This opinion will be unpublished and

may not be cited except as provided by

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







Elaine Marie Johnson, petitioner,





Tedd Leroy Johnson,



Filed November 22, 2005

Affirmed; motion to strike and for fees denied;

Motion to supplement record granted

Randall, Judge


Scott County District Court

File No. 2002-22467


Jori Whitehead, Ronald L. Whitehead, Matthew S. Krohn, Whitehead Law Office, 2412-117th Street East, Burnsville, Minnesota 55337 (for respondent)


Marc G. Kurzman, Kurzman, Grant & Ojala Law Office, 219 Main Street Southeast, Suite 403, Minneapolis, Minnesota 55414 (for appellant)



            Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and


Randall, Judge.


U N P U B L I S H E D  O P I N I O N




­On appeal in this custody dispute, appellant-father argues (a) the custody findings are insufficient, and consideration of the best-interests factors shows that custody should have been awarded to appellant; (b) the district court abused its discretion by not allowing appellant to present certain evidence; and (c) the record does not support the award of the homestead to respondent.  Respondent-mother also moves to strike from appellant’s appendix a wiretap tape introduced in a previous domestic-abuse proceeding and references in appellant’s brief to testimony that respondent says did not occur. Appellant moves to supplement the record with the decision of an appeals referee made after the entry of the judgment on appeal.  We conclude the district court did not abuse its discretion in determining custody and made sufficient findings supporting that determination.  We affirm the district court’s allocation of the homestead and its equity. Respondent’s motion to strike certain materials from the record is denied.  Appellant’s motion to supplement the record is granted. 



Appellant Tedd Johnson and respondent Elaine Johnson were married in 2000.  They have one child, born in January 2002, who has been diagnosed with pervasive developmental delay and receives special-education services through the Lakeville School District.   Appellant is a licensed pilot who has also worked as a mechanic.  Respondent is a registered nurse.  

The parties filed this dissolution action in November 2002.  On July 16, 2003, respondent sought an order for protection under Minn. Stat. § 518B.01 (2002), alleging that appellant had held her by the throat, pushed her against the wall, and struck her.  The district court granted an ex parte OFP; after a hearing, the court concluded that domestic abuse had occurred.  On appeal, this court affirmed the OFP, stating that physical evidence of respondent’s bruises supported the district court’s credibility determination that abuse occurred.  Johnson v. Johnson, No. A03-1436, 2004 WL 1191951 (Minn. App. June 1, 2004), at * 3-4.  This court also held that the district court had admitted, but paid little attention to, two audiotapes. One tape indicated a child crying and a woman yelling.  The other tape, which appellant obtained by wiretap, reflected conversations between respondent and another person purporting to conspire to make false allegations of abuse against appellant.  Id. at *2.    

Appellant was charged with illegal wiretapping of the latter conversations and admitted to the facts constituting that offense under the appellate procedure outlined in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). Based on the OFP findings, Scott County found maltreatment of the child by appellant; but a Department of Human Services appeals referee later reversed this determination after the entry of the dissolution judgment.

The district court granted temporary sole physical and legal custody of the child to respondent, subject to appellant’s parenting time, and appointed a guardian ad litem. After a partial settlement hearing, the court ordered both parties to undergo psychological evaluations, with the results disclosed to a therapist who would work with them on post-decree communication.  The district court also appointed a parenting-time expeditor. After appellant claimed that respondent was not cooperating with the evaluation process, the court ordered parenting evaluations for both parties with Scott County Mental Health and ruled that the previously ordered evaluations were inadmissible. 

            Both parties requested sole physical and legal custody of the child.  The district court held a nine-day custody trial.  Respondent presented testimony to support her contention that the child’s special needs preclude overnight parenting time with appellant.  Appellant presented testimony challenging appellant’s credibility on a number of issues.

The district court granted respondent’s motion to take judicial notice of the OFP and maltreatment proceedings.  The court did ultimately reject respondent’s argument that the wiretap tape did not form a part of the OFP record because it was illegally obtained.  The court stated that the tape formed part of the record.  The district court denied appellant’s motion to admit a file from respondent’s 1993 New York dissolution proceeding on the ground of relevance and quashed a subpoena to the Southern Valley Alliance Battered Women’s Shelter for records on its contact with respondent. 

The dissolution judgment granted sole legal and physical custody to respondent, with overnight parenting time to appellant.  The judgment allocated the parties’ homestead to respondent, with a lien in favor of appellant of one-half the parties’ equity.  Appellant challenges both of these determinations on appeal.  Appellant also argues that the district court abused its discretion in failing to consider the initially ordered psychological evidence on respondent and in excluding the New York dissolution file and the women’s shelter records.  Respondent moves to strike the transcript of the wiretap tape from appellant’s appendix and appellant’s asserted testimony of a witness who did not appear. Appellant moves to supplement the record with the decision of the Minnesota Department of Human Services appeals referee reversing the child-maltreatment determination. 

I.  Custody


A district court has broad discretion in determining custody matters.  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989); Lemcke v. Lemcke, 623 N.W.2d 916, 919 (Minn. App. 2001), review denied (Minn. June 19, 2001).  Appellate review of a custody determination is narrow and “limited to whether the [district court] abused its discretion by making findings unsupported by the evidence or improperly applying the law.”  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996) (quotation omitted).   Minnesota law requires that a district court base its custody determinations on the best interests of the child,  Minn. Stat. § 518.17, subd. 3(a)(3) (2004), and consider the best-interests factors in Minn. Stat. § 518.17, subd. 1 (2004).

A reviewing court views the record in the light most favorable to the district court’s determination, giving deference to the district court’s credibility determinations.  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).  A finding is clearly erroneous if the reviewing court is left with the definite and firm conviction that a mistake has been made.  Id.   

            Appellant argues that the district court erred by failing to support its custody determination with particularized findings on the best-interests factors and abused its discretion in granting custody to respondent.  District court findings assure that the relevant statutory factors have been addressed, satisfy the litigants that their case was fairly resolved, and permit reasoned appellate review.   Rosenfeld v. Rosenfeld, 311 Minn. 76, 82, 249 N.W.2d 168, 171 (1976).  But the district court need not make specific findings on each statutory factor nor address each factor specifically. 83, 249 N.W.2d at 171-72.  Rather, “[i]t is sufficient if the findings as a whole reflect that the [district] court has taken the statutory factors into consideration, in so far as they are relevant, in reaching its decision.”  Id., 249 N.W.2d at 172 (upholding custody determination absent specific findings on each best-interest factor when it was clear that district court considered those factors relevant to its decision).

The district court made particularized findings on the child’s special-needs status, with a diagnosis of borderline pervasive developmental disorder; on his enrollment in an early childhood special education program; and on the parenting strengths of both parents as reflected in court-ordered parenting assessments.  These findings reflected consideration of the best-interests factors of the child’s adjustment to home, school, and community and the ability of both parents to give the child love, affection, and guidance.  Minn. Stat. § 518.17, subd. 1 (6), (10).  The court also found that respondent had been the child’s primary caretaker since the parties’ separation in July 2003 and that both parties had an intimate and loving relationship with the child, addressing the best-interests factors in Minn. Stat. § 518.17, subd. 1 (3), (4).  In ordering overnight visits with appellant, the court further noted positive relationships of the child with his cousin and paternal grandparents, thus addressing the factor of the interaction of the child with parents, siblings, and others who might significantly affect the child’s best interests. Id., subd. 1 (10).  The court also found that the recommendation of the parenting-time expeditor for overnight visitation with appellant met the professionals’ recommendations of consistent structure and predictable routine.  Finally, the district court found that because of the extreme animus between the parties, the court was unable to find that either parent acted in the best interests of the child.  Although the district court did not make specific findings on each best-interests factor, the district court’s findings, as a whole, reflected patience and careful consideration of the relevant statutory factors.   

Appellant asserts that the district court improperly failed to consider the best-interests factor of the disposition of each parent to encourage frequent and continuing contact with the other parent.  See Minn. Stat. § 518.17, subd. 1(13).  However, this factor does not operate in cases where domestic abuse has occurred between the parents.  Id.  The finding in the OFP proceeding that appellant struck respondent, which was affirmed by this court, falls within the definition of domestic abuse under Minn. Stat. § 518B.01 (2004).  See Minn. Stat. § 518B.01, subd, 2 (defining “domestic abuse” as including physical harm, bodily injury, or assault).  Therefore, the district court was not required to make a finding on this best-interests factor.  Additionally, the district court’s parenting schedule, including prescribed overnight visits with appellant, will assist the parental bonding and the consistency that appellant wants and professionals find to be in a child’s best interests.   

Appellant alleges that the district court improperly failed to consider evidence of respondent’s mental instability and lack of credibility in weighing the best-interests factors.  The record reflects that appellant presented testimony impeaching respondent’s credibility in areas marginally, if at all, related to her relationship with the child.  These included her reporting of appellant’s violation of the OFP when other evidence showed him to be in Colorado; her report that appellant had taken her purse from her car, which action police declined to prosecute; and her transferring money from the parties’ joint bank account to her daughter a few days before the acts giving rise to the OFP.  That testimony is troubling in that it reflects questionable judgment by respondent; but the incidents relate to respondent versus appellant, with the parties obviously being estranged.  They do not necessarily reflect on respondent’s relationship with the child.  In making a custody determination “[t]he court shall not consider conduct of a proposed custodian that does not affect the custodian’s relationship to the child.”  Minn. Stat. §518.17, subd. 1(b) (2004).  “Children are not responsible for their parents’ misconduct, and their best interests should not be sacrificed merely to punish a misguided parent.”  Lemcke, 623 N.W.2d  at 920 (Minn. App. 2001).  The district court did not err in declining to make findings on conduct unrelated to respondent’s relationship with the child.

The record establishes that, although both parents loved the child, respondent was particularly involved and supportive of dealing with his diagnosed special needs.  The guardian ad litem testified that she had observed respondent working with the child on training issues related to his disability.  The parenting-time expeditor, while noting the child’s positive relationship with appellant’s family during parenting time, expressed disappointment that appellant was not working with the child in the same way as respondent.  And the early-childhood special-education teacher testified that respondent sought out further information on the child’s disability and helped teach him American sign language, evidenced by the child’s increased skill in signing.   

             This is a difficult case.  Both parents are involved and engaged.  Both show a definite concern for their child.  In viewing the record as a whole, we conclude that the district court did not abuse its discretion in granting sole legal and physical custody to respondent.  Further, the court did not abuse its discretion in declining appellant’s proposal of a mathematical fifty per cent parenting time.   

II.  Evidence

            This court will not reverse a district court’s evidentiary rulings unless the court clearly abuses its discretion and prejudices the adverse party.  Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001).  “[M]atters such as trial procedure, evidentiary rulings, and jury instructions are subject to appellate review only if there has been a motion for a new trial in which such matters have been assigned as error.”  Alpha Real Estate (Co. of Rochester)  v. Delta Dental Plan of Minn., 664 N.W. 2d 303, 310 (quoting Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986)).  Appellant asserts that the district court abused its discretion by denying his motion to require the production of evidence on respondent’s mental health, which was ordered after a partial settlement discussion to improve post-decree communication issues, and in refusing to admit the contents of respondent’s 1993 marriage dissolution file from New York.  Appellant also challenges the district court’s quashing of his subpoena to the Southern Valley Alliance, a domestic-abuse shelter and violence program, for records on communications to or from respondent.  We can only note that appellant failed to move for a new trial on the basis of these alleged errors, and we decline to consider them on appeal.   

III.  Property Division


            A district court has broad discretion in the allocation of marital property and will not be overturned absent an abuse of that discretion.  Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (Minn. App. 2000), review denied (Minn. Oct. 25, 2000). Equitable, not equal, division of marital property is required. Stassen v. Stassen, 351 N.W.2d 20, 23 (Minn. App. 1984).

            The district court ordered that the parties’ homestead be allocated to respondent, with a lien in favor of appellant for one-half of the parties’ $19,240 equity in the home. Appellant challenges this determination, arguing that respondent made a gift to appellant of the home, and that any of respondent’s equity should be offset by her sale and retaining the proceeds of a power washer that belonged to appellant.  Appellant introduced a small sheet of paper, purportedly signed by respondent in 2001 and surrendering her rights to the homestead.  Respondent denied signing the piece of paper.  The purchase agreement for the house shows that the parties purchased the house for $1 from appellant’s church in November 2000, and reflects a transfer to both parties.  

            The district court did not err in implicitly determining that the signed piece of paper, which was apparently written during a period of reconciliation, did not provide sufficient evidence of an intent to give respondent’s portion of the homestead to appellant.  See McCulloch v. McCulloch, 435 N.W.2d 564, 568 (Minn. App. 1989) (noting requirement of donative intent in making valid gift).  The district court’s allocation of equity in the homestead reflects its consideration of respondent’s unrefuted evidence that she contributed approximately $8,700 to improve the house. The power washer and a wagon sold for approximately $800, a de minimis amount in the context of these proceedings.   We conclude the district court fairly allocated the homestead of the parties and its equity.  

IV.  Record

Respondent seeks to strike from the record the transcript of the wiretap tape that was introduced in the OFP proceeding.  The papers filed in the district court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal.  Minn. R. Civ. App. P. 110.01.   An appellate court may not base its decision on matters outside the record on appeal and may not consider matters not produced and received in evidence below. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). 

Respondent had moved the district court in limine for judicial notice of the OFP proceeding, but argued for the exclusion of the wiretap tape on the basis that it was illegally obtained and the OFP court had determined it lacked relevance.  The district court did not rule immediately on this issue, but ultimately on November 12, 2004, stated, “The district court admitted the tapes, …[s]o they’re part of the record and I’ve agreed to take judicial notice of that case.”  The record proves the district court took judicial notice of the complete OFP proceeding, including the wiretap tape, and the transcript is properly part of the record on appeal.  See Minn. R. Crim. P. 28.02, subd. 9 (stating, in analogous criminal proceeding, that transcript of taped exhibits is included as a part of record).

Appellant also moves to supplement the record with a copy of a May 3, 2005 decision by a Minnesota Department of Human Services appeals referee reversing the  Scott County Social Services determination that appellant maltreated the parties’ child.  Respondent successfully moved the district court for judicial notice of the maltreatment proceeding, and this court may take judicial notice of the final determination in that proceeding.  See Minn. R. Evid. 201(b) (permitting court to take judicial notice of adjudicative facts that are “capable of accurate and ready determination by resort to sources whose adequacy cannot reasonably be questioned”).  Therefore, we grant the motion to supplement the record with this decision.  

Respondent also moved to strike references in appellant’s brief to “testimony” by Theresa Larson, a social worker.   Appellant recognizes that Larson did not testify in person, but states that her reports were subpoenaed and formed the basis for impeaching testimony.  It is clear from the record that both parties knew the basis for this testimony.  Respondent is not claiming that she thought Theresa Larson testified in person, only to find out later that it was Larson’s report that was used by another witness.  Both parties were on an equal footing to propound the contents of the report and cross-examine from it.  Since the district court admitted the testimony of the witness, it was entitled to weigh the information presented during the testimony of the live witness.  There is no reason to strike references to “testimony.”  It is clear the district court knew and considered it as coming in second hand.

Lastly, respondent has moved for attorney fees.  However, respondent has not claimed a substantive basis for recovering attorney fees on appeal; thus, the request is denied.  See Geske v. Marcolina, 624 N.W.2d 813, 819 (Minn. App. 2001) (stating that Minn. R. Civ. App. P. 139.06 provides only a procedure for seeking attorneys’ fees, not a substantive basis for recovering those fees).  

Affirmed; motion to strike denied; motion to supplement the record granted; motion for attorney fees denied.