In re the Marriage of: Timothy Michael Kopp v. Christina Ann Burton ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1347
In re the Marriage of: Timothy Michael Kopp, petitioner,
Respondent,
vs.
Christina Ann Burton,
Appellant.
Filed April 4, 2016
Affirmed
Reyes, Judge
Stearns County District Court
File Nos. 73FA0816429; 73FA138421; 73FA153333
John Lund, Lund Law P.A., St. Cloud, Minnesota (for appellant)
Timothy Kopp, Maple Grove, Minnesota (pro se respondent)
Considered and decided by Worke, Presiding Judge; Schellhas, Judge; and Reyes,
Judge.
UNPUBLISHED OPINION
REYES, Judge
Appellant-mother argues that the district court erred by (1) awarding respondent-
father sole legal and sole physical custody of the parties’ minor child; (2) requiring that
her parenting time be supervised; (3) adopting the guardian ad litem’s report verbatim;
and (4) granting father’s request to change the minor child’s surname. We affirm.
2
FACTS
Appellant-mother Christina Ann Burton and respondent-father Timothy Michael
Kopp were married on July 5, 2008. On August 28, 2008, the parties were involved in a
domestic dispute. As a result, mother obtained an order for protection (OFP) against
father, and father was adjudicated guilty of domestic assault. Mother subsequently had
the OFP extended by 50 years. Father filed for divorce on September 19, 2008.
The parties had a child who was born on January 30, 2009. Father was awarded
supervised visitation in May 2009. Father’s supervised visitation took place at the
St. Cloud YMCA. The YMCA supervisors reported difficulty dealing with mother and
that mother repeatedly cancelled visits.
The parties’ marriage was dissolved by dissolution decree on December 30, 2009.
In July 2010, the parties hired a private custody evaluator to provide recommendations to
the court regarding physical and legal custody of the parties’ minor child. The private
custody evaluator recommended that mother be awarded sole legal and sole physical
custody of the child but that, over time, father’s parenting time increase and transition
from supervised to unsupervised. On September 23, 2011, the court appointed a
parenting-time supervisor for father’s parenting time. The parenting-time supervisor
resigned from this position on November 6, 2011, citing concerns about mother.1 On
1
The parenting-time supervisor’s reasons for resignation included personal safety
concerns, mother’s failure to comply with the rules and conditions of the supervised-
visitation program, mother’s threats to report the parenting-time supervisor to the state of
Minnesota, and mother’s failure to bring the minor child to scheduled visits. We note
that the parenting-time supervisor was not the only person involved in the case who
ultimately refused to work with the parties due to mother’s behavior.
3
November 30, 2011, the court appointed a guardian ad litem (GAL). The GAL opined
that sole legal and sole physical custody should be awarded to mother.
On January 22, 2013, the court awarded mother sole legal and sole physical
custody of the parties’ minor child but granted father unsupervised visitation every other
weekend. The court also discharged the GAL. Shortly thereafter, mother requested
reconsideration of the custody arrangement. Due to mother’s concerns, the court filed a
temporary emergency order on January 31, 2013, and appointed a parenting consultant on
February 21, 2013. The court subsequently granted father unsupervised parenting time
on weekends until a transitional schedule was prepared by the parenting consultant.
On March 22, 2013, father filed a motion requesting that the court hold mother in
contempt of court for denying father his court-ordered parenting time. The district court
held a hearing on April 18, 2013. On June 24, 2013, the district court granted father’s
contempt motion. The parenting consultant withdrew from the case on August 6, 2013,
and recommended that a new GAL be appointed. On August 22, 2013, father again filed
a motion requesting that the court hold mother in contempt for denying father his court-
ordered parenting time.2 Mother filed a responsive affidavit on September 4, 2013, in
which she attempted to provide explanations for the missed visits.
A new GAL was appointed, and on August 5, 2014, the GAL filed her first report
with the court, to which she filed an addendum on August 21, 2014. Both reports
recommended that sole legal and sole physical custody be transferred to father. The court
2
Initially, the court reserved ruling on father’s second contempt motion and later denied
father’s motion in its order filed on October 3, 2014.
4
held an evidentiary hearing on September 11, 2014. Following the GAL’s testimony, the
court issued an order from the bench transferring sole legal and sole physical custody of
the minor child to father and granting mother supervised parenting time. The court also
granted father’s request to change the minor child’s surname. On October 3, 2014, the
court filed a written order memorializing its order from the bench.
Mother filed an appeal, and the parties subsequently appeared before the district
court to discuss mother’s motion to stay the October 3 custody order pending appeal. At
the hearing, mother requested a second evidentiary hearing on father’s custody-
modification motion, contending that she did not have the opportunity to present her case
at the prior hearing. The district court denied mother’s request for a stay pending appeal
but granted mother’s request for a second evidentiary hearing. Mother voluntarily
dismissed her initial appeal, and the second evidentiary hearing was held on April 2 and
3, 2015. Several witnesses testified. On June 26, 2015, the court filed an order, which, in
large part, reaffirmed the findings and conclusions contained in its order filed on October
3. This appeal follows.
DECISION
I. The district court did not abuse its discretion by modifying custody.
Mother asserts that the district court abused its discretion by granting father’s
motion to modify custody.3 We disagree.
3
Mother failed to cite legal authority in support of this argument. We therefore need not
address it. Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187
N.W.2d 133, 135 (1971). However, because mother’s argument implicates the best
interests of the child, we address the merits of the decision to modify custody.
5
Our 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). The supreme
court has set forth a two-stage process that is used in custody-modification proceedings.
Lewis-Miller v. Ross, 710 N.W.2d 565, 569 (Minn. 2006). First, “the district court, in
consideration of affidavits submitted in support of the motion for modification, reviews
the documents and schedules a hearing if the movant alleges fact which, if true, would
justify modification.” Id. “Whether a party makes a prima facie case to modify custody
is dispositive of whether an evidentiary hearing will occur on the motion.” Szarzynski v.
Szarzynski, 732 N.W.2d 285, 292 (Minn. App. 2007). Generally, in contested cases,
child custody cannot be modified without an evidentiary hearing. E.g., Clark v. Clark,
358 N.W.2d 441 (Minn. App. 1984) (“[A] trial court may not modify a custody award
absent an evidentiary hearing in which witnesses may be cross-examined.”) (quotation
omitted)).
Following an evidentiary hearing, the district court may grant a motion to modify
custody based on endangerment if the court finds that (1) there has been a change in
circumstances; (2) modification is necessary to serve the child’s best interests; (3) the
child’s present environment endangers the child’s physical health, emotional health, or
emotional development; and (4) the benefits of the modification outweigh the detriments
with respect to the child. Minn. Stat. § 518.18(d)(iv) (2014). Mother takes issue with
elements two through four: the best interests of the child, endangerment, and the benefits
versus detriments of modification. We address each element in turn.
6
A. The best interests of the child
The best interests of the child are determined using the factors listed in Minn. Stat.
§ 518.17, subd. 1 (2014).4 Specifically, the district court considers (1) the wishes of the
parents regarding custody; (2) the preference of the child, if the child is of sufficient age
to express a preference; (3) who acts as the child’s primary caretaker; (4) the intimacy of
the relationship between the child and each parent; (5) the child’s interaction and
interrelationship with the parents and others who may affect the child’s best interests;
(6) the child’s adjustment to home, school, and community; (7) the length of time the
child has lived in a stable, satisfactory environment and the desirability of maintaining
continuity; (8) the permanence as a family unit of the existing or proposed custody
arrangement; (9) the mental and physical health of the individuals involved; (10) the
capacity of the parties to give the child love, affection, and guidance; (11) the child’s
cultural background; (12) the effect on the child by the actions of an abuser; and (13) the
ability of each parent to encourage and permit frequent and continuing contact with the
other parent. Id.The district court found that mother was the child’s primary caretaker, which
weighed in her favor. The district court determined that the child was too young to
4
A substantive amendment to Minn. Stat. § 518.17, subd. 1, was made during the 2015
legislative session. 2015 Minn. Laws ch. 30, art. 1, § 3. Because the relevant
amendments do not specify an effective date, the amendments became effective on
August 1, 2015. See Minn. Stat § 645.02 (2014). We therefore apply the 2014 version of
the statute, which was in effect when the district court issued its June 26, 2015 order. See
Interstate Power Co. v. Nobles Cty. Bd. of Comm’rs, 617 N.W.2d 566, 575 (Minn. 2000)
(stating that, generally, courts apply the law in effect at the time they make their decision,
unless doing so would alter vested rights or result in manifest injustice).
7
express a preference, both parents have an intimate relationship with the child, and both
parents desire to have sole legal and sole physical custody. Thus, these three factors were
neutral. The remaining best-interests factors, according to the district court, weighed in
favor of father. Therefore, the district court concluded that modifying custody to award
father sole legal and sole physical custody was in the minor child’s best interests.
The district court’s findings are supported by the record. The GAL addressed
these best-interests factors in detail. The GAL’s analysis and recommendations support
the district court’s conclusion that the best-interests factors favor a custody modification.
Furthermore, the district court expressly stated in its June 26, 2015 order that it found the
GAL’s account “fair and credible,” that her “analysis was sound,” and her
“recommendations remain appropriate and in the [c]hild’s best interests.” We defer to
the district court’s credibility determinations. See Sefkow v. Sefkow, 427 N.W.2d 203,
210 (Minn. 1988) (“Deference must be given to the opportunity of the trial court to assess
the credibility of the witnesses.”). Accordingly, the second element is met.
B. Endangerment
Although the concept of endangerment is imprecise, this element requires that the
moving party demonstrate a significant degree of danger. Ross v. Ross, 477 N.W.2d 753,
756 (Minn. App. 1991). This court has “recognized [that] indications of danger to a
child’s well-being and development include poor school performance . . . and consistent
denial of visitation.” Lilleboe v. Lilleboe, 453 N.W.2d 721, 724 (Minn. App. 1990). The
district court “determined that the [c]hild’s emotional health was endangered, or at least
significantly impaired, while residing with [mother].” Additionally, the district court
8
found that mother “impaired the emotional development of the [c]hild.” Specifically, the
court found that the child struggled academically while in mother’s care and that mother
“frequently and unjustifiably denied an extensive amount of visitation time to [father]
without any reasonable justification.” These findings are supported by the record.
The child’s performance in school was deficient while he was in mother’s care.
The child began attending kindergarten on September 18, 2014, shortly after he was
transferred to father’s care. The GAL met with the child’s teacher on January 15, 2015 to
discuss the child’s performance at school. The teacher reported that, at the beginning of
the school year, the child presented as quite shy and was unsure about proper boundaries
with other children. The teacher also reported that initially the child demonstrated little
knowledge of basic concepts, such as shapes and colors, and did not seem like he
previously had been exposed to much educational enrichment. By the time of the
January 15 visit, however, the teacher stated that the child was quickly understanding
concepts, had acquired friends, and was invited to their birthday parties.
Additionally, mother repeatedly attempted to deny father visitation and was not
cooperative in facilitating father’s parenting time. Following the court’s March 8, 2013
order granting father unsupervised visitation, mother repeatedly denied father his
scheduled visitation. The August 5, 2014 report prepared by the GAL also discussed
mother’s attempts to limit father’s contact with the child. Specifically, the GAL noted
mother’s frequent attempts to have father cited for OFP violations as well as the
9
suspicious timing and nature of the child’s illnesses.5 Moreover, a report filed by the
parties’ parenting consultant dated April 15, 2011, contained indications that mother
denied father his parenting time. The report noted the YMCA supervisor’s comments
that, due to mother’s inflexibility, creating a visitation schedule was an on-going struggle.
The YMCA supervisor also reported that mother often cancelled visits and that
rescheduling missed visits was difficult due to mother’s insistence that the visits occur
within extremely limited time frames. Thus, the third element is met.
C. Benefits versus detriments of modification
The district court determined that “extensive evidence and testimony supported
[father’s] claim that the environment that he was able to provide for the [c]hild would
significantly outweigh any harm caused to the child by changing residences.” The record
supports this determination. Testimony and reports by the GAL demonstrate that father
was able to provide a safe and stable environment where the minor child could thrive.
The record also evidences that, for the reasons previously discussed, mother’s home
presented risks to the minor child’s development. Therefore, the fourth element is
satisfied. Accordingly, we conclude that the district court did not abuse its discretion by
granting father’s motion to modify custody.
5
One OFP violation occurred on March 15, 2015, during mother’s supervised parenting
time. Father was arrested at the supervised visitation center for violating the OFP.
Mother’s behavior with respect to this incident is troubling. Both the GAL and
supervisor expressed concern about mother’s failure to appreciate the potential distress
that this incident could have caused the child. Furthermore, mother attempted to use this
incident to support a custody modification, which the court denied. The GAL reported
that this behavior reflected “the same obsessive pursuit of [OFP] violations . . . in order
for [mother] to eliminate [father] from his [child’s] life.”
10
Mother also argues that father did not presented a prima facie case to modify
custody and therefore was not entitled to an evidentiary hearing.6 But mother is asserting
this argument for the first time on appeal. Indeed, mother requested her own evidentiary
hearing, which the district court granted. Therefore, mother is precluded from
challenging the propriety of holding such a hearing on appeal. Thiele v. Stitch, 425
N.W.2d 580, 582 (1980) (stating that appellate review is generally limited to the issues
and theories presented to and considered by the district court). Moreover, because we
conclude that the district court did not abuse its discretion by modifying custody, and
particularly because we affirm the district court’s determination that the child was
endangered in mother’s custody, even if we were to assume the district court erred in
holding a hearing on father’s motion, that error was harmless. See Minn. R. Civ. P. 61.
As a result, we decline to further address mother’s argument on the prima facie case.
II. The district court did not abuse its discretion in establishing mother’s
parenting time.
Mother asserts that there was no evidence presented that supervised parenting time
was necessary to protect the child.7 We disagree.
6
Mother asserts that father never filed a formal motion requesting sole legal and sole
physical custody of the child. While father never filed a formal motion, we conclude that
the issue was litigated by consent. Minn. R. Civ. P. 15.02. There is ample evidence in
the record demonstrating that mother was on notice that the court was considering
transferring custody of the child to father. Over the course of these proceedings, the
parties developed a practice of sending correspondence to the court rather than filing
formal motion papers. Mother, too, followed this practice. We nevertheless urge parties
to file, and district court judges to require, formal motion papers.
7
Mother also asserts that the district court erred by failing to make a specific finding that
supervised parenting time was necessary to protect the child. We need not address this
argument, as mother failed to adequately brief or cite authority in support of it and
11
The district court has broad discretion in determining parenting-time issues and
will not be reversed absent an abuse of that discretion. Olson v. Olson, 534 N.W.2d 547,
550 (Minn. 1995). “A district court abuses its discretion when evidence in the record
does not support the factual findings, the court misapplied the law, or the court settles a
dispute in a way that is against logic and the facts on record.” Foster v. Foster, 802
N.W.2d 755, 757 (Minn. App. 2011) (quotation omitted); see also Pikula, 374 N.W.2d at
710. Minn. Stat. § 518.175, subd. 1(a) (2014), provides that “the court shall, upon the
request of either parent, grant such parenting time on behalf of the child and a parent as
will enable the child and the parent to maintain a child to parent relationship that will be
in the best interests of the child.” But “[parenting-time] rights are not absolute and are to
be exercised only when in the best interest[s] of the child.” Manthei v. Manthei, 268
N.W.2d 45, 45 (Minn. 1978). To that end, Minn. Stat. § 518.175, subd. 1(b) (2014),
provides:
If the court finds, after a hearing, that parenting time with a
parent is likely to endanger the child’s physical or emotional
health or impair the child’s emotional development, the court
shall restrict parenting time with that parent as to time, place,
duration, or supervision and may deny parenting time entirely,
as the circumstances warrant. The court shall consider the age
of the child and the child’s relationship with the parent prior to
the commencement of the proceeding.
therefore waives this issue on appeal. Schoepke, 290 Minn. at 519-20, 187 N.W.2d at
135. Moreover, the district court was not required to make a specific finding that
supervised parenting time was necessary to protect the child because the district court’s
order as a whole shows that it took into consideration the relevant statutory factors.
Berthiaume v. Berthiaume, 368 N.W.2d 328, 332 (Minn. App. 1985).
12
“Denial of access to a parent and efforts to paint a parent in a poor light have the
potential to endanger a child’s emotional health or impair his emotional development.”
Newstrand v. Arend, 869 N.W.2d 681, 691 (Minn. App. 2015) (citing Grein v. Grein, 364
N.W.2d 383, 385-86 (Minn. 1985)); Clark v. Bullard, 396 N.W.2d 41, 44 (Minn. App.
1986) (“[T]he child was harmed by being denied visitation with his father for six
months.”); see also Meier v. Connelly, 378 N.W.2d 812, 815-16 (Minn. App. 1985)
(holding that the trial court did not abuse its discretion by ordering supervised visitation
until husband posted bond to ensure return of child from unsupervised visitation when
husband had consistently denied mother access to the child). As previously discussed,
mother repeatedly denied father access to the minor child and attempted to paint father in
a poor light. Thus, mother’s behavior endangered the minor child’s emotional health and
development, and the district court did not abuse its discretion by requiring that mother
have supervised parenting time.
III. The district court did not err by adopting large portions of the GAL’s report
in its order.
Mother next argues that the district court’s verbatim adoption of the GAL’s report
shows a lack of independent judgment by the court. We are not persuaded.
First, mother fails to cite any legal authority to support her assertion that a
wholesale adoption of a GAL’s report is error. Mother cites caselaw which cautions
against a court’s adoption of one party’s findings and conclusions. Bliss v. Bliss, 493
N.W.2d 583, 590 (Minn. App. 1992); Bersie v. Zycad Corp., 417 N.W.2d 288, 292
(Minn. App. 1987), review denied (Minn. May. 5, 1988); Sigurdson v. Isanti Cty., 408
13
N.W.2d 654, 657 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987). But that did
not happen; here, instead of adopting findings proposed by an interested party, the district
court adopted findings proposed by a neutral GAL. And, as mother notes, even the cases
she cites provide that “the verbatim adoption of a party’s proposed findings and
conclusions of law is not reversible error per se.” Bliss, 493 N.W.2d at 590; Bersie, 417
N.W.2d at 292; Sigurdson, 408 N.W.2d at 657.
Furthermore, while the district court extensively quoted from the GAL’s report, it
did not simply adopt the entire report verbatim. While it is true that the court used
applicable sections of the report to support its best-interests analysis, the court’s exercise
of independent judgment is evident throughout the June 26, 2015 order. For example, the
court stated that it based its decision on the GAL’s report as well as “other testimony at
the hearings held in this matter, combined with the [c]ourt’s thorough review of the
extensive record of evidence and testimony presented in this case to date.” Moreover, in
the conclusion of its order, the court reiterated that it reached its decision “after a full
review of the long record and testimony presented to the [c]ourt to date.” Thus, the
district court’s order itself refutes mother’s claim that the court failed to exercise
independent judgment and simply adopted the GAL’s report.
Mother also argues that the district court did not review the record or properly
weigh the evidence before it. But the district court’s factual findings are adequately
supported by the record, and the court’s order clearly demonstrates that it appropriately
weighed the evidence before it. The district court noted its extensive history with the
case and that it did not reach its decision lightly “or without serious and extensive
14
consideration of the entire record.” And to the extent mother is challenging the court’s
credibility determinations, her claims are unavailing. See Sefkow, 427 N.W.2d at 210.
IV. The district court did not abuse its discretion by granting father’s request to
change the child’s surname.
Finally, mother asserts that the district court’s order changing the child’s surname
must be reversed because the change was not discussed, there was no testimony regarding
the change, and the court’s order contains no findings addressing the change.8 We are
not persuaded.
“We review a district court’s grant of a request to change a child’s name for abuse
of discretion.” Foster, 802 N.W.2d at 756. As previously noted, “[a] district court
abuses its discretion when evidence in the record does not support the factual findings,
the court misapplied the law, or the court settles a dispute in a way that is against logic
and the facts on record.” Id. at 757 (quotation omitted). Minn. Stat. § 259.10, subd. 1
(2014), sets forth the initial procedure that a parent must follow to request a name change
for a minor child. The section also provides that a minor child’s name must not be
changed “without both parents having notice of the pending application for change of
name, whenever practicable, as determined by the court.” Id. “[W]hen parents cannot
agree on the surname to be given to their child . . . the best interests of the child must
control the resolution of the dispute.” Jacobs v. Jacobs, 309 N.W.2d 303, 304 (Minn.
8
Mother contends that father never formally requested that the minor child’s name be
changed. But the record demonstrates that mother had adequate notice that the issue was
before the court and that she even addressed the issue in a letter to the court. The issue
therefore was litigated by consent. Minn. R. Civ. P. 15.02.
15
1981). There are five non-exclusive factors courts consider when determining whether a
proposed name change is in a child’s best interests. In re Saxton, 309 N.W.2d 298, 301
(Minn. 1981). The Saxton factors are: (1) how long the child has had the current name;
(2) any potential harassment or embarrassment the present or proposed name might
cause; (3) the child’s preference; (4) the effect of the change on the child’s relationship
with each parent; and (5) the degree of community respect associated with the present
and proposed names. Id.Neither the district court’s October 3, 2014 order nor the June 26, 2015 order
explicitly addresses the Saxon name-change best-interests factors. Nevertheless, the
name change was justified under Saxon. Berthiaume, 368 N.W.2d at 332 (concluding
that the district court’s order as a whole took into consideration the relevant statutory
factors when the order did not explicitly discuss them); see also Grein, 364 N.W.2d at
387 (holding that remand is unnecessary when it is clear from the record that on remand,
the trial court would “undoubtedly make findings that comport with the statutory
language”). On this record, two factors, the child’s preference and the community
respect associated with each name, are neutral. The child was six years old on
July 26, 2015, and thus was known by his prior surname for six years. But father
petitioned the court to change the child’s name when the child was only four. Any
potential harassment or embarrassment the child might have suffered is mitigated by the
name change, as the child’s name was changed to include his now-custodial parent’s
surname, reducing possible confusion. Lastly, the name change had the effect of
establishing father’s paternal relationship to the minor child. See Robinson v. Hansel,
16
302 Minn. 34, 35, 223 N.W.2d 138, 140 (1974) (discussing society’s “strong interest in
the preservation of the parental relationship”). Accordingly, because the applicable
Saxon factors indicate that the name change was in the child’s best interests, we conclude
that the district court did not abuse its discretion in ordering the name change.
Affirmed.
17