This opinion will be unpublished and

may not be cited except as provided by

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








In re Dale Robert Counter, petitioner,





Leslie Ann Bromenschenkel,




Filed March 16, 2004


Robert H. Schumacher, Judge


Stearns County District Court

File No. F30151916


Gerald W. Von Korff, John J. Meuers, Rinke-Noonan, 700 Norwest Center, 400 First Street, Post Office Box 1497, St. Cloud, MN 56301 (for respondent)


Karim G. El-Ghazzawy, El-Ghazzawy Law Offices, LLC, 701 Fourth Avenue South, Suite 300, Minneapolis, MN 55415 (for appellant)


            Considered and decided by Schumacher, Presiding Judge; Willis, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


On direct appeal from a district court custody order, appellant Leslie Ann Bromenschenkel asserts that (1) she is entitled to a new trial due to ineffective assistance of counsel, (2) the district court made erroneous credibility determinations, and (3) there is insufficient evidence to support the district court's findings.  Bromenschenkel failed to properly preserve her ineffective-assistance-of-counsel argument for appeal, and  there is sufficient evidence to support the district court's findings.  We affirm.


Respondent Dale Robert Counter and Bromenschenkel are the parents of N.C., who was born in 1999.  When Counter and Bromenschenkel ended their relationship, Counter petitioned the district court to establish custody.  The district court appointed a guardian ad litem and ordered a custody evaluation.  The guardian ad litem recommended granting the parties joint legal custody of N.C., with Bromenschenkel having primary physical custody and Counter having parenting time.  The district court issued a temporary custody order that adopted the guardian's recommendation.

Seven months later, the guardian amended her initial recommendation, asserting that Counter should be awarded primary custody of N.C. because Bromenschenkel was uncooperative in the custody evaluation and was not following court orders.  In an amended temporary order, the district court awarded primary custody of N.C. to Counter.

A three-day trial was held in March 2003.  The district court awarded the parties joint legal custody of N.C., granted Counter sole physical custody of N.C., and granted Bromenschenkel parenting time.  Bromenschenkel did not make any posttrial motions and appealed directly to this court from the district court's judgment.


1.         It is well settled that, absent a motion for a new trial, our scope of review is limited to whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment.  Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976). 

On appeal, Bromenschenkel argues for the first time that she is entitled to a new trial due to ineffective assistance of counsel.  Because this issue was not raised in the district court, we do not reach it.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating appellate courts will not address issue not raised or decided in district court).  Even if this issue were properly before us, however, we note that generally there is no constitutional right to the effective assistance of counsel in a civil proceeding.  See Maietta v. Comm’r Pub. Safety, 663 N.W.2d 595, 600 (Minn. App. 2003), review denied (Minn. Aug. 19, 2003).  

2.         Bromenschenkel challenges a number of the district court's credibility determinations.  Appellate courts defer to the district court's credibility determinations because the district court is in the best position to assess the witnesses.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988); see also Minn. R. Civ. P. 52.01 (stating "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses").

            In the May 2003 order, the district court made detailed findings on each of the statutory factors the court was required to consider under Minn. Stat. § 518.17 (2002) to award legal and physical custody of N.C.  The court also made additional findings regarding Bromenschenkel's failure to cooperate in the custody proceedings

The "best interests" analysis found in section 518.17 required the district court to consider N.C.'s "adjustment to home, school, and community," "the mental and physical health of all individuals involved" in the custody proceedings, and whether N.C. was the victim of domestic abuse.  See Minn. Stat. § 518.17, subd. 1(6), (9), (12).  Conflicting evidence was presented on each of these issues.  The district court determined that N.C. is a well-adjusted child, that Bromenschenkel may be psychologically unstable, and that there is "no credible evidence" that any party committed domestic abuse.  Bromenschenkel challenges the district court's credibility determinations on these issues.  We defer to the district court on credibility determinations, however, and we find nothing in the record to cause us to depart from this rule. 

Conflicting evidence was also presented regarding whether Bromenschenkel was uncooperative during the custody evaluation.  The district court found that Bromenschenkel "fail[ed] to cooperate with the Custody Evaluator, the Guardian ad Litem, and [Counter]."  Bromenschenkel challenges this credibility determination, but again we defer to the district court on this issue.

3.         Finally, Bromenschenkel challenges the sufficiency of the evidence to support the district court's finding (1) that she failed to cooperate with the custody evaluator, the guardian ad litem, and Counter; (2) that she purposely failed to attend a joint counseling session with Counter; (3) that Counter is entitled to attorney fees; and (4) that it would be in N.C.'s best interests to grant both parties joint legal custody, and to grant Counter sole physical custody.  

That the record might support findings other than those made by the district court does not show that the court's findings are defective.  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).  Rather, the court's factual findings must be clearly erroneous or "manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole" to warrant reversal.  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999) (quotation omitted).  "If there is reasonable evidence to support the district court's findings, we will not disturb them."  Id.  After a thorough review of the record, we conclude that the evidence is sufficient to support each of the district court's findings.  See Wilson v. Moline, 234 Minn. 174, 182, 47 N.W.2d 865, 870 (1951) (stating function of appellate court "does not require us to discuss and review in detail the evidence for the purpose of demonstrating that it supports the trial court's findings," and our "duty is performed when we consider all the evidence, as we have done here, and determine that it reasonably supports the findings."); Vangsness, 607 N.W.2d at 474 (applying Wilson).