Marriage of Bjerke v. Wilcox

401 N.W.2d 97, 1987 Minn. App. LEXIS 4228
CourtCourt of Appeals of Minnesota
DecidedFebruary 24, 1987
DocketCO-86-1615
StatusPublished
Cited by2 cases

This text of 401 N.W.2d 97 (Marriage of Bjerke v. Wilcox) 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
Marriage of Bjerke v. Wilcox, 401 N.W.2d 97, 1987 Minn. App. LEXIS 4228 (Mich. Ct. App. 1987).

Opinion

OPINION

WOZNIAK, Judge.

This is an appeal from an order modifying custody. The trial court reconsidered respondent Dennis Bjerke’s modification motion after remand by this court of an earlier modification order, Bjerke v. Wilcox, 384 N.W.2d 250 (Minn.Ct.App.1986). We affirm.

FACTS

Many of the facts are stated in our earlier opinion. Bjerke, 384 N.W.2d at 250-51. We note a few additional facts, as well as those which have arisen since the remand.

*99 As we noted previously, the 1983 judgment and decree placed custody of Samantha with appellant Elizabeth Wilcox, subject to the “protective custody” of the county welfare agency for one year. Under the terms of the decree, Samantha was to remain with her maternal grandmother until Elizabeth completed in-patient treatment for chemical dependency, if recommended.

In April 1984, Elizabeth’s chemical dependency counselor, stating her progress had been “minimal,” recommended in-patient treatment. Elizabeth attended in-patient treatment for a month in April and May of 1984, and completed the program, but made only minimal progress. Upon finishing treatment, she left for South Dakota with her husband-to-be, leaving Samantha with her maternal grandparents.

In October 1984, at the second six-month review, the social worker recommended attempting to place Samantha with her father. She reported that Elizabeth had had little contact with her children. Elizabeth had remarried and moved to South Dakota (about 30 miles from Pipestone), where she was expecting a baby. She had been fired from one job and evicted for not paying rent. Dennis then brought his motion for change of custody.

The trial court appointed a guardian ad litem and ordered a custody study and psychological evaluations of all parties.

Home visits with Elizabeth and her husband Kevin Wilcox showed that they lived in a small one-bedroom apartment, were $640 behind in their rent, and had no income other than food stamps. Elizabeth’s husband had had two recent DWI arrests and did not participate in either social service interview. The social worker and guardian ad litem recommended placing custody with Dennis.

Psychological evaluations indicated Dennis had a normal MMPI profile. His fiancee, however, showed an abnormal profile for which the psychologist expressed concern if she were to assume the major care-giving role. Elizabeth’s MMPI was generally favorable, but indicated a problem with chemical dependency, as did that of her husband. The psychologist concluded that “the balance is in favor of Dennis” and his fiancee, subject to certain concerns he expressed. One of these was satisfied when Dennis obtained the promise of a job in Arizona.

The trial court found that Dennis was now fit to assume custody, while Elizabeth was not. The court transferred custody and continued the county’s “protective supervision,” to be replaced by agency supervision in Arizona. This court reversed and remanded, Bjerke v. Wilcox, 384 N.W.2d 250 (Minn.Ct.App.1986), for particularized findings, both on the best interests of the child and on the custody modification standard.

On remand, the court received further reports from the social worker already involved, the welfare agency in the grandparents’ county, and an Arizona welfare worker. The court heard testimony only from Dennis, his wife, and Elizabeth. Testimony was almost entirely limited to events occurring since the May 1985 hearing, including Samantha’s adjustment to Dennis’ home in Arizona following the 1985 modification order.

The trial court made a number of findings on the present circumstances of the parties. The court found that Dennis’ family unit was more stable than Elizabeth’s, his mental health better, and his ability to give love, affection, and guidance greater. See Minn.Stat. § 518.17, subd. 1(f), (g), (h) (1986) (factors in determining the best interests of the child). The court found Elizabeth better able to maintain the child’s sibling and family relationships. See Minn. Stat. § 518.17, subd. 1(c).

Addressing prior circumstances, the court found that from 1983 to May 1985, Elizabeth had failed to improve her circumstances so as to be able to assume custody. The court also found that during that period Samantha’s emotional health would have been endangered by living with .her mother.

The court concluded that Samantha’s best interests were served by placing custody with Dennis. It concluded that Eliza *100 beth’s failure to improve was an implicit “agreement” to a modification of custody, and that this failure resulted in an integration into the maternal grandparents’ home. See Minn.Stat. § 518.18(d), (i), (ii). Finally, the court concluded that Dennis’ right to custody was superior to the interests of the grandparents.

ISSUES

1. Did the trial court make findings adequate to sustain a modification of custody?

2. Does the evidence support the order modifying custody?

ANALYSIS

1. A change of custody requires findings of fact that a change has occurred in the circumstances of the child or custodian and that modification is necessary to serve the best interests of the child. State ex rel. Gunderson v. Preuss, 386 N.W.2d 546, 548 (Minn.1983). In applying these standards, courts must retain the custody established by a prior order unless:

[t]he child’s present environment endangers the child’s physical or emotional health or impairs the child’s emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.

Minn.Stat. § 518.18(d)(iii).

The trial court has not made a finding of a change of circumstances, nor has it made a finding that modification is necessary to serve the best interests of the child. In view of the unique circumstances of this case, however, and the delay involved, we decline to remand a second time. Given the substantial evidence supporting the modification, it is appropriate to decide this appeal based on the evidence of record. See Brauer v. Brauer, 384 N.W.2d 595, 597 (Minn.Ct.App.1986). Furthermore, following the remand, the trial court and the parties have had an opportunity to address the issue under the applicable standard. Cf. Sefkow v. Sefkow, 378 N.W.2d 72, 77 (Minn.Ct.App.1985), pet. for rev. denied (Minn. Jan. 17, 1986) (no opportunity to address primary parent standards). By finding “endangerment,” the trial court has indicated its belief there is cause for modification. Cf . Bjerke I, 384 N.W.2d at 252 n. 3 (no particularized finding suggesting unfitness or danger).

2.

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