This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Elaine Marie Johnson, petitioner,
Tedd Leroy Johnson,
Filed November 22, 2005
Affirmed; motion to strike and for fees denied;
Motion to supplement record granted
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
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.
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
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 (
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
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.
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
A district court has broad discretion in
determining custody matters. Durkin
v. Hinich, 442 N.W.2d 148, 151 (
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 (
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
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
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.
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.”
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.
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 (
III. Property Division
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 (
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.
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.
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
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.