This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







In re the Custody of:

J.M.H., a minor child Antoinette Marie Dawson,





Julious Douglas Heath,



Filed June 7, 2005


Toussaint, Chief Judge


Hennepin County District Court

File No. PA 48 978


Antoinette Marie Dawson, 12787 94th Avenue North, Maple Grove, MN 55369 (pro se appellant)


Julious Douglas Heath, 5147 Mineral Lake Drive, Las Vegas, NV 89122 (pro se respondent)


            Considered and decided by Toussaint, Chief Judge; Kalitowski, Judge; and Klaphake, Judge.

U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge


On appeal in this custody dispute, appellant argues that (1) the district court erred in denying her a continuance; (2) she should have been granted an evidentiary hearing for newly discovered evidence; (3) the district court assigned too much weight to information in the county’s custody report; (4) the record does not support the district court’s best-interests findings; (5) some of the evidence considered by the district court was submitted in violation of Minn. Stat. § 609.507 (2004) regarding false allegations of abuse; and (6) the custody award fails to consider a violation of Minn. Stat. §  609.26, subd. 1 (2004), which prohibits depriving a person of parental or custodial rights.  Because the denial of a continuance and another evidentiary hearing was within the district court’s discretion and because the record supports the award of physical custody to respondent, we affirm.


            The parties have one minor child together, J.M.H., currently age five.  The unmarried parties lived together for almost two years after J.M.H.’s birth.  Following the parties’ separation, J.M.H. lived with appellant Antoinette Marie Dawson.  In the Spring of 2003, at appellant’s request, J.M.H. went to stay with respondent Julious Douglas Heath at his home in Las Vegas, Nevada.

            In December 2003, appellant filed a motion to establish custody and parenting time seeking sole physical and legal custody of J.M.H.  Hennepin County Family Court Services assigned Michael Weinstein, MSW, a certified child custody mediator, to perform a custody evaluation.  A hearing was conducted on August 26, 2004, to review Weinstein’s report and recommendations.

            Appellant argues that she understood that the August 26 hearing “was a review hearing, [and] therefore was unprepared for an evidentiary hearing.”  Appellant argues that she “had not determined what witnesses would be called; what questions would be asked; how cross-examination would be conducted; or what exhibits would be introduced.”  Consequently, appellant contends that the district court should have granted a continuance.  The granting of a continuance is within the district court’s discretion and should be based on the facts and circumstances surrounding the request.  Hamilton v. Hamilton, 396 N.W.2d 91, 94 (Minn. App. 1986).  The critical question is “whether a denial prejudices the outcome of the trial.”  Jones v. Jones, 402 N.W.2d 146, 150 (Minn. App. 1987).

            At the August 26 hearing, the district court discussed with the parties whether they agreed with Weinstein’s report or whether another hearing was needed on the issues of physical custody and parenting time.  Appellant requested another hearing, and the court questioned her about the evidence she wanted to present.  Appellant stated that she wanted to present testimony by J.M.H.’s daycare provider about J.M.H.’s stay in Nevada, but the court explained that the testimony would be inadmissible hearsay.  Appellant then stated that she wanted to present evidence that father’s current wife, Tawndra, had provided incorrect information to Weinstein as to when she had been laid off from employment.  The district court put the parties under oath and took evidence on that issue.

            The district court then again addressed the need for an evidentiary hearing.  Appellant noted that information in Weinstein’s report was based on respondent and Tawndra’s representations; no custody evaluation had been performed in Nevada; and appellant had been unable to verify much of the information provided by respondent and Tawndra.  The court stated that it would take those factors into account when evaluating Weinstein’s report.

            Following that discussion, the district court declined to continue the matter, but did conduct a further evidentiary hearing that day.  Both parties, Tawndra, and Weinstein testified, and appellant was allowed to cross-examine the witnesses.  At the end of the hearing, the district court asked appellant if the court had heard all of the evidence that she wanted to present.  Appellant replied that she wanted to make one additional statement, which the district court allowed her to make, but did not otherwise indicate any dissatisfaction with the hearing.

            The district court apprised appellant of the nature of the hearing and allowed her to question witnesses.  Even appellant’s own statements at the August 26 hearing indicate that she was afforded an adequate opportunity to present evidence and conduct cross-examination.  Based on the lack of specificity regarding the additional evidence that appellant wanted to present, the district court did not abuse its discretion in denying a continuance. 

Appellant argues that the district court abused its discretion in denying her posttrial motion to make the September 2, 2004, order temporary and hold “a full evidentiary hearing” with time for adequate preparation by both parties.  Appellant argues that her posttrial motion should have been granted based on newly discovered evidence.  However, because appellant has not yet disclosed what additional evidence she wants to present, we conclude that the district court did not abuse its discretion in denying appellant’s posttrial motion.  See Kerkhoff v. Kerkhoff, 400 N.W.2d 752, 758 (Minn. App. 1987) (even when information constitutes newly discovered evidence, reopening a judgment is not warranted unless “the new evidence is so material that it would probably produce a different” result), review denied (Minn. Mar. 25, 1987).

Next, appellant challenges several of the district court’s factual findings.  District courts have broad discretion in determining custody matters.  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989).  “Appellate review of custody determinations is limited to whether the [district] court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.”  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  When determining whether findings are clearly erroneous, we view the record in the light most favorable to the district court’s findings.  In re Custody of N.A.K., 649 N.W.2d 166, 174 (Minn. 2002).

            First, citing conflicting evidence, appellant argues that the evidence does not support the finding that when “Mother asked that Father return [J.M.H.] to her in Minnesota[,] Father refused, alleging that [J.M.H.] had been sexually abused while she was in Mother’s care.”  It is the factfinder’s role to determine the conflicts in the evidence and witness credibility.  Shastid v. Shue, 247 Minn. 314, 329, 77 N.W.2d 273, 283 (1956).  Factual findings “based on conflicting evidence will be affirmed unless they are manifestly and palpably contrary to the evidence as a whole.”  Lossing v. Lossing, 403 N.W.2d 688, 690 (Minn. App. 1987).  We conclude that the district court’s finding on the reason respondent  did not return J.M.H. to appellant is not manifestly and palpably contrary to the evidence as a whole.

Second, appellant argues that the evidence does not support the district court’s finding that “Father is currently providing needed medical, dental and psychological care for [J.M.H.] that was apparently not recognized or addressed while she was in Mother’s care.”  The record contains evidence that respondent obtained psychological care for J.M.H. regarding possible sexual abuse by appellant’s former boyfriend and that appellant did not recognize the need for such care.  The record also contains evidence that J.M.H.’s primary teeth were severely decayed, which supports the finding that appellant did not recognize or address J.M.H.’s need for dental care.  Even if the evidence does not support the finding as to medical care, the finding is contained in a detailed finding regarding the parties’ and J.M.H.’s physical and mental health.  The evidence otherwise supports the finding, including the finding that “[t]he care and stability that Father is able to provide, and his willingness to ensure that the same is in fact provided, will likely promote [J.M.H.’s] long-term physical and emotional development.”  Any error in the finding as to J.M.H.’s medical care was not prejudicial to appellant.  To obtain relief on appeal, the party seeking reversal must show both error and that the error was prejudicial.  Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975); Toughill v. Toughill, 609 N.W.2d 634, 638 (Minn. App. 2000).

Third, appellant argues that findings regarding J.M.H.’s best interests were insufficient.  We disagree.  Applying relevant statutory factors, the district court must base its custody decision on the child’s best interests.  Minn. Stat. § 518.17, subd. 3(a)(3) (2004); see also Minn. Stat. § 518.17, subd. 1(a) (2004) (listing best-interest factors).  When a custody decision is supported with “defensible findings that address relevant best-interests factors,” there is little room for this court to question the district court’s balancing of those factors.  Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000).  The district court made detailed findings on each of the relevant best-interests factors, finding that each of the factors either favored awarding physical custody to respondent or were neutral.

            Appellant also raises specific objections to some of the findings on J.M.H.’s best interests.  Appellant argues that in finding that respondent has been J.M.H.’s primary caretaker since April 2003, the district court failed to consider that respondent violated the law to maintain that position.  Appellant argues that respondent violated Minn. Stat. § 609.507 (2004), which prohibits false allegations of child abuse with the intent to influence a custody proceeding. “The court shall consider evidence of a violation of section 609.507 in determining the best interests of the child.”  Minn. Stat. § 518.17, subd. 1a (2004).

            The record contains evidence that J.M.H. may have been sexually abused by appellant’s former boyfriend.  No evidence in the record indicates that respondent knew the sexual abuse allegation was false or lacked reason to believe that appellant’s former boyfriend sexually abused J.M.H.  Respondent specifically denied making the allegation out of malice.  The evidence in the record does not support appellant’s contention that respondent violated Minn. Stat. § 609.507.

            Appellant also argues that respondent violated Minn. Stat. § 609.26, subd. 1(1), (6), (9) (2004), which prohibit depriving a person of parental or custodial rights.  But respondent testified that he understood that the agreement as to the length of J.M.H.’s stay was open-ended.  Respondent told Weinstein that he understood that J.M.H. might be staying with him for up to two years.  He also expressed concerns about appellant’s care of J.M.H., including evidence of sexual abuse by appellant’s previous boyfriends, appellant’s instability and inability to properly parent J.M.H., and appellant’s failure to place J.M.H. as her first priority.  See Minn. Stat. § 609.26, subd. 2 (2004) (affirmative defenses).  There is no evidence in the record that respondent has been charged with violating Minn. Stat. § 609.26, and there is evidence that he would have an affirmative defense to any such charge.  Under these circumstances, the district court did not err in declining to consider a possible violation by respondent of Minn. Stat. § 609.26, subd. 1.

            Next, appellant argues that the district court failed to consider the close relationship between J.M.H. and her half-sister, S.M.D, in making its custody determination.  The court, however, did recognize that J.M.H. and S.M.D. “share a strong relationship as sisters and interact well with each other.”  The court also found that J.M.H. has a good relationship with both respondent and Tawndra and concluded that the factor of J.M.H.’s interaction and interrelationship with parents, siblings, and other significant persons was neutral.

            Finally, appellant argues that the evidence does not support the district court’s finding that J.M.H. was integrated into and well-adjusted to both parties’ homes and communities and that this factor favored neither party.  But the information provided to Weinstein by respondent and Tawndra supports the finding.  Appellant notes that Weinstein never visited respondent and Tawndra’s home and argues that the district court assigned too much weight to Weinstein’s report.  But at the hearing, appellant pointed out that information provided to Weinstein by respondent and Tawndra was unconfirmed because Weinstein did not visit them in Las Vegas, and the district court specifically stated that it would take that factor into account in making its decision.

            Except for one possible nonprejudicial error, appellant’s arguments that the findings are unsupported by the evidence and that the findings are insufficient to support the custody award to respondent, lack merit.  Essentially, appellant argues that the district court assigned too much weight to the information provided by respondent and Tawndra and not enough weight to her side of the story.  This court may not substitute its judgment for that of the district court when reviewing custody determinations.  See Lenz v. Lenz, 430 N.W.2d 168, 169 (Minn. 1988) (reversing this court’s custody decision because record adequately supported district court’s findings); see also McCabe v. McCabe, 430 N.W.2d 870, 873 (Minn. App. 1988) (recognizing that simply because the evidence also would have supported different findings does not mean the district court’s findings constitute an abuse of discretion), review denied (Minn. Dec. 30, 1988).  We conclude that the district court did not abuse its discretion in awarding physical custody of J.M.H. to respondent .