This opinion will be unpublished and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:

Michael Ray Sjodin, petitioner,


Candice Lee Sjodin,


Filed August 21, 2001

Reversed and remanded

Crippen, Judge


Benton County District Court

File No. F7981199



Thomas W. Tuft, Valerie A. Downing Arnold, Thomas Tuft Law Offices, 1417 Arcade Street, St. Paul, MN 55106 (for appellant)


David W. Buchin, Buchin Law Office, 16 North Ninth Avenue, St. Cloud, MN 56303 (for respondent)


            Considered and decided by Klaphake, Presiding Judge, Crippen, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N




            Appellant Michael Sjodin challenges the trial court’s denial of his motion to reopen the record and allow additional testimony in light of new evidence that includes a recommendation for a change in custody.  Because the newly discovered evidence is material and non-cumulative, we reverse and remand.


Appellant Michael Sjodin and respondent Candice Sjodin were divorced in 1996.  Custody of their two-year-old daughter, C.L.S., was placed with respondent.  In September 2000, following an evidentiary hearing, the trial court denied appellant’s 1998 motion to change the custody placement.  Appellant has abandoned any claims of error in the order denying a custody change.  Instead, he contends that the trial court erred in later refusing to reopen the record to hear new evidence confirming that respondent prompted false accusations that appellant sexually abused the child.

In his 1998 motion to modify custody, appellant claimed that C.L.S. was emotionally abused by respondent’s continuous assertion of false claims of sexual abuse.  The trial court denied appellant’s motion based on findings that summarized the views of three expert witnesses.  Each expert expressed concern that C.L.S. suffered emotional abuse as a result of both parents’ actions and that there was no evidence to confirm the accusations that appellant had abused her.  But none of the experts had sufficient evidence to conclude that respondent’s abuse reports were false or that a change of custody in favor of appellant should occur.  One of these experts was Dr. Pi-Nian Chang, a licensed psychologist with extensive experience in child-abuse evaluations, whom appellant had hired to interpret the existing evaluations.

In the trial court’s order denying appellant’s motion to modify custody, the court gave particular attention to the written interim report of Dr. Sandra Hewitt’s court-ordered investigation into the veracity of the sexual-abuse accusations.  Although Dr. Hewitt did not testify at the evidentiary hearing, the court corrected Dr. Hewitt’s written observations that she had no evidence that respondent had directed the child to make statements; specifically, the court pointed to Dr. Hewitt’s observations that respondent at times exaggerates and over-dramatizes things.  The court agreed with Dr. Hewitt’s recommendations for therapy and continued assessment of evidence of abuse.  Dr. Hewitt proposed that these efforts continue for up to one year, with possible quarterly reviews of the case.  Her report detailed the emotional turmoil of the child, the child’s tendency to identify with the views of her mother, her fear of her father’s anger, and her deeper problems of coping with extreme parental conflict.

Three weeks after the trial court denied custody modification, appellant moved to reopen the record, reporting that (a) Dr. Hewitt had completed testing and concluded that the child had not suffered sexual abuse and that respondent would likely continue falsely accusing appellant of abuse; (b) Dr. Pi-Nian Chang “wholeheartedly” agreed that, based on Dr. Hewitt’s new findings and the fact that this information was “the very reason” for the referral to Hewitt, appellant should be the sole legal and physical custodian of C.L.S.; and (c) the child’s guardian ad litem, relying on Dr. Hewitt’s current test results, also recommended placement of sole custody with appellant.

            The trial court denied appellant’s request to reopen the record, concluding that the new information was not “material new evidence” but was “cumulative,” merely supporting earlier findings that respondent overreacts to situations involving the child, especially those that may have any hint of a sexual connection; and that the information was not the “clear showing of material new evidence that could effect a change in the Court’s position.”  The court explained that (a) Dr. Hewitt’s latest analysis of information, which may be “the best measure available to objectively” determine if abuse has occurred, was not conclusive; and (b) Dr. Hewitt had not yet indicated that custody could be changed without being unduly disruptive to the child.  The court expressed its desire that all litigation cease to permit the occurrence of remedial steps that Dr. Hewitt had recommended earlier. 


Appellant argues that the trial court erred in failing to reopen the record to take additional testimony for newly discovered material evidence.  As in the instance of a motion for new trial, we defer to the trial court’s exercise of discretion on the motion to reopen the record for an evidentiary hearing on a motion. Schumm v. Schumm, 510 N.W.2d 13, 16 (Minn. App. 1993).  When asked to reopen for new evidence, the trial court must determine whether the proposed evidence is (1) material, (2) newly discovered, and (3) information “which with reasonable diligence could not have been found and produced at the trial.”   Minn. R. Civ. P. 59.01(d).  In general, we will not reverse the trial court’s determination regarding such a motion unless the trial court has abused its discretion.  Levee Drive Ass’n v. County of Scott, 532 N.W.2d 574, 578 (Minn. 1995).

“The traditional test to determine whether a new trial should be granted on the grounds of newly discovered evidence is whether the new evidence is so material that it would probably produce a different verdict if the new trial were granted.”  Kerkhoff v. Kerkhoff, 400 N.W.2d 752, 758 (Minn. App. 1987) (citation omitted), review denied (Minn. Mar. 25 & Apr. 23, 1987).  Evidence is generally considered to be material if it tends “to prove or disprove a fact that is of consequence to the litigation.”  Hendrickson v. Magney Constr. Co., 402 N.W.2d 194, 196 (Minn. 1987) (citations omitted).  Newly discovered evidence that is “merely cumulative, impeaching[,] or contradictory does not warrant a new trial.”  Schweich v. Ziegler, Inc., 463 N.W.2d 722, 731 (Minn. 1990) (citations omitted); cf. Cut Price Super Mkts. v. Kingpin Foods, Inc., 256 Minn. 339, 358-59, 98 N.W.2d 257, 270 (1959) (“[I]f the newly discovered evidence is cumulative of similar testimony received at the trial, it is within the discretion of the trial court to determine whether ends of justice require a new trial on strength of such newly discovered evidence.” (citation and footnote omitted)). 

Appellant contends that Dr. Hewitt’s test results, which confirm a pattern consistent with that of false allegations of sexual abuse and resulted in two witnesses changing their custody recommendations, constitute material information not available at the evidentiary hearing.  It is undisputed that the information pertaining to the test results was not and could not have been available during trial or at the evidentiary hearing.  But in its order denying appellant’s motion to reopen the record, the trial court found the information pertaining to Dr. Hewitt’s test results was not material; the court found that the test results, at best, were cumulative, stating that previous evidence indicated that respondent “overreacts to situations involving [C.L.S.] which may have any hint of a sexual connection.”  The trial court was evidently convinced that the information was cumulative and not important if it would not change the court’s decision regarding custody. 

Although the trial court as a fact-finder is in a good position to determine what might change the trial court’s analysis of the case, this is not determinative of the question of materiality.  We cannot ignore that the results of Dr. Hewitt’s testing and corresponding recommendations to change custody are material to the issue at hand.  The information arising out of Dr. Hewitt’s test results is two-fold: (1) it results in a change in the custody recommendations of an expert witness and the guardian ad litem; and (2) it substantiates the falsity of the sexual-abuse allegations.  This information is not merely cumulative but materially alters the record of meaningful evidence, both for purposes of further trial court consideration of the motion or for any subsequent appellate review of the trial court’s judgment.  Where the newly discovered evidence is not cumulative, “the permissible scope of the trial court’s discretion is somewhat less” and the probative weight of the evidence “may be more objectively assessed and less weight need be given to the trial court’s determination.”  Blake v. Denelsbeck, 284 Minn. 420, 425-26, 170 N.W.2d 337, 341 (1969).

We conclude that the trial court abused its discretion in keeping material evidence from the record.  As a result, we reverse and remand for a reopening of the record.

Appellant also complains that when the trial court refused to reopen the case, it (a) erroneously mentioned that Dr. Hewitt had testified at the motion hearing where her views had been furnished only in writing; (b) characterized Dr. Hewitt’s initial report, which was presented as an interim report, as a custody “evaluation”; and (c) made reference to a letter of Dr. Hewitt, which was not of record, regarding the risk of disruption for the child in the event of a custody change.  Appellant contends that Dr. Hewitt was not asked by the trial court to make a custody recommendation. Because we have already determined that the trial court erred in failing to reopen the hearing, we have no occasion to explore these further statements of cause for the same result.

Reversed and remanded.