In Re the Marriage of: NaCole LaVae Ferden, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1664

In Re the Marriage of: NaCole LaVae Ferden, petitioner,
Appellant,

vs.

Kristopher Kollen Ferden,
Respondent,

County of Clay,
Intervenor.

Filed August 28, 2017
Affirmed
Connolly, Judge

Clay County District Court
File No. 14-FA-11-939

NaCole L. Ferden, Fergus Falls, Minnesota (pro se appellant)

Kristopher K. Ferden, Moorhead, Minnesota (pro se respondent)

Considered and decided by Ross, Presiding Judge; Connolly, Judge; and Toussaint,
Judge.*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant-mother challenges the granting of respondent -father’s motion to modify
custody, arguing that the district court abused its di scretion in granting the motion.
Appellant also argues that the district court was biased against her and violated the rules of
judicial conduct. Because the evidence supports the district court’s findings , there is no
improper application of the law, and we see no bias, the decision is affirmed.
FACTS
Appellant NaCole Ferden and respondent Kristopher Ferden are the parents of two
sons, M., now 12, and E., now nine . The parties’ marriage was dissolved in 2011, when
M. was six and E. was three . A ppellant was granted sole physical custody of them; the
parties had joint legal custody. Respondent had weekend and weekday parenting time, but
did not exercise his weekday parenting time because he work ed out of town during the
week.
In 2013, the children and appellant were living with her boyfriend, with whom she
had a joint child. M. and E. witnessed the boyfriend’s ph ysical and verbal abuse of
appellant and appellant’s violent behavior. Appellant and the children, then eight and five,
moved from Moorhead, where both parties lived, to Fergus Falls, which is about 55 miles
away; this made exercising parenting time difficult for respondent. Respondent moved in
with his girlfriend, who had a son about the age of E.
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In 2015, respondent married his girlfriend and was promoted so that he no longer
worked away from home during the week. He filed a motion to modify custody, seeking
sole physical and sole legal custody. Appellant opposed the motion.
The district court appointed a guardian ad litem (GAL) for the children ; in her
report, the GAL recommended denying respondent’s motion. During 2016, four hearings
were held on the motion. The GAL filed a supplementary report, again recommending that
the motion be denied. In July 2016, the district court ordered that the children s pend
alternate weeks with each party during the summer, an arrangement that proved successful.
In August, t he district court granted respondent’s motion for sole physical custody but
denied his motion for sole legal custody.
Appellant now argues that the change of physical custody was an abuse of the
district court’s discretion; she also argues that the district court was biased against her.1
D E C I S I O N
“Appellate review of custody determinations 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). “Even thou gh
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.”
Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989) (quotation omitted). The law “leaves

1 Both parties are pro se on appeal; respondent has been pro se throughout the custody
dispute, while appellant was represented by counsel until shortly before the filing of the
notice of appeal.
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scant if any room for an appellate court to question the [district] court’s balancing of best-
interests considerations.” Vangsness v. Vangsness , 607 N.W.2d 468, 477 (Minn. App.
2000).
“[A] court shall not modify a prior custody order . . . unless it finds . . . 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.” Minn. Stat. § 518.18 (d) (2016). The
district court found that changes in respondent’s circumstances had occurred between 2011
and 2016: respondent had acquired a job that did not require him to be gone during the
week, a stable relationship, and a stable residence.
The 12 factors to be considered in determining a child’s best interests are set out in
Minn. Stat. § 518.17, subd. 1(a) (2016). The district court made meticulous and objective
findings as to the impact of each of these factors on granting respondent’s motion to have
the boys live with him in Moorhead rather than with appellant in Fergus Falls.
1. Effect of the change on the children’s phys ical, emotional, spiritual, and
other needs. This factor would “slightly favor[]” granting respondent’s motion because the
boys “would no longer be exposed to the appare nt volatility of [appellant’s] emotions to
the extent that they are now.”
2. Accommodating the children’s special medical, mental health, or educational
needs. This factor is neutral because M., who needs counseling and therapy services, could
continue to receive them in Moorhead at a larger facility.
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3. The children’s reasonable p references. This factor is neutral because “the
children love both of their parents very much and largely enjoy the time that they spend
with them.”
4. Implications of domestic abuse, if any . This factor favors granting
respondent’s motion because the children “witnessed both physical and verbal abuse” of
appellant by her former boyfriend; they “expressed fear that [the boyfriend] would attempt
to find and kill [appellant]”; “[t ]his fear was most certainly fueled by the fact that
[appellant] shared her own feelings of fear” with them; they “are more afraid of what will
happen to [appellant] than they are of anything else related to the past occurrences of
violence”; and their fear “appears to be based more on the fear instilled by [appellant] rather
than the current reality.”
5. Either parent’s physical, mental or chemical health issue, if any. This factor
favors granting respondent’s motion because appellant has mental -health issues,
specifically anger-management issues, that have had a negative effect on the children and
that have not been treated. “The custody arrangement proposed by [r]espondent would
allow [appellant] a greater opportunity to address her own issues and ult imately become a
less volatile individual when she is in the presence of the minor children.”
6. History of each parent’s care for children. This factor slightly favors denying
respondent’s motion because appellant “has an established history of physically caring for
the minor children.” However, she was unable to “hold down a steady job” or to “establish
a long-term home for the minor children and moved them between various homes, hotels,
and apartments including those of her romantic interests at the time,” while respondent
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“kept a consistent job, made child -support payments, and maintained a suitable domicile
for the minor children when he chose to exercise his parenting time.”
7. Each parent’s willingness and ability to care for the children. This factor
favors granting respondent’s motion because he, with his wife, has “a well structured,
stable household with the resources necessary to raise a family” and “has lived in
Moorhead for several years and intends to remain in his current situation for the foreseeable
future,” while appellant “has a history of moving between various jobs and homes [and]
. . . would consider moving out of Fergus Falls if a bett er opportunity presents itself”; and
has a “current boyfriend [who] is a Fargo, N.D.[,] resident.” Respondent has done almost
all the driving to facilitate his parenting time; appellant “often creates unpleasant parenting-
time exchanges and has a history of interfering with phone calls between the minor children
and [r]espondent,” who has “a g reater ability to guarantee future stability in providing
consistent care for the minor children.”
8. Effect of a change of home, school, and community on the children. This
factor favors granting respondent’s motion because, until the children moved to Fergus
Falls when they were eight and five , they lived in the Fargo -Moorhead area; M.’s
disciplinary issues at school began after the move to Fergus Falls; week -long visits to
respondent during the summer of 2016 went well; and E. has a strong bond with
respondent’s wife’s son, who lives primarily with her and respondent.
9. Effect of change in custody on children’s relationships with each other, their
parents, and others. This factor is neutral because the children have friends and extended
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family in both Fergus Falls and Moorhead . Moreover, they “seem to be attached to both
parents and that attachment will probably not fade regardless of the custody arrangement.”
10. Effect on the children of maximizing or limiting time with each parent. This
factor fa vors granting respondent’s motion because “[appellant] has unaddressed anger
issues and volatile emotions which she exposes to the minor children on a regular basis ”
and “[u]ntil these issues are dealt with [,] the court believes it to be in the best interests of
the minor children that [appellant’s] time with the children be more limited than it is
[now.]”
11. Disposition of each parent to support the children’s relationship with the
other parent. This factor favors granting respondent’s motion because he “has consistently
provided transportation to and from [appellant’s] residence and no allegations have been
made that he has retained the minor children beyond the time constraints of the current
parenting time schedule” while appellant has “interfered with [his] parenting time in the
past,” including his “phone calls to the minor children, [by] angry outbursts during
parenting time exchanges or outright denying scheduled parenting time” and “seem s to
have an inherent difficulty with temporarily surrendering the minor children to
[r]espondent.”
12. Willingness and ability of each parent to cooperate in raising children. This
factor did not overcome the presumption in favor of joint legal custody and was neutral in
regard to physical custody because “ [b]oth parents have demonstrated an inability to
cooperate” in raising the children and “ [i]t is likely that [they] have spoken to the minor
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children about this highly contentious custody battle” and “have occasionally expressed
their disdain of [each other] in the presence of the minor children.”
Thus, the district court concluded that four of the 12 factors were neutral, one
favored denying respondent’s motion, and seven favored granting his motio n. Given that
the law “leaves scant if any room for an appellate court to question the [district] court’s
balancing of best-interests considerations,” Vangsness, 607 N.W.2d at 477, there is no basis
to reverse the district court’s determination.
The district court acknowledged that the GAL had recommended denying
respondent’s motion, but noted that “the court’s own legal analysis simply result [ed] in a
different conclusion than that arrived at by the [GAL].” See Rogge v. Rogge, 509 N.W.2d
163, 166 (Minn. App. 1993) (a district court has discretion to contradict a GAL’s
recommendation if its own analysis of the best -interest factors results in a different
outcome), review denied (Minn. Jan. 26, 1994) . The GAL noted that appellant “has
perhaps shared too m uch adult information with the children” and “sometimes
inappropriately allows her emotions and feelings to show in front of the children as well ,”
but did not see this as a reason to modify custody. The district court, in contrast, said
repeatedly (in re gard to factors 1, 5, 7, 10, and 11) that appellant’s unaddressed anger -
management issues need to be addressed and that, until they are addressed, the children
will do better in respondent’s custody.
Finally, appellant argues that the district court was biased against her. In reviewing
claims of judicial bias, an appellate court considers whether the district court “considered
arguments and motions made by both sides, ruled in favor of a complaining [party] on any
9
issue, and took actions to minimize pre judice to the defend ant.” Hannon v. State , 752
N.W.2d 518, 522 (Minn. 2008). Here, the district court considered each of the 12 factors
in terms of each party and concluded that some factors were neutral and that one favored
appellant. Thus, the district court’s opinion does not reflect bias.
Appellant claims that bias was shown when, during the evidentiary hearings, the
district court initially ordered a psychological evaluation of her and not of respondent. An
appellate court will grant a new trial because of judicial bias only in the rare cases where
the remark of a district court was so prejudicial to one party that it rendered a fair and
impartial result improbable. Fortier v. Ritter’s Hairdressing Studios, Inc., 282 Minn. 382,
386, 164 N.W.2d 897, 899 -900 (1969). But, after receiving a letter from the GAL
requesting that b oth parties have psychological evaluations, the district court issued an
order “[t]hat both parties shall submit to psychological evaluations by qualified clinical or
forensic psychologists, focusing on the party’s fitness for parenting, and that such
psychological evaluations be completed within 60 days of this Order.” Thus, any prejudice
to appellant was mitigated by the district court’s second order , and the district court’s
original order that appellant have a psychological evaluation was not so preju dicial as to
render a fair result improbable. See id. In any event, because appellant said the cost of the
evaluation was prohibitive and she was not able to pay it, the district court vacated the
order for the parties to complete psychological evaluation s, and neither party did so .
Appellant’s claim of judicial bias is without merit.2

2 Appellant’s allegations as to past violations of the rules of judicial conduct are irrelevant.
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We see no basis for questioning, much less reversing, the district court’s balancing
of the best-interests factors.
Affirmed.