This opinion will be unpublished and

may not be cited except as provided by

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







In Re the Paternity of:

N.S.D.A. and B.D.A.:

Marsha L. Arndt,





Thomas M. Dailey,




Filed April 29, 2003


Huspeni, Judge*



Ramsey County District Court

File No. F300050598



Deborah N. Dewalt, Cliff Cove Office Park, 2412 117th Street, Suite 100, Burnsville, MN 55337 (for respondent)


Donald W. Kohler, Knaak and Kantrud, P.A., 3500 Willow Lake Boulevard, Suite 800, St. Paul, MN 55110 (for appellant)



            Considered and decided by Toussaint, Chief Judge, Lansing, Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N


            In this custody dispute litigated in the Second Judicial District, appellant argues that the record does not support the finding that he committed domestic abuse, that the unsupported finding of abuse resulted in the improper use of a presumption against the propriety of joint legal custody, and that he was denied a full trial by the district court’s failure to abide by Minn. R. Gen. Pract. 312.01.  Because the record supports the finding regarding abuse, and because application of Minn. R. Gen. Pract. 312.01 in the Second Judicial District has been suspended, we affirm. 


            Appellant Thomas M. Dailey and respondent Marsha Arndt have two children and litigated the physical and legal custody of those children.  A Second Judicial District Family Court Referee signed an order finding that Dailey had committed domestic abuse against Arndt and awarding Arndt sole legal and physical custody of the children.  A district court judge of the Second Judicial District signed that order the next day.  When Dailey sought review of the order by a district court judge under Minn. R. Gen. Pract. 312.01, the district court administrator informed him that review was not allowed. 


            Generally, custody awards are discretionary with the district court and will not be altered on appeal unless the district court abused its discretion by making findings unsupported by the record or improperly applying the law.  See Frauenshuh v. Giese, 599 N.W.2d 153, 156 (Minn. 1999).  Appellate courts will not alter a finding of fact unless the finding is “clearly erroneous.”  Minn. R. Civ. P. 52.01. 

A finding is “clearly erroneous” if the reviewing court is “‘left with the definite and firm conviction that a mistake has been made.’”  When determining whether findings are clearly erroneous, the appellate court views the record in the light most favorable to the trial court’s findings.  Also, appellate courts defer to trial court credibility determinations.


Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000) (citations omitted).  Additionally, “[t]hat the record might support findings other than those made by the trial court does not show that the court’s findings are defective.”  Id. at 474.


The referee found that “[d]omestic abuse as defined in Section 518B.01 has occurred between the parties.  [Dailey’s] tirades caused [Arndt], and reasonably so, to fear imminent bodily harm.”  Dailey claims this finding is erroneous.  We see no error.  Domestic abuse includes “the infliction of fear of imminent physical harm, bodily injury, or assault[.]”  Minn. Stat. § 518B.01, subd. 2(a)(2) (2002).  Here, after describing several of Dailey’s tirades, Arndt testified that she resorted to calling Dailey on the phone to talk with him rather than dealing with him in person, and that when she asked him to move out of the house, she did so while others were in the house because she “felt safer if there was someone else in the house.”  On this record, the finding that Dailey caused Arndt to fear imminent bodily injury is not clearly erroneous.  Although not specifically addressed in the court’s order, we note that Dailey testified that Arndt had hit him, bruising his chest, neck, and arms.  Such events, if they occurred, would also constitute domestic abuse under Minn. Stat. § 518B.01, subd. 2(a)(1) (2002).  Thus, the finding that domestic abuse occurred between the parents is not clearly erroneous. 


            A grant of custody requires consideration of a child’s best interests.  Minn. Stat. § 518.17, subd. 3 (2002).  A child’s best interests are defined as “all relevant factors,” including those listed in Minn. Stat. § 518.17, subd. 1(a) (2002).  If at least one party seeks joint custody, additional factors are to be considered regarding the parties’ ability to co-parent, and a “rebuttable presumption” that joint legal custody is in the child’s best interests is used.  Minn. Stat. § 518.17, subd. 2 (2002).  If, however, domestic abuse has occurred between the parents, there is a “rebuttable presumption” that joint legal custody is not in the child’s best interests.  Id

The court found that Dailey hit the five-year-old minor child “in the face so hard his nose bled.”  Dailey argues that a finding that he abused the child is unsupported because there is no evidence that the child fears imminent bodily harm, and that, therefore, the presumption against joint legal custody should not have been used.  Dailey is incorrect.  The statutory presumption against joint legal custody applies if domestic abuse “has occurred between the parties.”  Id. (emphasis added).  We have already indicated that, on this record, the finding that domestic abuse occurred between the parties is not clearly erroneous.  Moreover, Dailey does not challenge the finding that the parties have “limited to no ability to co-parent.”  This finding is independently fatal to joint legal custody.  Wopata v. Wopata, 498 N.W.2d 478, 482 (Minn. App. 1993).  For these reasons, we need not address whether the record supports any determination that Dailey abused either of the children.  

We reject any allegation by Dailey that the parties’ (alleged) oral agreement to sign a stipulation to joint legal custody bound the court.  See Toughill v. Toughill, 609 N.W.2d 634, 638 n.1 (Minn. App. 2000) (noting “[a] district court is not bound by a stipulation merely because the parties have entered it”). 

We also reject any argument by Dailey that the joint legal custody recommended by the custody evaluator should have been adopted.  A custody award contrary to that recommended by an expert can be affirmed if there are detailed best-interests findings or an explanation of why the recommendation was rejected.  Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991).  Here, both detailed findings and an explanation for contrary award were made.  There are almost eight pages of best-interest findings, addressing each statutory factor.  And several of the findings specifically address the weight to be given the recommendation of joint legal custody, including that (1) at trial, the evaluator stated that the recommendation was based on Arndt’s initial statement that she wanted joint legal custody and that, but for Arndt’s statement, the evaluator would have recommended sole legal custody in Arndt; (2) Dailey’s failure to cooperate with the custody evaluation “results in a loss of objective third party data from [the] Domestic Relations [Department]”; and (3) “[t]he parties have limited to no ability to co-parent.”  The grant of sole legal custody to Arndt is supported by the findings and is consistent with caselaw. 


Finally, Dailey alleges that he was denied a “full trial” because his right, under Minn. R. Gen. Pract. 312.01, to review of the initial order was not honored.  This case was decided in the Second Judicial District.  The right to seek review of a family case decided in the Second Judicial District was suspended in 1996.  See 1996 Minn. Laws ch. 365, § 2 (allowing Second Judicial District to implement a pilot project assigning related family matters to a single judge or referee); In Re Second Judicial Dist. Combined Family, Civil Harassment, Juvenile & Probate Jurisdiction Pilot Project, No. CX‑89‑1863 (Minn. Apr. 10, 1996) (suspending Minn. R. Gen. Pract. 312.01 in light of pilot project).  The suspension is still in effect.  See 1998 Minn. Laws ch. 367, art. 11, § 26 (extending pilot project legislation); 2000 Minn. Law ch. 452, § 1 (same); 2002 Minn. Law ch. 242 (same); In Re Second Judicial Dist. Combined Family, Civil Harassment, Juvenile & Probate Jurisdiction Pilot Project, No. CX-89-1863 (Minn. June 17, 1998) (extending suspension); (Minn. May 23, 2000) (same); (Minn. June 3, 2002) (same).  If Dailey’s argument is intended to raise a constitutional challenge to the pilot project, the argument is defective because it lacks adequate briefing.  See State, Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997) (declining to address argument in absence of adequate briefing); State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (stating assignment of error in brief based on mere assertion is waived unless prejudicial error is obvious on mere inspection). 


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.