Marriage of Sucher v. Sucher

416 N.W.2d 182, 1987 Minn. App. LEXIS 5079, 1987 WL 20752
CourtCourt of Appeals of Minnesota
DecidedDecember 8, 1987
DocketC5-87-650
StatusPublished
Cited by3 cases

This text of 416 N.W.2d 182 (Marriage of Sucher v. Sucher) 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 Sucher v. Sucher, 416 N.W.2d 182, 1987 Minn. App. LEXIS 5079, 1987 WL 20752 (Mich. Ct. App. 1987).

Opinions

OPINION

NIERENGARTEN, Judge.

Following a dissolution proceeding in which the trial court awarded custody of the parties’ children to Nicholas Sucher, Leona Sucher moved for a new trial or amended findings on the grounds of insufficient evidence to support the trial court’s findings, additional newly discovered material evidence, and failure to make sufficient findings. Leona Sucher appeals the trial court’s order denying these motions. We affirm.

FACTS

Nicholas and Leona Sucher were married on July 18, 1978. At the time of the parties’ separation in April 1986, they had three children, N.A., 7, D., 6, and N., 4 years old.

For the first six years of their marriage, Nicholas worked full-time and Leona did most of the child care. She nursed the children for several months after their birth, took them to the doctor for shots and checkups, fixed their meals, changed their diapers, and kept them clean. In 1985, Nicholas stopped working because of a shoulder injury which required surgery. He then did the laundry, cleaned the house, made occasional meals and provided more care for the children. However, neither party seems to have done much housework. Several witnesses testified that the house was filthy, with moldy dishes, piles of laundry, and human and dog excrement lying around. Child care and meal preparation were haphazard. Nicholas claims that if Leona would not clothe, feed and clean the children when he asked her to, he would.

After the parties separated, Leona enlisted the assistance of a family service aide to improve her housekeeping and parenting skills. Nicholas took the children to the doctor and brought them to a local mental health center for counseling. A relative renting part of Nicholas’ house testified that when the children stay with him, he feeds, clothes, and bathes them regularly.

Nicholas was charged in 1974 with drug related offenses, and in 1977 with carrying a loaded firearm in a public place, petty theft, and burglary. All charges were dismissed. Both Nicholas and Leona used drugs during their marriage, and blamed each other for a marijuana-growing apparatus installed in the house.

Leona has filed domestic abuse charges against Nicholas most recently in April 1986. There is also evidence that Leona is attending Parents Anonymous to learn more effective parenting skills, and is seeking a counselor resulting from molestation by her stepfather 16 years previously.

There are allegations of sexual abuse of the children by Leona and a man who was Leona’s live-in lover for about a month, based on statements by the children. A volunteer advocate for sexually abused children who had worked with over a hundred sexually abused children testified that she believed D.’s claim that Leona was sexually abusing him. However, in an in camera interview with the trial judge, D. first seemed to say that his father had told him to tell the judge that his mother had abused him, and then appeared to change his mind. The trial court found that there was insufficient evidence to conclude that Leona had perpetrated any acts of sexual [184]*184abuse, but that there was considerable evidence to establish that “her friends and associates” have sexually abused the children.

There was evidence that some friends of Leona who stayed with her following the separation were less than wholesome. They included a recent escapee from custody, a girl of three days acquaintance who moved in with Leona for two weeks with her boyfriend, and a girlfriend who was the subject of complaints alleging that she was teaching her daughter “some bad habits, to masturbate and stuff.” Two of the children alleged that they had seen their mother lying unclothed on the bed kissing that woman and “making sex.”

The trial court found that (1) both parties had served as primary caregiver for the children; (2) the children all expressed a desire to live with their father; (3) there was insufficient evidence to conclude that Leona had sexually abused the children, but considerable evidence that her friends had; (4) both parties were capable of providing sufficient care for the children; (5) Nicholas had a tendency to involve the children in the marital dispute; (6) Leona’s friends had either abused the children or behaved in a less than exemplary manner; (7) both parties loved their children and wanted the best for them; (8) Nicholas’ more stable extended family could be of benefit to him in nurturing the children; (9) Leona’s less than exemplary housecleaning and discipline has shown considerable improvement through her efforts with the county social services department and Parents Anonymous; (10) the inability of the parties to communicate regarding the children made joint custody inappropriate; and (11) the best interests of the children would be served by awarding custody to Nicholas subject to liberal visitation.

ISSUES

1. Did the trial court abuse its discretion in awarding custody of the children to Nicholas Sucher?

2. Did the trial court err in not appointing a guardian ad litem, either on its own motion or pursuant to appellant’s post-trial motion?

3.Did the trial court abuse its discretion in denying appellant’s motion for a new trial?

ANALYSIS

I

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, lists the relevant factors to be considered and evaluated by the court in determining the “best interests of the child.”

The Minnesota Supreme Court has elaborated on these statutory factors with the observation that the “best interests of the child” under the statute are usually served by granting custody to the child’s “primary parent.” Pikula v. Pikula, 374 N.W.2d 705, 713 (Minn.1985) The Pikula court adopted 10 indicia of primary parenthood and concluded 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, the primary caretaker should be awarded custody in the absence of a showing of unfitness. Id. at 713.

Leona asserts that she is the primary parent under Pikula because she performed all the primary parenting functions during the children’s infancy and while Nicholas was employed. However, under Pikula, preference is given to the primary parent “at the time the dissolution proceeding is commenced.” Id. at 714 n. 3.

Here Nicholas produced substantial evidence that after he stopped working and up until the separation, he performed child care functions such as feeding and bathing the children. The fact that Leona performed the same or other functions does not preclude a finding that both parties were primary caregivers at the time of the separation. See Pekarek v. Pekarek, 384 N.W.2d 493 (Minn.Ct.App.1986). Consequently the trial court’s finding that both parties acted as primary parents is not [185]*185manifestly contrary to the evidence as a whole.

Leona also argues that even if both parties were primary caregivers, the trial court erred in considering the preferences of the children and failing to follow the recommendation of a social worker that she be given custody.

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Related

Marriage of Smith v. Smith
425 N.W.2d 854 (Court of Appeals of Minnesota, 1988)
Marriage of Sucher v. Sucher
416 N.W.2d 182 (Court of Appeals of Minnesota, 1987)

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Bluebook (online)
416 N.W.2d 182, 1987 Minn. App. LEXIS 5079, 1987 WL 20752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-sucher-v-sucher-minnctapp-1987.