This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-02-1569

 

Steven James Breitenfeldt, petitioner,
Respondent,

vs.

Shelly Nickles-Breitenfeldt,
Appellant.

 

Filed April 22, 2003

Affirmed; motion granted in part and denied in part

Peterson, Judge

 

Hennepin County District Court

File No. DC252868

 

Virginia K. Ekola, Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN† 55415 (for respondent)

 

Lynn K. Uthe, Susan A. Cragg, Lynn Klicker Uthe, LTD., 1730 Plymouth Road, Suite 101, Minnetonka, MN† 55305 (for appellant)

 

††††††††††† Considered and decided by Peterson, Presiding Judge, Harten, Judge, and Halbrooks, Judge.

U N P U B L I S H E D†† O P I N I O N

PETERSON, Judge

On appeal in this custody dispute, appellant-mother argues that the district court (a) abused its discretion by denying motherís request for a second custody evaluation; (b) denied mother her due-process right to present evidence by not ordering a second custody evaluation; (c) abused its discretion by rejecting motherís objections to the first custody report; (d) made custody findings that are defective because they are based on the first custody report, are inadequate to support the award, are not supported by the evidence, and include a misapplication of the primary-caretaker analysis and a failure to recognize fatherís past abuse; and (f) should have granted motherís request for joint legal and joint physical custody of the child.† Mother filed a motion to strike portions of fatherís brief.† We affirm the district courtís decision, and we grant in part and deny in part motherís motion to strike.

FACTS

††††††††††† Appellant-mother Shelly Breitenfeldt, a/k/a Shelly Lorelle Nickles and Shelly Lorelle Woods, and respondent-father Steven James Breitenfeldt were married in 1998.† They are the parents of one minor child, a son born January 16, 1999.† Father has joint legal and sole physical custody of a daughter, age 14, from a prior marriage.† Mother has joint legal and sole physical custody of two daughters, ages 12 and 11, from a prior marriage.

††††††††††† The parties separated in October 1999, and father commenced this dissolution action in November 1999.† Both parties sought custody of son.† On the advice of counsel, the parties agreed to submit to a custody evaluation by a neutral evaluator and selected Mindy Mitnick, a licensed psychologist, as the evaluator.† In preparing her evaluation, Mitnick interviewed the parties, their former spouses, their children from the previous marriages, and motherís parents; observed the interaction between son and each of the parties and between son and his halfsisters; conducted psychological testing of the parties; reviewed a large volume of written materials, including court records, correspondence between the attorneys, medical and therapy records, police reports, child-protection records, and reference letters, and custody questionnaires and proposed parenting plans completed by the parties; and spoke with sonís daycare provider and the other childrenís teachers.

Mitnick stated in her evaluation:

††††††††††† Even compared to the group of parents involved in custody litigation, the [partiesí] divorce has been marked by an extreme level of conflict.† [Mother] has accused [father] of domestic abuse, stalking, neglect of [son], lack of attachment to [son], and an improper relationship with [his daughter from a previous marriage].† [Father] has accused [mother] of stealing items of personal property and causing significant damage to the family home.† [Mother] denies that she suspected that [father] physically abused [son], but did want what she described as a head injury checked medically.† The medical provider reported the injury to Child Protection, suggesting the medical provider suspected the injury was non-accidental.

 

††††††††††† * * * *

 

††††††††††† [Father] has demonstrated an understanding that [son] needs to see both parents frequently.† [Mother] has been slow to recognize the importance to [son] of [father] being actively involved in his parenting.† [Mother] believed it was acceptable for a child of [sonís] age not to see his father for 5-7 days at a time.† Even accepting her view that [father] was previously uninvolved, she resisted the suggestion that his current level of involvement was better for [son].† Her proposed parenting plan completed at the end of the evaluation does reflect a change to a more age-appropriate contact schedule.† However, [mother] does not support [father] having an important role in [sonís] life.† * * *

 

††††††††††† * * * *

 

††††††††††† Psychological test results for [mother] were not within normal limits despite significant efforts to deny problems.† The MMPI-2 suggests use of paranoid defenses, resulting in misinterpretations of othersí motives, rigidity in her thoughts and actions, rationalizing her own behavior, and denying her own negative motives.† The possibility of delusional thinking is suggested.† In interpersonal relationships she is likely to be intense, emotional, controlling and demanding.

 

††††††††††† [Mother] appears to have adopted a ďvictimĒ life role in which she elicits othersí anger and rejection thus serving to confirm her negative views about others.

 

††††††††††† In addition, a moderate level of depression is revealed.† It was recommended in the interim report that she seek services Ė psychotherapy and/or medication Ė to assist in managing her depression but [mother] has denied that she is depressed.

 

††††††††††† Mental health and medical records indicate she has a history of anxiety dating back to high school and a previous history of depression after her separation from [her previous husband].† She has taken anti-anxiety medication on and off at least since 1993 * * * .

 

††††††††††† * * * *

 

††††††††††† [Motherís] pattern of making vague reports of abuse and neglect and then denying responsibility for the subsequent Child Protection investigations is of much concern to the evaluator.† Such a pattern often is associated with parental alienation dynamics as the child gets older and can voice his ďwishes.Ē† The risk is clearly present for [mother] to share her negative views of [father] with or within hearing of [son] and then to use [sonís] resulting anxiety or acting out as evidence of the need for restricted contact.

 

††††††††††† * * * *

 

†††††††††††

††††††††††† The issue of domestic violence has been difficult to assess.† On the one hand, the Court did not make a finding of domestic abuse.† On the other hand, [mother] had documented bruising on her face.† [Father] denied physically assaulting [mother].† He has no known history of violence and [his previous wife] denies that violence occurred in their marriage.† [Mother] reports that [his previous wife] told her about [fatherís] violence but that [his previous wife] is too scared to tell publicly.† The evaluator could not substantiate this concern.† What is known with certainty is that there have been no incidents of violence after the entering of the OFP.

 

The report also stated that the parties accused each other of inadequate parenting with son, poor parenting with their other children, and being mean to stepchildren; both parties demonstrated an ability to organize their childrenís lives, with good school performance and participation in activities; mother was more critical of fatherís parenting of son than he was of hers; both parties accused each other of poor housekeeping; both parties grew up in Fridley and intended to remain there, but father had a wider social network and was likely to be more connected in the future than mother to parents of sonís friends; psychological test results for father were within normal limits; while both parents are adept at making good first impressions, each has a side that is unreliable, manipulative, and melodramatic; mother has tendencies toward reaching conclusions based on assumptions, refusing to change erroneous conclusions when presented with new information, suspiciousness, difficulty thinking clearly, imputing negative motives to others, overreacting, denial, and misinterpreting othersí actions; a parent with such tendencies does not model effective problem-solving skills for children; motherís intense emotionality was likely to provoke anxiety in children; father appeared to be more capable than mother of flexibility and avoiding disputes about parenting issues and schedules; and both partiesí personality issues made them vulnerable to engaging in another dysfunctional relationship, which would be harmful to [son].

Mitnick recommended granting father sole legal and sole physical custody.† She recommended against joint custody due to the bitter disputes between the parties regarding both major and minor parenting issues.

††††††††††† After Mitnick issued the final custody evaluation in December 2000, the parties negotiated but did not reach agreement on a parenting plan.† In May 2001, mother requested that a second custody evaluation be conducted by Seymour Gross, Ph.D., L.P.† The district court denied motherís request, stating:

††††††††††† For purposes of testifying as an expert in this case, Dr. Gross may review the entire file of the neutral evaluator, Mindy Mitnick, including the psychological testing, records, notes and other submissions.† Anything further, such as interviewing the parties and/or the minor child or conducting new psychological tests is not permitted.

 

††††††††††† After reviewing Mitnickís file, Gross issued a report suggesting that Mitnickís evaluation was unfairly biased against mother and in favor of father.† Gross stated that some of Mitnickís conclusions were speculative and unsupported by evidence, including Mitnickís statements that motherís pattern of making reports of abuse and neglect is a pattern often associated with parental alienation dynamics and that father was more likely to be connected to parents of sonís friends in the future.† Gross opined that Mitnick minimized information unflattering to father, such as motherís allegations of domestic abuse, and unfairly portrayed mother in a negative light, for example, by suggesting that mother falsified allegations of sexual abuse by her previous husband against her daughters.† Gross also criticized Mitnickís interpretation of the MMPI-2 test results and opined that she did not obtain enough information from the parties about specific parenting practices and beliefs.

††††††††††† Both Gross and Mitnick testified at trial.† Their testimony was consistent with their reports.

The dissolution judgment and decree awarded sole legal and physical custody of son to father.† The district court granted in part motherís motion for amended findings or a new trial, amending findings and conclusions relating to motherís income and to her child-support and child-care expense obligations, but otherwise denied the motion.

D E C I S I O N

1.†††††††† Mother argues that the district court erred in denying her request for a second custody evaluation.† The decision whether to order a custody evaluation is discretionary with the district court. †Meyer v. Meyer, 375 N.W.2d 820, 826 (Minn. App. 1985), review denied (Minn. Dec. 30, 1985).

††††††††††† Custody evaluations are governed by Minn. Stat. ß 518.167 (2002), which allows the court to order a custody evaluation in a contested custody proceeding.† The record shows that Mitnick conducted a thorough investigation.† See Minn. Stat. ß 518.167, subd. 2(a) (listing persons with whom evaluator may consult and obtain information from).† As required by Minn. Stat. ß 518.167, subd. 2(b), Mitnickís report specifically addresses the statutory factors set forth in Minn. Stat. ß 518.17 and analyzes the information considered in evaluating those factors.† Minn. Stat. ß 518.167, subd. 3, requires that the custody evaluation report be made available to counsel at least ten days before the custody hearing, and Mitnickís report was made available to counsel several months before trial. Mitnick testified at trial and was subject to cross-examination.† See id. (requiring evaluator to be available for cross-examination at custody hearing).† In addition, the district court permitted motherís expert, Gross, to review Mitnickís entire file.† Gross testified at trial, and his report was admitted into evidence.† The district court afforded mother an adequate opportunity to respond to any adverse findings in Mitnickís report.† See Scheibe v. Scheibe, 241 N.W.2d 100, 100 (Minn. 1976) (absent a waiver, an appellant in a custody case is entitled to a new hearing if it appears that the trial court based its custody decision in part upon a custody evaluation report without first giving the parties an opportunity to cross-examine the author of the report or to otherwise meet or answer adverse facts therein); VanZee v. VanZee, 302 Minn. 371, 375 266 N.W.2d 865, 867 (1974) (remanding for new trial when district court admitted custody evaluation into evidence without author being available for cross-examination).

††††††††††† Mother relies on cases involving adverse medical exams to support her argument that the district court erred in denying a second custody evaluation.† Minn. R. Civ. P. 35.01 grants the district court discretion to order an adverse medical examination on good cause shown when the physical or mental condition of a party, a partyís agent, or person under a partyís control, is in controversy.†

††††††††††† Although mother correctly argues that Minn. Stat. ß 518.17 requires the district court to consider the parentsí physical and mental health in a custody dispute, her argument for applying Minn. R. Civ. P. 35.01 to custody evaluations in dissolution proceedings is not persuasive.

First, a custody evaluation is broader than an adverse medical exam because a custody evaluation typically involves persons other than the parties and other persons specified in Minn. R. Civ. P. 35.01.† For example, in this case, Mitnick interviewed sonís daycare provider, the partiesí former spouses, sonís halfsisters, and motherís parents.† Mother cites Morey v. Peppin, 353 N.W.2d 179, 183 (Minn. App. 1984), as applying Minn. R. Civ. P. 35 in a custody dispute.† Morey, however, involved the discovery of mental-health records under Minn. R. Civ. P. 35.03, not an adverse medical exam under Minn. R. Civ. P. 35.01.† Furthermore, this courtís decision in Morey was reversed by the supreme court.† Morey v. Peppin, 375 N.W.2d 19 (Minn. 1985).

Second, the legislature enacted a specific statute applicable to custody disputes, Minn. Stat. ß 518.167, subd. 1, which provides for an evaluation by the county welfare agency or court services department.† This court has interpreted Minn. Stat. ß 518.167 to permit the parties to select a neutral, independent evaluator, as was done in this case.† Zagaros v. Erickson, 558 N.W.2d 516, 524 (Minn. App. 1997), review denied (Minn. Apr. 17, 1997).† In either circumstance, the evaluator is not connected with either party so there is limited potential for bias in the custody evaluation.† Moreover, Minn. Stat. ß 518.167 expressly provides for cross-examination of the custody evaluator and any persons consulted by the evaluator, thus giving a party the opportunity to expose any biases or other problems with the evaluator or evaluation (e.g. unscientific methodologies, relying on inaccurate data).

Third, motherís argument misconstrues Minn. R. Civ. P. 35.01.† Citing Hill v. Hietala, 268 Minn. 296, 299, 128 N.W.2d 745, 748 (1964), and Higgins v. Lufi, 353 N.W.2d 150, 155-56 (Minn. App. 1984), review denied (Minn. Oct. 11, 1984),mother argues that upon good cause shown, the district court is required to order an adverse exam unless the party to be examined can show prejudice.† However, those cases held that to obtain reversal of the district courtís decision granting or denying an adverse exam, the party seeking reversal must show prejudice.† Id.† Moreover, mother has not shown good cause for a second custody evaluation.† Motherís only claim of bias is that Mitnickís evaluation was more favorable to father than to her.

Mother next contends that the denial of a second custody evaluation violated her due-process rights.† Due-process

protections include reasonable notice, a timely opportunity for a hearing, the right to be represented by counsel, an opportunity to present evidence and argument, the right to an impartial decisionmaker, and the right to a reasonable decision based solely on the record.

 

Humenansky v. Minn. Bd. of Med. Examiners, 525 N.W.2d 559, 565 (Minn. App. 1994) (citing Goldberg v. Kelly, 397 U.S. 254, 267-68, 90 S. Ct. 1011, 1020 (1970)), review denied (Minn. Feb. 14, 1995).† A thorough review of the record indicates that the district court gave mother an adequate opportunity to present evidence and did not violate her due-process rights.

2.†††††††† Mother next argues that having denied her request for a second custody evaluation, the district court erred by admitting into evidence Mitnickís report.† The decision whether to admit expert testimony is within the district courtís discretion and will be affirmed on appeal absent an abuse of discretion.† Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996).† When deciding whether to admit expert testimony, the district court must determine whether the expert has been proven competent to provide an opinion on the matter at issue and ďwhether the opinion [is] based on facts sufficient to form an adequate foundation.Ē† Law v. Essick Mfg. Co., 396 N.W.2d 883, 887 (Minn. App. 1986) (citations omitted), review denied (Minn. Jan. 27, 1987).

A trial judge is given wide latitude in determining whether there is sufficient foundation upon which an expert may state an opinion.† Even if this court would have reached a different conclusion as to the sufficiency of the foundation, the decision of the trial judge will not be reversed absent clear abuse of discretion.

 

Benson v. N.† Gopher Enters., 455 N.W.2d 444, 446 (Minn. 1990) (citations omitted).

As already discussed, the custody evaluation in this case was conducted in accordance with the requirements of Minn. Stat. ß 518.167.† Minn. Stat. ß 518.167, subd. 4, expressly allows a report prepared pursuant to that statute to be admitted into evidence at the custody hearing.† Mother argues that despite compliance with Minn. Stat. ß 518.167, the district court erred in admitting into evidence Mitnickís report because it contained factual inaccuracies, invalid psychological test results, and speculation.

What mother calls factual inaccuracies in Mitnickís report are credibility issues.† Our review of the record indicates that the facts in Mitnickís report are based on the documents she reviewed and the interviews she conducted.

[T]he district court is in the best position to judge the credibility of the witnesses and make determinations in the face of conflicting testimony and must be given due deference.

 

Braith v. Fischer, 632 N.W.2d 716, 724 (Minn. App. 2001) (citation omitted), review denied (Minn. Oct. 24, 2001).

Regarding the psychological-test results, while Gross disagreed with Mitnickís interpretation of the psychological data, his testimony does not establish that Mitnickís method of interpreting the data was scientifically unsound or that she was not qualified to analyze the data.

As to speculation, Mitnick opined that in the future, father was likely to be more connected to the parents of sonís friends given fatherís more extroverted personality and that given motherís personality traits, she might engage in parental alienation dynamics in the future.† An ďexpert must base his opinion on facts sufficient to form an adequate foundation for an opinion and should not be allowed to speculate.Ē† Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 155 (Minn. 1982).† When there is adequate foundation for expert testimony, alleged deficiencies in the factual basis go more to weight than admissibility.† McPherson v. Buege, 360 N.W.2d 344, 348 (Minn. App. 1984).† Mitnickís opinions on the partiesí possible future behavior were based on facts stated in Mitnickís report and, thus, supported by adequate foundation.

Mother argues that she did not agree that Mitnickís evaluation would be binding.††† A partyís agreement that a custody evaluation will be binding is not a prerequisite to admissibility under Minn. Stat. ß 518.167.† On the contrary, Minn. Stat. ß 518.167, subd. 3, prevents a party from agreeing to a binding custody evaluation by prohibiting a party from waiving the right of cross-examination before the custody hearing.† Here, the record reflects that the district court gave mother the opportunity to rebut the findings in Mitnickís evaluation.

3.†††††††† A district court has broad discretion to provide for the custody of the partiesí children.† Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989).† This courtís review of a custody determination is limited to determining ďwhether the [district] court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.Ē† Silbaugh, 543 N.W.2d at 641.† An appellate court reviews the record in a light most favorable to the district courtís findings and will not reverse the findings unless they are clearly erroneous.† Minn. R. Civ. P. 52.01; Frauenshuh v. Giese, 599 N.W.2d 153, 156 (Minn. 1999).† ďClearly erroneous means manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.Ē† Novack v. Northwest Airlines, Inc., 525 N.W.2d 592, 597 (Minn. App. 1995) (quotation omitted).

Custody determinations are based on the best interests of the child.† Minn. Stat. ß 518.17, subd. 3(a)(3) (2002); see Minn. Stat. ß 518.17, subd. 1(a) (2002) (listing factors to consider in determining childís best interests).† In determining the best interests of the child, the district court must make detailed findings on relevant statutory factors and explain how the factors led to its best-interests determination.† Rogge v. Rogge, 509 N.W.2d 163, 165 (Minn. App. 1993), review denied (Minn. Jan. 28, 1994).

Mother argues that the district courtís findings are inadequate because the district court recited Mitnickís report and testimony.† See Dean v. Pelton, 437 N.W.2d 762, 764 (Minn. App. 1989) (stating district courtís recitation of partiesí claims ďis not making true findingsĒ because findings must be affirmatively stated as findings of the court).† Although the district courtís findings do quote extensively from Mitnickís report and testimony as well as the testimony of other witnesses, the district court affirmatively stated its own finding on each of the statutory factors.

Mother also argues that the district courtís findings are nearly a verbatim adoption of fatherís proposed findings.† Verbatim adoption of proposed findings is not reversible error per se, but it ďraises the question of whether the trial court independently evaluated each partyís testimony and evidence.Ē† Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992) (citation omitted), review denied (Minn. Feb. 12, 1993).† The district courtís findings differ sufficiently from fatherís proposed findings to show that the district court independently evaluated the trial testimony and other evidence.

Mother next contends that the district court improperly based its finding that father was sonís primary caretaker on the time period following the partiesí separation.† The district court found that mother took a three-month maternity leave and then, for the next six months, until their separation in October 1999, both parties worked full time.† The district court did not expressly find whether there was a primary caretaker during the six months when the parties worked full time, but its finding indicates that neither party was the primary caretaker during that time period.† The district court found that father had access with son on a daily basis during the week and overnight access on weekends from November 1999, when an interim emergency access order was entered granting father access to son, until May 2000, when father was granted temporary sole physical custody.† The dissolution trial occurred in November 2001. †Based on the temporary orders with father having primary physical custody, the district court found that father was sonís primary caretaker.

Generally, in an initial custody determination, the primary caretaker is determined as of the time of the separation of the parties.† Sefkow v. Sefkow, 427 N.W.2d 203, 211 (Minn. 1988).† When there is a lengthy period of time between the date of the partiesí separation and the date of the custody hearing, however, the intervening events are not only relevant, but crucial in determining the childís best interests.† Id. at 212 (consideration of events after separation proper when more than 4 1/2 years elapsed between separation and custody determination).† Here, son was only nine months old when the parties separated, and about two years and three months elapsed between the partiesí separation and the entry of the dissolution judgment.† The district court did not abuse its discretion by considering events after the partiesí separation in determining sonís primary caretaker.

Mother argues that the district court did not make its own finding on the intimacy of the relationship between each parent and the child.† The district court found:

Mitnick testified that while both parties have an intimate relationship with [son], [father] ďdoes a better job of recognizing [son] as a separate individual and fosters [sonís] independence that a toddler needs.Ē† [Mother], on the other hand, has difficulty letting [son] be independent.† For example, [mother] has a way of talking about ďweĒ (in reference to [mother], [son], and [motherís daughter]) that doesnít recognize the difference between the people, which is important in development of personal individuation.† This attitude of [motherís] ďmakes it hard for the kids to negotiate parts of their lives where they need to be independent.

 

Although the finding is based on and quotes Mitnickís testimony, it is stated in the form of an affirmative finding by the district court.

††††††††††† Mother argues that the district court erred by weighing the childís adjustment to home, school, and community in favor of father based on father being awarded the family homestead. ††††† But while the courtís finding notes that father remained in the home where son has lived most of his life, the finding does not unduly emphasize that fact.† The finding also states:

††††††††††† Since the second interim court order in this case placed [son] in [fatherís] care, [son] has been residing with his father and has had frequent access/parenting time with his mother.† Testimony at trial indicated that [son] seemed to be a happy child and is well-adjusted to his current community and home environment.

 

The district courtís findings on the length of time the child has lived in a stable, satisfactory environment and on the permanence as a family unit, of the existing or proposed custodial home also refer to father remaining in the family home but again, do not unduly emphasize that fact.

††††††††††† Mother next contends that the district court improperly ignored evidence favorable to her and unfavorable to father, particularly on the issues of mental health and domestic abuse.† The district courtís findings do not indicate that it ignored evidence but rather that it found Mitnickís testimony credible and Grossís not credible.† See Sefkow, 427 N.W.2d at 210 (stating appellate courts defer to district courts on eligibility determinations).† We conclude that the evidence supports the district courtís findings on the statutory factors.

4.†††††††† When a grant of either joint legal or joint physical custody is contemplated, the court must also consider additional factors that relate to the partiesí ability to cooperate in raising their child.† Minn. Stat. ß 518.17, subd. 2 (2002).† Although joint legal custody is generally presumed to be in the childís best interests, it is not appropriate where the evidence indicates that the parties lack the ability to cooperate and communicate.† Wopata v. Wopata, 498 N.W.2d 478, 482 (Minn. App. 1993).† Joint physical custody is generally not favored.† Id. at 483.

††††††††††† The district court considered the factors relevant to joint custody.† The record contains considerable evidence of conflict between the parties and an inability to cooperate and communicate.† The district court did not abuse its discretion in granting sole legal and physical custody to father.

5.†††††††† Mother filed a motion to strike portions of fatherís brief.† Mother argues that the facts set forth in the facts and argument sections of fatherís brief do not contain adequate citations to the record.† We disagree.† There are citations to the record throughout the statement of the case and facts sections of fatherís brief.† Father did not provide citations to the record in the argument section of his brief when restating facts already set forth in the statement of the case and facts section.† Fatherís brief adequately complies with the requirements of Minn. R. Civ. App. P. 128.03.

††††††††††† Regarding motherís specific objections, mother argues that the facts stated on page 13, paragraph 2, are not found in finding of fact 11.† Except for the statement that father ďhad a positive secure attachment with [son],Ē the paragraph accurately summarizes the facts in finding 11.† The statement about fatherís attachment with son is a fair characterization of the district courtís finding on the intimacy of the relationship between each parent and son, which is part of finding 11.

††††††††††† Mother next objects to statements on page 14, paragraph 2, regarding Mitnickís experience.† The references to Mitnickís experience in that paragraph appear in finding 11, the citation provided in fatherís brief.

††††††††††† Mother argues that the record does not support the statement on page 27 of fatherís brief that a second custody evaluation would be extremely stressful and could potentially cause more harm than benefit.† That assertion is an argument by father, not a statement of fact, and it is a fair argument based on the facts in the record.

††††††††††† Mother argues that father falsely states that Gross conducted psychological testing of mother and was cross-examined about it.† Grossís report states that he conducted an MMPI-2 of mother in his office on June 27, 2001.† But because the district courtís later order limited motherís expert to reviewing Mitnickís report and file, Grossís report and trial testimony were based on his review of Mitnickís report and file.† The record does not support the statement that ďGross was cross-examined about those tests.Ē† We, therefore, grant motherís motion to strike the reference to Gross being cross-examined about the testing he conducted.† We deny the balance of motherís motion.

††††††††††† Affirmed; motion granted in part and denied in part.