Marriage of Gustafson v. Gustafson

376 N.W.2d 290, 1985 Minn. App. LEXIS 4761
CourtCourt of Appeals of Minnesota
DecidedNovember 5, 1985
DocketC8-85-640
StatusPublished
Cited by7 cases

This text of 376 N.W.2d 290 (Marriage of Gustafson v. Gustafson) 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 Gustafson v. Gustafson, 376 N.W.2d 290, 1985 Minn. App. LEXIS 4761 (Mich. Ct. App. 1985).

Opinion

OPINION

LESLIE, Judge.

Father petitioned to gain custody of his two children from mother. The trial court *291 held that the children’s present environment with the mother endangered their emotional health and development, and granted father’s petition. Mother appeals. We affirm.

FACTS

Appellant Gail Gustafson and respondent James Gustafson were married in 1977. They had two children, a boy, age ten, and a girl, age seven. In 1980, they separated and filed for a dissolution which was not finalized until March 7, 1985.

In 1982, a separate hearing was held to determine custody of the children. The court awarded respondent custody of the children, subject to appellant’s right of visitation. The court’s order contained a condition, however, that “the minor children not have contact with one Sam Glirbas, and evidence of such contact shall be deemed the subject of the court’s reconsideration of the custody issue.” This condition was apparently imposed because of evidence that Glirbas sexually abused the daughter, had drug and alcohol abuse problems, and had problems controlling his anger.

Although appellant told the court that she was no longer seeing Glirbas, they had a child together in May 1983, and shortly thereafter Glirbas moved in with appellant. When respondent learned that Glirbas had moved in, he brought a motion to modify custody. On August 5, 1983, the court ordered a custody evaluation to specifically evaluate whether the children’s custodial circumstances endangered them.

Hennepin County Court Services performed a custody study and issued a report in March 1984. This report was based upon a six-month study by two child protection experts, a psychologist, and a chemical dependency counselor. The report found that appellant and Glirbas were living together and that Glirbas was actively involved in the parenting of the two children. The report found that the two children had significantly deteriorated emotionally since the custody order of July 1982. The report also found that appellant and Glirbas had sabotaged the children’s relationship with their father by demeaning him and by physically punishing the children for showing positive emotional feelings towards him. Furthermore, the report found that respondent was much less hostile than appellant and that he was more willing to accept responsibility. The report concluded that a significant change had occurred in the custodial arrangement, that these changes posed a danger to the children, and that the benefits of a custodial transfer outweighed the harm likely to be caused by the change itself. The report recommended that respondent have sole legal and physical custody of the children.

On February 5, 1985, a trial was held. There was testimony by appellant, respondent, Glirbas, respondent’s mother, a church elder at respondent’s church, and two psychologists. The county report was also entered into evidence.

On March 7, 1985, the district court made its findings and judgment granting the parties’ divorce and granting respondent’s motion to change custody. The court found that Glirbas had moved into appellant’s home in spite of the court order and that appellant obtained a restraining order to keep respondent from learning about this. The court found that Glirbas has a history of chemical abuse, anger problems, and has serious physical health problems which require him to spend much of his time in the home alone with the children. The court further determined that appellant has continually tried to undermine respondent’s relationship with his children, has been uncooperative with visitation, and has encouraged the children to call Glirbas “Dad” and respondent “Jimbo.”

The court relied on the report of Dr. Chang, a psychologist who felt that appellant’s efforts to undermine the children’s relationship with respondent endangered the children’s emotional health and development. The court also relied on the county report, which stated that the children’s mental health had deteriorated since appellant had been granted custody of the children. The court specifically found that these reports were credible and sustained *292 by the evidence. The court discounted the testimony of Dr. Gross, the other psychologist, because it was performed in anticipation of trial and was not as complete as the two other reports.

The court concluded that the children’s environment endangered their emotional health and development. The court determined that the advantages of a change of environment outweighed the harm likely to be caused by such a change. Therefore, the court ordered joint legal custody, but granted respondent physical custody of the children. The mother appeals.

ISSUE

Did the trial court err in transfering custody of the children from appellant to respondent?

ANALYSIS

Although appellant presents numerous separate arguments for reversing the trial court, her argument, essentially, is that the evidence did not justify the ruling. The thrust of appellant’s argument is that the allegations by the children against her and Glirbas are hearsay. Because everyone seems to agree that the boy is prone to lie, appellant argues that all of the allegations are unproven.

The beginning point for the analysis is Minn.Stat. § 518.18(d) (1984), which states as follows:

If the court has jurisdiction to determine child custody matters, the court shall not modify a prior custody order unless it finds, upon the basis of facts that have arisen since the prior order or that were unknown to the court at the time of the prior order, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child. In applying these standards the court shall retain the custodian established by the prior order unless: * * *
(iii) The child’s present environment endangers his physical or emotional health or impairs his 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.

Under this provision, the petitioner has the burden of proving a significant change of circumstances. In Re Marriage of Gottenborg, 343 N.W.2d 674, 675 (Minn.Ct.App. 1984). In order to find such a change in circumstances, the trial court must make specific findings that (1) a significant change in the circumstances of the child or the custodian occurred since the prior order; (2) the modification of custody serves the child’s best interests; and (3) the child’s present environment endangers the child’s health or impairs his or her emotional development, and the harm likely to be caused by the change in custody is outweighed by the advantages of the change. State on Behalf of Gunderson v. Preuss, 336 N.W.2d 546, 548 (Minn.1983).

The scope of our review is limited. Minnesota Rule of Civil Procedure 52.01 states that the trial court’s findings of fact should not be reversed unless they are clearly erroneous.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Hatfield
627 N.W.2d 715 (Court of Appeals of Minnesota, 2001)
Marriage of Sefkow v. Sefkow
413 N.W.2d 127 (Court of Appeals of Minnesota, 1987)
Marriage of Eckman v. Eckman
410 N.W.2d 385 (Court of Appeals of Minnesota, 1987)
Edsten v. Edsten
407 N.W.2d 102 (Court of Appeals of Minnesota, 1987)
Marriage of Leyh v. Stelzer
398 N.W.2d 63 (Court of Appeals of Minnesota, 1986)
Marriage of Schaapveld v. Schaapveld
398 N.W.2d 72 (Court of Appeals of Minnesota, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
376 N.W.2d 290, 1985 Minn. App. LEXIS 4761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-gustafson-v-gustafson-minnctapp-1985.