In re the Child of R.G.Y., petitioner, Respondent, vs. S.P.V.C., Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

  STATE OF MINNESOTA

IN COURT OF APPEALS

A04-132

 

In re the Child of R.G.Y., petitioner,
Respondent,
 
vs.
 
S.P.V.C.,
Appellant.

 

Filed December 7, 2004

Affirmed

Peterson, Judge

 

Goodhue County District Court

File No. F902691

 

Charles J. Lee, 910 Main Street, Suite 203, Red Wing, MN  55066 (for respondent)

 

 

Nathan B. Carmack, Law Offices of Southern Minnesota Regional Legal Services, Inc., 903 West Center Street, Suite 210, Rochester, MN  55902; and

 

 

Charles H. Thomas, 12 Civic Center Plaza, Suite 3000, PO Box 3304, Mankato, MN  56002 (for appellant)

 

            Considered and decided by Wright, Presiding Judge; Peterson, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from an order granting respondent father sole legal and sole physical custody of the parties' child, appellant mother argues that the district court did not have jurisdiction to consider respondent's motion for custody and that the district court's findings of fact with respect to the statutory best-interests-of-the-child factors are clearly erroneous.  We affirm.

FACTS

            The parties met in August 2000 while respondent (who lived in Arizona) was in Minnesota working for Qwest Communications.  In January 2001, appellant went to Arizona, and in February 2001, the parties learned that appellant was pregnant.  The parties and respondent's friend lived together for a few months before the parties moved into a place of their own.  In April 2001, appellant moved back to Minnesota and lived with her mother in St. Paul.

The parties' child, J.V.Y., was born on September 13, 2001.  Respondent returned to Minnesota within hours after the birth, and both parties signed a recognition of parentage, which was filed with the state registrar of vital statistics.  After the birth, respondent returned to Nebraska, where he had been working, and appellant continued living with her mother.  Late in September 2001, the parties and the child began living in an apartment in Red Wing, Minnesota.  Appellant's brother helped pay the rent for the apartment, and in about November 2001, the brother and appellant's mother moved into the apartment.  Appellant was a stay-at-home mother, and respondent worked full time.

On March 18, 2002, appellant got a job and told respondent that she wanted to go to the Twin Cities to get a driver's license so that she could drive to the new job.  Respondent took appellant and J.V.Y. to Minneapolis.  Appellant was going to stay over night and get her license the next day.  Appellant called respondent the next day and said that she was not going to return.  Respondent continued living in Red Wing and saw J.V.Y. on Thursdays through Sundays.

On April 22, 2002, respondent filed a motion in the Goodhue County district court seeking joint legal and sole physical custody of J.V.Y.  In an affidavit that appellant filed in response to respondent's motion, appellant stated that: (1) she resided in Minneapolis and considered herself and J.V.Y. to be residents of Hennepin County; (2) a paternity action is properly venued in the county in which the defendant or the child is found; (3) her lack of transportation made it difficult for her to attend hearings in Goodhue County and as a resident of Hennepin County it would be easier for her to obtain assistance from Legal Aid for an action venued in Hennepin county; and (4) she wanted venue transferred to Hennepin County.  

In a June 20, 2002, order, the district court, in addition to other relief, ordered a custody evaluation, denied respondent's requests regarding legal and physical custody, directed that temporary physical and legal custody remain with appellant, and ordered respondent to pay temporary child support.  The June 20 order did not address appellant's request to change venue.

On September 11, 2002, the parties contacted the district court and requested clarification on the venue issue.  In an October 28, 2002, order, the district court explained that "[b]ecause [appellant] failed to properly move the Court for a change in venue, this Court declined to rule on the issue."  The district court ordered appellant to "set the motion to transfer venue to the Fourth Judicial District for a separate hearing" and "submit proper written pleadings."  Appellant did not file or schedule a motion to transfer venue.

  Following a trial from July 14-18, 2003, the district court granted respondent sole legal and sole physical custody of J.V.Y.  Appellant filed a motion seeking a stay of the district court's order, amended findings and/or a new trial, and other relief.  The district court denied appellant's motion, and this appeal followed.

D E C I S I O N

1.         Jurisdiction

            Appellant contends that under the custody-proceeding statute, respondent could commence a child-custody proceeding "by filing a petition or motion seeking custody or parenting time with the child in the county where the child is permanently resident or where the child is found."  Minn. Stat. § 518.156, subd. 1(2) (2002).  Respondent filed a motion in Goodhue County.  Appellant argues that because J.V.Y. was not permanently resident in, nor found in, Goodhue County, respondent did not file in the proper county and, therefore, did not establish the jurisdiction of the district court to hear this matter.

Questions of subject matter jurisdiction are reviewed de novo.  Johnson v. Murray, 648 N.W.2d 664, 670 (Minn. 2002).  The jurisdiction of a state court "is not limited to any particular county, but exists throughout the state."  Panzram v. O'Donnell, 48 F. Supp. 74, 78 (D. Minn. 1942).  Venue is not jurisdictional in Minnesota.  Id.  See also Claseman v. Feeney, 211 Minn. 266, 268, 300 N.W. 818, 819 (1941) ("Since our district courts virtually constitute one court of general jurisdiction coextensive with the boundaries of the state, the fact that a civil action is brought or tried in the wrong county is not jurisdictional."  (quotation omitted)).

Appellant acknowledges that venue in a civil action is not jurisdictional.  However, citing Minn. R. Civ. P. Appendix A, appellant argues that a proceeding for custody under Minn. Stat. § 518.156 (2002) is a special proceeding, not a standard civil action, and that Minn. Stat. § 518.156, subd. 1(2), clearly requires filing in the proper county in order to commence the proceeding.  Minn. R. Civ. P. Appendix A, which is a list of statutory and special proceedings that are excepted from the rules of civil procedure "insofar as they are inconsistent or in conflict with the procedure and practice provided by [the rules of civil procedure]," includes chapter 518. 

But the mere fact that chapter 518 appears on this list is not a reason to conclude that the statutory requirement that a custody proceeding be commenced in the county where the child is permanently resident or where the child is found is a jurisdictional requirement, rather than a venue requirement.  Appellant cites no authority that indicates that when the district court has jurisdiction to consider a special proceeding, the venue of the proceeding is jurisdictional.

            Appellant's objection to respondent initiating the proceeding in Goodhue County is an objection only to the place where the matter was initiated.  Appellant does not argue that the matter could not be initiated in the district court; she argues only that it could not be initiated in the Goodhue County District Court.  We conclude that the requirement for commencing the proceeding in the county where the child resides is a venue requirement, not a jurisdictional requirement, and, therefore, commencing the action in Goodhue County did not deprive the district court of jurisdiction.

            Appellant also argues that she did not waive her venue objection.  But, as the district court stated in its October 28, 2002, order, appellant never properly brought a motion in conformity with Minn. R. Civ. P. 7.02 to change venue.  Under Minn. R. Civ. P. 7.02(a), "[a]n application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought."  Even after the district court informed appellant about this basic requirement, appellant failed to file a written motion.

2.         Custody determination

Appellate review of custody determinations is limited to determining whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996); Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  A district court's findings of fact will be sustained unless they are clearly erroneous.  Pikula, 374 N.W.2d at 710.  Even though the district court is given broad discretion in determining custody matters, it is important that "the basis for the court's decision be set forth with a high degree of particularity."  Wallin v. Wallin, 290 Minn. 261, 267, 187 N.W.2d 627, 631 (1971).

Custody determinations are based on the best interests of the child.  Minn. Stat. § 518.17, subd. 3(a)(3) (2002) (requiring district court to consider child's best interests when awarding custody).  Determining the best interests of the child includes considering and evaluating 13 factors enumerated in Minn. Stat. § 518.17, subd. 1(a) (2002).  A district court "may not use one factor to the exclusion of all others."  Id.  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 district court made findings on each of the 13 best-interests factors for both physical and legal custody of J.V.Y.  Appellant challenges the court's findings on six of the factors, arguing that the evidence does not support the findings.

a.         Primary caretaker

Appellant argues that the court's finding that each of the parents has been the primary caretaker when J.V.Y. was in their respective custody after the parties separated is erroneous.  The "primary caretaker" is "the person who provides the child with daily nurturence, care and support."  Pikula, 374 N.W.2d at 711.  When determining who is the primary caretaker, it is appropriate for the court to consider the care-taking responsibilities of each of the parents since the parties separated.  See Maxfield v. Maxfield, 452 N.W.2d 219, 220 (Minn. 1990) (noting more than a year between parties' separation and time of trial make it appropriate to consider care taking during that period).

The child-custody evaluator who met with respondent testified at trial that when the child was with respondent, he fulfilled the child's primary needs regarding food, clothing, laundry, etc.  She also testified that appellant's extended family, including grandmother, aunts, etc., played an active role in caring for the child, which is a cultural practice in the Native American community.  Both parents use daycare or have someone else supervise the child during some of their time with the child.  There is evidence to support the district court's finding that each parent is the primary caregiver when the child is in the parent's care.

b.         Interaction with parent, siblings, and others who may significantly affect the child's best interests

 

The district court found that this factor is neutral with respect to the parties and extended-family members.  But the district court expressed concern that appellant did not disclose the name of her boyfriend until she took the stand to testify.  The failure to disclose was significant to the district court because at the time of the hearing, appellant was pregnant with this individual's child, and she intended to live with him, which means that J.V.Y. will have considerable contact with him.  The district court rejected appellant's explanation that she did not disclose her boyfriend's identity because she was afraid that the information would get to the respondent.  See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating that appellate courts defer to district court credibility determinations).

Appellant argues that the district court erred in finding that her failure to disclose her boyfriend's identity is a significant factor in determining custody because she was under no obligation to provide his name unless she was asked and failing to disclose her boyfriend's name to the custody evaluator is not conduct that affects her relationship with her child.  Appellant also argues that because there are numerous other individuals with whom the child has lived or had significant contact that were known but not interviewed, there was no reason to disclose her boyfriend. 

The child-custody evaluator testified that it was a normal part of her investigation to talk to and investigate a person with whom the child is going to have significant contact.  Because the district court must consider the interaction and interrelationship of the child with "any other persons who may significantly affect the child's best interests," Minn. Stat. § 518.17, subd. 1(a)(5), and appellant testified that she and J.V.Y. would be living with the boyfriend, the district court did not err in finding that appellant's failure to disclose her boyfriend's identity is a significant factor in determining custody.

c.         Stable, satisfactory environment & permanence of family unit

The court found that respondent provided a stable, satisfactory environment for the child, but that appellant's plans were somewhat unknown to the court given appellant's failure to reveal the identity of the man with whom she would be living.  Regarding the permanence, as a family unit, of the proposed custodial home, the district court found that neither party had established a "family unit per se," but respondent has provided a fairly stable, permanent environment for the child, while, on the other hand, appellant's plans are unknown to the court.  Appellant claims that the evidence does not support the court's findings.  We disagree.

From the time that appellant left Red Wing and moved to Minneapolis, she has lived in three or four different homes and respondent has lived in three different homes.  At the time of trial, respondent had a home that the evaluator described as very well organized and settled, and appellant had plans to move in with her boyfriend.  The significant fact that appellant fails to acknowledge is that the district court considered the permanence of "the existing or proposed custodial home."  Minn. Stat. § 518.17, subd. 1(a)(8).  Even though both parties have moved multiple times since appellant left Red Wing, there is a basis in the record for the district court to conclude that at the time of trial, respondent's home was more permanent than appellant's home. 

d.         Raising child in child's culture

            Appellant is Native American and a member of the Gros Ventre tribe in Montana.  Respondent is Mexican American.  The district court found that both parents have a culturally appropriate and loving relationship with J.V.Y. and both want the child to know both of his cultures, but only respondent takes steps to learn about and expose the child to his native culture.  If this finding means that only respondent took steps to learn about and expose the child to the Native American culture, it is clearly erroneous.  The record supports the district court's finding that respondent has established strong connections to the Native American culture. But there is also significant evidence in the record that establishes that appellant has exposed J.V.Y. to the Native American culture. 

There is also evidence that appellant has exposed J.V.Y. to respondent's Mexican American culture.  Appellant testified that she had taken J.V.Y. to ten to fifteen Aztec machico dances and the Cinco de Mayo celebration and that a friend made J.V.Y. an Aztec drum.  But the district court stated that, based on appellant's demeanor, it "questioned the sincerity of [appellant's] interest in the child's Mexican American background."  This is a credibility determination upon which we defer to the district court.  Sefkow, 427 N.W.2d at 210.

e.         Domestic abuse

            "[E]xcept in cases in which a finding of domestic abuse as defined in section 518B.01 has been made," one of the best-interests factors that the district court is to consider is "the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child."  Minn. Stat. § 518.17, subd. 1(a)(13).  Domestic abuse includes physical harm, bodily injury, and assault; the infliction of fear of imminent physical harm, bodily injury or assault; and terroristic threats, criminal sexual conduct, and interference with an emergency call by a family or household member by another family or household member.  Minn. Stat. § 518B.01, subd. 2(a) (2002).  Appellant argues that because the evidence compels a finding of domestic abuse, the district court should not even have considered the parties' dispositions to encourage and permit contact with the other parent.

            When considering the effect on the child of acts of domestic abuse that occurred between the parents, as required under Minn. Stat. § 518.17, subd. 1(a)(12), the district court found, "There were no findings of abuse at trial."[1]  Appellant claims that there have been several incidents in which respondent physically abused her and numerous incidents of verbal abuse. 

Appellant testified about a choking incident, an incident in which respondent punched the wall next to appellant, and an incident in which respondent aggressively held appellant's head over the toilet demanding that she get her pregnancy sickness over with so that she could fix dinner.  All of the alleged incidents occurred while the parties were living in Arizona.  The incidents were never reported to the police.  Respondent denied appellant's claims and testified about his version of events.   

When asked about investigating the abuse claims, the custody evaluator testified that she had very little to go on because there were no police reports and it was essentially a matter of "he said, she said."  The district court did not explicitly state that it found either party's testimony regarding the alleged domestic-abuse incidents to be credible, but the court's finding that "[t]here were no findings of abuse at trial" indicates that the court did not find the evidence sufficient to support a finding that abuse occurred.  Because there is evidence supporting and refuting appellant's domestic-abuse claims, we cannot conclude that the evidence compels a finding of domestic abuse.

            Because the evidence does not compel a finding of domestic abuse, the district court did not err by considering the parties' dispositions to encourage and permit contact with the other parent.  The district court found that while both parties express a desire to encourage and permit ongoing contact with the other parent, based on the testimony and the parties' credibility, respondent was more willing to encourage and permit J.V.Y.'s frequent and continuing contact with appellant.

            The child-custody evaluator testified that she believed respondent would be more likely to include appellant in J.V.Y.'s life than appellant would be to include respondent. She also testified, however, that regarding this point, she "was a little concerned that [respondent's] actions didn't always equate with his statements.  I think when push comes to shove [respondent] likes things his way."  The custody evaluator was also concerned that appellant always referred to respondent as J.V.Y's father, rather than by his name, and that raised concerns with her about how the child would be raised.  The custody evaluator's testimony supports the district court's finding that respondent is more willing to encourage and permit J.V.Y.'s frequent and continuing contact with appellant, and the finding is not clearly erroneous.

            The district court found that "joint custody is not possible given the parties' inability to cooperate in the rearing of their child.  This inability to cooperate extends to any methods of resolving disputes regarding any major decision concerning the child's life."  In light of this finding, we conclude that although one of the district court's findings of fact is clearly erroneous, that erroneous finding is not sufficient to demonstrate that the district court improperly balanced the best-interests factors when it awarded respondent sole legal and sole physical custody of J.V.Y.

            Affirmed.

*   Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Appellant argues that "[t]his finding is insufficient for adequate appellate review because it merely describes itself and does not assess the evidence."  Although the language of the finding can be interpreted as being a description of the findings about abuse, rather than a finding about abuse, it is simply implausible that the district court failed to recognize that it was responsible for making a finding about abuse.  It appears, instead, that the language of the finding was prompted by the language of Minn. Stat. § 518.17, subd. 1(a)(12), which requires the district court to consider "the effect on the child of the actions of an abuser."  This language suggests that there has been abuse, and the district court's finding responds to this suggestion by stating that there was no finding of abuse.