This opinion will be unpublished and

may not be cited except as provided by

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






In re: Domingo Abarca,
a/k/a Domingo Abarca Arguello, petitioner,


Briana Jo MacPhee,



Filed March 11, 2003

Reversed and remanded

Stoneburner, Judge


Dakota County District Court

File No. F20112948


Charles T. Agan, Suite 325, 7301 Ohms Lane, Edina, MN 55439-2338 (for appellant)


Braina Jo MacPhee, 1538 Fern Drive, Richfield, MN 55423 (pro se respondent)


            Considered and decided by Randall, Presiding Judge, Harten, Judge, and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N



            In this appeal from a decree of dissolution, appellant Domingo Abarca challenges the award of sole legal and physical custody of the parties’ child to respondent, Briana Jo MacPhee.  Abarca argues that the district court’s findings of fact are not supported by the record and do not address the required statutory factors for determining custody.  Because the district court’s findings imply that a threat by appellant negated consideration of the statutory factors concerning custody, and the findings do not reflect that the district court considered the requisite statutory factors, we reverse and remand.



Appellant Domingo Abarca and respondent Briana MacPhee were married in July 2000.  During the initial months of the marriage, Abarca, MacPhee, and their daughter, who was born in August 1999, lived with MacPhee’s parents.  Later, the couple moved into their own home.

In March 2001, Abarca petitioned for dissolution of marriage.  The following day, MacPhee sought an order for protection.  The district court dismissed MacPhee’s petition, characterizing it as an attempt to get a “leg up” in a custody battle. 

For medical reasons, MacPhee’s attorney was unavailable for the dissolution trial.  MacPhee declined the district court’s offer of a continuance and elected to proceed pro se.  At the beginning of the trial, the district court indicated only physical custody was disputed.  Abarca’s attorney agreed, and MacPhee did not respond.  Abarca sought joint legal and physical custody of the child, but if the district court would not award joint physical custody, Abarca requested sole physical custody.  MacPhee sought sole physical custody. 

Trial testimony, much of which came from MacPhee’s parents, established that MacPhee was the primary parent during the marriage and that both parents are loving, caring, responsible parents who have shared parenting responsibilities during the marriage and after their separation.  After the separation, MacPhee cared for the child during the week, and Abarca cared for the child on weekends.  Despite some animosity between the parties, the evidence established that they behaved well together when the child was present. 

            One witness, who had lived with the parties in their St. Paul home, alleged that MacPhee stopped being the child’s primary caretaker before the parties separated.  But the record is somewhat confusing because the witness testified in Spanish without the benefit of a qualified interpreter.[1]  The person who interpreted was the witness’s boyfriend and a friend of Abarca.  Abarca’s testimony, given in Spanish, is also occasionally unclear in the transcript because the same uncertified person was interpreting.

MacPhee alleged, and Abarca admitted, that he once told MacPhee that he would take the child to Mexico “where she couldn’t be found.”  He said he was “kind of playing” when he made the comment.  Abarca testified that he has no intention of taking the child to Mexico for anything other than to visit his mother and would return her to the United States after such a visit.  Abarca testified that he plans to stay in Minnesota.  He owns a home in Minnesota and has family here.  Abarca said he would always keep MacPhee advised about where the child is when the child is with him and testified that he cancelled a planned trip with the child to Indiana because MacPhee objected.  MacPhee’s parents testified that they do not believe that Abarca would take the child to Mexico, noting that Abarca is aware of the child’s need for her mother and that he has facilitated their continued contact with the child.

            There was testimony about MacPhee’s attempt to get a restraining order.  Her petition and the order denying the petition were admitted into evidence.  MacPhee’s mother testified that she thought MacPhee had filed the petition to get Abarca out of the house, but admitted that she was not aware of all of the circumstances.  MacPhee testified that the allegations in the petition were true and had caused her concerns about Abarca.[2]  She testified that Abarca is a good parent but

there are just a lot of concerns I have. * * * Maybe he wouldn’t take her to Mexico, but I don’t know. * * * all I care about is * * * that somebody thinks that my concerns for my daughter are valid, too.


            The district court granted sole legal and physical custody to MacPhee, based exclusively on its finding that Abarca’s threat to take the child to Mexico was serious and that MacPhee’s fear was well-founded.  The district court found that if Abarca was awarded physical custody, “the child may potentially be endangered.”  But the district court awarded Abarca “extremely liberal visitation * * * extensive parenting time” noting that Abarca had proven himself “a loving and nurturing father” and that the parties have been able to share time with the child without incident.[3] 

Regarding the award of sole legal custody, the district court stated:

[I]t is not in the child’s best interest that [Abarca] be empowered to make important legal decisions affecting the child’s life.  There is simply too great a risk that [Abarca] would be able to use this power to remove his daughter from the United States.


This appeal followed.



Motion to strike

            Abarca has moved to strike portions of the appendix to MacPhee’s pro se brief that are not in the record and to strike references and arguments made by MacPhee regarding that material. 

            It is well settled that an appellate court may not base its decision on matters outside the record on appeal, and that matters not produced and received in evidence below may not be considered.


Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977) (citations omitted).  Although there are exceptions to this rule, the material provided by MacPhee, consisting of a letter from her parents to the district court judge, a letter about post-judgment daycare expenses, and a police report, does not meet any of the exceptions.  Abarca’s motion to strike the non-record material in MacPhee’s appendix and the references and arguments in her brief related to that material is granted.

Adequacy of findings

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); Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  A district court’s findings will be sustained unless they are clearly erroneous.  Id. at 710.  See also Minn. R. Civ. P. 52.01.

Abarca argues that the district court’s findings that awarding him physical custody would endanger the child and awarding him joint legal custody would impose “too great a risk” that he would “use this power to remove his daughter from the United States,” are clearly erroneous.  Abarca also argues that the district court abused its discretion because it made only three findings regarding custody and those findings do not reflect the court’s consideration of all of the statutory factors regarding custody.  We agree. 

Although there is some evidence in the record to support the district court’s finding that Abarca was serious when he made the threat to remove his daughter to Mexico and that MacPhee’s fear at that time was well-founded, there is no evidence that a threat existed at the time of the trial.  It appears from the record that the statement was made before the parties separated and was made in anger or when Abarca was “kind of playing.”  The record is clear that Abarca has done nothing to indicate that he would act on the threat.  To the contrary, the record demonstrates that Abarca is sensitive to the child’s need to be with MacPhee and MacPhee’s parents; he was responsive to MacPhee’s restriction on an out-of-state trip he wanted to make with the child; he has numerous connections with Minnesota, and he is aware that removing the child is against the laws of the United States and Mexico.  Neither MacPhee nor the district court had any hesitation in allowing Abarca to have the child in his care for extensive periods of time, as evidenced by the parties’ sharing of parenting time prior to the dissolution and the district court’s grant of liberal visitation.  The district court’s finding that an award of physical custody to Abarca would endanger the child is not supported by the record and is clearly erroneous.  And because there is no evidence in the record to support the district court’s finding that an award of joint legal custody would increase the risk of Abarca’s removing the child to Mexico, that finding is also clearly erroneous.

The district court must make written findings reflecting its consideration of all the statutory “best interests of the child” factors in a custody decision.  See Schultz v. Schultz, 358 N.W.2d 136, 138 (Minn. App. 1984).  The statute requires that all relevant factors be evaluated.  Minn. Stat. § 518.17 subd. 1(a) (2002).  But a specific finding on each factor is not required so long as the findings as a whole reflect that the court has taken the relevant statutory factors into consideration.  Rosenfeld v. Rosenfeld, 311 Minn. 76, 83, 249 N.W.2d 168, 171-2 (1976). 

The district court’s findings do not reflect consideration of any factor except Abarca’s threat to remove the child to Mexico.  By failing to address any other factor, the district court implicitly suggests that the threat was so serious that it rendered all other considerations irrelevant.  But the record does not support such a determination.  Abarca’s threat is appropriately considered as a factor in a best-interests-of-the-child analysis, but does not exclude consideration of the other relevant factors.  See Minn. Stat. § 518.17 subd. 1(a).  The district court abused its discretion by not considering the relevant statutory factors when determining the child’s best interests.

Findings on factors in addition to the best-interests factors are required when, as here, either party has requested joint legal or joint physical custody.  Minn. Stat. § 518.17 subd. 2 (2002).  The district court is to use a rebuttable presumption that joint legal custody is in the best interests of the child and that joint physical custody is not in the best interests of the child.  Minn. Stat. § 518.17 subd. 2.  Because the parties requested joint legal custody and Abarca requested joint physical custody of the child, an analysis under the factors set out in Minn. Stat. § 518.17, subd. 2, is required.[4]

Because the district court abused its discretion by failing to consider all relevant statutory factors for determining legal and physical custody, we reverse and remand to the district court for additional findings.  If the district court elects to reopen the record, we strongly recommend that a qualified court interpreter be employed to facilitate the testimony of Abarca and any other witnesses who do not testify in English.

Reversed and remanded.



[1] MacPhee, who is fluent in Spanish, agreed to proceed without a certified interpreter.

[2] MacPhee’s petition alleged that after she had indicated to Abarca that the marriage was over he continued to touch her “inappropriately” and against her wishes, sometimes in front of the child.

[3] Abarca was awarded weekend visitation, three weeks of exclusive summer visitation, and alternate holidays.

[4] In connection with the award of liberal visitation, the district court found that the parties are able to share time with the child without conflict, and the record supports this finding.