This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-738

 

In re the Marriage of:

 

Jamil Aref Jabr, petitioner,

Appellant,

 

vs.

 

Teena Marie Jabr,

Respondent.

 

Filed January 20, 2004

Affirmed

Kalitowski, Judge

 

Ramsey County District Court

File No. F1-01-001586

 

Mark Nygaard, Nygaard & Longe, 210 Ivy League Place, 475 North Cleveland Avenue, St. Paul, MN 55104 (for appellant)

 

Steven C. Pundt, 1450 Pillsbury Tower, 200 South Sixth Street, Minneapolis, MN 55402 (for respondent)

 

            Considered and decided by Halbrooks, Presiding Judge; Kalitowski, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Jamil Jabr challenges the district court’s findings of fact and conclusions of law regarding the dissolution of his marriage to respondent Teena Jabr.  He contends that the district court erred by:  (1) granting respondent sole physical custody of the parties’ son G.B.J.; (2) excluding evidence; (3) delegating the authority to create an access schedule to the county’s domestic relations department; (4) awarding respondent attorney fees; (5) issuing a protective order; and (6) failing to rule on or schedule a hearing on appellant’s motion for sanctions against the Ramsey County Attorney’s Office.  We affirm. 

D E C I S I O N

I.

 

            A district court has broad discretion to provide for the custody of the parties’ children.  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989).  Appellate review of custody determinations is limited to determining 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 of fact will be sustained unless they are clearly erroneous.  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  A finding is clearly erroneous only if the reviewing court is “left with the definite and firm conviction that a mistake has been made.”  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quoting Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987)).

            Appellant contends that the district court erred in granting respondent sole physical custody because it relied on a flawed custody evaluation.  We disagree.  A custody evaluation report is treated like all other evidence offered by a party.  Minn. Stat. § 518.167, subd. 4 (2002).  This court defers to the district court’s findings on weight and credibility of evidence presented by experts.  Frost v. Comm’r of Pub. Safety, 348 N.W.2d 803, 804 (Minn. App. 1984).  

            Appellant essentially argues that the custody evaluation was flawed because the custody evaluator and court-appointed psychologist were not aware of the full extent of the behavioral problems of G.W., respondent’s 11-year-old son from a previous marriage, because respondent concealed the problems.  Where a court bases its custody decision in part on a custody evaluation report, an appellant who was not given the opportunity to cross-examine the author of the report or to otherwise meet or answer adverse facts therein is entitled to a new hearing.  Scheibe v. Scheibe, 241 N.W.2d 100 (Minn. 1976).  But here, appellant thoroughly cross-examined the custody evaluator, respondent, the court-appointed psychologist, and the private psychologist.  Appellant also took advantage of his opportunity to offer additional evidence at trial, including (1) the testimony and custody report of a private psychologist he hired; (2) G.W.’s school records; (3) notes from G.W.’s current and former psychologists; and (4) deposition testimony of several individuals regarding G.W.’s behavioral problems.  Thus, we agree with the district court that the issue of whether G.W. posed a risk to G.B.J. was “litigated in extraordinary detail,” such that the district court was made aware of the full extent of G.W.’s behavioral problems.

            Ultimately, the district court determined the credibility of the witnesses, weighed the evidence, and determined that appellant had exaggerated and “overpathologized” G.W.’s behavior.  Therefore, we conclude that even if we accept appellant’s allegations regarding shortcomings of the custody evaluation, the district court did not abuse its discretion in granting respondent sole physical custody.

             Appellant also claims that the district court’s findings of fact are not supported by the evidence.  We disagree.  Determinations of child custody must be based on the best interests of the child.  Minn. Stat. § 518.17, subd. 3(a)(3) (2002).  When considering the best interests of the child, the district court must consider all the factors listed in Minn. Stat. § 518.17, subd. 1(a) (2002), but need not make specific findings on each and every factor.  Nazar v. Nazar, 505 N.W.2d 628, 633 (Minn. App. 1993), review denied (Minn. Oct. 28, 1993).  This court views the record in the light most favorable to the district court’s findings of fact and defers to the district court’s credibility determinations.  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).  And this court will not set aside a district court’s findings of fact unless they are clearly erroneous.  Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993).  The fact that the record might support findings other than those made by the district court does not warrant a reversal.  Vangsness, 607 N.W.2d at 474.

            Appellant claims that the court erred in finding that G.W. does not pose a risk to G.B.J.  But the record supports the district court’s finding that appellant exaggerated G.W.’s behavior and failed to show that G.W. posed a risk to G.B.J.  For example, even after conceding that respondent’s credibility was “not high” regarding herself or G.W., the court-appointed psychologist testified that appellant had “overpathologized” G.W. by listing every negative behavior G.W. had ever exhibited instead of those behaviors recently observed.  In addition, while G.W. has repeatedly threatened suicide, many individuals testified that G.W. is not serious and only makes threats when he is angry. 

            More importantly, aside from one isolated threat made shortly after G.B.J. was born while the parties were still living together, there is no evidence that G.W. has threatened or injured G.B.J.  Nor is there any evidence that G.W. has sexually abused or inappropriately touched G.B.S.  Rather, the custody evaluator, the court-appointed psychologist, and the psychologist retained by appellant all testified that G.W. appeared to genuinely love and care for G.B.J.  Even the psychologist retained by appellant, who ultimately recommended the district court grant sole physical custody to appellant, testified that respondent should be granted parenting time with G.B.J. on those weekends when G.W. was present because a relationship between the two brothers was a “positive thing.”  Based on this evidence, the district court could properly conclude that, while G.W. has behavior problems, appellant failed to establish that G.W. poses a risk to G.B.J.

            Appellant’s remaining challenges to the district court’s findings are also unpersuasive.  Appellant claims that the district court’s findings regarding the parties’ mental health are erroneous.  But the record supports the district court’s finding that neither respondent’s nor appellant’s psychological evaluation “was flattering to the person involved.”  In addition, appellant claims that the district court erred in concluding that it would be a drastic change for G.B.J. to reside with appellant.  But the record indicates that respondent has always been the homemaker and primary caregiver of G.B.J.  For most of his life, G.B.J. has lived in the care of respondent in Brainerd, and the record supports the finding that it would be a drastic change for G.B.J. to live with appellant in St. Paul. 

            Appellant also claims the district court erred in finding that G.B.J.’s cultural background is not an issue.  But the record shows that while G.B.J.’s paternal grandfather is Palestinian and Muslim, both parties are Christian and want G.B.J. to decide his own faith when he gets older.  Lastly, contrary to appellant’s argument, the record indicates that both parties will encourage contact between G.B.J. and the other parent.  While there is evidence that respondent did not encourage or perhaps permit contact between G.B.J. and appellant for the first three months after she returned to Brainerd, the record supports the district court’s conclusion that there have been no subsequent incidents.

            In conclusion, the district court’s findings are not clearly erroneous.  This case has generated a large volume of evidence, and the district court was in the best position to evaluate the weight of the evidence and the credibility of witnesses. 

II.

            Appellant also argues that the district court erred in excluding evidence that he sought to admit.  We disagree.  When reviewing evidentiary rulings, appellate courts look at the record as a whole to determine whether, in light of the evidence therein, the district court acted arbitrarily, capriciously, or contrary to law.  State v. Profit, 591 N.W.2d 451, 464 n.3 (Minn. 1999).  This court will not reverse a district court’s evidentiary rulings unless the court abused its discretion.  Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001), review denied (Minn. Oct. 24, 2001). 

            Appellant contends that the district court erred in excluding as not relevant evidence regarding a CHIPS proceeding involving G.W.’s younger cousin and police and court records of respondent’s relatives.  Evidence is relevant if it tends to make the existence of a fact more probable or less probable than it would be without the evidence.  Minn. R. Evid. 401.  Respondent testified that the cousin’s mother, respondent’s sister, does not take care of G.W. or G.B.J., and G.W. only sees the cousin under respondent’s supervision.  And most of the police and court records appellant sought to admit were from 1993.  When looking at the evidence as a whole, including psychological evaluations and notes, school records, depositions, and five-days worth of trial testimony, we cannot say that the district court erred in excluding this evidence. 

            Finally, we cannot say that the district court abused its broad discretion by prohibiting additional discovery following entry of its judgment where the record indicates that appellant’s purpose in seeking more discovery was to continue to try to find additional negative information about G.W. 

III.

            Appellant argues that the district court erred by delegating the authority to establish a parenting-time schedule to Ramsey County Domestic Relations, contending that Minn. Stat. § 518.175, subd. 1(a) (2002), requires the district court to establish a schedule.  We disagree.  In its order for temporary relief, the district court awarded temporary legal custody to both parties, temporary physical custody to respondent, and reasonable and liberal parenting time to appellant.  The district court also invoked its authority under Minn. Stat. § 518.1751, subd. 1 (2002), to appoint a parenting-time expeditor by authorizing the Ramsey County Department of Court Services to establish a parenting-time schedule. 

            A parenting-time expeditor is a neutral person authorized to use a mediation-arbitration process to resolve parenting-time disputes.  Minn. Stat. § 518.1751, subd. 1b(c).  In addition to resolving parenting-time disputes, a parenting-time expeditor has authority to develop a specific parenting-time schedule when the district court grants reasonable parenting time, which the court did here.  Minn. Stat. § 518.1751, subd. 3(c).  While the expeditor’s decisions are binding on the parties, the statute provides for review by the district court.  Minn. Stat. § 518.1751, subd. 3(d).  Therefore, we conclude that the district court did not err in using the expeditor to establish a parenting schedule.

IV.

            Appellant also argues that the district court erred by awarding respondent $30,000 in attorney fees.  We disagree.  We have observed that an award of attorney fees under Minn. Stat. § 518.14, subd. 1 (2002), rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999) (quotation omitted).             

            A district court “shall” award need-based attorney fees if:  (1) the fees are necessary for the good-faith assertion of that party’s rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding; (2) the party from whom the fees are sought has the means to pay them; and (3) the party to whom the fees are awarded does not have the means to pay them.  Minn. Stat. § 518.14, subd. 1.  A district court can also award conduct-based attorney fees against a party who unreasonably contributes to the length or expense of the litigation.  Minn. Stat. § 518.14, subd. 1.  A showing of bad faith is not necessary for an award of conduct-based attorney fees.  Geske v. Marcolina, 624 N.W.2d 813, 818-19 (Minn. App. 2001).  But the district court must make findings regarding conduct-based fees to permit meaningful appellate review.  Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1992). 

            Here, the district court awarded need-based and conduct-based attorney fees to respondent under Minn. Stat. § 518.14, subd. 1, reasoning that appellant had unreasonably contributed to the length and expense of the litigation, and, unlike respondent, he had the ability to pay the fees.  Appellant argues that the district court erred by granting respondent attorney fees because:  (1) respondent failed to act in good faith by lying and misrepresenting facts; (2) appellant was required to engage in extensive discovery, including the taking of 12 depositions, to “find out the truth”; and (3) appellant does not have the ability to pay the fees.

            The district court determined that respondent’s overall actions in the custody dispute were a good-faith assertion of her rights.  In addition, the record supports the district court’s conclusion that appellant’s litigation was excessive and unreasonable.  The record also supports the district court’s finding that appellant had the ability to pay the fees whereas respondent did not.  Respondent is a stay-at-home mother, and her only source of “income” is the child support appellant pays her.  In contrast, appellant earns approximately $69,000 per year at his job and receives rental income from a fourplex he owns.  We conclude that the district court did not abuse its discretion in awarding respondent legal fees. 

V.

            Appellant argues that the district court erred in issuing a protective order.  We disagree.  Minnesota Rule of Civil Procedure 26.03 permits the district court to issue protective orders for good cause.  The district court has broad discretion to fashion protective orders and to order discovery only on specified terms and conditions.  State ex rel. Humphrey v. Philip Morris, Inc., 606 N.W.2d 676, 686 (Minn. App. 2000) (quotation omitted), review denied (Minn. Apr. 25, 2000).  Here, the district court’s order provided:  “Neither party will use or allow any information obtained through the discovery process to be used outside of this legal proceeding without Court permission.”  Because of the large amount of sensitive documents, including medical and psychological information, obtained by both parties in the dissolution proceedings, we cannot say that the district court abused its discretion in issuing the protective order.  If in the future appellant needs the information to pursue claims against other parties, as he claims, he can make a specific request to the district court seeking the court’s permission to use the information.

VI.

            Finally, appellant argues that the district court erred by failing to schedule a hearing to hear his motion for sanctions against a Ramsey County assistant attorney.  But the record does not indicate, and appellant has failed to show, that he attempted to schedule a hearing after the district court referee recused himself from hearing the motion. Therefore, we cannot say that appellant is entitled to affirmative relief from this court.

            Affirmed.