Marriage of Kennedy v. Kennedy

WOZNIAK, Judge

(dissenting).

I respectfully dissent from the majority decision to remand on child custody, and instead would affirm the trial court’s custody determination. I concur with the majority opinion in remanding on spousal maintenance and attorney’s fees. It should be noted at the outset that venue in this case was changed from the county of residence of the parties to Mower County to ensure an impartial trial court.

I. We must act within the scope of review. In selecting which parent shall be charged with the care, custody, and control of a child, the trial court is vested with broad discretion. Weatherly v. Weatherly, 330 N.W.2d 890, 891 (Minn.1983). Its determination must be affirmed unless it is clearly shown that the trial court abused that discretion. LaBelle v. LaBelle, 296 Minn. 173, 175, 207 N.W.2d 291, 292 (1973); Bryant v. Bryant, 264 Minn. 509, 512, 119 N.W.2d 714, 717 (1963); Estby v. Estby, 371 N.W.2d 647, 649 (Minn.Ct.App.1985). Without a showing of arbitrary action, an appellate court will be slow to interfere with the discretion of the trial court. Davis v. Davis, 306 Minn. 536, 538, 235 N.W.2d 836, 838 (1975); Hansen v. Hansen, 284 Minn. 1, 5, 169 N.W.2d 12, 14 (1969).

The ultimate and controlling standard in all custody determinations is the “best interests of the child.” Minn.Stat. § 518.17,-subd. 3 (1984); Berndt v. Berndt, 292 N.W.2d 1, 2 (Minn.1980); Wallin v. Wallin, 290 Minn. 261, 264, 187 N.W.2d 627, 629 (1971). The rights of the parents must yield to that principle. Schultz v. Schultz, 266 Minn. 205, 208, 123 N.W.2d 118, 121 (1963). The “best interests” of the child is a factual issue. See Willmore v. Willmore, 273 Minn. 537, 539, 544, 143 N.W.2d 630, 632-34 (1966). Unless clearly erroneous, a trial court finding concerning the best interests of the child must be upheld. Minn.R.Civ.P. 52.01; Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn.1985); Heard v. Heard, 353 N.W.2d 157, 161 (Minn.Ct.App. 1984). The reviewing court must view the evidence in the light most favorable to the trial court’s findings. Hansen, 284 Minn, at 5, 169 N.W.2d at 15; Rinker v. Rinker, 358 N.W.2d 165, 167 (Minn.Ct.App.1984).

II. Minn.Stat. § 518.17 (1984) requires the trial court to consider all factors relevant to the best interests of a child.

The majority correctly notes the recent rule established by the Minnesota Supreme Court that, when both parents seek custody of a child “too young” to express a preference for a particular parent and one parent has been the primary caretaker of the child, custody should be awarded to the primary parent absent a showing that the parent is unfit to be the custodian. Piku-la, at 711-712. A necessary corollary to this rule, recognized by the supreme court in Pikula, is that, where neither parent can demonstrate that he or she is the primary caretaker, no presumptive quality arises and the trial court must examine all other factors relevant to the best interests of the child. Pikula, at 714. In Pikula, the supreme court did not overrule the legislatively-mandated factors of § 518.17, subd. 1.

In enacting § 518.17, the legislature expressed its overriding concern that a child’s life remain as stable and uninterrupted as possible in the face of a marriage dissolution. The primary parent doctrine at its core is a recognition of the importance to the child of stability in relationships. Of all the factors in § 518.17, subd. 1, the legislature most directly addressed the importance of stability in the child’s relationships in (c), which requires the trial court to consider and evaluate:

*709The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interests.

Thus, the effect of Pikula is to add a presumptive quality in some cases to an already legislatively-mandated factor.

In the present case, the trial court faithfully and explicitly considered and evaluated all nine factors of § 518.17, subd. 1, in determining the custody of Erin, Patrick, and Caitlin. The trial court found that, as to factor (c), there was a “fairly equal balance between the parties.” This finding directly concerns the relationships of the children with their parents and is an explicit finding that neither party had clearly demonstrated that he or she alone possessed that special “bond formed between a primary parent and a child.” Pikula, at 711 n. 2. This finding by the trial court is not clearly erroneous. Moreover, there is satisfactory evidence of the fact that child care was “shared by both parents in an entirely equal way.” Pikula, at 714.

The trial court and both parties recognized the importance of the factor of primary parent as it related to the best interests of the children. Accordingly, during the course of the two-day trial and the supplemental hearing, only a minute portion of the evidence concerned matters other than custody and the best interests of the children. The overwhelming majority of the evidence revolved around the issue of who was the primary parent.

Carol and her witnesses testified that she was the primary parent. She testified that she met the day to day needs of the children. She got the children up in the morning, prepared and served their meals, and maintained the home. She was the children’s companion in their play, encouraged their outside interests, and supervised their studies. She testified that she set the rules of the household and guided the children with appropriate discipline.

Duane and his witnesses testified that he was the primary parent. He testified that when Carol worked, he did virtually everything for the one child (Erin) then born. He set aside specific time to play with the children around the farm and to teach them basic skills such as reading. The children participated with him in his exercises and chores around the farm. He testified that starting in 1982 he was doing more than half of the bathing of the children, getting them ready and into bed, and preparing and serving snacks to them on weekends. When Carol was away from home participating in her equestrian and club activities, Duane was responsible for all parenting. He testified that he disciplined the children when necessary in the manner he believed best.

The trial court ordered two custody investigations. They were performed by Betty Young, a Court Services employee for 27 years. She had input from approximately 35 people in preparing her report, and testified that she had observed these children more than any other children upon whom she had done a custody study. She stated in her report that both parents were active parents and both had a warm, affectionate relationship with the children.

The trial judge also conducted a private interview with Erin, Patrick, and Caitlin. In his summary of the interview, the trial judge stated that Erin and Patrick were prepared to accept life with either parent.

From this morass of conflicting evidence, the trial court concluded that, concerning the children’s relationships with their parents, the parties were equally balanced. Nothing in the record suggests that the trial court disregarded Carol’s parenting role. Viewing the record as a whole and in a light most favorable to the trial court’s finding, it cannot be said that this finding of equality is clearly erroneous.

Finding that neither party had clearly demonstrated that he or she was the primary caretaker, the trial court correctly went on to consider and evaluate all other relevant factors to the best interests of the children. Pikula, at 714.

The trial court found as to § 518.17, subd. 1(d), (e) and (f):

*710I feel that the children have a total adjustment to their rural home and their school. They have lived together in a stable home, for over five years. They have become adapted to a very delightful, healthy and educational environment, and have clearly profited from the exposure. Respondent’s position appears reasonably secure, and permanence of the family unit seems assured.

The majority does not dispute that the trial court’s finding regarding the security of Duane’s employment is not clearly erroneous.

The majority also does not dispute as being clearly erroneous the trial court’s finding that the “farm” is a very positive environment for the children and to which they are very attached. The trial court awarded the homestead to Duane. The majority does, however, object to the trial court’s use of this factor as a basis for awarding custody to Duane. Such an objection is misplaced because in this case Carol specifically recommended in her “trial summation and memorandum” that the homestead be awarded to Duane. A trial court is certainly entitled under § 518.17, subd. 1(d), (e) and (f) to take into consideration a party’s intent to remove the children from a stable environment to which they are very attached. This is especially true where the facts of the case indicate that sufficient support or maintenance could be ordered to allow either party to remain in the homestead.

The trial court also found that Carol’s future plans were uncertain:

I have considered, also, the uncertainty of petitioner’s future plans. As recently as August she intended to move to Wisconsin, where she intended to go to school. By October she apparently changed her mind and made tentative plans to move to Stewartville. However, those plans, as yet, include neither job nor school.

Carol made at least three major changes in her plans for the future during the course of the dissolution. The most recent change was her move to northern Wisconsin to reside with one of her parents. Whether this move was temporary or permanent is unclear. However, this was an abrupt change from her previous plan to purchase a house in Grand Meadow. No court has yet been apprised of her current plans for either more education or employment. The majority does not dispute that the trial court’s finding of uncertainty in Carol’s future plans is not clearly erroneous.

Once again, however, the majority objects to the trial court’s use of this factor as a basis for awarding custody to Duane. This objection is misplaced. A trial court is required to consider all factors relevant to the best interests of a child. Understandably, any party going through a marriage dissolution will be somewhat uncertain in his or her plan's for the future. At some point, however, a great amount of uncertainty, combined with a lack of resolve to formulate plans and begin working on them, can be said to be detrimental to the best interests of a child. At such point, a trial court is required to consider the uncertainty factor in awarding custody. Whether such point is reached in a given case is a matter best left to .the discretion of the trial court and, as with other factors concerning the best interests of a child, should not be disturbed on appeal unless clearly erroneous. As the record indicates, the trial court was not clearly erroneous in considering Carol’s uncertain future plans.

Finally, the majority fails to mention that the trial court’s decision to award custody of Erin, Patrick and Caitlin to Duane was the exact conclusion reached by the expert Betty Young in her custody evaluation.

Viewing all this evidence in a light most favorable to the trial court’s findings, the finding that the best interests of the children would be served by custody with Duane is not clearly erroneous. The trial court’s award of custody to Duane was not an abuse of discretion or arbitrary, and should be affirmed.

The result would not be different even if the trial court is considered to have made *711no primary parent finding. The duty of an appellate court is to view the evidence in a light most favorable to the trial court and sustain a “best interests” finding unless it is clearly erroneous. A trial court’s “best interests” finding must be upheld if the findings as a whole reflect that the trial court has taken the relevant factors into consideration in reaching its decision. Rosenfeld v. Rosenfeld, 311 Minn. 76, 83, 249 N.W.2d 168, 171-72 (1976). This is demonstrated by the findings here, and those findings are adequately sustained by competent evidence.

Realizing, however, that the majority has decided to remand this case to the trial court on the custody issue, several additional comments are necessary. First, the trial court should take note of the fact that Carol now permanently resides outside this jurisdiction. Therefore, the trial court must consider the two major concepts announced in Auge v. Auge, 334 N.W.2d 393 (Minn.1983); that is, removal of the children is prohibited if it contradicts the best interests of the child or if the purpose of the move is to interfere with the visitation rights granted to the noncustodial parent. Id. at 397, 399, 400. Second, the trial court must again consider Carol’s future plans concerning education and/or employment and how they may have changed since her abrupt move to Wisconsin. Third, the trial court must also evaluate the suitability of her new home for the custody of the children. Finally, the trial court should feel free to reaffirm its earlier finding that neither party clearly demonstrated that he or she was the primary parent.