This opinion will be unpublished and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:

Stacy Lynn Smith, petitioner,


David Marvin Smith,


Filed December 18, 2001


Crippen, Judge


Lake County District Court

File No. F400166



Arne D. Anderson, 308 Board of Trade Building, 301 West First Street, Duluth, MN 55802 (for appellant)


Arthur M. Albertson, 101 West Second Street, Suite 100, Duluth, MN 55802 (for respondent)


            Considered and decided by Crippen, Presiding Judge, Willis, Judge, and Anderson, Judge.

U N P U B L I S H E D    O P I N I O N


            In this child custody dispute, appellant challenges the guardian ad litem’s scope of services, raises additional assertions of legal error, and questions several best-interests findings.  Because we conclude that the guardian acted well within her traditional and statutory duties and find no merit in appellant’s other claims, we affirm. 



            Appellant Stacy Smith and respondent David Smith married in November 1998, and their daughter A.S. was born in April 1999.  The family lived mostly in Minnesota and Missouri until January 2000, when appellant moved their daughter permanently to Minnesota and filed for divorce.  Because each parent sought sole custody, the court ordered a social services custody evaluation and appointed a guardian ad litem.  The court also ordered a psychological evaluation of appellant. 

In March 2001, the court held that it would be in A.S.’s best interests to be placed with respondent.  The court pointed out that appellant (1) interfered with respondent’s visitation with their daughter; (2) alienated their daughter’s affections for respondent; and (3) mismanaged her anger.  In April 2001, the court denied appellant’s motion for a new trial.  This appeal followed.




            Appellant claims that the guardian ad litem improperly considered custody issues.  In June 2000, while appellant had temporary custody of A.S., the trial court appointed a guardian ad litem to conduct “a preliminary investigation into the appropriate visitation arrangements for the child * * * .”  The guardian also explored the parties’ custody arrangement and issued her report six days before the December 2000 trial.  She recommended that custody be placed with respondent.  Appellant points to the appointment order confining the guardian’s work to visitation and to Minn. R. Gen. Pract. 904.04[1] and 908.02.[2]  Based on the order and these rules, appellant claims error by the guardian in giving attention to custody-placement issues and ultimately in testifying and submitting a report regarding custody. 

We conclude that the guardian acted well within the traditional and statutory scope of her duties, as determined by law.  Minn. Stat. § 518.165 (2000) provides:

Subdivision 1.  * * * In all proceedings for child custody * * * where custody or parenting time with a minor child is in issue, the court may appoint a guardian ad litem * * * .  The guardian ad litem shall advise the court with respect to custody, support, and parenting time.


* * * *


Subd. 2a. * * *  A guardian ad litem shall carry out the following responsibilities: (1) conduct an independent investigation to determine the facts relevant to the situation of the child and the family * * * (5) present written reports on the child’s best interests that include conclusions and recommendations and the facts upon which they are based.


We also note that rule 904.04 is advisory in its nature and contains nothing suggesting an intention to limit the traditional and statutory role of a guardian ad litem in this type of case.  Nor does rule 908.02 preclude a guardian from unilaterally choosing to investigate all the circumstances of a case and reporting to the court.  Moreover, the statute permits—if not requires—a guardian to complete a best-interests investigation and report, and the trial court has broad discretion to admit relevant evidence.  And as the trial court pointed out, county social services furnished an official evaluation.

            Finally, although appellant has asserted procedural errors restricting the scope of the guardian’s role, appellant has shown no prejudice associated with the guardian’s investigation or report.  See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn 352, 356, 237 N.W.2d 76, 78 (1975) (stating that to prevail on appeal, a party must show error and resulting prejudice); Minn. R. Civ. P. 61 (requiring harmless error to be ignored).  Appellant claims surprise at the adverse custody recommendation.  But we observe that when the trial began, both parties proceeded without the official custody evaluation, and appellant had no reason at any time to anticipate that this evaluation would be favorable to her. 


            Appellant next asserts that other procedural errors denied her a fair trial and that the trial court should have granted her a new trial.  A new trial may be granted when there has been an irregularity in the proceedings of the court, referee, jury, or prevailing party, or any order or abuse of discretion, whereby the moving party was deprived of a fair trial.  Minn. R. Civ. P. 59.01(a).  At every stage of the proceeding, the court must disregard any error or defect in the proceeding that does not affect the substantial rights of the parties.  Minn. R. Civ. P. 61.  Because the trial court has discretion to grant a new trial, we will not disturb the decision absent a clear abuse of that discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990). 

            First, appellant argues that the trial court did not receive or consider two affidavits from respondent describing a confrontation between appellant and himself.  But the court reviewed the affidavits in deliberating on the motion for a new trial, and the record permits the court’s finding that there was no probative value in the affidavits because they did not reveal any psychological problems on respondent’s part.  The trial court did not abuse its discretion.

            Second, appellant argues that the trial court erred by not ordering respondent to submit to a psychological evaluation.  But an evidentiary ruling, supported by the record, lies within the trial court’s discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).  Moreover, the trial court concluded:

No evidence was offered indicating any emotional or psychological circumstances on father’s part or personality characteristics that ought limit or preclude him from serving as a custodial parent.


And in denying appellant’s motion for a new trial, the court explained finding no

psychological, mental or emotional disease or condition suffered by father, which would have adversely affected the Court’s determination that he is the more appropriate custodial parent.  Specifically, neither the Lake County Social Service Department’s custody evaluator nor the duly appointed Guardian ad litem recommended or urged the appropriateness of a psychological assessment of Father. 


Deferring as we must to the trial court’s weighing of the evidence, we have no basis to determine that a psychological evaluation of respondent would not have been probative.  See Alstores Realty, Inc. v. State, 286 Minn. 343, 353-54, 176 N.W.2d 112, 118 (1970) (stating that appellate courts defer to district court determinations of weight and credibility of expert evidence).

            Finally, appellant argues that the trial court wrongly denied her motion for a continuance at the start of trial, pending receipt of the county’s custody evaluation, and thus she had inadequate time to prepare her case.  The trial court has discretion whether to grant a continuance, and its ruling will not be reversed absent a showing of clear abuse of discretion.  Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977).  “The test is whether a denial prejudices the outcome of the trial.”  Weise v. Comm’r of Pub. Safety, 370 N.W.2d 676, 678 (Minn. App. 1985).  The county’s custody evaluation arrived four days after the trial began and recommended placing custody with appellant.  The trial court discounted the evaluation because the author never observed respondent with his daughter and excessively discounted the prospect of care of a young child by her father.  See Alstores Realty, 286 Minn. at 354, 176 N.W.2d at 118.  Because appellant has failed to explain how a continuance pending receipt of this evaluation would have helped her case, she has not shown that the trial court abused its discretion by denying a continuance.   See Midway Ctr., 306 Minn. 356, 237 N.W.2d at 78 (explaining that error without prejudice is not ground for reversal); Minn. R. Civ. P. 61 (requiring harmless error to be ignored).


            Finally, appellant disputes the trial court’s best-interests determination that A.S. should be placed with respondent.  Minn. Stat. § 518.17, subd. 1 (2000), provides:

(a) “The best interests of the child” means all relevant factors to be considered and evaluated by the court including: * * * (3) the child’s primary caretaker * * * (5) the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child’s best interests * * * (9) the mental and physical health of all individuals involved * * * (13) * * * the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.


* * * *


The court may not use one factor to the exclusion of all others.  The primary caretaker factor may not be used as a presumption in determining the best interests of the child.  The court must make detailed findings on each of the factors and explain how the factors led to its conclusions and to the determination of the best interests of the child. 


Appellate court review of a custody determination is limited to whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996); Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  A trial court’s findings will be sustained unless they are clearly erroneous.  Pikula, 374 N.W.2d at 710.  Currently, the law “leaves scant if any room for an appellate court to question the trial court’s balancing of best-interests considerations.”  Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000). 

            We find no support in the record for appellant’s contention that the trial court abused its discretion as to the best-interests findings or placement.  First, the court stated adequate cause for discounting the county custody evaluator’s report.  And a court does not abuse its discretion by defying a custody report so long as the court provides detailed best-interests findings.  Rutanen v. Olson, 475 N.W.2d 100, 103 (Minn. App. 1991).  Second, the court properly gave considerable weight to the guardian ad litem’s report, which mirrored the evidence at trial. 

Third, contrary to appellant’s contention, the guardian ad litem’s report and the record showed that both parents shared primary caretaking duties.  Fourth, witnesses explained that A.S. has many loving relatives on each parent’s side of the family.  Even if the evidence would permit a finding that appellant was the primary caretaker or that appellant’s family had stronger ties to A.S., “[i]f there is reasonable evidence to support the district court’s findings, we will not disturb them.”  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999) (citation omitted). 

Finally, the court found that appellant (1) had unreasonably refused to let respondent visit their daughter during an October 2000 visit; (2) had told their daughter that respondent did not love her or care about her anymore; (3) was less likely than respondent to permit visitation; and (4) had anger-management problems that would place A.S. in physical danger and that appellant did not believe her inappropriate response to anger was wrong. 

Appellant alleges that the trial court misunderstood her psychological evaluation.  But the court did not conclude that appellant’s handling of A.S. depended on appellant attending therapy, as she asserts.  Rather, the psychological evaluation recommended that appellant undergo therapy to change the way that she made decisions, and the trial court refused to speculate whether conditioning custody on therapy would be helpful.  The trial court finding that placement with respondent is in A.S.’s best interests is supported by this record. 


[1] "A guardian ad litem shall not be appointed or serve except upon written order of the court.  The order shall set forth the role of a guardian ad litem; the specific duties to be performed by the guardian ad litem in the case * * * ."

[2] “A guardian ad litem may not be ordered to conduct a custody or visitation evaluation * * *.”