This opinion will be unpublished and

may not be cited except as provided by

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







In re the Marriage of:
Jennifer Joan Viola, petitioner,


Michael Joseph Viola,


Filed January 10, 2006


Wright, Judge


Hennepin County District Court

File No. DC 284213



Mary L. Hahn, Hvistendahl, Moersch & Dorsey, P.A., 311 South Water Street, Northfield, MN  55057-0651 (for appellant)


Barbara Saunders Lutter, Thomas R. Lehmann, Lehmann & Lutter, P.A., 1380 Corporate Center Curve, Suite 214, Eagan, MN  55121 (for respondent)


            Considered and decided by Klaphake, Presiding Judge; Halbrooks, Judge; and Wright, Judge.


U N P U B L I S H E D  O P I N I O N




In this dissolution dispute, appellant-mother argues that (1) the custody evaluator’s report was defective and should not have been admitted because it did not address the joint-physical-custody factors as required by Minn. Stat. § 518.167, subd. 2(b) (2004); (2) the district court abused its discretion by ending the trial before appellant was allowed to cross-examine respondent-father; and (3) the district court abused its discretion in declining to admit certain expert testimony, an exhibit, and respondent’s admission against interest.  Respondent challenges the award of temporary spousal maintenance to appellant.  We affirm.



Appellant Jennifer Viola and respondent Michael Viola were married in July 1994.  They have two children, who were born in 1997 and 2000.  On April 1, 2003, appellant petitioned to dissolve the marriage, and the parties have been living apart since that date.  Appellant continues to reside in the family homestead in Northfield, Minnesota.  Respondent resided in Minneapolis from April 2003 until mid-2004, when he moved to a separate residence in Northfield.  The district court made a temporary award to the parties of joint legal custody and a temporary award to appellant of sole physical custody of the children. 

            The case proceeded to trial on June 11, August 12, and August 26, 2004.  The district court subsequently awarded the parties joint physical custody and determined that neither party was entitled to spousal maintenance.

            Appellant moved for amended findings of fact and conclusions of law or a new trial.  In its amended findings of fact and conclusions of law, the district court declined to modify the award of joint physical custody.  But the district court made a temporary award to appellant of spousal maintenance.  This appeal followed, and respondent filed a notice of review of the spousal-maintenance award. 




            Appellant argues that, because the custody evaluator’s report did not include a discussion of the four joint-custody factors required by Minn. Stat. § 518.167, subd. 2(b) (2004), the district court erred by admitting the report into evidence.  As presented, appellant’s argument requires us to construe section 518.167, subdivision 2(b), to determine whether the statute has any bearing on the admissibility of a custody evaluator’s report.  Statutory construction is a question of law, which we review de novo.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).  Absent an erroneous interpretation of the law, the district court’s decision to admit or exclude evidence rests within the district court’s discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).  Accordingly, we review de novo the district court’s interpretation of the statute, but we review the district court’s evidentiary ruling for an abuse of discretion. 

            Section 518.167 addresses the contents of a custody evaluator’s report and provides that, if a party seeks joint custody, “the report must consider and evaluate the factors in section 518.17, subdivision 2, state the position of each party[,] the investigator’s recommendation and the reason for the recommendation, and reference established means for dispute resolution between the parties.”  Minn. Stat. § 518.167, subd. 2(b).  The factors to be evaluated are:

            (a)  The ability of parents to cooperate in the rearing of their children;

            (b)  Methods for resolving disputes regarding any major decision concerning the life of the child, and the parents’ willingness to use those methods;

            (c)  Whether it would be detrimental to the child if one parent were to have sole authority over the child’s upbringing; and

            (d)  Whether domestic abuse, as defined in section 518B.01, has occurred between the parents.


Minn. Stat. § 518.17, subd. 2 (2004).  Appellant also seeks reversal of the joint-physical-custody award or a new trial because the custody evaluator’s report does not address the four factors as Minn. Stat. § 518.167, subd. 2(b), requires. 

            The object of statutory interpretation is to give effect to the intention of the legislature.  Educ. Minn.-Chisholm v. Indep. Sch. Dist. No. 695, 662 N.W.2d 139, 143 (Minn. 2003).  If the meaning of a statute is clear, it shall be given effect according to the plain meaning of the words used.  Minn. Stat. § 645.08(1) (2004); Molloy v. Meier, 679 N.W.2d 711, 723 (Minn. 2004).  The plain meaning of section 518.167, subdivision 2(b), is clear and susceptible of only one interpretation.  To comply with section 518.167, subdivision 2(b), the custody evaluator’s report must address the factors set forth in section 518.17, subdivision 2, in the prescribed manner.  Because the custody evaluator’s report does not address the requisite four factors, it does not comply with section 518.167, subdivision 2(b).

            Appellant argues that the report’s failure to comply with Minn. Stat. § 518.167, subd. 2(b), renders the report inadmissible.  Were we to accept this proposition, we would violate the canons of statutory construction, which prohibit us from adding words to a statute to supply that which the legislature purposefully omits or inadvertently overlooks.  Minn. Ins. Guar. Ass’n v. Integra Telecom, Inc., 697 N.W.2d 223, 227 (Minn. App. 2005), review denied (Minn. Aug. 16, 2005); Goplen v. Olmsted County Support & Recovery Unit, 610 N.W.2d 686, 689 (Minn. App. 2000).  Section 518.167 does not address the admissibility of the custody evaluator’s report.  Indeed, whether and under what circumstances evidence is or may be admissible in a judicial proceeding are decisions that the constitutional doctrine of separation of powers places solely within the ambit of the judicial branch of government, although the courts often defer, as a matter of comity, to legislatively created evidentiary rules that are reasonable.  See State v. McCoy, 682 N.W.2d 153, 160 (Minn. 2004) (discussing relationship of legislative and court-created evidentiary rules); see also Sharood v. Hatfield, 296 Minn. 416, 423, 210 N.W.2d 275, 279 (1973) (stating that courts have power to “determine what is judicial and what is legislative; and if it is a judicial function that the legislative act purports to exercise, [the supreme court] must not hesitate to preserve what is essentially a judicial function”).  Further, section 518.167, subdivision 2(b), is silent as to the consequences for failing to comply with its requirements.  When addressing the admissibility of evidence at trial, the legislature ordinarily makes clear, prescriptive statements.  See, e.g., Minn. Stat. § 169A.76(b) (2004) (stating that conviction of driving while impaired or criminal vehicular homicide is admissible to support an award of punitive damages in civil action); Minn. Stat. § 518.1751, subd. 4a (2004) (excluding from evidence for any purpose, including impeachment, documents produced as part of parenting-time-expediter process); Minn. Stat § 518.5853, subd. 9 (2004) (stating that payment records maintained by central collections unit are admissible as proof of payment without proof of authenticity); Minn. Stat. § 518C.316(c) (2004) (stating that certified copy of child-support payments is evidence of the facts asserted therein and is admissible as proof of payment).  Language articulating an exclusionary rule for a noncompliant custody evaluator’s report is notably absent from Minn. Stat. § 518.167.  

Moreover, the relief that appellant seeks for admitting the noncompliant custody evaluator’s report is unwarranted.  We review the district court’s decision to grant joint physical custody, not the custody evaluator’s recommendation.  The district court is required to address those same four factors when joint physical custody is sought.  Minn. Stat. § 518.17, subd. 2.  Because a properly prepared custody evaluator’s report includes the same factors that the district court must address, the report may be helpful to the district court in reaching its custody decision.  But the district court, nevertheless, may accept or reject the report’s custody recommendation.  Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991).  Similarly, it is within the district court’s discretion to accept or reject an incomplete report for consideration.  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996).  Thus, the mere fact that the report was defective did not render it inadmissible, and on this record, admission of the defective custody evaluator’s report did not constitute an abuse of the district court’s discretion.

By challenging the admissibility of the custody evaluator’s report, appellant implicitly challenges the merits of the decision to grant joint physical custody.  Our review of a custody determination is limited to discerning whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.  Id.; Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).

At trial, the custody evaluator testified over two days, giving appellant ample opportunity to cross-examine him about the evaluation process, earlier drafts of the report, and his final recommendations.  The custody evaluator testified that the parties are able to cooperate in parenting despite their disagreements during the dissolution and custody litigation.  He opined that, when necessary, the parties would use dispute-resolution mechanisms in the interest of the children.  According to the custody evaluator, it would be detrimental to the children if one parent had sole physical custody.  Despite his failure to address in the report the four joint-custody factors as required by Minn. Stat. § 518.167, subd. 2(b), the custody evaluator testified that he recommends joint physical custody, and this testimony addressed the statutory joint-custody factors. 

            Finding that the custody evaluator’s report implicitly addresses the four joint-custody factors and relying on the custody evaluator’s testimony about the joint-custody factors, the district court made extensive findings addressing the custody factors and the suitability of joint physical custody.  In doing so, the district court weighed the testimony of appellant, respondent, and the custody evaluator, along with the documentary evidence presented.  The district court correctly applied the law, and its findings are supported by the record.  Accordingly, we affirm the district court’s decision to grant the parties joint physical custody.


Appellant next contends that the district court committed reversible error by ending the trial after three days of testimony but before appellant cross-examined respondent.  The district court has “‘great discretion to determine the procedural calendar of a case.’”  Holmes v. Winners Entm’t, Inc., 531 N.W.2d 502, 505 (Minn. App. 1995) (quoting Rice v. Perl, 320 N.W.2d 407, 412 (Minn. 1982)); see also McIntosh v. Davis, 441 N.W.2d 115, 119 (Minn. 1989) (recognizing general acceptance of notion that district court is responsible for case management and calendar control).  Due to judicial time constraints, a district court must exercise strict control over the length of trials.  See Minn. R. Evid. 611.  A district court may place reasonable limits on the presentation of evidence to avoid “undue delay, waste of time, or needless presentation of cumulative evidence.”  Minn. R. Evid. 403.

            Here, both parties had notice of the district court’s desire for an expeditious trial.  When scheduling the trial, the district court relied on a stipulation by appellant’s former counsel that the proceedings would take a single day.  The district court expressed concern throughout the trial about the length of the proceedings because the difficulty in scheduling additional trial dates had already led to a two-month delay between the first day of trial and subsequent trial dates.  At the start of the second day of trial, the district court advised the parties that the trial would end that day.  The district court admonished counsel for appellant because of the length of her case-in-chief, calling much of the evidence “repetitive.”  At the end of the third day, after direct examination of respondent, the district court stated that it had sufficient information on which to base its decision and ended the proceedings. 

Ending the trial before cross-examination of respondent was not optimal; indeed, it was a harsh measure.  But our review of the record establishes that doing so was not an abuse of the district court’s discretion.  Both parties testified on direct examination and introduced numerous trial exhibits.  A small number of additional witnesses testified.  Despite the abbreviated trial, the district court had ample evidence to make findings of fact and conclusions of law regarding all of the substantive issues before it.

The trial record does not evince any deficiency in evidence on which to base the findings of fact or conclusions of law.  The record is adequately developed; and despite her efforts, appellant did not present her case in a manner that allowed her to honor the trial schedule that she proposed to the district court.  Under these circumstances, it was not an abuse of discretion for the district court to conclude the trial when it did.


Appellant also argues that the district court erred when it declined to admit three pieces of evidence.  When reviewing evidentiary rulings, our duty is to “look to the record as a whole to determine whether, in light of the evidence therein, the district court acted ‘arbitrarily, capriciously, or contrary to legal usage.’”  State v. Profit, 591 N.W.2d 451, 464 n.3 (Minn. 1999) (quoting Kroning, 567 N.W.2d at 46).


            First, appellant contends that exclusion of the testimony of her custody expert witness, Dr. Susan Phipps-Yonas, constitutes prejudicial error.  Respondent moved to exclude the expert witness, arguing that the late disclosure and response to interrogatories violated the parties’ stipulated discovery agreement and would be prejudicial unless the trial date was continued.  The district court granted the motion.  The exclusion of expert testimony lies within the discretion of the district court, and we will not reverse that ruling unless it is based on an erroneous view of the law or it constitutes an abuse of discretion.  Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983). 

            The following procedural history is relevant to our analysis.  The trial was continued several times before the district court set a trial date of June 11, 2004.  The parties had reached a pretrial agreement not to call any expert witnesses.  After a substitution of appellant’s counsel on May 20, 2004, Dr. Phipps-Yonas was hired on May 21.  The expert’s name was first disclosed to respondent on May 27.  The scope of Dr. Phipps-Yonas’s testimony and her opinions were not provided until the day before trial.  Although Dr. Phipps-Yonas did not conduct a separate custody evaluation, appellant proffered the expert testimony to refute the recommendation of the custody evaluator and to provide foundation for the Supreme Court Guidelines on Parenting Time. 

            The district court considered the prejudicial timing of the expert disclosure when it granted the motion to exclude Dr. Phipps-Yonas’s testimony.  Declining to admit the testimony and further delay the trial was a sound exercise of the district court’s discretion.  Accordingly, on the record before us, appellant has not demonstrated that the district court committed prejudicial error with this ruling.


Appellant next asserts that the district court abused its discretion by excluding an exhibit as proof of a marital debt arising from a $90,000 loan to appellant from her father.  Appellant offered the exhibit for consideration by the district court as a debt related to the distribution of marital property.  Respondent objected, arguing that the exhibit lacked foundation.  But the district court excluded the exhibit on the grounds that it lacked probative value.

The district court has broad discretion in weighing the probative value of evidence in order to determine its admissibility.  Citizens for a Safe Grant v. Lone Oak Sportsmen’s Club, Inc., 624 N.W.2d 796, 807 (Minn. App. 2001).  We review this evidentiary ruling for a clear abuse of discretion.  Benson v. N. Gopher Enters., Inc.,  455 N.W.2d 444, 446 (Minn. 1990). 

The proffered exhibit included communication between appellant and her father regarding the terms and conditions of the loan, which specified that only appellant or the parties’ children may use the funds.  Invoices for legal fees and credit-card statements included in the exhibit showed that the loan proceeds were used to pay attorney fees and household expenses.

Although the exhibit was not admitted, appellant testified about the amount of the loan, its purpose, and its terms.  Thus, the exclusion of the exhibit did not preclude her from presenting testimonial evidence to establish that the debt should be considered when dividing the marital property.  Although the exhibit contains additional details about the terms of the loan and how the proceeds were used, appellant’s trial testimony contained sufficient reference to the loan and its nature for the district court to determine whether the debt should be characterized as a marital debt.  In its amended findings of fact, the district court rejected appellant’s characterization of the debt as marital when it referred to the loan as “additional financial support to her.”

The characterization of property as marital or nonmarital is a determination of law, but we defer to the district court’s findings on underlying facts.  Keithahn v. Keithahn, 392 N.W.2d 8, 10 (Minn. App. 1986).  The district court has broad discretion in dividing marital property, and its decision will not be overturned absent a clear abuse of that discretion.  Korf v. Korf, 553 N.W.2d 706, 712 (Minn. App. 1996); see Bliss v. Bliss, 493 N.W.2d 583, 587 (Minn. App. 1992) (allocating postseparation debt to appellant who incurred debt rather than apportioning it between parties), review denied (Minn. Feb. 12, 1993).  The record demonstrates that appellant incurred this debt after the parties’ separation.  The district court did not abuse its discretion by assigning the loan to appellant in its entirety rather than to the parties jointly.

Thus, we cannot reasonably conclude that the district court abused its discretion by excluding the exhibit.  Moreover, the district court did not err when it determined that the loan was a nonmarital debt. 


Finally, appellant contends that the district court abused its discretion by excluding excerpts from respondent’s deposition testimony offered during appellant’s trial testimony to support her contention that a $5,000 check from her father was a gift to her alone, not to the parties jointly.  Appellant sought to introduce as an admission against interest an exhibit containing a copy of a check for $5,000 and those portions of respondent’s deposition testimony regarding the check.  The district court admitted the check but deferred the introduction of the deposition testimony until respondent was cross-examined. 

Respondent’s deposition testimony was properly excluded as a statement against interest when appellant offered it for admission.  A party is permitted to introduce a declarant’s statements against interest during that party’s case-in-chief if the declarant is unavailable as a witness.  Minn. R. Evid. 804(b)(3); State v. Ortlepp, 363 N.W.2d 39, 43 (Minn. 1985).  A declarant is “unavailable” if he or she is absent from the proceedings or otherwise prevented from testifying.  Minn. R. Evid. 804(a).  A statement may be introduced as an admission by a party-opponent, however, if it is offered to impeach the party-opponent during cross-examination.  Minn. R. Evid. 801(d)(2).

As a party in the proceedings, respondent was not unavailable when appellant attempted to introduce his statement.  The district court correctly determined that respondent’s deposition testimony was inadmissible as hearsay during appellant’s testimony. 

            Respondent’s deposition testimony could have been used to impeach him during his cross-examination.  But because the district court ended the trial before respondent was cross-examined, appellant did not have the opportunity to confront respondent with his deposition testimony to support her claim.  Based on other evidence, the district court determined that appellant’s father gave the $5,000 gift to both parties jointly.  The parties agree that the donor’s intent is the most probative factor in determining whether a gift is marital or nonmarital property.  Olsen v. Olsen, 562 N.W.2d 797, 800 (Minn. 1997).  The donor was not called to testify regarding his intentions when making the gift.  The check was payable to “Michael J. Viola and Jennifer J. Viola,” and it was used as a down payment on the family homestead. 

The district court interpreted both parties’ names on the check as dispositive that a joint gift was intended. Our review of the record establishes that neither the district court’s evidentiary ruling nor its factual determination as to the donor’s intent was erroneous.


Respondent contends that the district court erred by temporarily granting appellant spousal maintenance in an amount that exceeds her need and his ability to pay.  We review a district court’s award of spousal maintenance for an abuse of discretion.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997); Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989); Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  A district court abuses its discretion in its spousal-maintenance determination if its findings of fact are unsupported by the record or if it improperly applies the law.  Dobrin, 569 N.W.2d at 202 & n.3 (citing Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988)).

            The district court may grant spousal maintenance if the party seeking such support lacks sufficient property to provide for the party’s reasonable needs or if that party is unable to provide adequate self-support.  Minn. Stat. § 518.552 (2004).  When the district court awards spousal maintenance, it must determine the amount and duration of maintenance based on enumerated factors, including:

            (a)  the financial resources of the party seeking maintenance, including marital property apportioned to the party, and the party’s ability to meet needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;

            (b)  the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, and the probability, given the party’s age and skills, of completing education or training and becoming fully or partially self-supporting;

            (c)  the standard of living established during the marriage;

            (d)  the duration of the marriage and, in the case of a homemaker, the length of absence from employment and the extent to which any education, skills, or experience have become outmoded and earning capacity has become permanently diminished;

            (e)  the loss of earnings, seniority, retirement benefits, and other employment opportunities forgone by the spouse seeking spousal maintenance;

            (f)  the age, and the physical and emotional condition of the spouse seeking maintenance;

            (g)  the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance; and

            (h)  the contribution of each party in the acquisition, preservation, depreciation, or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker or in furtherance of the other party’s employment or business.


Minn. Stat. § 518.552, subd. 2 (2004).  No single statutory factor is dispositive in determining the amount and duration of spousal maintenance.  Elwell v. Elwell, 372 N.W.2d 67, 69 (Minn. App. 1985).  An award of spousal maintenance balances one party’s need against the other party’s financial condition.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).

In its amended order, the district court awarded appellant temporary monthly spousal maintenance of $1,950, based on her lack of sufficient ability and property to provide for herself and her household.  The amount of spousal maintenance awarded was based on the parties’ earning capacity and their reasonable and necessary expenses. 

In light of appellant’s college degree, ability to work outside the home, limited work history during the marriage, and employment at the time of trial as a retail clerk earning an hourly wage of $7.50, the district court determined that she had a minimum earning capacity of $10 per hour for 40 hours per week.  Factoring in taxes and tax credits, the district court calculated a net monthly income of $1,760 for appellant.  The district court then added $416 per month, anticipating that she would continue to receive an annual gift of $5,000 from her parents.  Appellant’s net monthly resources of $2,176 were used to calculate her child-support obligation under the Hortis/Valento formula, resulting in a difference between the parties’ obligations of $382, which respondent will pay appellant.  Appellant’s reasonable and necessary monthly expenses for herself and her household were determined to be $4,303.

The district court found that respondent’s net monthly income from his full-time employment as an attorney is $4,721.  Applying the Hortis/Valento formula, the district court found his child support obligation to be $708, with a net obligation of $382 to appellant.  The district court determined that respondent’s reasonable and necessary monthly expenses are $3,750. 

Based on the net monthly income of the parties, along with their reasonable and necessary monthly expenses, the district court awarded appellant monthly spousal maintenance of $1,950, resulting after taxes in approximately $3,573 to meet her monthly expenses of $4,303.  This spousal maintenance obligation leaves respondent with $3,001 to meet his monthly expenses of $3,750.  The district court determined that each party will have a financial shortfall that should be shared equitably and acknowledged that this amount of spousal maintenance contemplates the reduction in child support due to the change from sole to joint physical custody. 

Respondent contends that the district court abused its discretion by improperly and incorrectly calculating appellant’s financial need.  The determination of appellant’s income is a finding of fact, which we will not set aside as long as there is reasonable evidence to support the finding and it is not clearly erroneous.  State ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 470 (Minn. App. 1999); see Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999); see also Minn. R. Civ. P. 52.01 (specifying that district court’s findings of fact will not be set aside unless clearly erroneous).  Because one of appellant’s pay stubs indicates an average hourly wage of $11.67, respondent argues that appellant’s earning capacity should have been set at $12 per hour.  But rather than limiting its analysis of appellant’s earning capacity to this one piece of evidence, the district court examined her education, work experience, earnings history, role as primary caregiver during the marriage, the Northfield job market, and her current wage ($7.50 per hour) to determine an earning capacity of at least $10 per hour.  In light of the entire record, respondent’s claim that the district court clearly erred in finding appellant’s income to be $10 per hour is without merit. 

Respondent also challenges the amount of spousal maintenance ordered because it exceeds his ability to pay and will leave him with a shortfall.  A resulting budgetary shortfall for one or both of the parties does not automatically render the award of spousal maintenance erroneous.  Ganyo v. Engen, 446 N.W.2d 683, 687 (Minn. App. 1989) (upholding spousal maintenance award that resulted in shortfall for husband); see also LeRoy v. LeRoy, 600 N.W.2d 729, 733 (Minn. App. 1999) (reversing spousal maintenance award modified to decrease shortfall to parties for lack of findings as to modified amount), review denied (Minn. Dec. 14, 1999).  Here, the district court noted that there is not enough income between the two parties to meet the needs of both households.  The district court reasoned that both parties should experience an equitable share of the shortfall because the children will be residing with both parents.  The district court determined that appellant’s and respondent’s monthly after-tax shortfall will be approximately $730 and $749 respectively. 

Because the district court relied on the proper statutory factors to determine the amount of spousal maintenance and its findings are supported by the record, we conclude that the district court did not abuse its discretion in awarding temporary spousal maintenance resulting in a shortfall to both parties.  Nor was it erroneous to apportion the shortfall equitably under the circumstances.