Marriage of Sefkow v. Sefkow

POPOVICH, Chief Judge

(dissenting).

I respectfully dissent and would affirm the trial court for the following reasons:

1. The trial court did not abuse its substantial discretion in finding respondent was Laura’s primary caretaker. It clearly enumerated each Pikula factor and set forth, in detail, the facts relating to each factor. After careful review, I cannot conclude these findings are unsupported by the record.

In several instances, the parties’ testimony was contradictory regarding responsibility for Laura’s care. When that occurs, this court is bound to defer to the trial court’s unique ability to judge the demean- or and credibility of the witnesses. See Minn-.R.Civ.P. 52.01. We must view the evidence in the light most favorable to the court’s findings. Rinker v. Rinker, 358 N.W.2d 165, 167 (Minn.Ct.App.1984).

The majority places great emphasis on the trial court’s failure to recognize the daytime responsibility of appellant for Laura’s care. The court did, however, address this issue and found appellant was not á traditional homemaker, but instead spent substantial time outside the home completing her education and eventually obtaining employment at the Fargo Montessori School. Although appellant and Laura were at the school at the same time, as the trial court found it cannot be said appellant was directly responsible for Laura during this period. A babysitter brought her to school and for much of the typical day she was independent of her mother.

Given these findings, which were not shown as erroneous, it is incorrect for this court to assume the role of the trial court by contrarily concluding neither party was Laura’s primary parent.

2. Minn.Stat. § 518.18(d) (1986) establishes a three-part test for custody modifi*138cation when the parties have not agreed to a change. Chapman v. Chapman, 352 N.W.2d 437, 440 (Minn.Ct.App.1984). The court is to retain the custodian established by the prior order unless it specifically finds the evidence supports those factors listed in Minn.Stat. § 518.18(d). Chapman, 352 N.W.2d at 440.

Here, after considering the evidence regarding respondent’s motion to modify Joanna’s physical custody, the trial court found appellant’s removal to Wisconsin was a substantial change in circumstances of the children since the prior decision. The trial court also found:

[I]t is not in the best interests of Joanna that she be moved to Appleton, Wisconsin, and that her best interests require that she reside with [respondent] in his family unit in Fergus Falls, Minnesota. * * * * * *
It is in her best interests that she remain in a wholesome, stable, continuous family unit.
Because of the interference by [appellant] with the bond existing between [respondent] and Joanna, because it places her in an environment where she will be regularly under the care of a babysitter and withdrawn from a family unit, because she can readily adapt to a stable, continuous family unit with [respondent] at Fergus Falls, Minnesota, because she has extended family in Minnesota and North Dakota, because the circumstances of the family unit she would reside with in Wisconsin are unknown, because it is likely that settlement in Appleton, Wisconsin, will be further disrupted by an anticipated change in [appellant’s] family unit, and because it is Joanna’s preference that she reside with [respondent] and most importantly, because this Court has found that [respondent] was the primary caretaker of Joanna, the court finds that Joanna’s environment with [appellant] at Appleton, Wisconsin, endangers her emotional health and will impair her emotional development. Because of the foregoing circumstances, the harm likely to be caused to Joanna by her continuing in the physical custody of [appellant] outweighs any advantage of that situation. Similarly, the advantages of transferring physical custody to [respondent] outweigh any harm likely to be caused by a change of her custody. Thus, the Court finds that the physical custody of Joanna should be awarded to [respondent], and the decree modified accordingly, and the motion of [appellant] for permission to move Joanna’s residence to Wisconsin is denied.

The court’s findings clearly satisfy the three-part statutory test of section 518.-18(d). I also note split custody of Joanna at such a distance from her sister Laura endangers Joanna’s development and health. I would therefore hold the trial court did not err in modifying Joanna’s custody and awarding physical custody of both children to respondent.

3. The majority agrees with the trial court that splitting custody of the children is not in their best interest, yet they reverse the trial court’s award of custody by substituting their judgment for the trial court’s, despite the record and detailed findings. Awarding custody of children is always a heart-rending matter, but a trial court should not be reversed simply because the reviewing court might have arrived at a different conclusion had it been the original court.

4. On remand, the trial court made findings as to both parties’ net monthly income and reasonable monthly financial requirements. Based on appellant’s net monthly income, the trial court found she should pay respondent child support in the amount of $731.70 per month. Because of the “disparity between the parties’ gross income and the expense of transportation for visitation,” the trial court, however, ordered appellant to pay $150 per child per month.

In Bjorke v. Bjorke, 354 N.W.2d 107 (Minn.Ct.App.1984), we held the trial court may deviate downward from the child support guidelines if it makes express findings of fact as to the reason for the lower award. Id. at 110. Here, the trial court made the required findings which are supported by the record. I would hold the trial court’s downward deviation proper.

*1395. I disagree with the majority’s decision to usurp the role of the factfinding trial court by establishing child support on a de novo basis. Even if both children were to be placed with appellant, it is incorrect for this court to redetermine support. Remand is necessary to allow the trial court to perform its role. This method must be used no matter how unusual or unfortunate the facts of any given case may be.

6. On remand, the trial court found since appellant has remarried, spousal maintenance is no longer an issue. I agree. The Minnesota Supreme Court has held absent an express provision in the divorce decree, Minn.Stat. § 518.64, subd. 8, terminates spousal maintenance upon remarriage. Gunderson v. Gunderson, 408 N.W.2d 852, 853-54 (Minn.1987). The majority, acting de novo, set an amount of $16,800 for maintenance and orders the trial court to enter judgment in that amount, even though they admit a remand would be typically required for a trial court to set the amount if there was an erroneous failure to award maintenance.