In re the Marriage of: Kjell Bjorn Peterson, petitioner, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0911

In re the Marriage of: Kjell Bjorn Peterson, petitioner,
Respondent,

vs.

Rosslyn Jean Kendrick,
Appellant.

Filed February 6, 2023
Affirmed
Connolly, Judge

St. Louis County District Court
File No. 69DU-FA-09-1103

Cheryl M. Prince, Hanft, Fride, P.A., et al., Duluth, Minnesota (for respondent)

Kristen C. Bullock, Bullock Law, PLLC, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Ross , Judge; and
Connolly, Judge.
NONPRECEDENTIAL OPINION
CONNOLLY, Judge
Appellant-mother challenges the district court’s order modifying custody, arguing
that the district court abused its discretion in awarding respondent-father sole legal and sole
physical custody of the parties’ child, in failing to appoint a guardian ad litem (GAL), in
declining to interview the child, and in excluding as irrelevant the evidence of respondent’s
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2011 psychological evaluation. Because we see no abuse of discretion in the district court’s
determinations, we affirm.
FACTS
In 2007, a son, T., now 15, was born to appellant Rosslyn Kendrick and respondent
Kjell Peterson, then husband and wife. In November 2009, a petition for dissolution of the
parties’ marriage was filed and a GAL was appointed for T. In August 2011, the GAL
recommended that appellant have sole physical custody of T. The May 2012 dissolution
judgment awarded joint legal custody of T. to each party and sole physical custody to
appellant, subject to reasonable and liberal parenting time for respondent. Appellant and
T. remained in the parties’ home.
Between 2012 and 2019, appellant made unilateral decisions as to T.’s schooling
and medical care, informing respondent of decisions after she had made them. In May
2019, respondent moved for a change in parenting time that would give T., then 12,
alternate weeks with each parent. At the hearing on respondent’s motion, the parties agreed
to submit supplemental affidavits. The district court noted that this was the parties’ fifth
appearance on custody and parenting-time issues and suggested that, given appellant’s
unwillingness to co-parent, cooperate with respondent, or put T.’s needs above her own,
respondent consider requesting a change in custody in his affidavit, which respondent did.
The district court’s July 2019 order: (1) found that appellant had interfered with
respondent’s relationship with T. and acted in ways contrary to T.’s best interest; (2) found
that it was in T.’s best interest for respondent to have temporary sole legal custody and
temporary sole physical custody, with appellant having weekly and alternate weekend
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parenting time; (3) reserved child support; and (4) stated that an evidentiary hearing and
pretrial hearing would be scheduled within the next three months.
Following that hearing, the district court issued an order in March 2020, awarding
respondent permanent sole legal and sole physical custody of T., with appellant having
weekly and alternate weekend parenting time.
Appellant challenges the March 2020 order, arguing primarily that the custody
award was an abuse of the district court’s discretion and that the district court erred in not
appointing a GAL for T. and abused its discretion in declining to interview T. and in
excluding evidence of respondent’s 2011 psychological evaluation.1
DECISION
1. The Custody Determination
“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). The law “leaves
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 district court may modify a custody order if it finds

1 Oral argument in this matter, originally scheduled for March 2021, was postponed until
December 2022, when appellant’s attorney had recovered from injuries sustained in a car
accident. The parties declined to submit further briefing for this appeal. T., who was not
quite 13 when the order being appealed was issued, will be nearly 16 when this appeal is
decided.
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upon the basis of facts, including unwarranted denial of, or
interference with, a duly established parenting time schedule,
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 or the parenting plan provision specifying
the child’s primary residence 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) (2022).

The district court found that:

a. the circumstances of [T.] and [the parties] have
changed significantly, namely that [appellant] is unable to
work with [respondent], denigrates [him] to [T.], interferes
with the [respondent/T.] relationship, does not promote [T.’s]
emotional well-being by supporting him receiving treatment,
and has made it clear she cannot place [T.’s] needs above her
own, all to [T.’s] detriment;
b. the modification outlined in this Order serves
[T.’s] best interests;
c. the prior custody and parenting schedule
endangers [T.’s] physical health, emotional health, and his
emotional development; and
d. the benefits of the change outlined in this Order
outweigh its detriments with respect to [T.].

Some of the district court’s findings relevant to this statute concerned appellant’s
credibility: she had falsified a passport application for T. by signing respondent’s name
when he refused to agree to the application; her testimony sometimes contradicted
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statements in her affidavits; and she was “willing to say whatever she believe[d] would
benefit her most.”
The district court also found that appellant believes “that only she knows best” and
that this belief prevents her from acting in T.’s best interest, including refusing to attend
parent-teacher conferences, even remotely, if respondent is present (notwithstanding the
school’s policy not to hold separate conferences for each parent); contradicting
professionals’ statements that T., who was diagnosed with anxiety, depression, and tics,
would benefit from therapy; making T. reluctant to engage in therapy and resistant to it;
stating that she was not interested in collaborating with respondent on T.’s therapy;
claiming that a therapist had said T. did not need therapy when the therapist had written
that T.’s needs were best met with monthly appointments; and attempting to cancel T.’s
appointments that respondent had made.
One incident in particular was mentioned in both the district court’s July 2019 and
March 2020 orders. The district court stated:
The Wolf Ridge incident really defines the crux of the
issue: the inability of [appellant] to see the effect that her
decisions have on [T. T’s] classmates were going to attend a
three-day school outing at Wolf Ridge which is an annual event
for the 5th grade class at his school, and [respondent] was
going to chaperone. The three days included a day that was
[appellant’s] day under the then-existing parenting time
schedule. [Appellant’s] written res ponse to [respondent]
regarding [T.] attending was, “You can either compensate me
for the Monday overnight or I’ll come with a police officer to
Wolf Ridge and take [T.] home to bring him back the next
day.” [Appellant] claimed at the motion hearing following this
incident that [T.] did not want to go [to Wolf Ridge] for three
days. However, that explanation is not credible given the clear
directive that if [appellant] were compensated for the day, she
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would approve him going for all three days. Rather than
allowing him to attend this important event to him in its
entirety, [appellant] held firm to her position and did not permit
him to attend the first day and night of the three-day event. At
the evidentiary hearing, she came up with a different
explanation, stating that “we” were too tired that day. Notably,
this was not a decision she made that day; her emails on the
topic indicate this was an ongoing issue for several weeks prior
to the first day of the event. [Appellant] had no good reason to
prevent [T.] from attending, as is evident from her change of
stories, and continues to be unable to see that her actions were
unreasonable and overly dramatic, aimed at securing her own
needs over everyone else’s, including her child’s. The threat
to arrive with police officers and have [T.] removed in front of
his peers is even more concerning.

The record supports the district court’s findings. At the first hearing, appellant
complained, “I’m expected by [respondent] to give in to everything that he requests from
me, yet I never get any cooperation back from him. And it’s very --” The district court
interrupted to say, “This is about your son.” Appellant continued, “It’s very frustrating,”
and the district court repeated, “This is about your son.” She continued, “I always bend
over backwards to give [respondent] what he needs as a parent for his parenting time.” The
district court then asked, “So you viewed [the Wolf Ridge trip] as something [respondent]
wanted and, therefore, you were denying it?” and pointed out that what appellant had just
said was “not at all what you say in your email [about the Wolf Ridge trip.]”
It was also reported at the hearing that, although appellant claimed to have involved
respondent on T.’s Individual Education Plan (IEP), she actually simply told him about it
and the changes that would be made; she refused to attend conferences and IEP meetings,
in person or by phone, with teachers and meetings if respondent attended them; and she
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unilaterally changed the time of conferences they were both scheduled to attend. The
record supports the district court’s finding that
[appellant] asserts that legal custody should be joint, yet it is
apparent from all of the evidence that these parties are
completely unable to communicate with each other and that
they cannot make decisions together. Appellant testified that
she cannot trust [respondent], that he is manipulative, that he
has an agenda, that he has lied and that he is an instigator. This
alone would make it impossible for the parties to make
decisions together, but the Court has also seen evidence of
[appellant’s] inability to work with [respondent. Appellant]
refused to attend school conferences with [respondent] or IEP
meetings if [respondent] will be there.

The district court also made findings on the best-interest factors enumerated in
Minn. Stat. § 518.17 (2022). As to the first factor, the child’s physical, emotional, cultural,
spiritual and other needs, and the effect of the custody change on his needs and
development, the district court found that T. was then 12 (he is now almost 16 ), that
appellant’s “pervasive denigration” of respondent was extremely damaging to T., “as
[were] her actions in placing her own needs and desire to control things” above T.’s needs.
Finally, the district court noted “it is clear . . . that [respondent] will ensure that the child’s
needs are met. The Court finds that [appellant] has demonstrated that she is not able to do
so.” Again, the record supports this finding. It is undisputed that, since respondent was
given custody, T.’s tics have disappeared and he is doing significantly better in school.
One teacher reported that “[T.] is quick to ask questions and engage with adults in the
classroom when things aren’t making sense or when he has opinions on a particular subject.
This is a vast improvement within [T.’s] academic career, where he previously presented
himself as quiet and unorganized most of the time.”
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As to the second factor, the child’s special medical, mental health, or educational
needs, the district court noted that T. has an IEP but that, because appellant will not attend
meetings with teachers and staff if respondent attends them, “not everyone who needs to
support the child educationally receives the same message.”
As to the third factor, the child’s reasonable preference if he is of sufficient ability,
age, and maturity to express a preference, the district court said T. was not of sufficient age
to do so and observed that appellant’s frequent requests that the district court meet with T.
have been denied because “[t]he court does not believe it is appropriate to place a child of
[T.’s] age in this position and is always reluctant to do so” and that appellant has “used her
influence over the child to deter his cooperation in getting therapy for his diagnoses,” so
“the court would be gravely concerned about the influence placed on him by [appellant] if
he were to testify.”
As to the fourth factor, domestic abuse, the district court found it was not an issue
in this case.
As to the fifth factor, physical, mental, or chemical health issue of a parent, the
district court noted that appellant “called into question the chemical health of
[respondent’s] wife” and that respondent “testified credibly that he is not concerned about
[her] drinking,” that appellant implied respondent should have called his wife to testify but
did not subpoena respondent’s wife herself, and that, in any event, the district court was
“convinced that [respondent] will ensure that [T.] is not placed in an unsafe situation.”
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As to the sixth factor, the history and nature of each parent’s care for the child, the
district court noted that both parties have been very engaged but have often disagreed about
how best to care for him.
As to the seventh factor, each parent’s willingness and ability to provide ongoing
care, meet the child’s needs, maintain consistency, and follow through with parenting time,
the district court observed that, while respondent is a consistent and stable parent for T.,
appellant has placed her needs above T.’s on several occasions and “believes she knows
best on all things, even above professionals, and is unwilling to listen to [respondent] or
professionals if their opinion differs from hers.”
As to the eighth factor, the effect on the child of changes to home, school, and
community, the district court noted that T.’s self-confidence and school performance have
both improved since being in respondent’s custody, according to his teachers.
As to the ninth factor, the effect of a custody change on the child’s relationships
with others, the district court noted that T. will continue to have “the benefit of significant
time with each parent and household.”
As to the tenth factor, the effect on the child of maximizing or limiting time with
either parent, the district court found that T.’s best interests are served by limiting his time
with appellant to one week night and alternate weekends because of the district court’s
“serious concerns about [appellant’s] ability to parent [T.] in a manner that supports [his]
needs” in light of her views on therapy and her denigration of respondent and failure to
support T.’s relationship with him.
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As to the eleventh factor, the disposition of each parent to support the child’s
relationship with the other parent, the district court found that respondent will support T.’s
relationship with appellant but that appellant will support T.’s relationship with respondent
“only when it suits her” and disparages respondent and undermines the father/son
relationship.
As to the twelfth factor, each parent’s willingness and ability to cooperate in rearing
the child, sharing information, minimizing the child’s exposure to conflict, and utilizing
methods for resolving disputes about the child, the district court found:
The parties are unable to cooperate in the rearing of the child,
primarily because [appellant] will not work with or even listen
to [respondent.] Frankly, [appellant’s] disdain for [respondent]
is palpable. [Appellant] has shown that she will not agree with
necessary proposals if proposed by [respondent], whether it be
therapy for the child or the child attending a 3 day school
function. She has, in written communications to respondent,
called him an idiot and sworn at him. The parties cannot agree
on medical issues, counseling issues, activities or education al
needs of [T.]. [T]he court finds that [respondent] has
demonstrated that he makes sound decisions about the child’s
best interests and ensures the child is well cared for physically,
emotionally and scholastically.

Thus, of the twelve factors, the district court found the fourth is irrelevant, the fifth, sixth,
and ninth are neutral, and the other eight favor custody with respondent.
The record supports the district court’s findings. There was no abuse of discretion
in awarding custody to respondent.
2. Appointment of a GAL
A GAL was appointed while the parties’ divorce proceedings were pending. She
recommended custody of T., who was then about three, with appellant, who had been his
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primary caregiver during the pre-school years because respondent’s job at that time
required travel.
Appellant contends that the district court abused its discretion by not appointing a
GAL again in 2019 because respondent alleged that T. was subject to emotional abuse and
physical neglect and, in the alternative, that it was an abuse of discretion for the district
court not to make a permissive appointment of a GAL. The district court told the parties
that, if they wished to obtain and pay for a neutral third party to serve as a GAL, they were
welcome to do so, but that the district court did not have funds for such permissive
appointments: “[O]ur guardian [ad litem] program is not in a position . . . to do that kind
of evaluation.”2
Appellant had asked the court “to get a [ GAL] involved if the Court is considering
giving any weight to the statements [respondent] says [T.] made in [respondent’s]
affidavit.” Thus, the reason appellant wanted a GAL was not to protect or benefit T. but
to refute respondent’s statements. The district court did not abuse its discretion in
concluding that it had no obligation to appoint a GAL. See Baum v. Baum, 465 N.W.2d
598, 600 (Minn. App. 1991) (concluding that district court was not required to appoint a
GAL when the party seeking appointment presented insufficient evidence of domestic
abuse or neglect), rev. denied (Minn. Apr. 18, 1991); Minn. Stat. § 518.165, subd. 2 (2022)

2 Appellant makes the conflicting arguments that, because T. was not endangered, there
was no basis to modify custody, and that, because T. was endangered, the appointment of
a GAL was mandatory.
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(providing that a GAL must be appointed if the district court has reason to believe that the
minor child is a victim of domestic child abuse or neglect).
3. Interview and Preference of T.
Appellant argues that the district court abused its discretion by declining her request
to interview T. in chambers and by failing to give sufficient weight to what she claimed
was T.’s custody preference. A district court has discretion to decide whether to interview
a child about a custody preference. Knott v. Knott, 418 N.W.2d 505, 509 (Minn. App.
1988). A district court also has discretion to decide on which custody arrangement is in
the child’s best interests. Pikula, 374 N.W.2d at 710.
The district court explained in its findings its concern that, if T. were to testify as to
his custody preference, appellant would attempt to influence his testimony. Respondent
said he thought T. would say he wanted equal-time custody, but that T.’s preference should
not be dispositive, and that respondent could not parent him adequately if he spent half his
time with appellant. Moreover, T.’s therapist indicated that T. was uncomfortable about
expressing a preference, and the district court agreed that being asked to express a
preference would be very stressful for a child of T.’s age. The district court did not abuse
its discretion in declining to interview T. or make his preference dispositive.
4. Respondent’s 2011 Psychological Evaluation and the Psychologist Involved
A district court’s decisions on matters arising during the course of trial are given
considerable deference. Alpha Real Estate v. Delta Dental Plan, 664 N.W.2d 303, 310
(Minn. 2003).
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During the trial, the parties’ attorneys conducted lengthy debates on the
admissibility of respondent’s pre-divorce 2011 psychological evaluation. After listening
to them, the district court declined to admit the evaluation as evidence or to let the
psychologist who did the evaluation testify in order to provide foundation for it. The
district court pointed out that the burden of proof in a custody-modification proceeding was
to show a significant change of circumstances since the last order and a pre-divorce
evaluation could not be relevant to that change. Appellant argues that she was prejudiced
by this decision because she could have shown that respondent “failed to participate in
therapy” and “lacked insight into how his behaviors contributed to the parties’ acrimonious
co-parenting relationship.” However, at trial appellant made the district court aware that
respondent had not followed the recommendation of the 2011 evaluation. Again, appellant
focuses on the alleged defects of respondent and does not explain the relevance of a pre-
divorce psychological evaluation to the modification of T.’s custody more than ten years
later. The district court did not abuse its discretion in declining to admit the evaluation or
to permit the psychologist who did the evaluation ten years earlier to testify.
Affirmed.