This opinion will be unpublished and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
Michael C. Vincent, petitioner,
Laura M. Beck,
Filed February 14, 2006
Wright County District Court
File No. F7-05-1023
Michael C. Vincent,
645 U.S. Highway 12 S.E.,
Laura M. Beck,
Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
Appellant contends that the district court abused its discretion by denying her motion for custody modification and determining that the record does not support findings of emotional or physical endangerment or deprivation of her parental rights. Respondent seeks dismissal, arguing that appellant waived all her arguments on appeal. Because we find that the record does not support appellant’s allegations of emotional and physical endangerment or deprivation of parental rights, we affirm.
Appellant mother and respondent father are the parents of a child born on July 10, 1991. In 1994, the district court awarded respondent “temporary sole legal and permanent physical custody” of the child. Years of custody litigation followed the determination.
In March 2005, appellant moved to modify custody. In transferring venue to where the child resides, the court commented that it did so with “reluctance” because the appellant had “not raised any new allegations that the child is currently endangered” and that the incidents relating to appellant’s allegations “occurred 10 years ago.” In its order of June 21, 2005, the district court denied appellant’s motion to modify custody.
In August 2005, this court dismissed the appeal based on appellant’s “failure to cite to the record in her brief,” but allowed for reinstatement. Appellant filed a timely motion to reinstate the appeal.
This appeal arises from the court’s determination that a modification was not necessary to serve the best interests of the child because the appellant failed to show (a) that the child’s environment with the respondent endangers or impairs his physical or emotional development, or (b) that there was an unwarranted denial or interference with the parenting-time schedule.
D E C I S I O N
Appellant raises two issues on appeal. First, she contends that the child’s present environment endangers his emotional and physical health. Secondly, she alleges that respondent is depriving her of her parental rights.
reviewing a custody determination, this court must decide whether the district
court abused its discretion by improperly applying the law or making findings
unsupported by the evidence. Silbaugh v. Silbaugh, 543 N.W.2d 639,
1. Custody Modification
relevant part of the child-modification statute states that the district court may
modify a previous custody order only if it finds that modification is necessary
because of a change in circumstances and to serve the best interests of the
Although appellant’s affidavit in support of her custody-modification motion states that documents in the record support both modification standards, she fails to identify which documents she relies upon. The record is replete with documentation that reflects 11 years of custody litigation. But no court has found that the child’s environment endangered his emotional or physical health, and none of the documents show that there is any present endangerment to the child. Appellant also points to various newspaper and magazine articles which discuss child-custody modification and the general effects of growth hormones in support of her contention that the child has suffered non-emergency medical neglect. However, appellant has provided no evidentiary support and she alleges no facts whatsoever to show the endangerment she claims to exist in the child’s environment. Thus, the district court did not err in its conclusion that appellant failed to show child endangerment.
2. Deprivation of Custodial or Parental Rights
The district court ruled that appellant made no showing of an unwarranted interference with her parenting-time schedule. In support of her allegation that respondent has interfered with or denied her right to visit the parties’ child, appellant quotes a criminal statute and cites cases involving false accusations of child molestation by one parent toward the other, and cases in which one parent denigrated the other in various ways. She then merely asserts that respondent has denied and interfered with her visitation of the child; has made false reports of child abuse and false police reports; and that the guardian ad litem and the family court have knowledge of these matters.
her assertions, appellant has cited no record evidence of interference with her
parenting-time schedule. An appellate
court must base its decisions on “evidence actually presented to the trial
court and shown by the record on appeal.”
Western World Ins. Co. v. Anothen,
Inc., 391 N.W.2d 70, 73 (
3. Waiver of Arguments on Appeal
Respondent and appellant are both pro se litigants. Respondent seeks dismissal of the appeal, contending that appellant waived all her arguments on appeal because her brief (a) fails to include an appendix, (b) contains matters outside the record, (c) does not use appropriate headings, (d) fails to include a statement of the case and facts, (e) improperly cites cases, and (f) does not provide respondent’s telephone number on the front cover. The record shows that appellant provided respondent with two copies of her brief and appendix, which included supplemental paperwork.
appellate court may not base its decision on matters outside the record on
appeal and may not consider matters not produced and received into evidence
below. Thiele v. Stich, 425 N.W.2d 580, 582-83 (
1. Has the movant been prejudiced by the appellant’s failure to comply with the rules?
2. Has the appellant demonstrated justifiable cause for the failure to comply with the rules?
3. Has the defect been cured and have the record and all briefs been filed so that the merits can be evaluated?
4. Is the underlying appeal meritorious?
Boom v. Boom, 361 N.W.2d 34, 36 (