re the Marriage of: David Allen Anderson v. Lisa Marie Anderson n/k/a Lisa Marie Syverson

• Court: Court of Appeals of Minnesota
• Decided: January 19, 2016
• Docket: A15-460
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA IN COURT OF APPEALS A15-0460

In re the Marriage of: David Allen Anderson, petitioner, Respondent,

vs.

Lisa Marie Anderson n/k/a Lisa Marie Syverson, Appellant.

Filed January 19, 2016 Affirmed in part, reversed in part, and remanded Kirk, Judge

Clearwater County District Court File No. 15-FA-11-289

Ronald S. Cayko, Fuller, Wallner, Cayko, Pederson & Huseby, Ltd., Bemidji, Minnesota (for respondent)

Thomas T. Smith, Smith Law Firm P.A., Bemidji, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Hooten, Judge; and Kirk, Judge.

UNPUBLISHED OPINION

KIRK, Judge

In this marital-dissolution proceeding, appellant-mother argues that the district court

abused its discretion by awarding the parties joint physical custody of their minor children,

denying her motion to modify custody, and denying her attorney fees. We affirm in part,

reverse in part, and remand. FACTS

In May 2011, respondent-father David Allen Anderson petitioned for dissolution of

his 16-year marriage from appellant-mother Lisa Marie Syverson. At the time of the

marital dissolution, the parties had four minor children. The district court granted the

parties temporary joint legal and joint physical custody, and appointed a guardian ad litem

(GAL) to represent the best interests of the children. After a two-day court trial in June

2012, the district court entered a judgment and decree granting the parties joint legal and

joint physical custody of the children.

In January 2013, mother appealed the district court’s judgment and decree, arguing

that it had erred in determining custody and court costs. In an unpublished decision, we

reversed and remanded to the district court to provide a more detailed analysis explaining

why it awarded the parties joint physical custody, but affirmed on the other issues.

Anderson v. Syverson, No. A13-0097, 2013 WL 6839682, at *4 (Minn. App. Dec. 30,

2013).

In July, mother moved the district court to find father in constructive civil contempt

on numerous grounds, including failing to comply with the six-hour right of first refusal,

which required a parent to offer the other parent the opportunity to care for the children if

he or she was unable to do so for more than six hours. Relevant to this appeal, mother

alleged in her reply affidavit that father circumvented the six-hour right of first refusal by

making the children travel to his work site three times per day, traveling a total of

approximately 240 miles. After a hearing, the district court found father in constructive

civil contempt for violating several provisions of the judgment and decree, including the

2 six-hour right of first refusal, and awarded mother compensatory parenting time. It ordered

father to comply with the decree.

In June 2014, while the case was on remand for a determination of physical custody,

mother moved to modify custody and requested an evidentiary hearing, alleging that the

joint physical custody arrangement endangered the children’s emotional and physical

health. Father filed a cross-motion opposing mother’s motion in its entirety, and in the

alternative, moved the district court to eliminate the six-hour right of first refusal.

At the July 17 motion hearing, the parties appeared with counsel. The parties

stipulated that mother would have sole physical custody of F.A., their oldest child, but that

they would share joint legal custody of him.

On January 14, 2015, the district court filed an order and memorandum addressing

the remaining remanded issue of physical custody of the three other children, as well as the

parties’ cross-motions. In a detailed and thorough 32-page memorandum, the district court

addressed all of the best-interests factors under Minn. Stat. § 518.17, subd. 1(a) (2014),

and the joint-custody factors enumerated in Minn. Stat. § 518.17, subd. 2(b) (2014). The

district court granted the parties joint physical custody after weighing each factor and

providing thorough reasoning in support of its findings and conclusions. The district court

also denied mother’s custody-modification motion.

Mother appeals.

3 DECISION

I. The district court’s findings and conclusions on the best-interests and joint- custody factors are supported by the record.

“Appellate review of custody determinations is limited to whether the [district]

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

district court’s findings of fact will be sustained unless they are clearly erroneous. Id. at

710; see Minn. R. Civ. P. 52.01 (stating that findings of fact are not set aside unless clearly

erroneous). The law “leaves scant if any room for an appellate court to question the

[district] court’s balancing of best-interests considerations.” Vangsness v. Vangsness, 607

N.W.2d 468, 477 (Minn. App. 2000). We need not “discuss and review in detail the

evidence for the purpose of demonstrating that it supports the [district] court’s findings.”

Wilson v. Moline, 234 Minn. 174, 182, 47 N.W.2d 865, 870 (1951). As an appellate court,

our role is satisfied when we consider all of the evidence and conclude that the record

“reasonably supports the findings.” Id. We also defer to district court credibility

determinations. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).

A. Best-interests factors

A district court’s custody decision must be based on the child’s best interests. Minn.

Stat. § 518.17, subd. 1(a). A district court must consider “all relevant factors,” including

13 statutory factors relevant to a child’s best interests:

4 (1) the wishes of the child’s parent or parents as to custody;

(2) the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;

(3) the child’s primary caretaker;

(4) the intimacy of the relationship between each parent and the child;

(5) the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child’s best interests;

(6) the child’s adjustment to home, school, and community;

(7) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

(8) the permanence, as a family unit, of the existing or proposed custodial home;

(9) the mental and physical health of all individuals involved . . . ;

(10) the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child’s culture and religion or creed, if any;

(11) the child’s cultural background;

(12) the effect on the child of the actions of an abuser, if related to domestic abuse, as defined in section 518B.01, that has occurred between the parents or between a parent and another individual, whether or not the individual alleged to have committed domestic abuse is or ever was a family or household member of the parent; and

5 (13) except in cases in which a finding of domestic abuse as defined in [Minn. Stat. §] 518B.01 has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.

Id., subd. 1(a).

On appeal, mother challenges the district court’s findings on almost all of the best-

interests factors as they relate to its joint physical custody determination. After thoroughly

reviewing both the district court’s findings and the record, we conclude that mother has not

shown that the challenged findings are erroneous. We specifically examine some of her

arguments contesting the district court’s findings.

Addressing the first factor, the record supports the district court’s determination that

both parents want to spend time with the children. The GAL recommended that the parties

share joint physical custody, and she testified that she believed that the children would lose

their relationship with father if mother were granted sole physical custody.

We reject mother’s challenge to the second factor. The GAL’s testimony supports

the district court’s finding that the children, including L.A., lack the capacity to accurately

weigh the temporary discomfort of adjusting to father’s home against the benefit of

maintaining a close relationship with him.

The district court did not clearly err in finding that the third factor weighed in favor

of joint physical custody because, while mother was the primary caretaker as a stay-at-

home parent and father was the sole breadwinner, he remained a “constant presence and

caretaker” for each of the children since birth.

6 In regard to the fourth and fifth factors, the record supports the district court’s

findings that joint physical custody allows the children to maintain an emotional bond with

both parents. Mother’s parents and father’s aunt and uncle testified to their close

connection to the children, and the GAL testified that father’s bond to the children would

be damaged if mother had sole physical custody. Mother provided no evidence to

substantiate her claim that the joint physical custody arrangement has damaged her

extended family’s connection to the children.

Addressing the sixth, seventh, and eighth factors, mother argues that father’s

personal circumstances have dramatically changed since the 2012 court trial, as he has

purchased a home in Zerkel, remarried, and now has a stepson. Mother contends that these

factors weigh in favor of sole physical custody because her home provides a more stable

environment for the children.

The district court concluded that these factors weighed in favor of joint physical

custody because father’s residency in Zerkel did not constitute a significant upheaval in the

children’s lives. The community setting in Zerkel is similar to Shevlin, where mother

resides, and is close in proximity to mother’s residence. The children continued to attend

public school in Bagley after father relocated to Zerkel. The district court found that any

discomfort or boredom that the children experienced at father’s residence was negligible

compared to the “immense importance of maintaining a close and frequent bond with” him.

The record supports the district court’s findings, and we find no error.

Mother argues that the district court erred in concluding that the ninth factor

weighed in favor of joint physical custody because neither party has any mental or

7 physical-health issues. Mother cites no law in support of her argument. An assignment of

error in a brief based on “mere assertion” and not supported by argument or authority is

waived “unless prejudicial error is obvious on mere inspection.” State v. Modern

Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (quotation omitted). Therefore,

we decline to address the matter.

Likewise, mother contends that the district court erred in concluding that the tenth

factor weighed in favor of joint physical custody because both parties are able to provide

love, affection, and guidance to the children, arguing that this factor does not favor one

form of custody over another. Again, because mother cites no caselaw to support her

argument, we decline to address the matter. Id.

Regarding the twelfth factor, mother alleges that the district court erred in

concluding that this factor supported joint physical custody because the court made no

finding of domestic abuse, and there was possible abuse between father and L.A.

The record amply supports the district court’s determination. While the district

court did not find any domestic abuse, it noted that each party had alleged that the other

committed domestic abuse against him/her. In 2011, mother obtained an order for

protection against father, but it was dismissed after a full evidentiary hearing. The district

court noted that the GAL raised no concerns that any of the children were victims of

domestic abuse as contemplated under Minn. Stat. § 518B.01. However, it was concerned

that mother had acted inappropriately by involving F.A. in a domestic dispute between her

and father. At trial, mother testified that, during an argument with father, he locked himself

in the bedroom. Mother told F.A. to get a hammer in order to break down the door and

8 gain entry into the room in which father had locked himself. After F.A. could not find one,

she used a hammer to try to break down the door.

Addressing the thirteenth factor, mother contends that the district court erred in

concluding that she should take an active role in promoting the children’s bond with father,

and that father has inhibited her contact with the children. While the district court found

that this factor weighed in favor of joint physical custody, it expressed its concern regarding

mother’s “willingness to encourage the children to have frequent contact and foster a

relationship with [father].” The GAL’s testimony supports the district court’s concern.

In summary, the district court’s best-interests findings are not clearly erroneous.

B. Joint-custody factors

Under Minn. Stat. § 518.17, subd. 2(b), the district court must analyze the joint-

custody factors if either party or the court contemplates or seeks joint legal or joint physical

custody. These factors are: (1) the parents’ ability to cooperate in rearing their child;

(2) methods for resolving parenting disputes and the parties’ willingness to use them;

(3) whether it would be detrimental to the child to give one parent sole authority; and

(4) whether domestic abuse, as defined under Minn. Stat. § 518B.01, has occurred between

the parents. Minn. Stat. § 518.517, subd. 2(b).

The record supports the district court’s joint-custody findings. It found that, since

they separated, the parties have been able to cooperate and resolve disputes, such as

transitioning the children to public school. It also found, based on the GAL’s reports and

testimony, that granting mother sole physical custody would substantially damage the

children’s relationship with father. Finally, the district court found that no domestic abuse,

9 as defined in Minn. § 518B.01, has occurred. After weighing these factors, the district

court did not err in concluding that joint physical custody was in the best interests of the

children.

II. The district court did not err in denying mother an evidentiary hearing on her motion to modify custody.

Under Minn. Stat. § 518.18(d)(iv) (2014), a party seeking to modify custody must

establish: (1) a change in circumstances; (2) that modification would be in the best interests

of the child; (3) that the child’s present environment endangers his physical or emotional

health or emotional development; and (4) that the harm that might result from a change of

environment is outweighed by the benefits of the proposed change. In re Weber, 653

N.W.2d 804, 809 (Minn. App. 2002).

In order to obtain an evidentiary hearing on a motion to modify custody, the moving

party must make allegations that, if true, would allow the district court to grant the motion.

Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981). The party seeking

modification of the custody order must submit affidavits that establish a prima facie case

for modification. Szarzynski v. Szarzynski, 732 N.W.2d 285, 292 (Minn. App. 2007).

When reviewing an order denying a motion to modify custody without an evidentiary

hearing, this court: (1) reviews de novo whether the district court accepted the moving

party’s allegations as true; (2) reviews for an abuse of discretion the district court’s

determination as to whether a prima facie case exists for the modification; and (3) reviews

de novo “whether the district court properly determined the need for an evidentiary

hearing.” Boland v. Murtha, 800 N.W.2d 179, 185 (Minn. App. 2011).

10 In mother’s affidavit, she alleged that, other than the status of her professional

training, her life is “pretty much the same” as it had been at trial in June 2012. Mother

stated that the children are performing well academically at public school in Bagley. Her

allegations of emotional endangerment were as follows: (1) the children’s continued

objection to visiting father; (2) father violating the six-hour right of first refusal; (3) father’s

withholding of medical information of a child’s medical condition; and (4) his interference

with and denial of the children’s phone contact with mother. Mother also alleged,

generally, that the children are in physical danger because of father’s drinking and anger

issues.

We conclude that the district court properly denied mother’s motion to modify

custody without an evidentiary hearing. See Boland, 800 N.W.2d at 185-86. Under these

circumstances, the district court need not make particularized findings. See Abbott v.

Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992) (holding that specific findings are

unnecessary under Minn. Stat. § 518.18 when denying a custody-modification motion

without an evidentiary hearing for failure to make a prima facie case).

Mother admitted that there were no dramatic changes to the children’s lives since

the judgment and decree. The GAL’s reports and testimony also provide relevant

information concerning mother’s allegations. The GAL stated that the children’s

relationship with father was improving since the divorce, and that the GAL discerned no

evidence that father had a drinking problem.

Moreover, the district court previously addressed the majority of mother’s

allegations when it found father in contempt of the 2012 judgment and decree. While we

11 are concerned, as was the district court, that father exercised terrible judgment in requiring

the children to travel up to 240 miles a day in order to circumvent the six-hour right of first

refusal, the record supports the district court’s conclusion that father is now complying

with the decree’s provisions. The district court did not abuse its discretion in concluding

that mother failed to establish a prima facie case for the modification of custody.

III. The district court erred in denying mother conduct-based fees for the 2013 contempt motion without explanation.

Conduct-based attorney fees “are discretionary with the district court.” Szarzynski,

732 N.W.2d at 295. The district court may award conduct-based attorney fees “against a

party who unreasonably contributes to the length or expense of [a dissolution] proceeding.”

Minn. Stat. § 518.14, subd. 1 (2014).

Mother argues that the district court erred in denying her motion for conduct-based

attorney fees incurred in bringing her 2013 contempt motion. The record shows that the

district court found father in contempt for multiple violations of the dissolution decree.

Mother’s counsel also submitted a timely affidavit concerning the fees associated with

bringing the contempt motion. See Minn. R. Gen. Pract. 119.02. But in its January 2015

order, the district court denied mother attorney fees without an explanation. We reverse

and remand for further findings on this issue.

Affirmed in part, reversed in part, and remanded.