Marriage of Mowers v. Mowers

406 N.W.2d 60, 1987 Minn. App. LEXIS 4402
CourtCourt of Appeals of Minnesota
DecidedMay 26, 1987
DocketC2-86-2104
StatusPublished

This text of 406 N.W.2d 60 (Marriage of Mowers v. Mowers) 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 Mowers v. Mowers, 406 N.W.2d 60, 1987 Minn. App. LEXIS 4402 (Mich. Ct. App. 1987).

Opinion

OPINION

POPOVICH, Chief Judge.

This appeal is from a judgment denying a motion to transfer custody of the parties’ seven-year-old child to appellant mother and awarding her only partial attorney fees. An October 29, 1984 dissolution decree granted respondent custody, but provided appellant could petition for a de novo custody determination after one year. Appellant claims the trial court abused its discretion because (1) appellant was child’s primary caretaker, a fit custodian and entitled to custody, (2) the trial court improperly interviewed the child over appellant’s objection, (3) the child was too young and improperly influenced to express a preference, (4) the court improperly failed to follow recommendations of an independent custody evaluator, and (5) appellant deserves her full amount of attorney fees. We affirm.

FACTS

Appellant Erin N. Mowers and respondent Barry L. Mowers were married in December 1971 in Wahpeton, North Dakota. There the parties’ daughter, Cinda, was born October 21, 1978. In December 1982, respondent moved to Little Falls, Minnesota to work as a corporate treasurer for Franciscan Sisters Healthcare Corporation. In May 1983, after appellant completed her teaching job in Wahpeton, she and Cinda joined respondent in Little Falls.

In June 1984, the parties stipulated to place temporary custody of Cinda with respondent and to dissolve their marriage the following August. On October 29, 1984, the stipulated terms were incorporated into the dissolution judgment and decree. The decree awarded joint legal custody to both parties and physical custody to respondent subject to appellant’s liberal visitation rights. The decree further provided:

At any time after one year from the date of judgment herein, if the parties cannot agree as to who should be the custodial parent, they can apply to this court for a de novo decision, following a hearing on the evidence of both the parties, in regard to physical custody. If custody is changed then, the noncustodial parent shall have all the rights set *62 forth concerning visitation described herein.

After the dissolution, appellant moved to Fargo, North Dakota and was employed as a school teacher. Respondent remarried in August 1985 and lives in the parties’ home with Cinda, his current wife, her three children from a prior marriage, and one child from the current marriage.

On December 9, 1985, appellant petitioned for transfer of custody. At trial on August 27-29, 1986, the court initially announced its de novo determination would be based on the child custody factors of Minn.Stat. § 518.17 rather than the modification considerations of section 518.18.

On the first day of trial, the court requested an interview with Cinda in chambers that afternoon. Counsel waived their, and the court reporter’s, presence to achieve a more informal and less intimidating setting. Regarding Cinda’s activities immediately prior to trial, appellant’s friend Bonnie Thompson testified she and Cinda watched TV together the night before trial and both ate breakfast with appellant that morning.

Appellant testified respondent physically forced her to sign the stipulation granting respondent custody. Further, she maintained respondent physically and verbally abused her throughout the marriage. Appellant’s expert, Evonne Domyahm, a licensed psychologist treating appellant in Fargo since April 1985, testified in her opinion appellant was suffering from Battered Wife’s Syndrome. The independent custody evaluator, Robert Franseen, accepted appellant’s allegation respondent was a wife-batterer. Franseen is not a licensed psychologist, however, and made no formal diagnosis. Franseen believed respondent was less than credible, pathologically angry and had a low regard for females. In his custody evaluation report submitted prior to trial, he recommended appellant be awarded legal and physical custody of Cinda. Franseen interviewed the parties and Cinda individually and together.

Respondent denied appellant’s allegations of abuse. Respondent’s expert, Dr. Hope Sampsel, a licensed psychologist employed by a hospital associated with Franciscan Healthcare, performed the necessary clinical observations and testified in her opinion respondent was not a wife-batterer.

Appellant further testified she was Cin-da’s primary caretaker throughout the marriage. Respondent testified, however, both parties shared equally in the parenting responsibilities. Respondent maintained appellant was primarily responsible for cooking, but in other aspects, such as putting Cinda to bed and arranging for her day care and transportation, he had the primary role. After the June 1984 stipulation awarding him custody, he assumed sole responsibility for Cinda.

Several other witnesses testified, including extended family, friends, respondent’s employer, his current wife and Cinda’s teachers. The testimony received on respondent’s behalf indicated Cinda has integrated well into her new family environment. Franseen in his custody report agreed, stating “[i]t appears she is in the most stable environment, currently, that she has ever lived in.”

Based on the court’s interview with Cin-da and the evidence presented, the court specifically found:

The child prefers that she continue to live with her father, step-mother, step-siblings and her half sister; the child prefers that she continue to stay with her mother during the summer and that the present visitation schedule in all other respects remain the same. The child is fully able to make and express a preference.

In its attached memorandum, the court further stated:

Under the circumstances of the instant case — a girl almost 8 years old who has lived with the father for two years and who expresses a preference — the “primary parent” concept is inapplicable.
* * * The Court is satisfied that the child related her actual preference without prior coaching or persuading.

The court also found Cinda is well-adjusted in her present environment:

*63 Prior to the father’s remarriage, Cinda had appeared as an unhappy, withdrawn, timid, unsociable child; since the marriage and up to the present time, the child has had a desirable personality change; she appears happy, outgoing, a good mixer, and a well-adjusted child; a good share of the change is attributed to her new family relationship and the influence of her step-mother.

Regarding appellant’s allegations of abuse, the court explained:

There has been testimony of physical violence between the parties and of sexual indiscretions. Unless these acts affect a party’s relationship with the child, the Court cannot consider them. The Court finds that neither party has physically or sexually abused the child, and that the allegations, if proved, do not affect either party’s relationship with the child. There is disputed testimony as to whether the mother is a battered wife and whether the father is a batterer. For the same reason, the Court finds the issue immaterial to the ultimate issue in the case. The mother offers the Battered Wife Syndrome as the reason she gave up the child for the first year after the dissolution.

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Cite This Page — Counsel Stack

Bluebook (online)
406 N.W.2d 60, 1987 Minn. App. LEXIS 4402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-mowers-v-mowers-minnctapp-1987.