Marriage of Johnson v. Johnson

424 N.W.2d 85, 1988 Minn. App. LEXIS 509, 1988 WL 52476
CourtCourt of Appeals of Minnesota
DecidedMay 31, 1988
DocketCX-87-2247
StatusPublished
Cited by5 cases

This text of 424 N.W.2d 85 (Marriage of Johnson v. Johnson) 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 Johnson v. Johnson, 424 N.W.2d 85, 1988 Minn. App. LEXIS 509, 1988 WL 52476 (Mich. Ct. App. 1988).

Opinion

OPINION

FORSBERG, Judge.

This appeal is from a judgment dissolving the 13-year marriage of appellant Meri-dee A. Johnson and respondent Steven A. Johnson, and from an order denying Meri-dee’s motion for amended findings or for a new trial. Because the trial court’s findings fail to support an award of sole physical custody to Steven and because the only evidence presented favors custody being awarded to Meridee, we reverse and award custody to Meridee and remand on the issue of child support.

FACTS

The sole issue at trial was the custody of the parties’ three sons, ages 13, 10, and 8. During the marriage, Meridee was a homemaker and employed occasionally by the school district as a swimming instructor and aerobics teacher. Steven is a mortician and operates a funeral home. The parties both grew up in Red Wing, Minnesota, where they lived for the last 10 years of their marriage. Many relatives also lived in Red Wing, and the children had much contact with both parties’ extended families.

After the parties separated permanently in September 1985, the children lived with . Meridee in the marital homestead. In May 1986, Meridee announced that she was planning to move to Arizona with the children. Her plans were postponed when Steven objected and obtained a temporary injunction against the move. Meridee then enrolled in a secretarial course at the vocational institute in Red Wing, which she completed in March 1987. By that time, she decided not to move to Arizona because it would be too difficult on the children.

Meridee eventually secured a job in West Bloomington, Minnesota and rented a three-bedroom town house in Apple Valley, which is a 45-minute drive from Red Wing. She testified that she chose to live in Apple Valley

because of the school system. I was close enough to work, but I thought Apple Valley offered a lot of the same things I had in Red Wing. It’s a small community, they could walk to church, there’s a playground, there’s a dirt bike path, there’s a pond for the dog to swim. It offers a lot of value.

At the time of trial, Meridee had already enrolled the children in school, and had arranged day care with a neighbor.

Because the marital homestead had been sold, the children moved in with Steven *87 while Meridee relocated in Apple Valley. Steven was then living with his parents. He planned to remarry in November 1987 and purchase a home in Red Wing. Although he had signed a purchase agreement by the time of trial, he had not yet obtained financing.

The trial court had ordered a custody investigation to be conducted by social worker David Olson. Olson prepared his report at a time when Meridee was still planning to move to Arizona. In a videotaped deposition which was shown at trial, Olson was informed that Meridee’s plans had changed and that she now was residing in Apple Valley. Olson testified that the children did not specifically express a custodial preference, but that they perceived themselves to be living with Meridee. He further indicated that both parents were involved with the children, but that Meri-dee was the primary caretaker both before and after the parties’ separation. Olson finally testified that it would be in the children’s best interests to move to Apple Valley and stay with Meridee. He stated that this would be the least disruptive alternative because although the children would lose daily contact with their father, continuity of care would be preserved by remaining with their primary parent.

Testimony was taken from both parties, Steven’s fiance, a former neighbor, and Meridee’s mother. This testimony confirmed Olson’s evaluation that although Steven was an involved father, Meridee had performed most of the nurturing and care-taking duties. Steven further testified that although the children had been raised as Catholics, if granted custody he would raise them in his Lutheran faith.

Following presentation of the evidence, the court interviewed the children in chambers. During the course of the interview, the eldest child stated that “if my mom decides to move to Apple Valley I think it might be better for me to live here, because of my dad.” The younger two made no statements of preference.

The trial court found that each child was capable of expressing a custodial preference, but that only the eldest had stated a definite preference to live with Steven. It then found that the children were comfortable living in Red Wing and had a support group of relatives in town. The court also found that “when the children were younger, [Meridee] attended to the majority of the personal needs of the children, but, in the projected family living and working arrangements [Steven] will be more of a primary caretaker than will be [Meridee].”

The court awarded the parties joint legal custody of the children, but granted sole physical custody to Steven subject to reasonable visitation by Meridee. Steven was ordered to continue the children’s upbringing in the Catholic faith. Meridee was ordered to pay $200 per month in child support.

ISSUE

Do the trial court’s findings and the evidence presented support an award of custody to respondent?

ANALYSIS

Minn.Stat. § 518.17, subd. 3 (1986) provides that “[i]n determining custody, the court shall consider the best interests of the child * * Minn.Stat. § 518.17, subd. 1 (Supp.1988), lists the factors which a court should use in determining the best interests of a child. These criteria mandate that custody be given to the primary caretaker when both parents are suitable custodians and the child is too young to express a preference. Pikula v. Pikula, 374 N.W.2d 705, 711-12 (Minn.1985).

“Under the statutory scheme and Pikula, the trial court is required to make particularized findings of fact regarding the best interests of the child and the primary parent.” Ohm v. Ohm, 393 N.W.2d 411, 413 (Minn.Ct.App.1986). A trial court is not required to address every statutory factor. Rosenfeld v. Rosenfeld, 311 Minn. 76, 83, 249 N.W.2d 168, 171-172 (1976). Rather, “[i]t is sufficient if the findings as a whole reflect that the trial court has taken the statutory factors into consideration, in so far as they are relevant, in *88 reaching its decision.” Id. at 83, 249 N.W. 2d at 172.

In this case, the trial court found that the children are old enough to express a preference. While Meridee challenges this finding, we cannot conclude that it is. clearly erroneous given the children’s ages and the trial court’s interview of the children. See Petersen v. Petersen, 394 N.W. 2d 586, 588 (Minn.Ct.App.1986), pet. for rev. denied (Minn. Dec. 17, 1986) (seven-year-old child capable of expressing custodial preference). We do conclude, however, that the trial court’s remaining findings fail to support an award of custody to Steven and ignore undisputed evidence supporting an award to Meridee.

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Cite This Page — Counsel Stack

Bluebook (online)
424 N.W.2d 85, 1988 Minn. App. LEXIS 509, 1988 WL 52476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-johnson-v-johnson-minnctapp-1988.