Rosenfeld v. Rosenfeld

249 N.W.2d 168, 311 Minn. 76, 1976 Minn. LEXIS 1612
CourtSupreme Court of Minnesota
DecidedNovember 5, 1976
Docket46091
StatusPublished
Cited by87 cases

This text of 249 N.W.2d 168 (Rosenfeld v. Rosenfeld) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rosenfeld v. Rosenfeld, 249 N.W.2d 168, 311 Minn. 76, 1976 Minn. LEXIS 1612 (Mich. 1976).

Opinion

MacLaughlin, Justice.

This is an appeal from an order of the Family Court Division of the Hennepin County District Court which affirmed its previous order reversing the custody determination of a family court referee and awarding the permanent custody of the parties’ 3-year-old daughter to respondent-mother. 1 Because the family court’s decision to reverse the referee’s determination was an informed and independent decision supported by adequate written findings and was not an abuse of discretion, we affirm.

Appellant, William F. Rosenfeld, and respondent, Helen R. Rosenfeld, were married in 1967, and their daughter, Tasya Rosenfeld, was born on December 2, 1971. Appellant and respondent separated in August 1973 pursuant to a written separation agreement which provided for equally divided custody of their daughter Tasya. Because of the separation respondent moved into a one-bedroom apartment where she resided for approximately 10 months. Thereafter, in June 1974, respondent *78 moved into a house on Park Avenue in Minneapolis which she shared with another woman, Fluffy Golod, and Golod's 5-year-old daughter and 21-year-old brother. During this time respondent was enrolled as a graduate student working for a master’s degree in American Studies at the University of Minnesota and had custody of Tasya approximately 50 percent of the time.

On July 31, 1974, appellant commenced an action for dissolution of the marriage. By stipulation between the parties, a custody hearing was scheduled before a family court referee. It was stipulated that the hearing was not to operate as a waiver of the parties’ rights to a full review of the custody issue by the family court judge. On February 5, 1975, the referee entered an order awarding custody of Tasya to appellant. The basis for the referee’s custody decision was that the life style of appellant would provide a “more stable environment” for Tasya than the “free style living with multiple adult control of the home” environment that respondent provided.

Respondent’s notice of review of the referee’s order was heard before the family court judge on April 28, 1975. At this hearing the family court judge was informed that respondent had moved into her own apartment with Tasya, and that Fluffy Golod and her daughter now lived in a separate apartment directly above respondent. After reviewing the record, interviewing the parties, and listening to arguments of counsel, the family court judge found that “there is nothing in the lifestyle of either parent which would be detrimental to raising the child” and that “the present best interests of the child will best be served by being in the custody of the mother.” Appellant’s motions for amended findings, a new trial, and a stay of execution of the custody order were denied, and this appeal followed.

On November 5, 1975, this court denied appellant’s motion to accelerate this appeal, but on December 11, 1975, remanded the matter to the trial court for “consideration of an appropriate motion by [appellant] based upon additional evidence.” On Janu-try 29 and 30, 1976, the trial court conducted an evidentiary *79 hearing at which appellant introduced evidence showing that, subsequent to the family court’s order, respondent had been arrested while in Tasya’s presence, and convicted for shoplifting. Appellant also introduced evidence that Tasya had been briefly hospitalized because of an accidental exposure to carbon monoxide fumes while riding in an automobile with respondent and that Tasya had cried on two occasions when appellant brought her back from visitation. The trial court found that these new facts did not constitute “such a sufficient change of circumstances * * * as to warrant a change of custody.”

The issues raised on this appeal are:

(1) Whether the family court judge erred by reversing the family court referee without determining that his findings were clearly erroneous;

(2) whether the family court judge erred by failing to make specific findings of fact on each statutory factor listed in Minn. St. 518.17, subd. 1; and

(3) whether the family court judge abused her discretion by awarding custody of Tasya to respondent.

1. Appellant first argues that the family court judge must accept the referee’s findings of fact unless they are clearly erroneous. The same argument was presented to this court in LaBelle v. LaBelle, 296 Minn. 173, 176, 207 N. W. 2d 291, 293 (1973), where we stated:

“Defendant argues that the trial court should be bound by the findings of the referee unless those findings are clearly erroneous. The Ramsey County Family Court referees are provided to assist the judge of the Family Court Division. Minn. St. 484.64, subd. 3. The trial judge must be completely free to exercise his judgment and discretion. For that reason we see no merit in defendant’s contention.”

We recently reconsidered and fully discussed the holding in LaBelle and the issue of whether a family court judge should be bound to the findings of a referee. In Peterson v. Peterson, 308 *80 Minn. 297, 304, 242 N. W. 2d 88, 93 (1976), we adhered to the rule established in LaBelle, specifically holding:

“* * * [A] 11 recommended findings and orders of a family court referee in custody matters are advisory only and possess no more than prima facie validity. The family court judge has the duty and retains the ultimate responsibility to make an informed and independent decision on the custody motion.” (Italics supplied.)

In the instant case it is clear that the family court judge has made an informed and independent decision on the custody issue. The record discloses that the family court judge carefully examined the transcript, questioned the parties, and listened to counsel’s arguments before making the decision. Indeed, the family court judge stated that she had “spent probably more time in thinking about this particular case [than any other case].” Thus, since she made an informed and independent decision the family court judge’s action is consistent with our holdings in LaBelle and Peterson.

2. Appellant next argues that the trial court’s findings of fact in the instant case are statutorily insufficient to support an award of custody. Minn. St. 518.17, subd. 2, provides in part:

“Upon adjudging the nullity of a marriage, or a dissolution or separation, the court may make such further order as it deems just and proper concerning the care, custody, and maintenance of the minor children of the parties and may determine with which of the parents they, or any of them, shall remain. In determining the parent with whom a child shall remain, the court shall consider the best interest of the children and shall not prefer one parent over the other solely on the basis of the sex of the parent.” (Italics supplied.)

Minn. St. 518.17, subd. 1, provides:

“* * *‘[T]he best interest of the children’ means the sum total of the following1 factors to be considered and evaluated by the court:
*81

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Cite This Page — Counsel Stack

Bluebook (online)
249 N.W.2d 168, 311 Minn. 76, 1976 Minn. LEXIS 1612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosenfeld-v-rosenfeld-minn-1976.