In re the Marriage of: Nathan Francis Gregor v. Dawn Marie Buttera Gregor ( 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This opinion will be unpublished and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
A14-1920
In re the Marriage of:
Nathan Francis Gregor, petitioner,
Respondent,
vs.
Dawn Marie Buttera Gregor,
Appellant.
Filed February 8, 2016
Affirmed; motion granted
Stauber, Judge
Olmsted County District Court
File No. 55-FA-08-2925
Amber M. Lawrence, Dittrich & Lawrence, P.A., Rochester, Minnesota (for respondent)
Dawn B. Gregor, St. Paul, Minnesota (pro se appellant)
Considered and decided by Halbrooks, Presiding Judge; Stauber, Judge; and Reyes,
Judge.
UNPUBLISHED OPINION
STAUBER, Judge
In this custody dispute, pro se appellant argues that (1) the district court erred in
evaluating two of the statutory best-interests factors; (2) the district court erred in
granting father sole legal and physical custody of the parties’ child; (3) appellant should
be granted unsupervised parenting time; (4) the district court acted improperly by
meeting with the child in chambers without meeting the statutory safeguards of Minn.
Stat. § 518.166 (2012); and (5) the district court erred in its evidentiary rulings and was
biased against appellant. We affirm the district court’s decision, and we grant
respondent’s motion for attorney fees.
FACTS
The parties have one minor child together, B.G., born December 27, 2002. The
parties were divorced by stipulated judgment and decree on April 24, 2008. Under the
judgment and decree, the parties shared joint legal and physical custody of B.G. and were
awarded equal parenting time. On February 17, 2012, a stipulated order was entered
modifying the parenting-time schedule. Under the modified schedule, respondent-father
Nathan Francis Gregor had parenting time every Monday and Tuesday overnight and
every other weekend, and appellant-mother Dawn Buttera Gregor had parenting time
every Wednesday and Thursday overnight and every other weekend.
In the spring of 2012, mother notified father that she intended to move with B.G.
and her younger daughter from the Rochester area to Minneapolis for employment
reasons. Father repeatedly objected to B.G. moving to Minneapolis and attending school
there. Mother pressured B.G. to become involved in the decision-making process,
causing B.G. to experience significant stress. Mother moved to Minneapolis, and B.G.
remained with father and attended school in Rochester. The parties participated in
mediation to work out a new parenting-time schedule. The mediated schedule granted
mother parenting time two weekends each month with weekends to correspond with any
days off from school.
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Mother bought B.G. a cell phone, so they could have contact at all times. Mother
became angry with B.G. if he missed a call from her and did not immediately return it.
Two calls left B.G. in tears as a result of statements made by mother. Father eventually
took the cell phone away from B.G. because of the stress caused to B.G. by mother’s
calls.
Mother behaved inappropriately at parenting-time exchanges, causing B.G. to
experience significant stress. For example, in October 2012, mother became angry with
father and “yelled that he was a ‘terrible father and a weak and pathetic man’” and
attempted to hit him. B.G. witnessed the altercation from inside mother’s apartment.
Father left without B.G. Mother also interfered with father’s parenting time on other
occasions, picking up B.G. early from school on one occasion and going to father’s
residence and attempting to forcibly enter the house on another occasion.
On November 13, 2012, the district court issued an emergency interim order
granting mother parenting time over the weekends of November 22 and December 7,
2012, and scheduling a hearing for December 11, 2012. On November 15, 2012, mother
sent the police to father’s home to conduct a child-welfare check. The district court
found that mother’s “contact with the police does not appear to have been based on a
good faith belief that [B.G.] was endangered and the police visit to [father’s] residence
amounted to an effort to harass [father’s] family.”
At the December 11, 2012 hearing, the district court found that father had made a
prima facie case for custody modification. The court explained:
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[B.G.] continued to be under significant pressure from the
Mother to decide where he wanted to live and attend school.
The Mother continued to place [B.G.] in the middle of the adult
issues, even showing him e-mails between the Mother and the
Father’s attorney. The Father observed [B.G.] was no longer
himself; he was suffering from anxiety, he was always stressed
about his potential move to the cities, seeing his Mother, and
the information his Mother was sharing with him. [B.G.’s]
teachers and principal also observed [B.G.] was struggling in
school and was not himself. [B.G.] complained of headaches,
stomach aches, and loss of appetite. [B.G.] was not sleeping
well and was grinding his teeth. [B.G.] was becoming
withdrawn and distressed. [B.G.] described the pressure from
his Mother as feeling like “bricks on his back that kept
regenerating.”
The district court ordered that B.G. reside with father subject to parenting time for mother
of up to three weekends a month with each weekend specified. The court also ordered
that the parties not involve B.G. in their disputes or decision-making and that B.G. return
to counseling. Father scheduled four appointments for B.G. to meet with the counselor in
January 2013, but mother canceled them.
In January 2013, mother enrolled B.G. in Whittier Elementary School in
Minneapolis on January 15. When the school secretary asked about the status of the
custody dispute, mother reported that father had abandoned B.G. On January 23, 2013,
the district court issued an emergency-interim order requiring that B.G. be immediately
returned to father’s care and custody, suspending mother’s parenting time, and requiring
that any contact between mother and B.G. be supervised at the Family Access Center
(FAC) until a court hearing scheduled for February 11, 2013.
At the February 11, 2013 hearing, the parties agreed that father would be awarded
temporary sole legal and physical custody subject to parenting time for mother every
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other weekend with one weekend unsupervised at mother’s residence and the other
weekend supervised by mother’s parents at their home. Parenting-time exchanges were
to occur at designated police stations. The court appointed a guardian ad litem (GAL) to
make recommendations on permanent legal and physical custody and long-range
parenting time.
Mother continued to behave inappropriately at parenting-time exchanges, making
it difficult for B.G. to return to Rochester with father. The parenting-time exchange
following the first weekend that mother exercised parenting time at her parent’s residence
took over two hours and involved mother, her parents, father, B.G., and the police. B.G.
stated to the counselor that parenting-time exchanges are very difficult because mother is
upset about saying goodbye, he feels badly for his mother and sister when he leaves, and
he remains upset for a day or two after an exchange.
At the GAL’s recommendation, father filed a third motion for emergency relief,
requesting that mother’s parenting time be supervised at the FAC. On March 23, 2013,
the district court issued an emergency-interim order that mother have no contact with
B.G. except limited, supervised parenting time at the FAC. That evening, mother asked
police to conduct a child-welfare check at father’s home. An officer spoke with B.G. at
length and reported to the GAL that B.G. said that “the only thing that causes him to be
afraid and upset is when he thinks his mom will be angry.”
In a report filed on April 5, 2013, the GAL expressed concern about mother
putting tremendous pressure on B.G. by encouraging B.G. to express his “true” feelings
and talk about what he wants. The report also notes that mother causes challenges for
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B.G. by encouraging him to purposely disrespect rules in father’s home. The report
states that B.G. does not want to upset mother and that mother does not recognize how
her actions affect B.G. The GAL opined that until mother can recognize the effect her
actions have on B.G. and be supportive of his relationship with father, mother’s behavior
will continue to affect B.G.’s emotional well-being.
Following a hearing on April 12, 2013, the district court ordered that mother have
no contact with B.G. other than supervised parenting time at the FAC and phone calls
monitored by the GAL. The court ordered mother to exercise consistent and frequent
supervised parenting time during a 30-day period to allow the GAL to observe and assess
the interactions between mother and the GAL. The court ordered the GAL to then file a
report indicating whether parenting time outside the FAC was in B.G.’s best interests.
The district court ordered both parties to undergo psychological testing with
Donald Williams at Decision Point Behavioral Health and follow all recommendations by
Williams. The court directed Williams to get input from the opposing party and the GAL
before conducting the testing. The court ordered both parties to schedule their
evaluations by May 6, 2013. Father completed a psychological evaluation on May 16,
2013. Mother did not contact Williams and refused to undergo an evaluation by him but
was evaluated by two psychologists of her own choosing.
The district court ordered both parties and B.G. to work with Judy Dawley at ABC
Child and Family Therapy to address parenting B.G. in a supportive manner to serve his
best interests. B.G. began meeting with Dawley in May 2013. Mother met with Dawley
once during the summer of 2013 but refused to return unless father dropped the court
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case. Father has had ongoing contact with Dawley and sought her advice since B.G.
began seeing her.
After the April 12, 2013 hearing, mother repeatedly tried to have unsupervised
phone calls with B.G. and once had unsupervised contact with him at school, although
the district court found that contact limited and inconsequential. Mother made
disparaging statements about the court system, the GAL, father’s attorney, mother’s
previous attorneys, father, and stepmother in letters, e-mails, and Facebook postings.
Mother did not exercise parenting time with B.G. until June 16, 2013. She
exercised parenting time once more in June and twice in July 2013. The visits were
completed successfully without incident. After the GAL issued her recommendations on
July 26, 2013, mother did not exercise parenting time until August 17, 2013. Mother
exercised parenting time two more times in August and three times in September 2013.
The visits went well.
In the July 26, 2013 report, the GAL expressed “great concern” about mother’s
failure to follow court orders, put B.G.’s needs first, work with Dawley, and undergo
court-ordered psychological testing. The GAL stated: “[Mother] does not appear to
recognize how her actions have caused [B.G.] harm. Therefore, I do not know if she has
or will make any changes.” The GAL recommended that father be granted sole legal and
physical custody and that mother continue having supervised parenting time at the FAC
with a slow transition to unsupervised parenting time if the supervised parenting time
continued going well.
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When mother exercised parenting time at the FAC on November 9, 2013, she told
B.G. that the FAC would not allow her to visit B.G. again because she was going to say
“what she wanted to say.” Mother’s statements included telling B.G. that his father was
“evil” and was taking B.G. away from mother. The monitor instructed mother numerous
times to stop the conversation, but she refused and referred to the FAC as “stupid.” The
monitor called the team lead to assist. When the team lead stepped between mother and
B.G., mother yelled at and pushed the team lead. The incident was extremely frightening
and upsetting to B.G., and he experienced increased anxiety for some time afterward.
Mother had no contact with B.G. after the November 9 incident.
In an order filed June 2, 2014, the district court found that a substantial change in
circumstances had occurred, that the B.G.’s present environment with mother endangered
his emotional health and could impair his emotional development as long as mother
persisted in involving B.G. in the custody dispute, that a change of custody was necessary
to serve B.G’s best interests, and that the benefit of the change outweighed any harm
associated with the change. The court awarded father sole legal and physical custody.
The court granted mother unsupervised parenting time on an increasing schedule,
beginning with three nights each week. The court explained that it was granting
unsupervised parenting time because opportunities for supervised parenting time were
limited, mother was prohibited from returning to the FAC because she had served it with
a summons and complaint, and mother had suffered the consequence of no contact with
B.G. since November 2013. The district court denied mother’s new-trial motion. This
appeal followed.
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DECISION
I.
This court will not overturn a district court’s custody-modification decision unless
it reflects an abuse of discretion either based on findings unsupported by the evidence or
on the improper application of law. Goldman v. Greenwood, 748 N.W.2d 279, 284
(Minn. 2008). We review the record in a light favorable to the findings. Sharp v. Bilbro,
614 N.W.2d 260, 263 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000). And we
will not set the findings aside unless they are clearly erroneous. Goldman, 748 N.W.2d at
284.
A. Child’s reasonable preference
Mother argues that the district court did not assign sufficient weight to B.G.’s
preference. Under the statute in effect when the district court issued its decision, the
court was required to evaluate “the reasonable preference of the child, if the court deems
the child to be of sufficient age to express preference.” Minn. Stat. § 518.17, subd.
1(a)(2) (2012).
The district court found:
[B.G.] is not mature enough to state a preference for
custody. By reports of independent parties who have seen him,
he is intelligent and creative and an active 11 year old engaged
in age-appropriate activities. He has, however, been placed in
the midst of a dispute between his parents and his comments
and reactions demonstrate that it is not healthy for him to feel
he has responsibility for this decision. When pressured to state
a preference or take a side he has reacted with headaches,
crying, hitting himself, loss of appetite, and attempts to say
things that will please his parents. He has attended counseling
to help him work through the issues. It is impossible, at this
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point, to have faith that any expression of preference on his part
will be more than an attempt to please the parent he thinks is
applying the most pressure.
Considerable record evidence shows that mother repeatedly tried to pressure B.G.
into stating a preference on custody; that her conduct during parenting-time exchanges
made it difficult for B.G. to leave with his father; that she stated to B.G. that father was
trying to take him away from her; and that mother’s conduct had a significant detrimental
effect on B.G. The district court did not err in finding that B.G. was unable to state a
reasonable preference on custody.
In her reply brief, mother challenges the district court credibility determinations of
evidence regarding B.G.’s ability to express a reasonable preference on custody. This
court defers to the district court’s credibility determinations. Vangsness v. Vangsness,
607 N.W.2d 468, 472 (Minn. App. 2000).
B. Parents’ encouragement of other parent
The statute in effect when the district court issued its decision required the court to
consider “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) (2012).
Minn. Stat. § 518.17, subd. 1(a)(11) (Supp. 2015).
The district court found:
The Father wants [B.G.] to have a healthy relationship
with his Mother. The Father has followed all orders of this
Court. The Father has worked cooperatively and respectfully
with the [GAL] and [B.G.’s] counselors.
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The Father willingly cancelled and rearranged family
plans in order to accommodate the Mother’s sporadic requests
for parenting time at the [FAC].
When the Mother’s contact was suspended as a result of
her actions at the [FAC] on November 9, 2013, the Father
sought assistance from [B.G.’s] counselor, Judy Dawley, to
allow for the exchange of Christmas presents between [B.G.]
and his Mother.
When the GAL was no longer able to supervise
telephone contact between [B.G.] and his Mother, the Father
offered to continue the calls with him being the supervisor.
The Mother refused.
The Mother does not have the disposition to encourage
the relationship between [B.G.] and his Father unless it is on
her terms. The Mother actively encouraged [B.G.] not to leave
with his Father at a parenting time exchange resulting in [B.G.]
being left with his Mother in Minneapolis. The Mother has
made parenting time exchanges difficult on [B.G.] by openly
crying in front of him when he is trying to leave, resulting in
exchanges taking over two hours and involving the police.
Even when advised by the GAL to say her goodbyes and get
[B.G.] ready to go with the Father, the Mother failed to do so.
The Mother is convinced [B.G.] hates his Father and allegedly
told [B.G.] his Father is evil. The Mother maintains that she
only told [B.G.] that the Father has done evil things. [B.G.’s]
therapist discussed with the Mother that [B.G.] in fact loves his
Father, but the Mother was unwilling to accept that as true.
The record evidence supports these findings, and the findings support the district court’s
determination that this factor weighs in favor of father.1
1
We need not address mother’s argument that a 2015 amendment to the best-interests
factors should apply in this case because, even if the amended version applies, mother’s
challenge to the district court’s findings on the best-interests factors fails. See Minn. Stat.
§ 518.17, subd. 1(a)(3), (11) (Supp. 2015) (requiring court to consider “the reasonable
preference of the child if the court deems the child to be of sufficient ability, age, and
maturity to express an independent, reliable preference” and “the disposition of each
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II.
Mother challenges the district court’s award of sole legal and physical custody to
father.
[T]he court shall not modify a prior custody order . . . unless
it finds, upon the basis of facts, . . . that have arisen since the
prior order or that were unknown to the court at the time of the
prior order, that a change has occurred in the circumstances of
the child or the parties and that the modification is necessary
to serve the best interests of the child. In applying these
standards the court shall retain the custody arrangement . . .
that was established by the prior order unless: . . .
(iv) the child’s present environment endangers the
child's physical or emotional health or impairs the child’s
emotional development and the harm likely to be caused by a
change of environment is outweighed by the advantage of a
change to the child . . . .
Minn. Stat. § 518.18(d) (2012).
A. Change in circumstances
The change in circumstances must be real and not a continuation of ongoing
problems. Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989), review
denied (Minn. Apr. 25, 1989). When father objected to mother relocating to Minneapolis
with B.G., mother became uncooperative in resolving parenting-time disputes and began
engaging in conduct detrimental to B.G. She refused to recognize the effect of her
conduct on B.G. or change her behavior. The evidence supports the district court’s
finding of a change in circumstances.
parent to support the child’s relationship with the other parent and to encourage and
permit frequent and continuing contact between the child and the other parent.”).
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B. Endangerment
Endangerment implies likely harm to the child’s emotional state. Sharp, 614
N.W.2d at 263. A parent’s efforts to undermine a child’s relationship with the other
parent may endanger the child. Smith v. Smith, 508 N.W.2d 222, 227 (Minn. App. 1993).
Mother’s argument suggests that the district court’s finding of endangerment was
based on her relocation to Minneapolis. But the district court found:
The child’s present environment with the Mother
endangers his emotional health and could impair his emotional
development as long as the Mother persists in involving [B.G.]
in the custody dispute. Continuing under a joint legal or joint
physical custody arrangement will result in further
endangerment to the child’s emotional health and impairment
to his emotional development.
Mother argues that any endangerment occurred because “the [district] court
allowed father and his attorney to bully mother through litigation to deny mother almost
all parenting time with her child” and that “[a]s of the date of submission of this brief,
this misbehavior by father is continuing.” This argument challenges the district court’s
credibility determinations. This court defers to the district court’s assessment of witness
credibility. Vangsness, 607 N.W.2d at 472.
C. Balance of harms
The party seeking modification must show that the advantage of modifying
custody outweighs the harm likely to be caused by the custody change. In re Weber, 653
N.W.2d 804, 811 (Minn. App. 2002). This factor may be implicit in other factors. Giebe
v. Giebe, 571 N.W.2d 774, 778 (Minn. App. 1997).
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In addressing B.G.’s best interests, the district court found:
[B.G.’s] emotional health and development was
endangered while having unsupervised contact with his
Mother. As a result of the pressure [B.G.] was feeling from his
Mother to advocate her interests of having him reside with her
and attend school in Minneapolis, [B.G.] expressed suicidal
thoughts and was engaging in self-harm. The pressure from
the Mother was emotionally exhaustive for [B.G.] and caus[ed]
[B.G.] high anxiety. [B.G.’s] physical health was suffering as
[B.G.] was complaining of headaches, stomach aches, lack of
appetite, grinding his teeth, and inability to sleep. [B.G.] was
also struggling at school. Since having limited and supervised
contact with his Mother, [B.G.’s] mental and physical health
has improved and [B.G.] is no longer exhibiting the concerning
behaviors previously observed by the Father, [stepmother], the
GAL, and his therapist, Judy Dawley.
The district court did not err in determining that the advantage of modifying custody
outweighed any potential harm.
The evidence supports the district court’s findings on the factors relevant to
custody modification, and those findings support the award of sole legal and physical
custody to father.
III.
Mother does not object to the parenting time awarded her in the June 2014 order.
Rather, she argues that, in April 2015, father discontinued mother’s parenting time and
phone contact with B.G. and that he did so unilaterally without consulting the district
court and without any valid reason. After this appeal was filed, mother moved the district
court to address father’s denial of her parenting time. On October 26, 2015, the district
court issued an order taking that motion under advisement. Because mother does not
object to the parenting time awarded to her in the order from which this appeal was taken,
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the issue is not properly before this court. See Thiele v. Stich, 425 N.W.2d 580, 582
(Minn. 1998) (stating that appellate courts address only issues that were presented to and
considered by the district court).
IV.
Mother argues that the district court erred by meeting with B.G. without
complying with the requirements of Minn. Stat. § 518.166, which states:
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. The
court shall cause a record of the interview to be made and to be
made part of the record in the case unless waived by the parties.
Mother frames the issue as whether the district court “should be reprimanded for
providing psychological services to [B.G.]” In the order denying mother’s new-trial
motion, the district court explained:
The Court met with [B.G.] in chambers in April 2013.
This interview was done on the recommendation of the GAL
and with the agreement of both parties. The court met with
[B.G.] both to get to know [B.G.] a little better and to
specifically assure him that his preference would play no role
in the court’s decision on custody Essentially, the purpose was
to take pressure off [B.G.] by assuring him that adult decisions
would be left to the adults. This was in response to the
evidence before the court that [B.G.] was at this time engaging
in self-harm and suicidal thoughts due to his belief that it was
his responsibility to choose between his parents. The GAL was
present in chambers during this meeting. The only information
the Court considered from this interview was that [B.G.] loves
both his parents and wants to be with both of them.
....
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Mother has not cited any law in support of her position
that the Court must provide a transcript of a meeting that is not
intended to determine the child’s custodial preference. This
court’s research has been unable to uncover any such legal
authority. Needless to say, not every meeting in chambers is
for the purpose of determining the child’s custodial preference.
Mother argues that the meeting was improper under State v. Deal, 740 N.W.2d
756, 759 n.1 (Minn. 2007) (stating that chapter 518 provides extensive procedures for
determining a child’s best interests and that “[t]he only direct questioning of a child
whose custody is at issue appears to be a discretionary in-camera interview by the court
to determine the child’s custodial preference”). Mother’s framing of the issue and
argument completely mischaracterize what actually occurred. The purpose of the
meeting was not to obtain information relevant to the court’s determination of B.G.’s
custody, best interests, or any other issue in the case, or to provide psychological
services. The sole purpose was to assure B.G. that he would not be involved in the
decision-making process, and the meeting occurred at the GAL’s recommendation and
with the approval of both parties. Contrary to mother’s assertion of district court error,
the district court should be applauded for handling a delicate matter with sensitivity and a
proper exercise of its discretion.
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V.
Mother further argues that the district court erred in excluding from evidence the
parties’ psychological evaluations. Father’s psychological evaluation was admitted into
evidence. Attached to an affidavit by mother was an excerpt from the Diagnostic and
Statistical Manual of Mental Disorders, DSM-IV-TR, describing negative personality
traits associated with a specific personality disorder, and mother argues that father’s
evaluation shows that he has those negative personality traits. But father’s evaluation did
not identify him as suffering from that disorder; the evaluation states that all of father’s
test results were valid and describes him as “appearing to be well adjusted.”
Mother submitted a psychological evaluation conducted by two psychologists of
her own choosing. The district court stated that it had scanned both parties’ evaluations
and found them relevant only in that they showed there was no pathology or mental-
health issues that impacted the parties’ parenting capabilities. The district court’s
detailed findings in its 81-page order show that its decision was based the conduct
engaged in by mother that was detrimental to B.G., including her repeated failures to
comply with court orders. Mother’s evaluation does not indicate that the psychologists
were provided with any of that information, and, therefore, does not contradict the court’s
findings. Mother’s argument regarding the district court’s assessment of the parties’
psychological evaluations is without merit.
Mother argues that Dawley and the GAL were “incompetent in this proceeding”
because they “had no training in detecting or responding to batterers or domestic
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violence.” The record contains no evidence that father was a batterer or domestically
violent. Mother does not otherwise challenge their qualifications.
No evidence in the record supports mother’s assertion that the district court was
biased against her. Rather, the record shows that mother acted extremely unreasonably
throughout this proceeding and that she failed to implement the numerous opportunities
offered to her to change her behavior.
VI.
Father has moved for conduct-based fees on appeal in the amount of $3,336. Fees
may be awarded under Minn. Stat. § 518.14, subd. 1 (2014), if a party has “unreasonably
contribute[d] to the length or expense of the proceeding.” Mother has made simultaneous
motions in the district court and in this court, raising the same issues, and she sought an
extension to delay the appeal until the district court ruled on the motions. In this appeal,
mother has mischaracterized what occurred before the district court, made arguments
unsupported by any evidence, and raised an issue not properly before this court. Because
mother’s conduct has significantly contributed to the expense of these proceedings and
the affidavit submitted by father’s attorney supports the fee request, we grant father’s
motion for $3,336 in attorney fees.
Affirmed; motion granted.
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