Rogge v. Rogge

509 N.W.2d 163, 1993 Minn. App. LEXIS 1175, 1993 WL 499134
CourtCourt of Appeals of Minnesota
DecidedDecember 7, 1993
DocketC2-93-1179
StatusPublished
Cited by7 cases

This text of 509 N.W.2d 163 (Rogge v. Rogge) 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
Rogge v. Rogge, 509 N.W.2d 163, 1993 Minn. App. LEXIS 1175, 1993 WL 499134 (Mich. Ct. App. 1993).

Opinions

OPINION

ANDERSON, Chief Judge.

Appellant Karen Lee Rogge seeks review of the trial court’s modification order and judgment granting sole legal and physical custody of the parties’ child to respondent Leonard John Rogge, Jr. Because the record does not reflect that the trial court considered certain critical “best interest” factors under Minn.Stat. § 518.17, subd. 1(a) (1992), we remand for additional findings.

FACTS

The parties’ seven-year marriage was dissolved in 1986, and appellant received sole legal and physical custody of the parties’ child B.L.R., born in February 1985. Appellant and B.L.R, continued to live in the marital homestead. Appellant has not remarried. Respondent remarried in 1989, and his household now includes his wife and her 13-year-old daughter.

Visitation has been a chrome problem for the parties. To resolve their disputes, the parties frequently sought assistance from the Domestic Relations Unit of the Washington County Department of Court Services. In 1991, the visitation problem intensified when respondent attempted to obtain court-awarded summer visitation. In June 1991, the trial court granted respondent’s motion to revise the visitation schedule, awarded him nine days of compensatory visitation, and appointed a guardian ad litem for B.L.R.

In August 1991, appellant refused to allow visitation, claiming B.L.R. had reported abuse while in respondent’s care. Respondent moved for modification of custody and a contempt order. The trial court found that appellant was in contempt for refusing to allow visitation, that appellant’s abuse allegations were unsubstantiated, and that her refusal of visitation was unjustified. The court also directed a custody evaluation because respondent had presented a prima facie case for modification of custody.

The year-long custody evaluation involved psychological evaluations of B.L.R. and the parties, as well as a separate custody evaluation. During the evaluation process, the parties participated in counseling to improve their communication and co-parenting skills. Counseling was unsuccessful.

Both parties’ psychological test results were within normal limits, but indicated distinctly different personality traits. Respondent’s test results suggested certain rigidity or compulsive aspects to his personality. The test results also implied that appellant is more emotionally reactive and dependent than the average person.

Appellant’s therapist, Dr. Jack Schaffer, concluded that appellant had not disengaged herself from the dissolved marital relationship. Donna Caimeross, a counselor who examined the emotional impact of the parties’ conduct on B.L.R., shared Schaffer’s opinion. Cairncross also stated that appellant failed to acknowledge respondent’s positive attributes and did not recognize a need to change her behavior.

Dr. Susan Lund conducted B.L.R.’s psychological evaluation in June through August 1992. Lund found B.L.R. suffers from serious emotional problems, that B.L.R.’s emotional development was adversely affected by the visitation and custody disputes, that the parties have difficulty responding to B.L.R. as an individual rather than as an extension of themselves or each other, and that appellant was B.L.R.’s primary caretaker. Lund recommended ongoing therapy for B.L.R. and the parties, but concluded that custody should not be modified “at this time” because increased separation from appellant would exacerbate B.L.R.’s anxiety disorder. Lund [165]*165did recommend reconsidering custody modification if appellant “sabotages” the recommendations made by her or by B.L.R.’s therapist.

Both the custody evaluator, Donna Berner, in her September 1992 report, and the guardian ad litem, Mary Buxton, in her October 1992 report, concluded that appellant had obstructed respondent’s attempts to establish a relationship with B.L.R. and that this behavior endangered B.L.R.’s healthy development. But neither Berner nor Buxton recommended an immediate custody modification based on Lund’s opinion that a change would be devastating to B.L.R. Berner recommended that the custody decision be deferred for six months while B.L.R. and the parties participated in therapy.

In February 1993, the trial court conducted a seven-day evidentiary hearing. In May 1993, the trial court granted the modification motion and awarded sole physical and legal custody of B.L.R. to respondent. This appeal followed.

ISSUE

Are the trial court’s findings adequate to sustain a custody modification where the court failed to make specific findings on all the appropriate “best interest” factors?

ANALYSIS

A custody modification requires findings that a change has occurred in the child’s or custodian’s circumstances that makes modification necessary to serve the child’s best interests. State ex rel. Gunderson v. Preuss, 336 N.W.2d 546, 548 (Minn.1983). The trial court must retain the custody established by the prior order unless

the child’s present environment endangers the child’s physical or emotional health or impairs the child’s 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.

Minn.Stat. § 518.18(d)(iii) (1992).1 When.the court grants a custody modification motion, specific findings showing that the court considered the factors listed under Minn.Stat. §§ 518.17-.18 are “absolutely required.” Abbott v. Abbott, 481 N.W.2d 864, 867 (Minn.App.1992).

Although the trial court made specific findings to support its conclusions that a substantial change in circumstances had occurred and that B.L.R. was endangered in his present placement, the court failed to make findings on certain “best interests” factors. Appellant argues that this omission requires a remand. We agree.

In determining the child’s best interests, a trial court must consider “all relevant factors,” including the 12 factors defined by statute. See Minn.Stat. § 518.17, subd. 1(a) (1992) (the court must make detailed findings on each factor and explain how the factors led to its best interest determination).

Here, the trial court did not address each relevant statutory factor. The court did make findings that appear to address the factors of the intimacy of the parties’ relationships with B.L.R., B.L.R.’s interaction with the parties and his stepsister, the mental and physical health of the individuals involved, and the parties’ capacity and disposition to give B.L.R. love, affection, and guidance.2 See Minn.Stat. § 518.17, subd. 1(a)(4), (5), (9), and (10).

The trial court, however, failed to address other significant factors such as B.L.R.’s preference and the “continuity” factors. Because the record indicates these factors may not favor modification, the court’s failure to address them is particularly troublesome.

First, the trial court failed to consider B.L.R.’s preference. While the court did not ask B.L.R. his custodial preference, all the professionals testified that he preferred to remain with appellant. The court may have found that B.L.R. is not of sufficient age to [166]*166express a preference or that his preference is outweighed by other factors.

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Rogge v. Rogge
509 N.W.2d 163 (Court of Appeals of Minnesota, 1993)

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Bluebook (online)
509 N.W.2d 163, 1993 Minn. App. LEXIS 1175, 1993 WL 499134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rogge-v-rogge-minnctapp-1993.