In re the Custody of: S. K. S. Christian Schut, petitioner, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1631

In re the Custody of: S. K. S.
Christian Schut, petitioner,
Respondent,

vs.

Cynthia Schut,
Appellant.

Filed July 22, 2019
Affirmed
Worke, Judge

Washington County District Court
File No. 82-FA-14-5994

Christian Schut, 64287 Darmstadt, Germany (pro se respondent)

Valerie Arnold, Micaela Wattenbarger, Arnold, Rodman & Kretchmer, PA, Bloomington,
Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Jesson, Judge; and Cochran,
Judge.
U N P U B L I S H E D O P I N I O N
WORKE, Judge
In this custody dispute, appellant- mother argues that the district court: (1) made
clearly erroneous findings of fact; (2) applied the incorrect statutory presumption regarding
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legal custody; (3) should have granted mother’s motion for a new trial; and (4) should have
granted mother’s motion to change venue. We affirm.
FACTS
While the parties were married and living in Germany, they had one joint child,
S.K.S., born in October 2010. Appellant-mother Cynthia Schut had a child from a prior
relationship (sister) who resided with the parties.
In March 2014, mother and respondent-father Christian Schut found S.K.S. crying
and her genitals were red and swollen. Mother alleged that father sexually abused S.K.S.
Father asserted that S.K.S. had a urinary tract infection (UTI). German child- protective
services investigated and concluded that abuse could not be proven or ruled out with
certainty.
Later that year, mother came to Minnesota with the children. Father attempted to
visit, but mother prevented father from seeing the children based upon her prior allegation
of sexual abuse. Local authorities closed their investigations into the sexual-abuse
allegation after concluding that maltreatment did not occur.
In December 2014, father filed a petition seeking temporary sole legal custody of
S.K.S. and an order requiring coordination with parallel proceedings initiated by father in
Germany. Father also filed a Hague petition for return of S.K.S. to Germany. The district
court denied father’s Hague petition, and father appealed. This court affirmed the denial
of father’s Hague petition, but held that the district court erred in determining that the
Uniform Child Custody Jurisdiction and Enforcement Act did not apply to custody disputes
between domestic states and foreign countrie s, and remanded the jurisdictional issues for
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further proceedings in the district court. See In re the Custody of S.K.S., No. A15-1489
(Minn. App. May 9, 2016), review denied (Minn. July 19, 2016).
Mother filed a counter petition for custody in May 2016. On November 27, 2017,
following a court trial, the district court awarded mother sole physical custody and the
parties joint legal custody of S.K.S. The district court also awarded father parenting time
in either Germany or Minnesota during school breaks and on alternating weekends in
Minnesota during the school year.
Both parties moved for amended findings and a new trial. Mother also moved for a
new trial on the basis of newly discovered evidence, and for a change of venue. The district
court denied all motions. This appeal followed.
D E C I S I O N
Findings of fact
Mother argues that several of the district court’s findings are not supported by the
record. This court will “set aside a district court’s findings of fact only if clearly erroneous,
giving deference to the district court’s opportunity to evaluate witness credibility.”
Goldman v. Greenwood, 748 N.W.2d 279, 284 (Minn. 2008). “Findings of fact are clearly
erroneous where an appellate court is left with the definite and firm conviction that a
mistake has been made.” Id. (quotation omitted). “When determining whether findings
are clearly erroneous, the appellate court views the record in the light most favorable to the
[district] court’s findings.” Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App.
2000).
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When reviewing whether the record on appeal supports a district court’s findings,
an appellate court need not recite all of the evidence in the record which supports each
challenged finding. See Wilson v. Moline, 47 N.W.2d 865, 870 (Minn. 1951). In denying
mother’s motion for amended findings, the district court reviewed all of the contested
findings and concluded that they were either adequately supported by the record, or that
mother’s proposed amendments were improper in a motion for amended findings.
Domestic abuse
The district court made two separate findings that no domestic abuse occurred. In
its analysis of the fourth best-interest s factor, Minn. Stat. § 518.17, subd. 1(a)(4) (2018),
the district court found:
The [c]ourt makes no finding of domestic abuse or
sexual misconduct. Albeit, [m]other contends that there are
numerous instances of abuse both physical and sexual, the
[c]ourt does not find that these contentions support a finding of
domestic abuse under this factor. Father also contends that
[m]other abused him; and similarly, the [c]ourt does not find
that these contentions support a finding of domestic abuse
under this factor.

The district court also made a separate finding, distinct from its best-interests analysis,
wherein it noted, “the [c]ourt makes these specific findings with emphasis: . . . . (b) [t]he
[c]ourt finds that no sexual impropriety has occurred.”
In denying mother’s motion to amend the finding that domestic abuse did not occur,
the district court1 held that the district court “weighed conflicting evidence and judged the

1 The trial judge retired prior to the motions for amended findings, which were heard by
another judge of the district court.
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credibility of the witnesses in making this [f]inding. This [c]ourt finds that [it] is not clearly
erroneous.”
Domestic abuse includes the following acts when committed against family or
household members: “(1) physical harm, bodily injury, or assault; (2) the infliction of fear
of imminent physical harm, bodily injury, or assault; or (3) terroristic threats . . . [or]
criminal sexual conduct.” Minn. Stat. § 518B.01, subd. 2(a) (2018).
Mother alleged 11 incidents of physical abuse. Mother provided evidence from
other individuals, including sister, who allegedly observed incidents of physical abuse. But
father testified that he never physically abused mother or the children. Father testified in
more detail regarding three of mother’s allegations, claiming that he was twice the victim.
The evidence of physical abuse mainly consisted of the conflicting testimony
provided by father and mother. Upon this record, the district court, as trier of fact, had to
base its findings upon credibility determinations of the witnesses’ conflicting testimony.
“[A]ppellate courts defer to trial court credibility determinations.” Vangsness, 607 N.W.2d
at 472. The district court did not find either party’s testimony regarding the existence of
domestic abuse credible. Therefore, the finding that father did not commit domestic abuse
in the form of physical harm is not clearly erroneous.
Mother relies on the unpublished decision In re Custody of A.J.O. for the proposition
that “mutual acts of domestic abuse do not support a finding of no abuse for purposes of a
custody determination.” No. A15-0353, 2015 WL 8548953, at *4 (Minn. App. Dec. 14,
2015). As an unpublished opinion, A.J.O. lacks precedential authority. See Minn. Stat.
§ 480A.08, subd. 3(c) (2018). Furthermore, A.J.O. is distinguishable. In A.J.O., the father
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never specifically denied physically abusing the mother, and the district court made the
clearly erroneous finding that the mother received an order for protection days after the
father initiated custody proceedings, which was not true. Id. This court noted that the
district court found that the mother “was also an aggressor, indicating that there was indeed
abuse.” Id. Here, father specifically denied the allegations, and the district court did not
find that either party was the aggressor; instead, holding that neither party committed
domestic abuse.
Mother also argues that the district court clearly erred in finding that domestic abuse
did not occur because she testified that father sexually abused both S.K.S. and sister. Sister
was interviewed by child-protective services in both Germany and Minnesota regarding
the incident. She testified to mother’s rendition of the incident d uring her in camera
interview.
Further, the allegation regarding S.K.S. was investigated in both Germany and
Minnesota. No investigation found that maltreatment occurred. Based upon the Lake
County investigation concluding that maltreatment did not occur, and the German
investigation concluding that endangerment was unlikely, but could not be disproven, the
district court’s finding that sexual abuse did not occur is supported by the record.
Therefore, the finding that domestic abuse did not occur is not clearly erroneous.
Bad faith
Mother argues that the district court clearly erred in finding that neither party argued
in bad faith. Mother bases her argument, in part, on her allegation that father committed
domestic abuse, and also upon the district court’s findings that father had been “very
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inconsistent with his stated income,” and that his statements regarding his monthly income
were not “realistic or believable.” While the district court did not find father’s income
evidence credible, this is not tantamount to a finding of bad faith.
Whether a party acts in good faith is a credibility question, and we defer to the
district court’s credibility determinations. See Tonka Tours, Inc. v. Chadima, 372 N.W.2d
723, 728 (Minn. 1985) (stating that whether a party acted in good faith is, essentially, a
credibility determination); see also Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988)
(stating that appellate courts defer to district court credibility determinations); Eisenschenk
v. Eisenschenk, 668 N.W.2d 235, 241 (Minn. App. 2003) (stating that “[q]uestions of . . .
whether a party acts in good faith are questions on which appellate courts defer to the
district court”), review denied (Minn. Nov. 25, 2003). Here, while the district court did not
accept father’s averments regarding his monthly income, the district court did not find that
his representations rose to the level of bad faith. Therefore, this finding is not clearly
erroneous.
Good will/S.K.S.’s special medical and mental-health needs
Mother asserts that the district court’s finding that there is good will between the
parties regarding S.K.S. is clearly erroneous. Mother argues that father does not have good
will because he disagrees with mother’s insistence on therapy, has not cooperated in
enrolling S.K.S. in a Minnesota kindergarten, and downplays the importance of her UTIs.
As an initial matter, father testified, in response to the question: “it’s your belief that
moving forward, once there’s a final order from the court, that that could help facilitate or
make your conversations with [mother] about [S.K.S.] easier; is that correct?” with the
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answer: “Yes, I hope she wants that, too” ; which directly supports the district court’s
finding of good will.
Mother argues that the district court’s findings regarding S.K.S.’s special medical
and mental-health needs are clearly erroneous. Mother asserts that the record demonstrates
that father does not support S.K.S.’s need for therapy, and that he does not consider her
UTIs to be “a big thing.” In context, regarding the UTIs, father testified: “I know there
was an infection that was there. But it’s not a big thing.” Earlier, father testified that “[s]he
is a healthy child. I just saw her six year checkup was f ine. So it’s fine.” Furthermore,
the district court specifically found that “[t]here is no argument over the need for medical
attention regarding the UTI’s.”
While father argued there was no need for therapy, the district court found that “the
therapeutic needs of [S.K.S.] continue.” The district court also found that “[b]ecause . . .
[m]other is the facilitator of those medical appointments, this factor resolves favoring
[m]other having sole physical custody.” Therefore, despite mother’s contentions regarding
father’s underlying beliefs, the district court’s findings on the good will between the parties
and S.K.S.’s special medical and mental-health needs are not clearly erroneous.
S.K.S.’s cultural needs/allowing parenting time in Germany
Mother argues that the district court’s finding that S.K.S.’s cultural needs establish
“a need for the child to visit and be a part of the German culture with her [f]ather” is clearly
erroneous. Mother bases her argument on a portion of father’s testimony wherein he stated:
“No, there is not much difference” in response to the question: “Is there anything different
. . . about her experiencing her culture if she was in Germany as opposed to just
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experiencing her culture through [food, language, and reading]?” However, mother again
ignores the surrounding context in which this testimony was provided.
Father testified that “it is very important to know where you come from . . . your
history . . . your surroundings. It’s the same here in the U.S. I mean, both sides of the
world the children should know. It would enrich their life later on to know.” Father also
answered the question: “there are certain parts of that heritage that [S.K.S.] could only
experience if she was in Germany, correct?” by stating: “Yes, of course. You need to see
your family, also. Her grandmother and family from my father’s side.” The district court’s
finding that S.K.S. needs to visit and be a part of German culture is supported by the record,
and therefore is not clearly erroneous.
Mother also argues that the district court erred by not imposing conditions to prevent
the abduction of S.K.S. when awarding father parenting time in Germany. It is unclear on
what basis mother assigns this alleged error. Mother relies on Tischendorf v. Tischendorf,
321 N.W.2d 405 (Minn. 1982), for the proposition that an appellate court has the authority
to review the conditions imposed in an order for parenting time. Tischendorf is
distinguishable. In that case, the mother moved the district court for an order to modify
the father’s visitation rights out of fear that the child would be physically or emotionally
harmed by allowing the father to exercise parenting time in Germany pursuant to Minn.
Stat. § 518.175, subd. 5 (1980). Tischendorf, 321 N.W.2d at 409-10.
Here, mother essentially argues that the district court’s finding granting father
expansive parenting time in Germany without imposing conditions to prevent abduction
was clearly erroneous. As pointed out by the district court in its order denying mother’s
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motion for amended findings, mother’s proposed amendment relied primarily on evidence
that was not admitted at trial. “When considering a motion for amended findings, a district
court must apply the evidence as submitted during the trial of the case and may neither go
outside the record, nor consider new evidence.” Zander v. Zander, 720 N.W.2d 360, 364
(Minn. App. 2006) (quotation omitted), review denied (Minn. Nov. 14, 2006). On this
basis, the finding that father is entitled to visitation in Germany is not clearly erroneous.
Interrelated/conclusory findings
Finally, mother argues that the district court erred by interconnecting its analysis of
the best -interests factors, and that one of its best-interests analyses was impermissibly
conclusory. To the extent that mother’s challenge requires us to interpret the best-interests
statute, our review is de novo. See In re Welfare of Children of R.W., 678 N.W.2d 49, 54
(Minn. 2004). First, the relevant statute specifically provides that analysis of the best-
interests factors may be interrelated. See Minn. Stat. § 518.17, subd. 1(b)(1) (2018) (“The
[district] court may not use one factor to the exclusion of all others, and the [district] court
shall consider that the factors may be interrelated.”). Therefore, there is no basis to
mother’s assertion that the district court erred by interrelating factors in its best-interests
analysis.
Mother argues that the district court’s finding addressing the tenth best-interests
factor, the benefit to the child in maximizing parenting time with both parents, is
impermissibly conclusory. See id., subd. 1(a)(10) (2018). The district court found:
[M]aximizing parenting time with both parents should be done
where possible. The [c]ourt acknowledges that there is a
detriment to having one parent only have contact with [S.K.S.]
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while the other does not. Accordingly, parenting time or
custody arrangements should not be construed to prevent either
party from being in contact with [S.K.S.]. This factor favors
an expansive parenting time schedule for . . . [f]ather.

The statutory scheme provides that “[t]he [district] court shall consider that it is in the best
interests of the child to promote the child’s healthy growth and development through safe,
stable, nurturing relationships between a child and both parents.” Id., subd. 1(b)(2) (2018).
Also, as stated above, the statute acknowledges that consideration of the best-interests
factors may be interrelated.
While the finding at issue is not particularly detailed, the preceding findings recite
that “[b]oth parents have expressed an ongoing willingness to participate in providing
[S.K.S.’s] care”; S.K.S.’s “home is . . . now in Minnesota. Changing the home, school,
and community would likely be detrimental to [S.K.S.’s] well-being and development,”
but “facilitating a total end to [S.K.S.’s] relationship with Germany and her [f]ather would
be detrimental to [S.K.S.’s] well-being and development as well.” Therefore, the district
court’s finding that maximizing parenting time with both parents is in S.KS.’s best interest
is not clearly erroneous.
Rebuttable statutory presumption in favor of joint legal custody
Mother argues that the district court’s domestic-abuse finding was clearly
erroneous, and thus the district court applied the incorrect statutory presumption regarding
joint legal custody. “Interpretation of a statute involves a question of law, which is subject
to de novo review.” R.W., 678 N.W.2d at 54.
The [district] court shall use a rebuttable presumption
that upon request of either or both parties, joint legal custody
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is in the best interests of the child. However, the court shall
use a rebuttable presumption that joint legal custody or joint
physical custody is not in the best interests of the child if
domestic abuse . . . has occurred between the parents.

Minn. Stat. § 518.17, subd. 1(b)(9) (2018). As set forth above, because the district court
did not clearly err in finding that neither party committed domestic abuse, the district court
did not err by not invoking the rebuttable presumption against joint legal custody.
Because none of the findings identified by mother are clearly erroneous, there is no
basis to her argument that the decree awarding the parties joint legal custody and awarding
father expansive parenting time in Germany should be reversed.
Motion for a new trial
Mother argues that the district court should have granted her motion for a new trial
pursuant to Minn. R. Civ. P. 59.01(d), which allows a district court to grant a new trial on
the basis of newly discovered material evidence. This court reviews a district court’s
decision to deny a new trial for an abuse of discretion. Christie v. Estate of Christie, 911
N.W.2d 833, 838 (Minn. 2018).
Mother bases her argument for a new trial on an alleged instance of sexual abuse
that occurred shortly after trial concluded. But father received a letter informing him that
investigators “did not find that sexual abuse happened.” This conclusion was reached after
investigators interviewed S.K.S. and reviewed medical and individual therapy records.
Therefore, the district court did not abuse its discretion in denying mother’s motion for a
new trial based on this new allegation.
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Motion to change venue
Mother argues that the district court erred in denying her motion to change venue.
“We review a district court’s denial of a motion for a change of venue in a family law case
under an abuse-of-discretion standard.” Toughill v. Toughill, 609 N.W.2d 634, 642 (Minn.
App. 2000).
Mother argues that Lake County would be a more convenient venue for her, as she
no longer resides in Washington County, and father resides in Germany. The district court
noted that, despite mother residing in Lake County since December 2014, she never sought
to change venue during the three- year period in which this matter was pending in district
court. In opposing the motion, father argued that mother may be forum shopping, as she
proposed that if the change-of-venue motion were granted, the posttrial motions should be
heard in the new venue.
While Lake County would seemingly be a more convenient venue for all parties,
the district court did not abuse its discretion in denying mother’s motion to change venue
on the basis that the Washington County District Court has heard the entirety of this case
from inception through posttrial motions.
Father’s failure to appeal
In his responsive brief father makes several requests of this court. Because father
neither filed a separate appeal, nor filed a notice of related appeal, none of these issues are
presently before this court. See Minn. R. Civ. App. P. 106 (addressing notices of related
appeal); Arndt v. Am. Fam. Ins. Co., 394 N.W.2d 791, 794 (Minn. 1986) (noting that a
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respondent is barred from raising questions on appeal unless the respondent has filed a
notice of related appeal).
Affirmed.