This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






In Re the Custody of: E.N.M., a Minor,
Rebecca Jo Nash, petitioner,


James Lee Moravec,


Filed November 26, 2002


Hudson, Judge


Beltrami County District Court

File No. F800748


Ronald S. Cayko, Fuller, Wallner & Anderson, Ltd., 514 America Avenue, P.O. Box 880, Bemidji, MN 56619-0880 (for respondent)


James Lee Moravec, 2323 Roosevelt Road Southeast, Bemidji, MN 56601 (pro se appellant)


            Considered and decided by Hudson, Presiding Judge, Peterson, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge 

            In this custody dispute, father argues that the trial court was biased and abused its discretion in finding that the best interests of the minor child were served by awarding mother sole legal and physical custody.  We affirm.


            Appellant James Lee Moravec (Moravec) and respondent Rebecca Jo Nash (Nash) are the natural and legal parents of the minor child E.N.M., born September 12, 1997.  Moravec and Nash were never married, but lived together in Nash’s home from the time of E.N.M.’s birth until on or about March 6, 2000, when their relationship ended.  Also residing with Nash is her adult son (from a previous marriage), Matthew Hessel (Matt).  Matt suffers from attention deficit hyperactivity disorder (ADHD) and Tourette’s syndrome.  Shortly after their relationship ended, Nash petitioned for sole legal and physical custody of E.N.M.  Moravec responded by seeking sole legal and physical custody of E.N.M.  After a two-day trial, the trial court granted Nash’s petition, subject to Moravec’s right to visitation.  This appeal followed.



Moravec argues that the trial court’s order awarding sole legal and physical custody to Nash should be reversed because the presiding judge was biased.  But, Moravec filed neither a motion to remove before trial nor a subsequent motion for a new trial.

“On appeal from a judgment where there has been no motion for a new trial, the only questions for review are whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment.”  Erickson v. Erickson, 434 N.W.2d 284, 286 (Minn. App. 1989) (citation omitted).  A party may remove a judge for bias by making a motion to remove within ten days of receiving notice of which judge will preside at the hearing or upon a showing of affirmative prejudice.  Minn. R. Civ. P. 63.03.  “A litigant who, in the absence of fraud or other controlling circumstances, elects to go to trial without taking timely and appropriate action to disqualify a judge for bias waives his right to assert such bias.”  Baskerville v. Baskerville, 246 Minn. 496, 501, 75 N.W.2d 762, 766 (1956) (citation omitted).  In addition, this court generally will not consider matters not argued and considered in the court below.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Because Moravec did not file a motion for a new trial or a motion to remove the trial court judge, we will not review Moravec’s claim of judicial bias.  


            Moravec also argues that the evidence does not support the trial court’s grant of sole legal and physical custody of E.N.M. to Nash.  We disagree.

            Appellate court review of a custody determination is limited to whether the district 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). A district court’s findings will be sustained unless they are clearly erroneous.  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  Whether the district court applied the law correctly in a custody proceeding is a legal question reviewed de novo.  In re A.R.M., 611 N.W.2d 43, 47 (Minn. App. 2000).  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). 

Minn. Stat. § 518.17, subd. 1 (2000), lists factors to be considered by the court in determining the best interests of the child, including in relevant part:

(6)  the child’s adjustment to home, school, and community;


(7)  the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;


(8)  the permanence, as a family unit, of the existing or proposed custodial home.


Here, Moravec disputes the trial court’s findings with respect to these three factors, but the record demonstrates that:

1.         Nash’s home offers a permanent and stable home situation for E.N.M.  Nash has owned her home since 1996, and it is the only home in which E.N.M. has resided.  Nash has been employed as a social worker for Beltrami County Social Services for approximately the last six years.  Moravec is currently unemployed and has provided only minimum financial support.

2.         E.N.M. is in good health.  Extensive medical records show that consistent medical attention has been provided to E.N.M. and document no serious illnesses.

3.         Matt does not pose a threat to E.N.M.  In 1999, Matt was diagnosed with ADHD and Tourette’s syndrome.  While there was evidence that Matt may have been involved in a physical altercation with Nash when Matt was 13 or 14 years old, no evidence was presented that Matt engaged in any violent behavior toward E.N.M.  Moravec himself testified that he had never seen Matt do anything to harm E.N.M.  Furthermore, the guardian ad litem observed Matt and E.N.M. at their home on two separate occasions and found theirs to be a normal sibling relationship.

4.         A switch in daycare providers would be detrimental to E.N.M. because she has shown improvement in her behavior and development since leaving the daycare center run by Moravec’s mother.  The trial court questioned the guardian ad litem at length on this subject, and he testified a change in daycare providers would be disruptive to E.N.M.

In total, the trial court made 40 findings of fact, including a finding that Nash has been E.N.M.’s primary caretaker and Moravec has provided only minimal physical care and monetary support.  Indeed, the trial court’s thorough findings indicate that it thoughtfully considered all the applicable custody factors listed in Minn. Stat. § 518.17, subd. 1.  Moravec does not dispute the majority of these findings -- those he challenges are well supported by the evidence.  The trial court acted within its discretion by granting sole legal and physical custody of E.N.M. to Nash.