This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Sara Jane Erickson,
Stephen Joseph Poreda,
Filed September 12, 2000
Affirmed; motions granted in part and denied
Hennepin County District Court
File No. 218392
John G. Westrick, Marcia McDowall-Nix, Tammy L. Merkins, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Building, 46 East Fourth St., St. Paul, MN 55101 (for appellant)
Gary A. Weissman, Weissman Law Office, 701 Fourth Avenue S., Suite 500, Minneapolis, MN 55415 (for respondent)
Michael Perlman, Perlman Law Office, 333 Parkdale Plaza, 1660 Highway 100 South, St. Louis Park, MN 55416 (for intervenor)
Deborah A. Randolph, Randolph Law Office, 701 Fourth Avenue S., Suite 500, Minneapolis, MN 55415 (guardian ad litem)
Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Peterson, Judge.
In this consolidated appeal, appellant Sara Erickson challenges the award to the parties of joint physical custody of their child. She also alleges that (1) she was entitled to a new trial because she was improperly denied access to notes that the child’s therapist used to prepare a custody study; (2) the district court should have modified custody and replaced the child’s guardian ad litem; and (3) she should not have to pay attorney fees to respondent Stephen Poreda and his mother, intervenor Arlene Lorady. Because the district court did not abuse its discretion in its rulings or misapply the law, we affirm its decision. We also grant part of Erickson’s motion to strike, deny other aspects of the parties’ motions, and decline to address the portions of the motions that do not impact our decision.
Erickson moves to strike all or parts of the brief of the guardian ad litem and of Poreda, claiming they contain documents outside the record and factual assertions without citations to the record. See Minn. R. Civ. App. P. 110.01 (record on appeal includes papers filed in district court); 128.02, subds. 1(c), 2 (factual assertions in briefs must be accompanied by citations to record). Although the guardian ad litem’s response to Erickson’s motion was untimely and miscaptioned, neither defect is fatal, and we consider her response. See Minn. R. Civ. App. P. 103.04 (appellate court may take action as justice requires).
Because Erickson’s reply brief states that she is not challenging the guardian ad litem’s fitness to represent the child, we do not address Erickson’s request that we strike the documents in Poreda’s appendix addressing whether that representation involves a conflict of interest. Because Erickson’s fitness to practice law is not at issue, we grant her motion to strike the statement in Poreda’s brief on that subject. We deny the remainder of Erickson’s motion because the guardian ad litem’s response thereto provides citations to the record supporting the assertions; the assertions are not relevant to the appeal; or the assertions are within the scope of appellate advocacy.
Custody is awarded based on a child’s best interests. Minn. Stat. § 518.17, subd. 3(a) (1998). Review of custody decisions is limited to whether the district court abused its discretion by making findings unsupported by the record or by incorrectly applying the law. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). Findings of fact are not set aside unless clearly erroneous. Minn. R. Civ. P. 52.01.
Erickson challenges the district court’s findings that (1) she interfered with access to the child; (2) Poreda will be able to care for the child; (3) the parents’ animosity causes the child anxiety; and (4) she will move out of her parent’s home when she finishes school.
On appeal, we view 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). Viewing the record in this fashion, the challenged findings are not clearly erroneous. See id. at 474-75 & n.1 (if record supports district court’s findings, appellate court need not discuss record in detail). To the extent Erickson simply cites evidence that could allow findings more favorable to her than those made by the district court, her challenge to the findings is insufficient. Id. We also note that Erickson is incorrect in her assertion that the court believed her solely responsible for the parents’ inability to cooperate and that the animosity between the parents allows the court’s inference that Erickson would continue to obstruct access to the child in the future.
Erickson alleges that the parties’ inability to cooperate precludes award of joint physical custody. See Minn. Stat. § 518.17, subd. 2(a) (1998) (requiring consideration of parties’ ability to cooperate when deciding whether to award joint physical custody); Heard v. Heard, 353 N.W.2d 157, 161-62 (Minn. App. 1984) (award of joint physical custody improper where parties could not cooperate). After nine pages of custody findings addressing the content of the record, the statutory best-interests and joint-custody factors, the evidence from experts, and case law’s disfavor for joint physical custody, the district court awarded the parents joint physical custody. The court feared that awarding Erickson sole physical custody would result in her eliminating Poreda from the child’s life and believed the “safety net” of professionals involved in this case would allow problems related to joint physical custody to be resolved. It is clear that the district court is as uncomfortable with this custodial arrangement as we are. It is also clear that, after balancing the unfortunate facts of this case, the district court concluded that the ordered custodial arrangement was the one that would do the child the least amount of harm. Absent a custodial alternative that is demonstrably better for this child, we cannot say that the district court abused its discretion.
Citing cases, the most recent being Maxfield v. Maxfield, 452 N.W.2d 219 (Minn. 1990), Erickson alleges that she, as primary caretaker, should have custody. But, after Maxfield, the custody statute was amended to state that “[t]he primary caretaker factor may not be used as a presumption in determining the best interest of the child.” See 1990 Minn. Laws ch. 574, § 13 (now codified at Minn. Stat. § 518.17, subd. 1(a)); Vangsness, 607 N.W.2d at 476-77 (discussing amendment). Also, we reject Erickson’s argument that under a proper balancing of the custody factors, she would receive custody. See Vangsness, 607 N.W.2d at 477 (appellate courts do not rebalance best-interests factors). We therefore affirm the district court’s award of joint physical custody.
Because a therapist’s notes were used in preparation of the county’s custody report, the district court erred in denying Erickson access to those notes. See Minn. Stat. § 518.167, subd. 3 (1998). Erickson alleges that the district court’s refusal to allow her access to those notes rendered the denial of her new trial motion an abuse of discretion. See Albertson v. Albertson, 243 Minn. 212, 217, 67 N.W.2d 463, 467 (1954) (new trial is discretionary with district court). But the district court found the custody report by Poreda’s expert, not the one by the county, credible. Also, Erickson was entitled to call the therapist even if she did not have the notes. See Minn. Stat. § 518.167, subd. 3. Erickson has not shown that she was prejudiced by the denial of access to the notes. See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (to prevail on appeal, party must show error and prejudice).
For similar reasons, we reject Erickson’s allegations that she was entitled to access to the notes under Minn. R. Civ. P. 35.03 and Minn. Stat. § 595.02, subd. 1(d) (1998), regarding waiver of medical privilege, as well as under Minn. Stat. § 144.335, subds. 1(a), 2(a) and Minn. Stat. § 518.17, subd. 3(b) (1998), regarding parental access to a child’s medical records. We also reject Erickson’s claim that lack of the notes deprived her of due process of law. See In re Welfare of D.T.N., 508 N.W.2d 790, 797 (Minn. App. 1993) (harmless error standard applies to alleged constitutional errors), review denied (Minn. Jan. 14, 1994).
Erickson alleges that, in light of Poreda’s post-judgment requests to alter his scheduled access to the child, she was entitled to a new trial for newly discovered evidence. Denial of a new trial sought for newly discovered evidence can be reversed if the denial involved violation of a “clear legal right or a manifest abuse of judicial discretion.” Hertz v. Hertz, 304 Minn. 144, 146, 229 N.W.2d 42, 44 (1975). Here, the district court acknowledged the basis for Erickson’s new-trial motion but still denied it. We will not alter that decision. See Sucher v. Sucher, 416 N.W.2d 182, 186 (Minn. App. 1987) (failure to order new trial not abuse of discretion if court concludes ruling would not change), review denied (Minn. Mar. 18, 1988).
The judgment states that the district court “shall consider sanctions including a re-evaluation of its joint custody order” if either parent did not abide by its terms. Alleging that Poreda violated the judgment and that custody must be modified, Erickson argues that the district court abused its discretion by denying her motion to modify custody. See Frauenshuh v. Giese, 599 N.W.2d 153, 156 (Minn. 1999) (custody modification decisions reviewed for abuse of discretion).
Because the same judge who issued the judgment denied Erickson’s custody modification motion stating she failed to show endangerment, we reject Erickson’s argument that she did not need to show endangerment to modify custody. See Mikoda v. Mikoda, 413 N.W.2d 238, 242 (Minn. App. 1987) (“great weight” given to judge’s interpretation of own order), review denied (Minn. Dec. 22, 1987). Also, a party moving to modify custody “shall” submit an affidavit supporting the motion. Minn. Stat. § 518.185 (1998). Erickson’s modification papers include an affidavit of an attorney but not an allegation of endangerment or an affidavit from Erickson. Absent a prima facie case for endangerment, a motion to modify custody may be denied without a hearing. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981). The district court did not abuse its discretion by denying Erickson’s motion to modify custody.
The decision to remove a guardian ad litem is discretionary with the district court. Weiler v. Lutz, 501 N.W.2d 667, 672 (Minn. App. 1993), aff'd sub nom., Valentine v. Lutz, 512 N.W.2d 868 (Minn. 1994). The district court ruled that the guardian ad litem “shall continue” and that the parties “shall pay” the guardian ad litem fees that had “already” accrued. Because the order does not address Erickson’s claim that she cannot pay the fees or identify who would pay future fees, the district court has yet to decide whether Erickson will be required to pay future fees. See Minn. Stat. § 518.165, subd. 3 (a) (Supp. 1999) (standard for apportioning fees of guardian ad litem).
While the district court’s order does not identify the basis for requiring Erickson to pay the fees that have accrued, the judge’s comments from the bench indicate that she did not believe that Erickson lacked the ability to pay the fees. We defer to that credibility determination. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988); see Minn. R. Civ. P. 52.01 (oral comments may be treated as findings of fact).
Finally, we decline to address Erickson’s remaining argument regarding her alleged poverty-line financial status. That argument was not made until her reply brief and is not properly before us. See McIntire v. State, 458 N.W.2d 714, 717 n.2 (Minn. App. 1990) (arguments not made in appellant’s brief may not be raised in reply brief), review denied (Minn. Sept. 28, 1990).
Erickson challenges the awards to Poreda and his mother of conduct-based attorney fees. The decision to award or deny conduct-based attorney fees is discretionary with the district court and it must make findings to support any award. Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1992). The district court found that Erickson “unnecessarily contributed to the length and expense of the proceeding” and the record indicates that the district court believed Erickson’s motion to modify custody was in bad faith. The findings are adequate to support the fee award. Cf. Gully v. Gully, 599 N.W.2d 814, 825-26 (Minn. 1999) (affirming award of need-based attorney fees where missing finding could be reasonably inferred from record).
Affirmed; motions granted in part and denied in part.
 A guardian ad litem “may” be a party to proceedings. Minn. R. Gen. Pract. 302.04(b). Because the order appointing this guardian ad litem allowed her to “appeal on behalf of the child,” she is a proper party to this appeal.