In Re the Marriage of McCabe v. McCabe

430 N.W.2d 870, 1988 Minn. App. LEXIS 1053, 1988 WL 113855
Court of Appeals of Minnesota·Decided November 1, 1988·No. C2-88-826·Published·Cited by 5 cases

Opinion

OPINION

SCHUMACHER, Judge.

Margit (Monica) McCabe appeals from the trial court decree awarding sole physical custody of the parties’ two children to the respondent, Russell J. McCabe.

FACTS

Monica and Russell McCabe were married on May 19, 1975. They have two children: Eric, born in July 1979 and Sara, born in December 1981. Both parties were employed throughout the marriage, though Monica worked only part time for a period after the birth of the children. Russell is the manager of a hardware store and Monica is a licensed practical nurse working at a clinic in St. Peter. Monica also teaches one evening a week, does volunteer ambulance work one week a month, and has worked as a waitress on weekends.

Russell grew up in the St. Peter area where the parties still live. Most of his large family still lives nearby and see Russell and the children frequently.

Monica came to the United States from Hungary at the age of 13. Her parents live nearby and have frequent contact with their daughter and her family. In October of 1986, Monica confronted her parents about her father’s sexual abuse of her during her childhood and also admitted to having an extra-marital affair. After this she went to her husband and told him about both the incest and the affair. As a result of these confrontations, Monica McCabe suffered a significant emotional crisis in her life which led to her hospitalization for a week at a mental health center. Shortly after she returned home, Monica told her husband that she wanted a divorce and rented a separate “sleeping” room. Since that time, she has slept away from the family home most nights.

Despite the physical separation, the parents tried to maintain a stable routine for *872 the children. Monica returned to the family home every morning before the children were awake and remained until everyone left for school and jobs. She returned each evening after work until the children went to bed. Both parents testified that conjugal relations continued for a short while after the physical separation, though less frequently. Russell had to assume more of the child care and household responsibilities after Monica moved her sleeping quarters, but both parents shared the cooking, cleaning, and caretaking.

Monica filed for divorce in October of 1987, almost a year after she moved out of the house. She sought both legal and physical custody of the children. Russell filed for joint legal and physical custody, provided that the children could remain in the home. On November 6,1987, the court ordered temporary alternating physical custody.

The marriage dissolution and custody trial was held in January 1988. At the trial, both parties presented extensive testimonial evidence on the Pikula criteria used to determine who was the primary parent at the time of separation. The evidence covered the time period from spring of 1986 until the dissolution proceeding in January 1988. The trial court found that Russell McCabe was the primary parent and that it was in the children’s best interest that Russell be awarded sole physical custody. The parties had stipulated to joint legal custody and it was so ordered.

ISSUE

Was the^ trial court’s determination regarding the best interests of the children sufficiently supported by the evidence?

ANALYSIS

Appellate 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. Weatherly v. Weatherly, 330 N.W.2d 890 (Minn.1983); Berndt v. Berndt, 292 N.W.2d 1 (Minn. 1980). The trial court’s findings must be sustained unless clearly erroneous. Id. The appellate court must give deference to the trial court’s opportunity to assess the credibility of the witnesses. Minn.R.Civ.P. 52.01. See Sefkow v. Sefkow, 427 N.W.2d 203 (Minn.1988).

Minn.Stat. § 518.17, subd. 1 (Supp. 1987) provides that in custody determinations the court shall consider “the best interests of the child.” The statute lists ten relevant factors to be considered and evaluated by the trial court. The recognition of the importance of emotional and psychological stability to a child’s sense of security, happiness, and adaptation underlies all of the factors listed. Pikula v. Pikula, 374 N.W.2d 705, 711 (Minn.1985). For younger children, this stability is usually provided by the child’s primary caretaker. Id. The Pikula court established the rule that:

when both parents seek custody of a child too young to express a preference, and one parent has been the primary caretaker of the child, custody should be awarded to the primary caretaker absent a showing that that parent is unfit to be the custodian.

Id. at 712.

The primary parent determination must be made “at the time the dissolution proceeding was commenced.” Id. at 714. The supreme court clarified the timing issue further in a footnote, stating that a court must look at:

the point in time at which the family relationships were physically disrupted by events leading to the dissolution of the marriage, e.g., at the time of the parties’ separation or the interruption of the functioning full family unit.

Id. at 714, fn. 3.

Appellant claims that the trial court erred in its primary parent determination by focusing on the time period after Monica rented her separate sleeping room. The trial court’s findings and conclusions are unclear as to exactly what date it was using to make the primary parent determination. Several times during the trial, appellant’s counsel attempted to clarify the date of the primary parent determination.

*873 The trial judge concluded that “Respondent was the primary caretaker of the minor children from the spring of 1986.” Yet, the court also found that the service of the Summons and Complaint was the disrupting event which caused an “interruption of the functioning family unit.”

Identifying the actual date of disruption in this case is difficult. There is considerable evidence in the record that the parties made every effort to minimize the disruption to the children after Monica moved her sleeping quarters in December 1986. The children were aware of the separation, as both parents had explained it to them, but the family routines continued much as before. Monica would return home every morning and every evening to be with the family. She occasionally stayed the night at the family home if Russell was out of town or her daughter requested that she stay, and sexual relations between the parties continued intermittently for awhile after Monica rented her sleeping room.

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In Re the Marriage of McCabe v. McCabe, 430 N.W.2d 870, 1988 Minn. App. LEXIS 1053, 1988 WL 113855 (Mich. Ct. App. 1988).

430 N.W.2d 870 (In Re the Marriage of McCabe v. McCabe) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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