Opinion
No. CX-01-1932.
Filed October 22, 2002.
Appeal from the District Court, Ramsey County, File No. F1942734.
Daniel J. Sullivan, Jr., (pro se appellant)
William A. Blonigan, (for respondent)
Considered and decided by Toussaint, Chief Judge, Willis, Judge, and Minge, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Pro se father argues that (a) his minor child's custodial preference should determine where she lives; (b) his net income determination was erroneous; and (c) the record does not support several findings. We affirm.
FACTS
Pro se appellant Daniel Sullivan and respondent Susan Anderson are the parents of two daughters: D.S., now age 15, and K.S., now age 19. When the parties' marriage was dissolved in 1995, both daughters were placed in respondent's custody, and appellant was ordered to pay child support and one-half of his daughters' insurance premiums. In 1996, appellant quit his job with the state of Minnesota, went into business for himself, and stopped paying child support and the insurance premiums. Respondent petitioned the court to compel payment of child support and insurance-premium arrears. The administrative law judge granted the petition. The ALJ found appellant voluntarily underemployed and imputed to him a net monthly income of $1,542, which was based on his pre-1996 income.
In 1998, the parties agreed that appellant would have primary physical custody of K.S. and that respondent would have primary physical custody of D.S. In July 2000, appellant moved for sole physical custody of D.S. and for dismissal of certain child support arrears. The district court denied appellant's motion to dismiss the arrears and ordered a custody/visitation evaluation. In May 2001, respondent filed a motion for increased child support.
On June 4 and July 18, 2001, the court held an evidentiary hearing, and on October 9, the court denied appellant's custody motion and granted respondent's child support motion. Based on an in-camera interview with D.S., the court determined that D.S. could not reliably express a custodial preference because her loyalty was torn between her parents. The court concluded it was in D.S.'s best interests to remain with respondent. The court also found appellant was voluntarily underemployed and imputed to him a net monthly income of $1,542 for child support purposes. The court ordered appellant to pay respondent $8,955.60 in child support and insurance-premium arrears. This appeal followed.
DECISION
On appeal from a judgment when the appellant did not move for a new trial, we review "whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment." Erickson v. Erickson, 434 N.W.2d 284, 286 (Minn.App. 1989).
I.
Appellant first asks this court to "allow [D.S.] her right to choose where she would like to live." The district court has broad discretion to provide for custody of children. Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989). Appellate court review of a custody determination is limited to whether the district court "abused its discretion by making findings unsupported by the evidence or by improperly applying the law." Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985) (citation omitted). Currently, the law "leaves scant if any room for an appellate court to question the trial court's balancing of best-interests considerations." Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn.App. 2000).
"The guiding principle in all custody cases is the best interests of the child." Hoffa v. Hoffa, 382 N.W.2d 522, 524 (Minn.App. 1986). A party seeking modification of a child custody order must show (1) a change of circumstances of the child or custodian; (2) that modification would serve the child's best interests; (3) that the child's present environment endangers her physical or emotional development; and (4) that the harm to the child caused by moving is outweighed by the advantage of the change. Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn.App. 1997).
The child's reasonable custodial preference can constitute a change in circumstances and is one of many statutory factors a court weighs in determining the child's best interests under Minn. Stat. § 518.17, subd. 1(a) (2000). Geibe, 571 N.W.2d at 778. When determining a child's best interests, the child's preference cannot be used to the exclusion of all other factors. Minn. Stat. § 518.17, subd. 1(a). The child's preference is not reasonable when "tainted by manipulative conduct." Hoffa, 382 N.W.2d at 525. Given the risk of manipulative conduct and the difficulty many children have in choosing between parents, the laws of this state permit the judge to interview a child in the judge's office:
The court may interview the child in chambers to ascertain the child's reasonable preference as to custodian, if the court deems the child to be of sufficient age to express preference. The court shall permit counsel to be present at the interview and shall permit counsel to propound reasonable questions to the child either directly or through the court.
Minn. Stat. § 518.166 (2000).
Appellant contends the court violated D.S.'s constitutional rights "by not allowing her voice to be heard in the court." This court is not aware that any such right exists. Appellant cites no legal authority for the proposition that a child's custodial preference is of constitutional dimension, and this court has no power to create such rights. See Stubbs v. N. Mem'l Med. Ctr., 448 N.W.2d 78, 81 (Minn.App. 1989) (stating that it is not the function of the court of appeals to create new causes of action), review denied (Minn. Jan. 12, 1990); see also Terault v. Palmer, 413 N.W.2d 283, 286 (Minn.App. 1987) (stating that "the task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court"), review denied (Minn. Dec. 18, 1987). Further, appellant lacks standing to assert D.S.'s constitutional rights. See In re Welfare of R.L.K., 269 N.W.2d 367, 372 (Minn. 1978) (stating that, "as a general rule, one does not have standing to assert the constitutional rights of a third party"). In any event, there is no indication that D.S. wished to testify. Her reluctance to offend her parents indicates just the opposite. It appears appellant is manufacturing a constitutional claim for D.S. and asserting it for his benefit and to her dismay.
This case presents the situation that the in-camera interview is designed to address. Based on its in-camera interview with D.S., the court found, "Although of sufficient age to express a preference [D.S.] seemed to be caught in a loyalty bind between her parents." The custody evaluator similarly concluded:
[I]t is not possible for me to know with certainty [D.S.'s] true preference, because of her age and the apparent loyalty bind she experiences between her parents.
The court found D.S.'s custodial preference unreliable and properly discounted its importance.
Appellant suggests D.S. should have been put on the stand in open court for questioning. The district court has wide discretion over the manner in which counsel interrogates witnesses and shall exercise reasonable control over questioning to prevent harassment or undue embarrassment. Minn.R.Evid. 611(a)(3). Putting a 14-year-old child on the witness stand in the midst of a bitter custody dispute, to determine which parent she loves more, would be entirely inappropriate. The court properly chose the most discrete manner in which to evaluate D.S.'s custodial preference.
Moreover, "the reasonable preference of the child" is only one of 13 factors a court considers in modifying custody. Minn. Stat. § 518.17, subd. 1(a) (2000). Finding that D.S. was not prepared to chose one parent over another, the court correctly looked to other best-interest considerations in determining which parent should be D.S.'s custodian. The court found several factors favoring continued custody with respondent. In particular (1) living with respondent did not endanger D.S.; (2) respondent was D.S.'s primary caretaker; (3) respondent's home was more stable because respondent had remarried and D.S. had a good relationship with her stepfather; (4) in contrast, appellant's girlfriend was still married at the time of the hearing and had on one occasion moved back in with her husband; (5) after another daughter of the parties, an older sister of D.S., had moved in with appellant, her academic performance suffered, and she failed to finish high school; (6) D.S. would be more stable if she remained in her present school and community; and (7) appellant had failed to give up his bowling or golf schedules to visit D.S., while respondent spent nearly every school day helping D.S. with homework and driving her different places. Even if D.S. had expressed a reliable preference to live with appellant, other best-interest factors favored retaining custody with respondent. Because neither the court nor the custody evaluator found D.S.'s custodial preference persuasive, and because D.S.'s preference is only one of many equally weighted best-interest factors, the court did not abuse its discretion.
II.
Next, appellant challenges the district court's determination of his income. A district court has broad discretion to provide for the support of the parties' children. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). A district court's findings on net income for child support purposes "will be affirmed on appeal if those findings have a reasonable basis in fact and are not clearly erroneous." State ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 470 (Minn.App. 1999).
Child support is calculated according to the guidelines in Minn. Stat. § 518.551, subd. 5 (Supp. 2001). The district court may impute income to an obligor who is voluntarily underemployed. Minn. Stat. § 518.551, subd. 5b (2000). Imputed income is defined as
the estimated earning ability of a parent based on the parent's prior earnings history, education, and job skills, and on availability of jobs within the community for an individual with the parent's qualifications.
Minn. Stat. § 518.551, subd. 5b(d).
Appellant submitted evidence of reduced income based on his self-employment and argues that the court should have found his actual net monthly income was $1,304. The court found appellant voluntarily quit a higher paying job in 1996, voluntarily limited his income, and was claiming, on his tax returns, to earn less than minimum wage. Appellant agreed that his 2000 tax return overstated expenses and testified that he did not want to get a higher paying job because "I'm self-employed and I prefer to be that way." The court imputed income to appellant based on his pre-1996 income. Because the court is permitted to impute income to an obligor when the court finds voluntary underemployment, the court did not abuse its discretion.
Appellant adds that his child support obligation "should be dismissed or reduced as long as I continue to support our other daughter [K.S.]." But support for an emancipated child does not reduce child support for a minor child. See Minn. Stat. § 518.54, subd. 2 (2000) (stating that "child" means under 18 or, if still in secondary school up to the age of 20).
III.
Finally, appellant argues that the district court made several erroneous findings. A district court's findings will not be disturbed unless they are clearly erroneous. Minn.R.Civ.P. 52.01. "That the record might support findings other than those made by the trial court does not show that the court's findings are defective." Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn.App. 2000). An appellant
must show that despite viewing that evidence in the light most favorable to the trial court's findings * * * the record still requires the definite and firm conviction that a mistake was made.
Id. We defer to the district court's credibility determinations. Id. at 472.
Appellant alleges the court erred in finding the following facts: (1) K.S. moved out permanently; (2) appellant's girlfriend, Christine Collins, had no plans to divorce her husband, and she moved in and out of appellant's house; (3) Collins' son and his fiancé also lived with appellant; (4) the court stated that K.S.'s academic performance declined when she lived with appellant; and (5) appellant admitted owing $1,560 in insurance-premium arrears.
On appeal, we agree that the record shows the following facts: (1) K.S., the older daughter, was living away from appellant only for the summer; (2) Collins, appellant's girlfriend, lived with appellant for five months after separating from her husband, moved back with her husband, and then returned to appellant; (3) Collins spoke with her husband about divorce; and (4) Collins' son and his fiancé were staying at appellant's house only temporarily. But a careful examination of the entire record shows that appellant's home is still less stable than respondent's home. See Minn. Stat. § 518.17, subd. 1(a)(7), (8) (2000) (including as best-interest factors the length of time the child has lived in a stable, satisfactory environment and the desire to maintain that continuity, as well as the permanence of the proposed custodial home as a family unit); see also Minn.R.Civ.P. 61 (stating that harmless error is to be ignored). It was reasonable for the district court to draw a connection between older daughter K.S.'s academic performance, particularly not finishing high school, and living with appellant. This finding was not clearly erroneous.
Appellant argues the district court should not have adopted respondent's proposed findings, conclusions, and order "without verifying the facts." But a district court's verbatim adoption of proposed findings is not by itself improper as long as those findings are not clearly erroneous. Sigurdson v. Isanti County, 408 N.W.2d 654, 657 (Minn.App. 1987), review denied (Minn. Aug. 19, 1987).
Finally, appellant argues he never admitted owing $1,560 in insurance-premium arrears. But the record contains support for including that amount in the total arrears owed. In the 1996 child support proceeding, the administrative law judge found that respondent had paid $78 per month in insurance premiums for both daughters and that — based on the original divorce decree — both parties had to split this expense. Respondent submitted to the court a document showing one-half of this expense ($39), multiplied by the number of months appellant had not paid respondent (40), totaling $1,560. Appellant has not disputed that respondent paid those premiums; he only complains that respondent never produced receipts for the premiums. Appellant has also not claimed that he has paid his share of any premiums since 1996. Because appellant was obligated to pay one-half of his daughters' insurance premiums, and because the determination that he has not done so since quitting his job in 1996 finds support in the record, the district court was justified in ordering that he pay respondent one-half of the insurance-premium payments she claimed she had provided for their daughters since 1996.
We are required to view the evidence in the light most favorable to the district court's findings and reverse only with the definite and firm conviction that the district court made a mistake. Vangsness, 607 N.W.2d at 474. Notwithstanding certain errors in the findings, the record as a whole supports the district court's determinations as to custody, income, and insurance-premium arrears.