Marriage of Uhl v. Uhl

395 N.W.2d 106, 1986 Minn. App. LEXIS 4906
CourtCourt of Appeals of Minnesota
DecidedOctober 28, 1986
DocketC6-86-727
StatusPublished
Cited by7 cases

This text of 395 N.W.2d 106 (Marriage of Uhl v. Uhl) 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 Uhl v. Uhl, 395 N.W.2d 106, 1986 Minn. App. LEXIS 4906 (Mich. Ct. App. 1986).

Opinion

*107 OPINION

HUSPENI, Judge.

Appellant, Larry Uhl, petitioned to dissolve his marriage to respondent, Hyon Uhl. The parties stipulated to the division of marital property and submitted the issue of custody of their two children to the trial court, which granted custody to respondent. On appeal, appellant argues that the trial court erred when it applied the primary parent presumption because the children were old enough to express a preference, and that the trial court’s finding that respondent is a fit parent is clearly erroneous. We remand for further proceedings consistent with this opinion.

FACTS

At the time of the parties’ dissolution, appellant and respondent had been married eleven years and had two children, a daughter ten years old and a son eight years old.

At the custody hearing, both parties testified about their parenting skills and relationship to the children. Appellant testified that since the separation the children have spent every weekend with him. At the time of the hearing appellant was living in a motel, was unemployed, had no income and his unemployment compensation had expired.

Appellant expressed concern that the children had suffered physical and emotional abuse at the hands of respondent. He stated that respondent had hit the children, especially the daughter, with a wooden spoon, and that these actions had at one time left a bump on the child’s head and at other times had left bruises on her legs. Appellant alleged that on another occasion in October, 1985, respondent hit the daughter causing a cut and swollen lip. Appellant stated that the child initially told him that she had fallen on the stairs but the son said that respondent had hit his sister. The daughter then admitted that respondent had hit her. Appellant reported this incident to the Anoka County Child Protection Service.

Appellant also indicated that respondent demeans him in front of the children and has encouraged the children to call him names. He said that respondent also degrades the children calling them “retarded” and “stupid.” He further stated that respondent uses profanity in front of the children. Finally, appellant expressed concern that the children are left unsupervised when respondent has to work late.

Respondent testified that she has suffered much emotional abuse at the hands of her husband and that this abuse has caused her problems with her children. Respondent admitted that she has struck the children, especially her daughter, in the past. She said that the incident that caused the cut lip was not an intentional hit but rather an accident. She thought that her ring must have caught the child in the face, causing the cut. Likewise, respondent testified that the bump on the daughter’s head from the wooden spoon was not intentional. Respondent admitted that she told the children to lie about the cut lip incident and to tell their father that the child had fallen down stairs.

In chambers, the daughter did not express fear or concern about how her mother disciplined her. She indicated that she was punished when she misbehaved and that her mother only brought out the wooden spoon when she had done something especially out of line. She said that she could live with either parent. The son stated that he preferred his time with his father primarily because his father did not make him do chores and did not discipline him as much as his mother.

' Several treatment personnel who had worked with the parties also testified. Jory Rasmussen, a social worker with the Anoka County Child Protection Services, testified that his office had handled two reports of abuse concerning respondent and the daughter. The first complaint was received as a referral from a visitation mediator working with the parties. The report indicated that respondent had admitted hitting the daughter and calling both the children names.

*108 Respondent told a student social worker, working under Rasmussen, that during the marriage she was abusing the daughter three times a week but that she had not been abusing her since the separation because she is more in control. The social worker, told respondent that she must obtain counseling for both herself and her children. As of October 15, respondent had sought help for herself, but had not sought help for the children.

On October 15, 1985, appellant reported to Rasmussen the incident resulting in the cut and swollen lip. Rasmussen went to the school and interviewed both of the children. Both children and respondent confirmed that the daughter had talked back to her mother after being told to do something. Respondent reacted by swinging at the child and hitting her in the mouth. As a result of his interviews, Rasmussen referred respondent and the children to the Central Center for Family Resources where respondent had been treated in the past.

Charles Johnson, a family therapist at the Central Center for Family Resources, also treated the family. He had one session with appellant and respondent, eight sessions with respondent, five sessions with the children and two sessions that were half with the children and half with the children and respondent.

Johnson testified that the children exhibited a strong loyalty and good relationship with their mother. They did not appear fearful of her and showed respect for each other. They appeared to be well adjusted normal children. He also found that both children interacted appropriately with their father. When Johnson talked with the children about the custody choice, the daughter always expressed a preference for living with her mother while the son vacillated between the two parents.

Johnson could not say what would be in the children’s best interest because he did not do a home visit or have any substantive time with appellant. He did say that even knowing about the abuse, he still believed that respondent was an adequate custodial parent.

Hilary Vickman, a school counselor, conducted the custody evaluation for the trial court. He testified that he had met twice with the respondent and appellant individually and once with the parties and the children. The evaluation took place over a three week period from mid-August to early September of 1985.

Vickman stated that respondent’s behavior is impulsive when under stress. He testified that he had construed appellant’s concerns about abuse as negative remarks about respondent rather than actual concerns for the children’s safety. Vickman said that there was no evidence of abusive behavior, only assertive behavior. Vick-man acknowledged that his study concluded before the October 15 incident and that these subsequent events might change his opinion but he did not have enough information to reach a conclusion.

The trial court concluded that respondent was the primary parent and was “the fit and proper person to have the care, custody and control” of the parties’ children. In its accompanying memorandum the trial court noted:

This Court believes that there has been some abuse in the period prior to the physical separation, but that the extent of the abuse is uncertain. There is a claim that the mother hit the children and used a wooden spoon for assaults on the children. There have been two investigations by child protection which have verified some form of abuse.

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Cite This Page — Counsel Stack

Bluebook (online)
395 N.W.2d 106, 1986 Minn. App. LEXIS 4906, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-uhl-v-uhl-minnctapp-1986.