This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Matter of:
Louisa Johnsen, petitioner,
Rick Lee Johnsen,
Filed October 30, 2001
Ramsey County District Court
File No. F100300131
Robin Dietz-Mayfield, Baker Court, Suite 305, 821 Raymond Avenue, St. Paul, MN 55114 (for appellant)
Raymond M. Lazar, Judy S. Engel, Fredrikson & Byron, P.A., 1100 International Center, 900 Second Avenue South, Minneapolis, MN 55402; and
Dennis B. Johnsen, Chestnut and Brooks, P.A., 204 North Star Bank Building, 4661 Highway 61, White Bear Lake, MN 55110 (for respondent)
Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.
Louisa Marie Johnsen appeals from the district court’s denial of her petition and amended petition for an Order for Protection (OFP), for herself and her two children, against respondent Rick Lee Johnsen. Her petitions include allegations that respondent threatened her and the children and that respondent sexually abused the children. The district court determined that the record failed to support these allegations and denied appellant’s requests for relief.
Appellant argues the district court’s findings are unsupported by the evidence because the court failed to thoroughly review the deposition of the older child’s therapist, accepted untimely affidavits from respondent, and failed to consider her post-order affidavit. Appellant also claims that the court erred by failing to appoint a guardian ad litem (GAL), to conduct an evidentiary hearing, and issue a timely order.
Because the record amply supports the district court’s findings and decision, and because the court did not otherwise commit any error of law that might entitle appellant to relief at this point, we affirm.
On appeal from the grant or denial of an OFP, this court must affirm unless the district court abused its discretion. See Mechtel v. Mechtel, 528 N.W.2d 916, 920 (Minn. App. 1995) (citing language in Domestic Abuse Act that court “may” provide relief when certain statutory requirements are met); see also Witchell v. Witchell, 606 N.W.2d 730, 731-32 (Minn. App. 2000) (district court exercises discretion in issuing protective order).
Appellant challenges the district court’s findings because the court stated that it was not “possible” to “complete[ly] review” the deposition of the older child’s therapist. She insists that had the court “thoroughly review[ed that] deposition, it would have come to a different conclusion regarding whether or not abuse occurred.”
A more accurate reading of the district court’s findings, however, leads us to conclude that the court read and reviewed the entire transcript, but chose to not summarize or review all of the therapist’s testimony in its findings. The court has discretion to determine the weight and credibility to be given to any witness or particular piece of evidence, and its findings reflect what it considered to be the relevant portions of the deposition testimony. See Minn. R. Civ. P. 52.01.
In addition, even appellant acknowledges that the district court’s findings regarding the therapist’s ultimate conclusion are accurate: the therapist now believes that respondent did abuse the child. Nevertheless, the court was entitled to reject the therapist’s opinion and base its decision on other evidence presented by the parties, including that of other professionals who were unable to substantiate appellant’s allegations and who were unable to conclude that respondent had abused either child. Where there is sufficient contradictory evidence to support the court’s findings, those findings must be affirmed. Crosby v. Crosby, 587 N.W.2d 292, 296 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999); see Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000). Thus, the district court’s findings are not clearly erroneous and are adequately supported by the evidence in the record.
Appellant argues that the district court committed reversible error by failing to appoint a guardian ad litem in February 2000, when she first filed her petition for an OFP. This district court signed an order appointing a GAL at that time, but for some reason not explained in the record or by the parties, that order was not filed or acted upon until after appellant’s petition for an OFP was denied.
The absence of a GAL during the proceedings is not grounds for reversal at this point. Appellant does not appear to have objected to the failure to implement the district court’s order. Moreover, while appellant insists that a GAL investigation was critical and would have provided the court with valuable information, a number of other professionals investigated appellant’s allegations and were unable to substantiate those allegations. Thus, appellant has not shown any prejudice as a result of any alleged error. See Minn. R. Civ. P. 61 (court will “disregard any error or defect in the proceeding which does not affect the substantial rights of the parties”).
Appellant argues that the district court erred by not conducting an evidentiary hearing and issuing an order in a timely manner. If an ex parte order has been issued, a hearing must be held within seven days if requested by the petitioner and within ten days if requested by the respondent. Minn. Stat. § 518B.01, subd. 7 (2000). These time frames are not limitations on the district court’s subject matter jurisdiction, but operate to give domestic abuse cases docket priority and to limit the force and effect of ex parte orders for protection. Burkstrand v. Burkstrand, 632 N.W.2d 206, 210-11 (Minn. 2001). “[I]f a hearing is not held within the statutory time period,” the ex parte OFP expires, but the court continues to retain jurisdiction over the original petition for an OFP. Id. at 212.
Here, appellant did not specifically object to the court’s failure to hold a hearing in a more expedited manner. Rather, she appears to have acquiesced in the terms of the ex parte OFP, which restricted respondent’s visitation with the children by requiring that a nanny hired by the parties be present during his visitation periods. To this extent, she has waived the right to now challenge the timeliness of the court’s actions.
Further, it is unclear exactly what relief appellant would now have us grant her. Rather than being prejudiced by the court’s failure to timely hold a hearing and issue an order, appellant has benefited from the delay because the parties continued to act under the assumption that the ex parte OFP was still in place, while in fact it had expired. In addition, the district court eventually found, after extensive hearings and presentation of evidence, that appellant failed to establish that respondent had committed domestic abuse. Because that finding is supported by the evidence presented by both parties and by the court’s findings, any error is harmless. See Minn. R. Civ. P. 61; Miller v. Hughes, 259 Minn. 53, 62, 105 N.W.2d 693, 699 (1960) (appellate court will not reverse for error that did not change result or cause any substantial prejudice to complaining party).
Appellant argues that the district court erred in relying on affidavits submitted by respondent only five days before the final December 19, 2000 hearing. See Minn. R. Gen. Pract. 303.01(b) (court may, in its discretion, disregard any responsive pleadings filed less than five days prior to hearing). Those affidavits were submitted by respondent, however, not only in support of his December 19, 2000 motion to change custody, but also in response to appellant’s November 24, 2000 ex parte motion to suspend visitation.
To the extent that these affidavits addressed respondent’s motion to change custody, appellant has not been prejudiced because the court denied that motion and appellant therefore prevailed. To the extent that these affidavits addressed appellant’s ex parte motion to suspend visitation, the affidavits were a proper and timely response to that motion. See Minn. R. Gen. Pract. 303.03(a)(3) (party responding to motion raising new issues shall file any relevant affidavits at least five days prior to hearing). Finally, while the district court stated that the affidavits provided an “interesting and informative counter-point to many of [appellant’s] allegations,” the court’s reliance on other evidence independently supports its ultimate decision to deny appellant’s request for an OFP.
By order issued May 17, 2001, this court deferred decision on respondent’s motion to strike a February 19, 2001 affidavit by appellant. Respondent argues that this affidavit is not properly part of the record on appeal because it was submitted after the record was closed and was not considered by the district court in reaching its December 28, 2000 order and the January 3, 2001 judgment from which this appeal was taken.
Thus, because this affidavit was not considered by the district court in reaching the decision on appeal and because appellant did not even attempt to file the affidavit in district court until after that record was closed, it is not properly part of the record on appeal. See Minn. R. Civ. P. 110.01 (record on appeal consists of all papers, transcripts, and exhibits filed in trial court), 110.05 (appellate court may direct that misstatement in record be corrected); see also W. World Ins. Co. v. Anothen, Inc., 391 N.W.2d 70, 72-73 (Minn. App. 1986) (deposition taken after judgment entered improperly included in record by trial court).
The district court’s decision is affirmed; the motion to strike appellant’s February 19, 2001 affidavit from the record is granted.
Affirmed; motion granted.