This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).


In Re the Marriage of:
Christopher M. Theodore, petitioner,


Destani J. Baber,

Filed January 11, 2000
Harten, Judge

Washington County District Court
File No. F5-96-3454

James Perunovich, Law Office of James Perunovich, 402 East Howard Street, Suite 7, Hibbing, MN 55746 (for appellant)

Jeffry G. Olson, 106 South Main, P.O. Box 18, Stillwater, MN 55082 (for respondent)

Considered and decided by Harten, Presiding Judge, Kalitowski, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant, the custodial parent, challenges the district courtís denial of her motion for a change of venue and its refusal to schedule an evidentiary hearing and to permit her to file a supplementary affidavit. Because we see neither abuse of discretion nor error of law, we affirm.


Appellant Destani Barber and respondent Christopher Theodore have a son, M.C.T, now five. The partiesí marriage was dissolved in December 1997 in Washington County district court. Appellant was awarded sole legal and physical custody of M.C.T. She moved with him to St. Louis County. The district court ordered that respondentís visitation with M.C.T. be supervised until respondent complied with a court order to enroll in domestic abuse and parenting programs.

By April 1999, respondent had not seen M.C.T. for 18 months. He moved pro se for custody modification. Appellant brought a cross-motion for a change of venue to St. Louis County. The district court (1) denied her motion and respondentís motion for modification of custody, (2) sua sponte determined that respondent was actually seeking to modify visitation rather than custody, (3) appointed a Washington County guardian ad litem, (4) ordered a partial visitation evaluation to be done by St. Louis County because respondentís supervised visitation took place there, and (5) established unsupervised visitation after respondent completed Phase I of an anger management program. After both the guardian ad litem and the custody evaluator recommended that respondentís visitation be supervised, the district court amended its order to provide for supervised visitation only.

Appellant challenges the original version of the order, arguing that the district court abused its discretion by denying her motion for a change in venue, erred in failing to hold an evidentiary hearing, and abused its discretion in not permitting her to submit a supplementary affidavit.


1. Change of Venue

A district courtís ruling on change of venue is discretionary and will be upheld absent an abuse of that discretion. Buckheim v. Buckheim, 231 Minn. 333, 337, 43 N.W.2d 113, 115 (1950). Appellant moved for change of venue to St. Louis County.[1]

At the hearing, the district court announced her intention to talk to the St. Louis County judge who handled a domestic abuse case involving the parties. She did so and later found:

After talking with [the St. Louis County judge] and reviewing all the relevant case law, this Court is not convinced that it would be in the childís best interest to transfer venue of this case to St. Louis County. Therefore, this Court shall retain jurisdiction of the custody and visitation issues so long as necessary, but shall gratefully accept assistance from St. Louis County through [the judge assigned to the case]. For the sake of judicial economy and efficiency, [that judge] has suggested that St. Louis County Social Services become involved to investigate and provide information regarding the childís status with the current visitation and any recommendations stemming from the investigation. This work would dovetail and coordinate with the assignment to the guardian ad litem in this case.

This finding demonstrates the district courtís significant involvement and provides ample support for the denial of the motion to change venue. There was no abuse of discretion.

2. Evidentiary Hearing

A reviewing court is not bound by and need not give deference to a trial courtís decision on a purely legal issue. Frost Benco Elec. Assín v. Minnesota Pub. Utils. Commín, 358 N.W.2d 639, 642 (Minn. 1984). Appellant argues that by not scheduling an evidentiary hearing, the district court violated Minn. Stat. ß 518.175, subd. 5, (1998). That statute provides:

If the custodial parent makes specific allegations that visitation places the custodial parent or child in danger of harm, the court shall hold a hearing at the earliest possible time to determine the need to modify the order granting visitation rights.

But appellant agrees with the district courtís amended order that respondent have supervised visitation; a hearing could provide her with no further relief. The district court did not err in denying appellant a hearing.

3. Supplementary Affidavit

Absent erroneous interpretation of the law, the question of whether to admit or exclude evidence is within the district courtís discretion. Kroning v. State Farm Auto Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).

Appellant contends that because the district court held that respondentís motion to modify custody was actually a motion to modify visitation, she should have been permitted to submit an affidavit opposing unsupervised visitation. But the district court subsequently restricted respondent to supervised visitation. Thus, even if the refusal to permit the affidavit was improper, no harm ensued. Absent a showing of prejudicial error, a party is not entitled to relief for improper evidentiary rulings. See Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990) ("Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining partyís ability to demonstrate prejudicial error."). There was no abuse of discretion.


[1] The parties disagree on the applicable statute. Appellant cites Minn. Stat. ß 542.11 (1998), providing for a change of venue in a civil action for "the convenience of witnesses;" respondent cites Minn. Stat. ß 518.09 (1998), providing for a change of venue in a dissolution proceedings "when the convenience of the parties * * * would be promoted by the change." We find no real distinction between the convenience of the witnesses and that of the parties; the choice of statute would not alter the result.