Marriage of Sefkow v. Sefkow

NIERENGARTEN, Judge

(dissenting).

I respectfully dissent. Although I agree with the majority that Joanna’s permanent physical custody should remain with Paula Sefkow, I disagree with this court’s award of Laura’s custody to Paula Sefkow.

The trial court judge had two issues before him. The first issue involved the custody of Laura Sefkow. This court had previously remanded the Sefkow case to the trial court for a “determination of physical custody of Laura Sefkow” which was consistent with Pikula. Sefkow II, 378 N.W.2d at 77. As directed the trial court made specific findings from which it concluded that at the time of the dissolution, Robert Sefkow was Laura’s primary parent. In light of these findings, the trial court granted custody to Robert.

The record could support a conclusion that either party was Laura’s primary parent. Had the trial court reached that conclusion, it should then have proceeded to a “best interest of the child” analysis. See Pikula v. Pikula, 374 N.W.2d 705, 713-14 (1985). However, the trial court found on the basis of the evidence before it, and its application of Pikula to its findings, that the primary parent of Laura was Robert Sefkow. It is not for this court to make findings on which parent is primary or decide that neither was. We are limited to determining whether the trial court abused its discretion by making findings that are unsupported by the evidence or by improperly applying the law. Pikula, 374 N.W.2d at 710. The majority erred in substituting its own findings that neither parent was primary and proceeding to apply a “best interests” analysis, by which it concluded that it is not in Laura’s best interest to separate her from Joanna and thus they award custody to Paula Sefkow. The trial court’s findings will not be set aside unless clearly erroneous and deference must be given to the opportunity of the trial court to assess the credibility of the witnesses. Minn.R.Civ.P. 52.01. The evidence must be viewed in the light most favorable to the court’s findings. Rinker v. Rinker, 358 N.W.2d 165, 167 (Minn.Ct.App.1984). Because the record supports a finding that Robert Sefkow was Laura’s primary parent, there was no abuse of discretion and this court should have affirmed the award of Laura’s custody to Robert.

The second issue facing the trial court was modification of Joanna’s custody. In order to modify Joanna’s custody, the court must find that the move to Wisconsin would endanger her physical or emotional health or impair her emotional development. Minn.Stat. § 518.18(d)(iii) (1986). As the majority points out in detail, the *140record will not support a finding that Joanna’s physical or emotional health would be endangered by a move to Appleton, and thus there is no basis for modification. I would reverse the trial court’s award of Joanna’s custody to Robert Sefkow and allow Paula to move Joanna to Wisconsin.

I recognize that my reasoning again leads to split custody of the children. While regretable, such result is unavoidable given our function as an error correcting and not a fact-finding court. While split custody arrangements disrupt sibling relationships and are unfortunate, they are not conclusively erroneous. Kennedy v. Kennedy, 403 N.W.2d 892, 898 (Minn.Ct.App.1987); Johnson v. Lundell, 361 N.W.2d 125, 128 (Minn.Ct.App.1985); Rinker, 358 N.W.2d at 168, In Sefkow II we remanded to the trial court for findings and conclusions on Laura’s custody which were consistent with our decision and with Pikula. Sefkow II, 378 N.W.2d at 77 (Minn.Ct.App.1985). In so doing, we stepped aside to allow the trial court to exercise its discretion. We cannot now fault the trial court for doing just that and awarding Laura’s custody to Robert Sef-kow. However, the trial court clearly erred in modifying Joanna’s custody.