This opinion will be unpublished and

may not be cited except as provided by

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







In re the Marriage of:

H. Lee Sutton, petitioner,





David Perry Sutton,




Filed May 11, 2004


motion to strike denied; motion for fees granted
Crippen, Judge*


Freeborn County District Court

File No. F1-00-395



Karen I. Linder, Kissoon, Clugg, Linder & Dittberner, Ltd., 3205 West 76th Street, Edina, MN 55435-5244 (for respondent)


Thomas B. James, 440 North Broadway Ave., Cokato, MN 55321 (for appellant)


            Considered and decided by Minge, Presiding Judge, Shumaker, Judge, and Crippen, Judge.


U N P U B L I S H E D   O P I N I O N


            In this appeal from a marital dissolution judgment, appellant pleads to this court that it “craft the orders it feels most appropriate in the interest of justice in this case.”  Because the record supports the district court’s findings of fact and conclusions of law, insofar as appellant has identified claims of reversible error, we affirm.


            Appellant David Sutton and respondent H. Lee Sutton were married on June 2, 1984.  Their son was born on September 2, 1987, and their daughter was born on July 21, 1990.  Respondent petitioned for dissolution of the parties’ marriage on January 26, 2000.  Following a seven-day trial in which appellant appeared pro se, the district court dissolved the parties’ marriage on May 15, 2003.

            Inexplicably, this matter was pending in district court for three years before the trial began in January 2003, during which time the district court entertained at least eight separate proceedings for temporary relief.  On May 15, 2003, the court issued its order for judgment that (1) divided the parties’ property, (2) granted sole legal and physical custody of the parties’ children to respondent, (3) ordered appellant to pay child support in the amount of $2,025 per month, and (4) ordered appellant to pay temporary spousal maintenance in the amount of $2,500 per month for two years followed by $2,000 per month for the next five years.  In addition, the district court entered a money judgment in the amount of $13,952 against appellant for child support and maintenance arrears.  These conclusions, announced in an 86-page document, were accompanied by a host of supporting findings of fact.  Appellant initially filed a pro se brief on appeal, but was represented by counsel at oral arguments.



            On appeal from judgment after a trial, where there has been no motion for a new trial, the only questions for review are whether the evidence supports the findings of fact and whether the findings of fact support the conclusions of law and the judgment.  Erickson v. Erickson, 434 N.W.2d 284, 286 (Minn. App. 1989).  A trial 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) (quotation omitted).


            Appellant claims that the financial obligations imposed by the trial court exceed his ability to pay.  This argument appears to be largely directed at appellant’s spousal maintenance obligation and the $75,000 award of attorney fees to respondent. 

            On this issue and others, appellant argues that “the facts and the truth are on his side.”  However just are his grievances, his position is encumbered by his failure to consider the appellate standard of review or to adequately identify claims of reversible trial court error.  Thus, insofar as appellant’s claims relate to specific findings, they fail to make reference to the record to support the notion that the evidence compels different findings.  See Minn. R. Civ. App. P. 128.02, subd. 1(c) (requiring both that when it is argued that findings are not supported by the record, the evidence “tending directly or by reasonable inference to sustain [the challenged findings] shall be summarized” and that “[e]ach statement of a material fact shall be accompanied by a reference to the record”); Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000) (stating “[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”).  And insofar as appellant’s claims tend to suggest that the trial court abused its discretion in reaching its conclusions of law, appellant fails to discuss the findings that bear on those conclusions and the reasons why the court’s treatment of the issues is unacceptable.

            The trial court found that appellant had a net income, including salary, rental income, and gifts, of $7,437.07 per month and monthly expenses of $3,249.  Insofar as this indicates funds available that are several hundred dollars short of newly stated support and maintenance during the first two years of these obligations, the trial court found that appellant could supplement his current income.  

            Appellant disputes the trial court’s finding that he should supplement his income.  But the record includes evidence permitting the court’s finding that appellant was underemployed because he only worked approximately three full days per week at his eye clinic, earning $88,500 per year, and was “probably the lowest paid ophthalmologist in the state.”  The trial court stated that if appellant could not continue to succeed as an ophthalmologist in the area, perhaps he would have to move elsewhere, but in the meantime, he needed to seek additional employment.  Similarly, the trial court directed respondent, who was working part-time as a nurse, to supplement her income until she could secure a full-time nursing position.  Under the circumstances indicated in the record, the trial court did not clearly err in finding that appellant had “complained about his reduced income throughout [the] litigation but [had] done nothing about it” and yet continued his high level of spending.  We discern no appearance of reversible error in the district court’s determination of child support, spousal maintenance, and an award of attorney fees.  See Minn. Stat. § 518.551, subd. 5b(d) (2002) (stating that the district court must impute income for purposes of calculating support obligations if it determines that the obligor is voluntarily unemployed or underemployed). 

            Appellant also appears to challenge the trial court’s calculation of respondent’s income, but again fails to specify what findings and conclusions he is challenging.  Further, the record permits the trial court’s detailed findings and its determination that, even after imputing income from supplemental employment, respondent’s income was insufficient to provide for her reasonable needs, considering the standard of living established during the marriage.  The trial court did not make a clearly erroneous determination of respondent’s income.

            Finally, appellant also appears to challenge the trial court’s exercise in discretion when ordering him to pay $75,000 of respondent’s attorney fees.  But appellant has failed to furnish an analysis permitting us to determine whether the trial court properly assessed his circumstances for purposes of making an award of attorney fees.  See State, Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997) (declining to address issue not adequately briefed). 


            Appellant challenges the trial court’s grant of sole legal and physical custody of the parties’ children to respondent, claiming that the court should have granted joint physical custody and an equal division of custodial care.  Again, appellant fails to identify what specific findings he challenges.  Moreover, because joint physical custody is disfavored, it “conflicts” with the current state of the law “to suggest that denial of divided custody is reversible error.”  Brauer v. Brauer, 384 N.W.2d 595, 599 (Minn. App. 1986). 

            In determining custody and parenting time, the trial court considered the statutory factors pursuant to Minn. Stat. § 518.17, subd. 1 (2002), and made numerous findings.  Specifically, the court found that both children preferred to reside with respondent and continue the parenting time schedule in place at the time.  In addition, the court-appointed custody evaluator, the independent custody evaluator retained by appellant, and the guardian ad litem all recommended that the trial court grant sole physical custody to respondent and maintain the current parenting time schedule.  The record contains adequate evidence supporting the trial court’s findings of fact, and the findings amply support the court’s conclusions of law.  Therefore, the trial court did not abuse its discretion in awarding respondent sole legal and physical custody of the parties’ children.

            Appellant claims that the trial court erred by imposing an impermissible presumption against joint custody, contending that the trial court judge stated that he does not order joint custody even when both parents want it.  But, as in other instances, appellant misrepresents the record and the court’s statements.  The record shows this appropriate statement of the court:  “I can tell you it’s generally not my policy to grant joint physical custody, particularly alternate months or alternate weeks or something like that, unless the parties are in agreement on it and have demonstrated that they can make it work.”  Cf. Brauer, 384 N.W.2d at 598-99 (explaining preference against joint physical custody). 


            It appears that appellant also challenges the trial court’s distribution of property.  We discern from appellant’s brief his dispute with decisions establishing as marital property a piano and a house he acquired after the parties separated.  But the trial court found that appellant failed to trace his nonmarital interest in the piano and mortgage payments made on his residence.  This finding is sustained by evidence in the record.  All property obtained during the marriage by either spouse is presumed marital, regardless of the form of ownership.  Minn. Stat. § 518.54, subd. 5 (2002).  A party challenging the presumption that property is marital must demonstrate by a preponderance of the evidence that the property is nonmarital.  Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997).  Because appellant failed to meet his burden of tracing his nonmarital interest in the piano and his residence, we cannot say that the trial court erred. 

            Appellant also appears to question the district court’s failure to require respondent to pay $5,000 she charged on a joint credit card account to pay her attorney, plus financial charges and minimum payments made by appellant, and $4,640.81 in mortgage payments appellant allegedly paid for respondent’s benefit. The trial court has broad discretion in apportioning the parties’ debt.  O’Donnell v. O’Donnell, 412 N.W.2d 394, 396-97 (Minn. App. 1987).  Even if the debts are marital, the trial court has the discretion to allocate debts solely to one party.  Meyer v. Meyer, 375 N.W.2d 820, 828 (Minn. App. 1985), review denied (Minn. Dec. 30, 1985).  Further, “a party to a dissolution may be held liable for marital debts even though the other party receives the benefit of payment.”  Dahlberg v. Dahlberg, 358 N.W.2d 76, 80 (Minn. App. 1984).


            Appellant makes a host of additional arguments.  Many of these constitute challenges to the trial court’s temporary relief orders, but this issue is not properly before this court.  See Korf v. Korf, 553 N.W.2d 706, 709 n.1 (Minn. App. 1996) (stating that temporary relief orders are not final appealable orders, and a reviewing court considers a temporary order for relief only to the extent the district court used the order as a basis for its final judgment).  Likewise, appellant questions seemingly incidental findings without asserting whether they were of any significance in the trial court’s conclusions. 

            Appellant argues in his reply brief and at oral argument that Minnesota’s custody statutes are unconstitutional insomuch as they do not create a presumption of joint legal and physical custody.  Appellant cites cases establishing a judicial preference for parents over non-parents and determinations in some states that gender preferences are not permissible. 

            But appellant cites no authority suggesting that the trial court cannot resolve a custody dispute between two parents by determining what is in the best interests of the child.  Nor does he cite any authority suggesting that joint physical custody is appropriate in cases containing voluminous evidence that the parties are unwilling or unable to cooperate.  Ultimately, however, we refuse to fully review this issue because it was not raised before the trial court and was not argued in appellant’s initial brief.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (reviewing court may not consider issues raised for the first time on appeal).

            Appellant also makes numerous suggestions that the trial court’s conclusions are fruit of the trial judge’s bias.  This issue has not come before us on a motion filed prior to the trial court reaching a final decision, and appellant has failed to demonstrate judicial bias.  Minn. R. Civ. P. 63.03 provides that a judge may not be removed “except upon an affirmative showing of prejudice on the part of the judge.”  Generally, this prejudice must arise from an extrajudicial source prompting the judge to make a decision based on knowledge acquired outside the judge’s participation in the case.  In re Estate of Lange, 398 N.W.2d 569, 573 (Minn. App. 1986).  “[P]ervasive bias” is an exception to the “extrajudicial source” rule, which occurs when the bias stems from events at trial that are “so extreme as to display [a] clear inability to render fair judgment.”  Liteky v. United States, 510 U.S. 540, 551, 114 S. Ct. 1147, 1155 (1994) (citation omitted). 

            “[R]emoval is warranted only where the judge’s impartiality might ‘reasonably’ be questioned; therefore, a judge should not . . . be removed simply because a litigant subjectively believes that the judge is biased.”  State v. Laughlin, 508 N.W.2d 545, 548 (Minn. App. 1993).

            Here, appellant cites several statements made by the trial court judge as evidence of judicial bias.  For instance, appellant repeatedly argues that the judge was biased against him because he told him to “shut up.”  But appellant takes this statement out of context.  After he repeatedly interrupted the judge at the proceeding in question, the judge stated that appellant was a very controlling person, both parties were aggressive, and for appellant, it was “a matter of winning.”  When appellant insisted in asserting that his motives were for the sake of his children, the judge interrupted saying, “Shut up.  You’re not getting it at all, and that is the big problem in this case.”  This statement and others merely indicate the impatience of the trial court with the behavior of the parties in general and/or appellant in particular; they do not indicate questionable judgment.  Ultimately, appellant has failed to demonstrate that any alleged bias influenced the trial court’s findings of fact or conclusions of law.  We have already determined that his main argument, that the trial court imposed an impermissible presumption against joint physical custody, is without merit. 

            Respondent requests that this court narrow the parameter of the record by striking parts of appellant’s five-volume appendix and all or parts of his brief and reply brief.  Because a narrowing of the record is immaterial to our review of the case, we decline to examine the motion and the numerous particular issues that that examination would require. 

            Respondent also requests an award of attorney fees for the appeal.  Because this request is premised on appellant’s prolongation of litigation under Minn. Stat. § 518.14, subd. 1 (2002), and not an assessment of the parties’ financial circumstances, we grant respondent an award of attorney fees in the amount of $4,000. 

            Affirmed; motion to strike denied; motion for fees granted.


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