In re the Marriage of: Jessica Michael Hudson v. Daniel Joseph Hudson ( 2014 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0004
In re the Marriage of:
Jessica Michael Hudson, petitioner,
Appellant,
vs.
Daniel Joseph Hudson,
Respondent.
Filed July 14, 2014
Affirmed
Halbrooks, Judge
Olmsted County District Court
File No. 55-FA-13-849
Kay Nord Hunt, Lommen, Abdo, Cole, King & Stageberg, P.A., Minneapolis, Minnesota;
and
Diane M. Kaer, Apple Valley, Minnesota (for appellant)
M. Sue Wilson, Amy Yanik Meisel, M. Sue Wilson Law Offices, P.A., Minneapolis,
Minnesota (for respondent)
Considered and decided by Schellhas, Presiding Judge; Halbrooks, Judge; and
Toussaint, Judge.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
HALBROOKS, Judge
Following a modification of child custody based on endangerment, appellant
argues that (a) the record does not support the district court’s finding that the original
custody arrangement endangered the child and (b) the district court erred by failing to
enforce the parties’ parenting consultant agreement. We affirm.
FACTS
Appellant Jessica Michael Hudson and respondent Daniel Joseph Hudson were
married in August 2003. Their only child together, F.G.H., was born in 2007. After the
parties separated in May 2009, respondent continued living in Olmsted County, while
appellant moved to Dakota County with F.G.H.
The parties’ marriage was dissolved on January 20, 2010, by stipulated judgment
and decree entered in Dakota County. F.G.H. was two years old at the time. The
stipulated judgment awarded the parties joint legal custody, with sole physical custody to
appellant and reasonable and liberal parenting time to respondent. The judgment
provides that the parties “shall” mutually select a parenting consultant and submit any
parenting issues that they are unable to resolve to the consultant for determination. But
the parties never selected a parenting consultant.
F.G.H. has a significant history of constipation. The parties dispute the severity of
her condition and how long it has been present, as well as the role each has played in
addressing and managing it. Beginning in January 2011, a series of physicians evaluated
and treated F.G.H. for chronic constipation. By December 2012, F.G.H. showed no signs
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of improvement. In January 2013, respondent moved the district court for a modification
of custody, requesting primary physical custody. The district court held a series of
hearings on the motion. On April 24, the district court ruled that respondent had made a
prima facie case for modification based on endangerment and ordered a temporary
change in physical and legal custody pending an evidentiary hearing.1 A three-day
hearing was held in late May, after which the district court granted respondent’s motion.
The district court found that although F.G.H. had “difficulties with constipation
since she was very young,” F.G.H.’s “constipation problem ha[d] become acute” since
the time of the original custody order. The district court found that F.G.H. experienced
severe constipation while in appellant’s sole physical custody because, although appellant
would take F.G.H. to some medical appointments, she did not adequately follow through
with the treatments and consistency necessary to manage this “delicate” medical
situation. The district court found that F.G.H.’s bowel had been repeatedly, severely
impacted over a lengthy period of time, but that when custody transferred temporarily to
respondent in late 2012, her condition improved and she made remarkable progress. By
late February, five-year-old F.G.H. was toilet trained, and by May 2013, she was “doing
extremely well.” The district court attributed the significant improvements in F.G.H.’s
health to a consistent regimen and medical plan in respondent’s care.
The basis of the district court’s transfer of custody was the danger to F.G.H.’s
physical and emotional health due to appellant’s inadequate management of her medical
1
Due to an order for protection granted in a separate proceeding on behalf of F.G.H.
against appellant, F.G.H. had already been living with respondent since December 31,
2012.
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condition. The district court found that “[t]here is a psychological component of chronic
constipation for a [five] year-old soon to start kindergarten.” The district court ruled that
F.G.H.’s “present environment in [appellant’s] primary care endangers her physical and
emotional health, as [appellant] did not obtain and follow through with effective medical
care necessary to address the pain and misery caused by chronic constipation,” and other
statutory criteria were also met. The district court therefore granted respondent’s motion
for sole physical custody and also awarded him temporary sole legal custody as it relates
to medical decision-making. Appellant was awarded unsupervised, reasonable and
liberal parenting time. This appeal follows.
DECISION
I.
“Appellate review of custody modification . . . cases is limited to considering
whether the trial court abused its discretion by making findings unsupported by the
evidence or by improperly applying the law.” Goldman v. Greenwood, 748 N.W.2d 279,
284 (Minn. 2008) (quotation omitted). Appellate courts “set aside a district court’s
findings of fact only if clearly erroneous.” Id.; see also Minn. R. Civ. P. 52.01. A district
court’s finding is clearly erroneous if this court “is left with the definite and firm
conviction that a mistake has been made” when “giving deference to the district court’s
opportunity to evaluate witness credibility,” Goldman, 748 N.W.2d at 284 (quotations
omitted), and “view[ing] the record in the light most favorable to the trial court’s
findings,” In re Custody of N.A.K., 649 N.W.2d 166, 174 (Minn. 2002).
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A district court may modify an existing custody order if it finds that circumstances
have changed for the child, a modification would serve the best interests of the child, the
child’s present environment presents a danger to her physical or mental health or
emotional development, and the harm caused by a change in custody is outweighed by
the advantage presented by the change. Minn. Stat. § 518.18(d)(iv) (2012). Appellant
challenges the district court’s findings on these statutory requirements.
Changed Circumstances
The district court found that circumstances have changed since the original
custody order because “[F.G.H.]’s constipation problem ha[d] become acute.” Appellant
argues that there has been no change in circumstances because F.G.H.’s constipation
difficulties preceded the original custody order. The record supports a finding that
F.G.H. has had intermittent constipation issues since infancy, but that no significant
attention or management was required until January 2011. The original custody order is
dated January 20, 2010.
In January and April 2011, respondent took F.G.H., then age three, to see Dr. C.,
who had significant concerns about F.G.H.’s degree of constipation and the lack of
consistent management of this condition at home. In January and again in May, Dr. C.
attempted to contact appellant to discuss these concerns. When appellant did not
respond, Dr. C. reported her concerns to Dakota County social services. Child protection
eventually interviewed appellant and determined that the family was not in need of
services.
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In June 2011, appellant addressed F.G.H.’s constipation at a regular checkup with
Dr. Y., who offered two options to manage the condition. Appellant opted for the less
aggressive approach. F.G.H. saw no medical professionals regarding constipation
concerns from June 2011 until August 24, 2012, when she had an appointment scheduled
by respondent with a gastrointestinal specialist, Dr. E., at the Mayo Clinic. Dr. E.
recommended a bowel cleanout, as Dr. C. had recommended in January 2011. Appellant
declined to follow through immediately with the recommended cleanout and cancelled
the tests ordered by Dr. E. to rule out a structural anomaly. Appellant instead took
F.G.H. to Dr. B., who confirmed that a cleanout was necessary, and then to the University
of Minnesota gastroenterology clinic, which also recommended cleanouts. Months later
at a follow-up appointment, Dr. E. found F.G.H. to be “completely impacted.”
Because the record amply supports the district court’s finding that F.G.H.’s
medical condition had become acute since the date of the original custody order, we
conclude that this finding justifies the district court’s determination that circumstances
have changed.
Endangerment of F.G.H.
To modify custody, the district court must determine that the child is currently
endangered in some way, physically, emotionally, or developmentally. Minn. Stat.
§ 518.18(d)(iv). Lack of endangerment is fatal to a motion to modify custody under
Minn. Stat. § 518.18(d)(iv). Szarzynski v. Szarzynski, 732 N.W.2d 285, 292 (Minn. App.
2007). No grounds for modification except endangerment were found by the district
court. The existence of endangerment is a fact question that this court reviews for clear
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error. See Sharp v. Bilbro, 614 N.W.2d 260, 263-64 (Minn. App. 2000), review denied
(Minn. Sept. 26, 2000). The district court found that “[F.G.H.]’s present environment in
[appellant’s] primary care endangers her physical and emotional health, as [appellant] did
not obtain and follow through with effective medical care necessary to address the pain
and misery caused by chronic constipation.”
Appellant argues that the district court erroneously focused on the 2011 time
frame. Although the district court made findings about this time period in its order, it did
not place any special focus on it. The district court also found that appellant did not seek
any medical advice or treatment for F.G.H.’s constipation between the June 2011
appointment with Dr. Y. and the August 2012 appointment with Dr. E. And the district
court made specific findings about the August 2012 – May 2013 time frame in its order.
The district court then determined:
In [appellant’s] primary care [F.G.H.] made periodic progress
regarding the constipation, but that progress was always
reversed and undone—as evidenced by [F.G.H.] again being
impacted in December, 2012. [Appellant] seemed reluctant
to engage and follow-through in medical care efforts initiated
by [respondent]—for example, those with [Dr. C.] and
[Dr. E.]. [Appellant’s] attempt to blame [F.G.H.’s] reversals
on inconsistent care provided by [respondent] during
weekends [F.G.H.] was with him is unpersuasive, given
[respondent’s] demonstrated vigilance and energetic efforts
concerning the problem; and the clear progress [F.G.H.] has
made in [respondent’s] primary care since January, 2013.
We are not left with the definite and firm conviction that these findings are in
error. Three different medical clinicians, two of whom were chosen by appellant,
determined between August 2012 and January 15, 2013, that F.G.H. was constipated
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enough to require a cleanout. The first cleanout resulted in nine large bowel movements,
and F.G.H. vomited with seven of them. Similarly difficult cleanouts were required in
the following months. But when custody transferred to respondent in early January 2013,
F.G.H. quickly showed “remarkable” progress.
Appellant argues that F.G.H.’s improvement in respondent’s care does not support
a determination that she was endangered in appellant’s care. But Dr. C. and Dr. B. both
testified about the seriousness of F.G.H.’s medical condition. And appellant’s preferred
provider agreed that F.G.H. required bowel cleanouts. It is undisputed that multiple
difficult cleanouts were recommended by at least four different clinicians from January
2011 through January 2013, including in August, September, and December 2012. The
district court also noted the potential psychological ramifications of starting kindergarten
under these circumstances. It is undisputed that F.G.H. was not fully toilet trained until
she was five years old and in respondent’s custody. The district court did not err in
relying in part on F.G.H.’s dramatic improvement in 2013 to determine that there had
been a lack of appropriate management before then.
Appellant also argues that her actions—or inactions—do not rise to the level of
criminal endangerment or medical neglect and thus cannot support a determination of
endangerment under the custody-modification statute. But she cites no authority for the
proposition that these other standards must be satisfied for the district court to order a
modification of custody.
The district court’s findings that constipation “is a medical concern of significant
consequence if not properly treated” and that F.G.H.’s condition also had emotional
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ramifications are supported by the record. We are not left with a definite and firm
conviction that a mistake has been made. We conclude that the district court made
proper, supported findings about F.G.H.’s condition and did not clearly err when it found
that F.G.H. was endangered in appellant’s care.
Best Interests of F.G.H. and Balance of Harms
Even with a finding of endangerment, the district court shall not modify a prior
custody order unless it finds that the modification is necessary to serve the best interests
of the child. Minn. Stat. § 518.18(d). The district court found that a change in custody is
in F.G.H.’s best interests, applying the factors identified in Minn. Stat. § 518.17, subd. 1
(2012). The district court found that, except for stability and continuity (Minn. Stat.
§ 518.17, subd. 1(7)), the statutory factors did not favor one party over the other. The
district court found that although F.G.H. had lived with appellant from the parties’
dissolution in 2010 through December 2012, the environment that appellant provided was
not “satisfactory,” and thus a continuation of that environment was not in F.G.H.’s best
interests. The district court noted that its primary focus in considering F.G.H.’s best
interests was “maximizing the likelihood that she will get the best, most effective care for
her constipation condition for as long as it takes for that condition to be permanently
remedied or cured.” The district court determined that a change in custody was in
F.G.H.’s best interests because respondent had taken the initiative to provide the care
necessary to successfully address F.G.H.’s chronic constipation, and appellant’s less-
aggressive approach over time was ineffective and harmful.
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The district court also found that the harm likely caused by a change in primary
residence was outweighed by the advantage of F.G.H. being in respondent’s sole physical
custodial care. These findings are supported by the record and are also consistent with
the guardian ad litem’s recommendation. We conclude that the district court did not
abuse its discretion in ruling based on ample evidence in the record that F.G.H.’s
condition was serious and that appellant had endangered F.G.H.’s physical and emotional
health by failing to address it adequately. The district court properly determined that a
change in custody served F.G.H.’s best interests and that the harm caused by a
modification was outweighed by its benefits. We therefore conclude that the district
court did not abuse its discretion in modifying custody under Minn. Stat. § 518.18(d)(iv).
II.
Appellant argues that the district court erred by modifying the original custody
order before the issue had been submitted to a parenting consultant as required by the
parties’ stipulated judgment. Appellant raised this issue to the district court in her post-
trial motion for a new trial or amended findings. The district court denied the motion,
ruling that (1) appellant had not properly raised the issue, (2) appellant had refused to
cooperate with respondent’s attempts to select a parenting consultant, and (3) issues
relating to child endangerment need not be first addressed by a parenting consultant. We
agree with the district court’s resolution of this issue.
When appellant responded to the motion for modification of custody, she did not
argue that the motion was improper because the issue had not been submitted to a
parenting consultant. The prospect of utilizing a parenting consultant was first raised by
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appellant’s counsel orally at the April 16, 2013 prima-facie-case hearing. Appellant
never filed a written motion or briefed the issue to the district court until after the district
court had ordered a permanent change in custody. The district court determined that the
issue was not timely raised but nevertheless addressed it in some detail.
The term “parenting consultant” is not used in the Minnesota statutes, but in
practice refers to “a creature of contract or of an agreement of the parties which is
generally incorporated into . . . a district court’s custody ruling.” Szarzynski, 732 N.W.2d
at 293. Stipulations in divorce proceedings are favored by courts “as a means of
simplifying and expediting litigation” and “are therefore accorded the sanctity of binding
contracts.” Shirk v. Shirk, 561 N.W.2d 519, 521 (Minn. 1997). The rules of contract
construction apply when construing such stipulations. Blonigen v. Blonigen, 621 N.W.2d
276, 281 (Minn. App. 2001), review denied (Minn. Mar. 13, 2001).
The judgment provides that “[t]he parties have agreed to use a Parenting
Consultant to assist them with post-decree issues they cannot resolve regarding their
child. The Parenting Consultant shall be named by mutual agreement of the parties or by
obtaining a list of five qualified persons and by alternately striking names.” It then
provides that parenting disputes will be submitted to the consultant before a party seeks
relief from the district court.
Because the parties never selected a parenting consultant, the parenting-consultant
stipulation may have been an unenforceable agreement to later agree. See Mohrenweiser
v. Blomer, 573 N.W.2d 704, 706 (Minn. App. 1998) (“[A] letter creating an agreement to
negotiate in good faith in the future is not enforceable because it does not constitute the
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parties’ complete and final agreement.”), review denied (Minn. Feb. 19, 1998). And
because appellant rebuffed respondent’s efforts to select a parenting consultant, she is ill-
positioned to demand that disputes be submitted to one. Cf. Zobel & Dahl Constr. v.
Crotty, 356 N.W.2d 42, 45 (Minn. 1984) (“Generally, contract performance is excused
when it is hindered or rendered impossible by the other party.”).
The district court ultimately determined that, regardless of whether the issue was
properly raised or the stipulation enforceable, the best interests of the child trumped any
agreement by the parties to use a parenting consultant. The stipulation was more than
three years old by the time of the evidentiary hearing, and the parties had not yet selected
a parenting consultant. The district court determined that the precarious nature of
F.G.H.’s medical situation demanded immediate resolution.
Generally, the best interests of the child trump procedure in making custody
determinations. See Kimmel v. Kimmel, 392 N.W.2d 904, 908 (Minn. App. 1986)
(“While the court may not have strictly adhered to the statutory procedure, this was an
emergency situation which compelled the court to apply its broad equitable powers. . . .
We cannot say it was an abuse of discretion for the [district] court to act quickly to
protect this child.”), review denied (Minn. Oct. 29, 1986). We conclude that even if the
issue was properly raised to the district court and the stipulation was enforceable, the
district court acted within its discretion by ruling on respondent’s motion without first
requiring submission of the dispute to a parenting consultant.
Affirmed.
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