Sefkow v. Sefkow, CX-87-403
| Decision Date | 29 September 1987 |
| Docket Number | No. CX-87-403,CX-87-403 |
| Citation | 413 N.W.2d 127 |
| Parties | In re the Marriage of Robert J. SEFKOW, Petitioner, Respondent, v. Paula D. SEFKOW, Appellant. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
1. Modification of custody is permitted only upon a finding that the child's present environment endangers her physical or emotional health or impairs her emotional development and the harm likely to be caused by a change in environment is outweighed by the advantage of a change to the child. In making its determination, the trial court must consider the negative effects of separating the child from her custodial parent. The party seeking modification has the burden of showing endangerment and that the harm of a change is outweighed by the advantage.
2. Although one parent may typically be the primary caretaker of all of the children in a family, this is not necessarily so, and the primary parent doctrine requires that each child be treated individually. Where the custody of one child was never appealed, that issue is res judicata and may not be redetermined by the trial court under a remand for reconsideration of the custody of another child.
3. In determining the primary parent of a child, the trial court must restrict its evaluation to the parenting situation at the time the dissolution proceedings began, and it is error to consider events that occurred after that time, as this results in undue consideration for the parent who has had custody of the child since the parents separated.
4. When the facts demonstrate that responsibility for and performance of child care was shared by both parents in an entirely equal way, then no primary parent preference arises and the trial court must limit its inquiry to other indicia of the child's best interests. In circumstances where one parent cared for the child while the other parent was working full-time, and the other parent cared for the child when he was not working, there is inadequate evidence to conclude that either parent was the child's primary parent.
5. In the absence of compelling reasons for a split custody arrangement, none of which have been presented here, the best interests of a child will be served by permitting her to remain with her sibling. Under the circumstances presented here, the need for finality in fixing the permanent custody of children also supports the appellate court's award of custody of both children to their mother.
6. Where the appellate court makes a direct award of custody, reversing the trial court, child support may be determined under the statutory guidelines, using the trial court's finding on the obligor's net monthly income.
7. Where the need for finality is compelling, and where the trial court failed to follow the appellate court's instructions on remand, thereby abusing its discretion, an award of maintenance on appeal is appropriate, particularly where the need for maintenance has ended and the appellate court is in effect ordering a money judgment for maintenance arrearages.
8. A trial court's failure to award attorney fees in a dissolution case will not be reversed, absent a compelling demonstration by the party requesting attorney fees of an inability to pay expenses associated with the litigation.
Charles R. Kennedy, Wadena, for respondent.
Bruce E. Bohlman, Grand Forks, for appellant.
Considered and decided by the full court en banc consisting of POPOVICH, C.J., and PARKER, FOLEY, WOZNIAK, SEDGWICK,
LANSING, HUSPENI, FORSBERG, NIERENGARTEN, RANDALL, CRIPPEN, NORTON, MULLANY * and LOMMEN, * JJ., with oral argument waived.
We have considered this case twice before. Our first decision was announced in Sefkow v. Sefkow, 372 N.W.2d 37 (Minn.Ct.App.1985) (Sefkow I ). In Sefkow I, we reversed the trial court's decisions regarding split physical custody, child support, spousal maintenance, and attorney fees; modified the decision by awarding physical custody of both children to appellant; and remanded for further findings on the amount of child support and spousal maintenance. On petition for further review, the supreme court remanded the case to this court for reconsideration in light of Pikula v. Pikula, 374 N.W.2d 705 (Minn.1985). Sefkow v. Sefkow, 374 N.W.2d 733 (Minn.1985).
Our second decision was announced in Sefkow v. Sefkow, 378 N.W.2d 72 (Minn.Ct.App.1985) (Sefkow II ), pet. for rev. denied (Minn. Jan. 17, 1986). In Sefkow II, we remanded to the trial court:
for findings and conclusions * * * consistent with this opinion and the supreme court's decision in Pikula v. Pikula, for a determination of physical custody of Laura Sefkow.
Id. at 77. Except for the language on the custody of Laura, we reaffirmed that "the decision of the court is as reported in Sefkow, 372 N.W.2d at 50." Id.
On remand, the trial court awarded custody of both children to respondent Robert Sefkow, denied both parties spousal maintenance, ordered appellant Paula Sefkow to pay monthly child support in the amount of $150 per child, and ordered the parties to share equally in the transportation expenses incurred in the exercise of appellant's visitation rights. We reverse.
The facts of this case are set forth in detail in our initial decision. Sefkow I, 372 N.W.2d at 41-42. We summarize here, and set forth those relevant facts that have occurred subsequent to Sefkow I.
The parties were married in 1969, and they have two children, both adopted as infants. Laura was born July 5, 1979, and Joanna was born April 15, 1982. In May 1983, when the parties separated, Laura was four years old and Joanna was one year old.
During the summer of 1983, both children lived with appellant Paula Sefkow at the parties' lake home. In September 1983, respondent Robert Sefkow took physical custody of Joanna by picking her up from the babysitter without notice. Later that same day, appellant was served with respondent's dissolution summons and petition.
From November 1983 until the dissolution decree was entered in November 1984, the parties shared physical custody of the children, so that the children lived with each parent during part of each week. The judgment and decree of November 1984 granted custody of Laura to respondent and of Joanna to appellant. From that time until February 23, 1987, when the judgment on remand was entered, each party had physical custody as decreed by the trial court, despite our intermediate reversal of the custody award. See Sefkow I, 372 N.W.2d at 50 (dated July 30, 1985). During that time, the children were together on weekends, holidays and two months during the summer.
On July 31, 1986, appellant moved to change the children's residence to Appleton, Wisconsin, where she had been offered a full-time position as director of a program for gifted and talented children. At that time, appellant was no longer employed at the Montessori school in Fargo. The salary for the job in Wisconsin was $26,339 per year, twice what appellant had earned at the Montessori school.
Respondent opposed appellant's motion, arguing it was premature regarding Laura, whose physical custody had not yet been heard on remand, and not in Joanna's best interests. The court treated respondent's affidavit as a motion to modify Joanna's physical custody, and the required evidentiary hearing and remand trial were held August 14-16, 1986. Following the trial, but prior to its decision, the court allowed appellant to remove Joanna to Appleton, while ordering that Laura stay with respondent in Fergus Falls.
On February 23, 1987, the trial court issued its decision, accompanied by 83 pages of findings of fact. The court awarded physical custody of both children to Robert Sefkow, based on its conclusions that Robert Sefkow was the primary parent of both children at the time the dissolution proceedings began in 1983, that a modification of Joanna's custody to Robert Sefkow was necessary because the proposed move to Wisconsin would endanger her, and that a split custody arrangement could no longer be tolerated.
The trial court ordered Paula Sefkow to pay monthly child support of $150 per child, and ordered the parties to share equally in the transportation costs associated with appellant's visitation rights. The court determined that because appellant remarried in October 1986, two months after the remand trial, spousal maintenance was no longer an issue, and it therefore denied appellant's request for maintenance. The court did not award attorney fees to either party. Paula Sefkow appeals.
1. Was it error to modify Joanna's custody?
2. Was it error to award Laura's custody to respondent?
3. What is an appropriate child support award?
4. Was it error to deny an award of maintenance?
5. Is appellant entitled to attorney fees?
In contested custody modifications, the trial court must satisfy a three-part statutory test. The court must find that "a change has occurred in the circumstances of the child or [her] custodian," that "modification is necessary to serve the best interests of the child," and that:
The child's present environment endangers [her] physical or emotional health or impairs [her] emotional development and the harm likely to be caused by a change in environment is outweighed by the advantage of a change to the child.
Minn.Stat. Sec. 518.18(d)(iii) (1986).
The trial court listed several bases for its conclusion that Joanna's environment with appellant in Appleton, Wisconsin endangers her emotional health and impairs her emotional development. These are: (1) appellant's interference with the existing bond between Joanna and respondent; (2) care by a babysitter in Wisconsin that means Joanna will be "withdrawn" from a family unit; (3) Joanna's ready adaptation to a stable, continuous family unit with respondent in Fergus Falls, Minnesota; (4) the presence of extended family in Minnesota and North Dakota; (5) the unknown nature of the...
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Sefkow v. Sefkow
...reversed, ordering physical custody of both children to their mother and maintenance for a period of two years. Sefkow v. Sefkow, 413 N.W.2d 127 (Minn.App.1987) (Sefkow III). We reverse the court of appeals' determination of the custody of the older child and the award of maintenance, and w......
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