Pikula v. Pikula

• Decision Date: 08 November 1985
• Docket Number: No. C6-83-1393,C6-83-1393
• Citation: 374 N.W.2d 705
• Court: Minnesota Supreme Court
• Parties: In re the Marriage of Kelly Jo PIKULA, Respondent, v. Dana David PIKULA, Appellant.

Page 705

374 N.W.2d 705

In re the Marriage of Kelly Jo PIKULA, Respondent, v. Dana David PIKULA, Appellant.

No. C6-83-1393.

Supreme Court of Minnesota.

Nov. 8, 1985.

Syllabus by the Court

1. Appellate review of custody determinations is limited to whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.

2. The findings which the trial court made were supported by the evidence but there were insufficient findings to support the award of custody.

3. The best interests of the child as delineated by the statutory factors set out in Minn.Stat. § 518.17, subd. 1 (1984), require 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 caretaker absent a showing that that parent is unfit to be the custodian.

John H. Erickson, Brainerd, for appellant.

Stephen C. Rathke, Brainerd, for respondent.

Heard, considered and decided by the court en banc.

WAHL, Justice.

This matter concerns the propriety of the custody award of two minor children in the judgment and decree dissolving the marriage of Kelly Jo Pikula and Dana David Pikula. Both parents sought custody of their daughters, aged 4 and 2. After a two day trial, the trial court awarded custody to Dana, the father. On Kelly's appeal, the Court of Appeals reversed, 349 N.W.2d 322, concluding that the evidence, considered in light of the statutory factors set forth in Minn.Stat. § 518.17, subd. 1 (1984), was insufficient to support the award of custody. The Court of Appeals remanded the matter with direction to the trial court to enter judgment granting custody to the mother. We granted discretionary review.

Kelly and Dana Pikula were married on March 29, 1980, when Kelly was 17 and Dana 20. At the time of their marriage, their older daughter, Tiffany, was 8 months old. Prior to Tiffany's birth, Kelly and Dana had lived with Kelly's sister, Denise, in St. Paul. After the baby was born, the family moved to Brainerd, Dana's hometown, where they had frequent contact with Dana's parents and sisters. The Pikula family is closely knit, with Dana's parents at the center of the family. The family members visit each other frequently and spend holidays together. Two of the three adult Pikula children work for their father, and the parents continue to assist the adult children financially. Dana took a job with his father's trucking company, working a split shift as a driver. Kelly had a second daughter, Tanisha, in 1981, and finished high school while taking care of the children and managing the home.

As the Court of Appeals observed, it appears from the evidence that both Kelly and Dana were imperfect parents. Dana and members of his family testified Kelly occasionally had trouble controlling her temper with the two girls, was somewhat ambivalent about her role as mother, and was a poor housekeeper. Kelly did not dispute she was sometimes dissatisfied and frustrated, but by her own account and by the testimony of Dana and his family, she was a good mother. She testified her dissatisfactions were rooted in her relationship with Dana and in Dana's problems with alcohol which at times resulted in physical displays of temper and verbal abuse. These problems persisted throughout the marriage and became particularly severe after Tanisha, their second child, was born. Dana was hospitalized during this period after injuring his hand by putting his fist through a door. He initially agreed to undergo counseling at that time, but soon stopped attending because he "didn't feel he had a problem with other people." He did attend AA meetings for a period, but began drinking again after five or six months. According to the report prepared by the custody evaluator, Dana continues to have problems with chemical dependency.

Kelly and her sisters also testified Dana's drinking in part precipitated the couple's separation. At the time Dana began drinking again, Dana forced Kelly and the children to leave her sister Renee's home in St. Paul where Kelly had been visiting with the children. Dana appeared at the house at around 9 p.m. and insisted Kelly and the girls leave immediately with him. When Kelly resisted, he took the children, put them in the car, and then dragged Kelly out of the house. In the meantime, Renee's boyfriend came out of the house and hit Dana on the arm with a baseball bat. Kelly said the children were watching this scene from the car, and once they were underway, Dana drove recklessly, shouted at her, and prevented her from comforting the children. Dana denies he used physical force, had trouble operating the car, or kept Kelly from the children. Kelly's sisters stated, though, they were sufficiently concerned to report the incident to the police.

Kelly did not remain in the home long after their return from St. Paul. She said Dana told her he was going to keep her there and he intended to take the children away so she would know what it was like to be alone. He was angry at her for not taking his side against her sister's boyfriend. Kelly then left the home and moved into the Women's Center of Mid-Minnesota, a shelter for battered women, where she continued to live until the time of the trial.

During this time, the couple agreed to a joint custody arrangement until custody was judicially determined. The arrangement was an uneasy one. For a time, the children remained in the family home while Kelly and Dana alternated living there on a four-day rotation schedule. Kelly began bringing the children to the shelter for her custody period, however, when tensions between Kelly and Dana escalated.

The recommendations of three professional social workers were also before the trial court. All three recommended that custody be awarded to Kelly. Social worker Jean Remke met with Kelly and Dana together or separately four times. In her view, both Kelly and Dana are somewhat emotionally immature. In Remke's opinion Kelly is "decidedly the most functional parent," because she seemed more capable of "putting herself aside to attend to the physical and emotional needs of others," while Dana "repeatedly used the children in efforts to control their mother," and showed "no signs of really understanding this and no signs of altering his behavior."

Social worker Louise Seliski had extensive contact with Kelly at the shelter, both through individual counseling and observation. Seliski also found Kelly had been a fit mother to the two girls and believed she would continue to provide a loving and supportive environment for them. She said she observed affection between Kelly and the children, that Kelly never used excessive discipline, and that the children were always clean. Seliski terminated therapy with Kelly because Kelly was "handling her life as well as anyone could expect her to handle it" and had no significant psychological problems or chemical dependency. It was Seliski's recommendation that custody be given to Kelly.

The reports prepared by Remke and Seliski were included in the custody evaluation prepared by social worker Nancy Archibald. The evaluation also included reports of interviews with the parties, their families, neighbors and friends, a church premarital evaluation, and letters of recommendation. In Archibald's opinion, the views expressed by Remke and Seliski were supported by her interviews with Kelly and Dana. She also recommended, based on all the data, that custody be awarded to Kelly with reasonable visitation provided to Dana.

Evidence was also introduced at trial concerning the custodial environment each parent would provide the children. Kelly testified she intended to move with the children to her sister's home in Maplewood until she could find employment and move into her own apartment. Dana objected to this plan, and testified that Kelly's sister had used marijuana and characterized some of her sister's friends as "bikers." Dana testified that he intended to remain in Brainerd if he were awarded custody of the girls. He continued to work a split shift at the time of trial, and his schedule required him to leave Brainerd at 3:00 a.m. for Wadena, lay over in Wadena from 7:00 a.m. until 3:00 p.m., and return to Brainerd at 7:00 p.m. Occasionally, he would return to Brainerd during his layover, permitting him to spend several hours at home. The child care responsibilities were principally borne by Dana's mother, however, and the children frequently spent the night with her and were cared for by her during the day.

Based on this record, the trial court initially made two key findings of fact in awarding custody to Dana. These findings stated as follows:

Finding 11. That there is a strong, stable, religious family group relationship within the Pikula family that has been developed, nurtured and cultivated over the years. It has stood like a bedrock through the depression years and post-war years of plenty and permissiveness. This environment has inbred in the family a unity, respect, loyalty and love that for the most part has been destroyed and lost in most modern American families.

It is in the best interest of the children that they be kept in the cultural family environment.

Finding 12. That the environment in which petitioner finds herself is almost the exact opposite. It is characterized by self-interest and excessive liberalism.

Both findings were amended 4 months later pursuant to Kelly's motion for amended findings to read:

Amended Finding 11. That there is a strong, stable, religious family group relationship within the Pikula family, including respondent and the children, that has been developed, nurtured and cultivated over the years. It has stood like a bedrock through the depression years and post-war years of plenty and permissiveness. This environment has inbred in the family, including respondent, a unity,...