This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







In Re the Marriage of:

Arnold Eugene Wittstruck, petitioner,





Susan Kay Flanders Wittstruck,




Filed May 22, 2001

Affirmed in part and remanded in part

Poritsky, Judge*


Mille Lacs County District Court

File No. FX981143



Richard W. Curott, Curott & Associates, 116 Second Avenue SW, P.O. Box 206, Milaca, MN 56353 (for respondent)


Kenneth U. Udoibok, Smith & Udoibok, P.A., 310 Fourth Avenue South, Suite 400, Minneapolis, MN 55415 (for appellant),


            Considered and decided by Toussaint, Chief Judge, Anderson, Judge, and Poritsky, Judge.

U N P U B L I S H E D   O P I N I O N


            In an appeal from a judgment and decree of dissolution, appellant Susan Kay Flanders Wittstruck argues that the trial court erred when (1) it allowed respondent Arnold Eugene Wittstruck to proceed by default, and (2) it made the following rulings in the default judgment:  (a) awarded custody of the parties’ children to husband, and (b) divided marital property.  Wife did not file a motion to reopen the default judgment.  On the limited record before us, we affirm the grant of the default judgment and the division of marital property, but we remand the custody determination because the trial court’s findings do not address allegations that husband abused the children.


            The parties were married in 1981.  The parties are the parents of two teenage daughters and an 11-year-old son.  During the marriage, the parties operated Sue’s Auto Sales, which was a small used-car lot, and Sue’s Towing, which was a general towing business.

            In November 1998, the parties separated and husband commenced a dissolution action.  In his motion for temporary relief, husband sought custody of the parties’ son, possession of the homestead, and control of the parties’ businesses.  In his supporting affidavit, husband stated that wife suffered from significant emotional problems and had been subjected to both voluntary and involuntary civil commitment proceedings.

            Wife, who was then represented by counsel, filed a responsive motion requesting temporary custody of all three children and control of the businesses.  In her supporting affidavit, wife stated that the involuntary commitment proceeding had been dismissed and that wife’s attention deficit disorder was controlled by medication.  Wife alleged that she was the children’s primary parent and that husband had physically and emotionally abused the children.  Wife also alleged that husband had physically abused her on many occasions.

            Wife also provided an affidavit from her psychiatrist, Dr. Thomas N. Carter.  The affidavit, which is dated December 15, 1998, states that wife was previously given a diagnosis of bipolar affective disorder, combined type, and learning disabilities, mixed.  The affidavit states that wife also has posttraumatic stress disorder, attention deficit/hyperactivity disorder, combined type, and mental retardation, borderline, secondary to the learning disabilities.  The affidavit states that wife is taking her prescribed medication and is fully capable of performing the duties of a sole physical custodian of the children.

            In the affidavit, Dr. Carter also states that he recently met with all three children.  The affidavit states that the two teenage girls characterized husband as violent and verbally abusive, and described an incident where they observed husband strike their younger brother.  Dr. Carter states in the affidavit that the parties’ son indicated a strong fear of husband.  Husband filed an affidavit, dated December 22, 1998, in which he denies that he ever has been physically abusive to either wife or the children.

            At a December 23, 1998, temporary relief hearing, the trial court awarded temporary physical custody of the children to wife and temporary joint legal custody to both parties, pursuant to their stipulation.  The trial court awarded temporary possession of Sue’s Auto Sales to wife and temporary possession of Sue’s Towing to husband.  Later, husband began operating a towing business known as Butch’s Towing.

            On February 8, 1999, husband moved for an award of temporary custody of the children and for control of Sue’s Auto Sales.  Husband stated that wife had been hospitalized for mental health issues.  At the December 30, 1999, default hearing, husband testified that Hennepin County Child Protection removed the children from wife’s care because wife physically attacked the oldest child.

            Wife’s counsel withdrew before the February 18 hearing on husband’s motion.  Wife did not appear at the hearing.  On February 18, the trial court issued an order granting husband temporary custody of the children and reserving visitation.  The order directs husband to file in the dissolution file copies of all future orders in the Hennepin County child protection case. However, the dissolution file does not contain copies of the Hennepin County child protection petition or any orders from that proceeding.  The February 18 order also granted husband control over Sue’s Auto Sales.

            Wife appeared pro se at a March 26, 1999, hearing on husband’s motion for an order restraining wife from drawing on a line of credit.  At the hearing, wife indicated that she intended to contest the issue of custody.  Wife also requested visitation, indicating that she was agreeable to temporary supervised visitation.  The court directed wife to submit a written proposal regarding the location of visitation and the supervisor.  By order on April 20, 1999, the trial court ordered a custody study and directed wife to provide suggested options for supervised visitation.  The order also directed the parties to provide all business records to their accountant.

            On May 26, 1999, a hearing was held on wife’s motions for supervised visitation and for reimbursement of funds obtained from the parties’ businesses.  Wife did not appear at the hearing.  By order on June 2, 1999, the trial court denied wife’s motions.

            On July 23, 1999, a scheduling conference was held.  Wife did not appear.  Husband’s counsel advised the court that wife had not cooperated with the custody study.  Husband’s counsel stated that he intended to file a notice of default hearing.  The trial court indicated that due to the seriousness of the abuse allegations against husband, the court would need reports from third parties regarding the children’s circumstances.  Husband’s counsel stated that he would provide an affidavit from the social workers who conducted an investigation attesting that husband’s custodial home is appropriate.

            On October 14, husband filed a motion for an order allowing him to proceed by default.  In support of the motion, husband submitted an affidavit stating that the Mille Lacs County Department of Family Services had advised husband that wife had not contacted them regarding the custody study.  Husband also stated that wife had failed to submit business records to the parties’ accountant or to answer discovery requests.  Husband’s counsel filed an affidavit indicating that wife had not responded to a July 1, 1999, request for production of documents.  Husband’s motion is not accompanied by a report from county social workers or any other third party regarding any investigation of husband’s custodial home.  By order on October 29, 1999, the trial court granted husband’s motion to proceed by default.

            Only husband testified at the December 30, 1999, default hearing.  Husband stated that Hennepin County Child Protection had removed the children from wife’s care and that the children had been living with him since February 1999.  Husband stated that wife had not seen the children since February 1999, and that she did not attempt to contact them until October.  Husband testified that since October, wife occasionally telephoned the children, and that the children were upset by these calls.  Husband testified that he is mentally and physically healthy except for a condition of sleep apnea that does not affect his ability to care for the children.  Husband stated that county social workers had investigated four abuse charges made by wife over the past year, and had found that the charges were false.

            Husband testified that his sole sources of income are the proceeds from Butch’s Towing, which had a gross income of $48,000 in 1999, and an annual $2,400 lease payment.  Husband gave specific testimony regarding the valuation of the parties’ homestead, business property, and cabin, and the parties’ debts.

            In the resulting judgment and decree, the trial court awarded husband sole physical and legal custody of the children and reserved wife’s visitation and potential child support obligation.  Husband was awarded the homestead, the business property, and the cabin, and was directed to pay the majority of the marital debts.  The parties were awarded the personal property and vehicles in their possession.  Husband was directed to pay wife a $9,634 equalization payment.  This appeal followed.


            1.         Default Judgment

            The trial court has discretion to render a default judgment against a party who fails to comply or respond to discovery orders or requests.  Minn. R. Civ. P. 37.02(b)(3); State by Humphrey v. Ri-Mel, Inc., 417 N.W.2d 102, 108 (Minn. App. 1987), review denied (Minn. Feb. 17, 1988).  If a party fails to appear at a prehearing conference, the court may dispose of the proceedings without further notice to that party and may impose sanctions, including hearing the matter as a default.  Minn. R. Gen. Pract. 305.02(b), (c).  We conclude  that because wife failed (1) to participate in the custody study, (2) to comply with discovery, and (3) to appear at the hearings on May 26, July 23, October 29, and December 30, 1999, the trial court did not abuse its discretion in granting a default judgment.

            Wife argues that she was unable to appear at the July 23, 1999, hearing and did not receive notice of the October 29, 1999, hearing.

            A party in default may not assert facts on appeal that were not asserted below, or raise procedural irregularities on appeal that were not raised below, provided that adequate and expeditious relief is available by motion in the trial court.  Thorp Loan & Thrift Co. v. Morse, 451 N.W.2d 361, 363 (Minn. App. 1990), review denied (Minn. Apr. 13, 1990).  The appropriate method to seek review of a default judgment in a marriage dissolution proceeding is to move the trial court for relief under Minn. Stat. § 518.145, subd. 2.  Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 493 (Minn. App. 1995).

            Wife did not file a motion to reopen the default judgment under Minn. Stat. § 518.145, subd. 2.  In support of her claim that she was not notified of hearings or was unable to appear, wife relies on documents that are not part of the trial court record.  The record on appeal consists of papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any.  Minn. R. Civ. App. P. 110.01.

            The appellate court may not base its decision on matters outside the record on appeal and may not consider matters not produced and received in evidence below.  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).  We have not considered wife’s extra-record submissions.

            2.         Child Custody

            A trial court has broad discretion in deciding custody issues.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  An appellate court will not reverse a custody determination unless the trial 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).  On appeal from a default dissolution judgment where no motion to vacate was made, this court’s review is limited to whether the evidence on record supports the findings of fact and whether the findings support the conclusions of law set forth by the trial court.  Nazar v. Nazar, 505 N.W.2d 628, 633 (Minn. App. 1993), review denied (Minn. Oct. 28, 1993).

            When determining custody, the trial court must consider the best interests of the child, which requires consideration of all relevant statutory factors.  Minn. Stat. § 518.17, subd. 1(a) (2000).  While the trial court must consider all the factors that pertain to the best interests of the children, the court need not make a specific finding on each and every one.  Nazar, 505 N.W.2d at 633.

            The trial court found that husband:  (a) has been the children’s primary caretaker since February 1999; (b) has a close relationship with the children and is capable of providing them with love, affection, and guidance; (c) is mentally healthy; and (d) suffers from sleep apnea, which does not affect husband’s ability to act as the children’s custodian.  The court found that the children are adjusted reasonably well to their home, school, and community, and that it is desirable to maintain continuity by having the children live in the marital home under husband’s care.  The court found that wife:  (a) has been diagnosed as mentally ill; (b) physically assaulted the parties’ older daughter in January 1999; and (c) did not visit the children or seek visitation during the last six months of 1999.  The court found that the children have been adversely affected emotionally by wife’s telephone calls.  The court concluded that although the children have close bonds with wife, wife has been leading such a chaotic lifestyle that the children would be endangered in her care.

            Wife argues that the trial court failed to make required findings on the children’s custodial preferences and husband’s alleged physical and emotional abuse of wife and the children during the marriage.  The trial court’s failure to make a finding on the children’s preferences does not require reversal, because the record does not contain evidence on which the trial court could find that the children preferred to live with wife after the events that resulted in their removal from wife’s care in January 1999.

            A limited remand is required, however, because there is no report from social services regarding the children’s current circumstances in husband’s home and there are no findings addressing the abuse allegations against husband.  The trial court must examine any allegations of child abuse before determining custody.  Id.  Here, Dr. Carter’s affidavit recounts the children’s reports of abuse and fear of husband.  At the July 23, 1999, hearing, the district court directed that a report from social services be filed regarding the conditions under which the children are living in husband’s home.  The court said it did not want to proceed on this issue solely by default, “simply because the allegations here are too serious not to have some reports in the file from some third parties about it.”  Husband’s counsel promised such a report, but one was never furnished.  The record does not reflect that the trial court ever expressly withdrew the direction for a social services report.

            We conclude that on the state of the record, specific findings must be made in response to the allegations that husband has been abusive toward the children.  On remand, the trial court has discretion to take such additional evidence and conduct suchfurther proceedings as it deems appropriate.

            3.         Property Division

            A trial court has broad discretion in dividing marital property, and the court’s decision will be overturned only for a clear abuse of discretion.  Servin v. Servin, 345 N.W.2d 754, 758 (Minn. 1984).  Courts must make a just and equitable division of marital property.  Minn. Stat. § 518.58, subd. 1 (2000).  Again, because this appeal is taken from a default judgment where no motion to reopen was made, this court’s review is limited to whether the evidence on record supports the findings of fact and whether the findings support the conclusions of law set forth by the trial court. See Nazar, 505 N.W.2d at 633.

            Wife argues that the trial court abused its discretion by awarding husband the majority of the marital assets.  The judgment incorporates husband’s exhibits B through G regarding the property.  Exhibit G is a summary of the parties’ assets and debts.  Wife has not challenged any of the information in exhibit G.

            Exhibit G shows that husband is awarded assets with a total value of $114,715, and wife is awarded assets totaling $45,750.  But husband is also assigned most of the marital debt ($54,057 in debt assigned to husband as opposed to $4,000 in debt assigned to wife).  When the debt is subtracted from the parties’ assets, husband receives equity in the amount of $61,018 and wife receives equity in the amount of $41,750.  The trial court also awarded wife $9,634 as a property equalization payment.  Because husband’s property award is balanced by the assignment of most of the marital debt and by the property equalization payment, the trial court did not abuse its discretion.

            Affirmed in part and remanded in part.


* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.