This opinion will be unpublished and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
In re the Marriage of
Thomas Carroll Rubey,
Valerie Ann Vannett,
Affirmed in part, reversed in part, and remanded
Washington County District Court
File No. F9-02-4611
Mark A. Olson, Olson Law Office, 2605 E. Cliff Road, Suite 100, Burnsville, MN 55337 (for appellant);
Vannett, 12720 Edinbrook Path,
Thomas B. James,
Graham, 180 Haut de la Paroisse, St-Agapit, (LOT B) Quebec GOS IZO Canada (for
amicus curiae R-Kids of
John L. Bauserman, Jr. (pro hoc vice) , Pikrallidas & Associates, 10605 Judicial Drive, Building A-4, Fairfax, VA 22030 (for amicus curiae The Children’s Rights Council).
Considered and decided by Hudson, Presiding Judge; Randall, Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges the district court’s final judgment of June 21, 2004, awarding sole legal and physical custody of the parties’ daughter to respondent. Appellant also challenges the district court’s order of December 9, 2004, denying appellant’s motion for amended findings and/or a new trial. On appeal, appellant argues that the district court abused its discretion by: (1) adopting respondent’s proposed findings verbatim; (2) granting respondent sole legal and sole physical custody in violation of appellant’s due process rights; (3) awarding respondent attorney fees; (4) excluding appellant’s expert testimony; (5) accepting the report of the custody evaluator; and (6) allocating the dependent medical costs to appellant. Appellant also challenges the constitutionality of Minn. Stat. § 518.17. We affirm in part, reverse in part, and remand.
Appellant Thomas Carroll Rubey and respondent Valerie Ann Vannett married on September 9, 1999, and on July 19, 2002 they had a daughter. The parties separated in October of 2002. Appellant petitioned for dissolution of the marriage in July 2002, in Washington County District Court. On October 7, 2002, the court issued a temporary order granting the parties temporary joint legal and joint physical custody of their daughter.
After a hearing, the district court issued an order on March 18, 2003, denying appellant’s motion for the paternal grandparents to provide for the daycare of the child; denying appellant’s motion for a child psychologist to be appointed; granting in part respondent’s motion regarding the selection of an unrelated third party daycare provider for the child; and denying respondent’s motion for attorney fees.
On the first day of trial, the parties submitted a permanent partial stipulation to the court, including a stipulation on joint legal custody. The transcript reflects that respondent informed the court of the stipulation contents: “Basically, we have resolved all issues except for physical custody, parenting time, child support, attorney fees and each party’s income - - net income.” Appellant agreed.
On October 22, 2003, the district court issued an emergency ex parte order precluding appellant from entering the child’s daycare center facilities and grounds and eliminating appellant’s lunch visits with the child. After the trial, the district court issued its findings of fact, conclusions of law, order for judgment and judgment and decree, awarding respondent sole legal and sole physical custody. Three days later, respondent served a notice of filing and entry of decree. On July 23, 2004, appellant served respondent with his notice of motion and motion for amended findings and/or new trial.
The district court order of December 9, 2004, concluded that under Minn. R. Civ. P. 59.03, it lacked jurisdiction to hear the matter. In the alternative, the district court denied the motion on the merits. Appellant appealed from the judgment and decree of June 21, 2004, and the order of December 9, 2004. This court dismissed the appeal, holding that appellant’s new trial/amended findings motion was untimely and that the motion did not stay the time to appeal the judgment and decree.
challenged this court’s dismissal, and the Minnesota Supreme Court reversed
this court’s decision and remanded the case back to this court. Rubey
v. Vannett, 714 N.W.2d. 417 (
Appellant filed a petition for a rehearing by the Minnesota Supreme Court, which it denied.
D E C I S I O N
I. Verbatim Findings
Appellant argues that the district
court erred by adopting respondent’s proposed findings verbatim or by merely
rephrasing short parts. Appellant
argues that the district court’s findings are not the product of an independent
determination of the facts, but rather a verbatim adoption of respondent’s
proposed findings, which is a disfavored practice. See
Pederson v. State, 649 N.W.2d 161, 163 (
allegations that the district court has adopted proposed findings verbatim, appellate
courts conduct a “careful and searching review of the record.” Dukes
v. State, 621 N.W.2d 246, 258 (
verbatim adoption of proposed findings raises the question of whether the district court “independently evaluated each party’s testimony and evidence.” Bliss, 493 N.W.2d at 590.
the district court did adopt many of respondent’s proposed findings but did not
adopt all of respondent’s findings verbatim.
In its order of December 9, 2004, the district court stated the
following: “The Court made several of its own findings and conclusions, which
are materially different than those proposed by Respondent. Just one example is the Court made its own
findings with regard to why joint legal custody was inappropriate and ordered
Respondent have sole legal custody of the parties’ child.” The district court concluded: “In addition,
the Court has engaged in a review of the evidence and finds the Findings of
Fact and Conclusions of Law are not erroneous and are supported by the trial
record. Therefore, Petitioner’s motion
for Amended Findings and/or New Trial is denied in its entirety.” The record shows that the district court
heard extensive testimony over seven days of trial from both parties, the
parents of the parties, the custody evaluator, the guardian ad litem, and
others. The district court’s findings
reflect its determination of witness credibility. See
Sefkow v. Sefkow, 427 N.W.2d 203, 210 (
II. Sole Legal Custody Sua Sponte
Appellant argues that the district court violated appellant’s due process rights, because the court granted respondent sole legal custody sua sponte. Appellant contends that he did not have notice that legal custody was at issue, because the parties stipulated before trial that they would share joint legal custody. The district court gave no indication that it was not accepting the joint legal custody stipulation until it issued its order. In its order, the district court denied joint legal custody, explaining:
Prior to trial, the parties stipulated to joint legal custody. However, from the Respondent’s demeanor as she testified regarding the parties’ stipulation to request joint legal custody, it appeared that Respondent’s request was made merely to follow through with the stipulation, not to express a sincere desire for joint legal custody.
stipulations in dissolution proceedings has been approved in
Here, the parties
entered a permanent partial stipulation agreement, in which they agreed, among
other things, that they would share joint legal custody of their child. As the Center for Parental Responsibility’s
amicus curiae brief notes, stipulations are “accorded the sanctity of binding
contracts.” Shirk, 561 N.W.2d,
521. Therefore, even before stipulations
are approved by the court, they cannot be repudiated or withdrawn except for
such cause shown as would be sufficient to vitiate any other legally binding
contract such as fraud, duress, or mistake.
Supreme Court has held that “considerable weight will be given to stipulations
entered with the benefit of counsel, but the paramount consideration is the
welfare and best interests of the children.”
Frauenshuh v. Giese, 599
N.W.2d 153, 158-59 (
that the district court violated his due process rights, because he did not
have notice that the district court would reject the joint legal custody
stipulation, which resulted in the lack of an opportunity to litigate or to present
evidence on the issue. We agree. Due
process requires “notice, a timely opportunity for a hearing, the right to be
represented by counsel, an opportunity to present evidence and argument, the right
to an impartial decision maker, and the right to a reasonable decision based
solely on the record.” In re Marriage of Sammons, 642
N.W.2d 450, 457 (Minn. App. 2002) (citing Humenansky v.
Here, neither appellant nor respondent received notice or presented evidence or arguments pertaining to legal custody. In fact, the evidence presented at trial supported joint legal custody: Both the custody evaluator and the guardian ad litem recommended joint legal custody, stating that granting sole legal custody would be detrimental to the child.
Because the district court did not indicate that it was rejecting the parties’ permanent stipulation providing for joint legal custody, appellant did not have proper notice that legal custody was at issue. The district court erred and abused its discretion by deciding, sua sponte, to award sole legal custody to respondent. We reverse that decision.
III. Award of Attorney Fees
next argues that the district court committed reversible error by awarding
attorney fees to respondent. In general,
a party may not recover attorney fees absent specific authority allowing
recovery. Barr/Nelson, Inc. v. Tonto’s, Inc., 336 N.W.2d 46, 53 (
a. Conduct-based Attorney Fees
awarding conduct-based attorney fees, the district court must make findings
regarding their basis “to permit meaningful appellate review” of the
award. Knonick v. Kronick, 482 N.W.2d 533, 536 (
In its order of June 21, 2004, in granting $15,000 in conduct-based attorney fees to respondent, the district court found that “[p]art of Respondent’s attorney fees were due to the action of the [appellant] contributing to the length and expense of this proceeding.” The court found that appellant’s testimony “had evasive answers and repetitive questions from his counsel regarding the daycare issues when there was overwhelming evidence that [appellant’s] lunch visits were not in Anna’s best interests and the grandparents were not neutral in this proceeding.” The district court also found that respondent incurred fees when appellant refused to consider third-party daycare according to the Guardian’s recommendation; when appellant attempted submission of treatises without a corroborating expert laying foundation because he failed to properly and timely disclose his expert witness and the facts to which he would testify; when appellant continued his lunch visits after being notified of the problems, causing the guardian ad litem to get involved, adding to the fees; and when appellant hired four different attorneys, thereby causing negotiations and renegotiations of settlements.
On this record, appellant’s attempts to protect his interest were, at times, lengthy and involved, but did not rise to the level of an unreasonable delay. The district court abused its discretion by awarding conduct-based attorney fees.
b. Need-based Attorney Fees
district court awarded $30,000 in need-based attorney fees. Under Minn. Stat. §518.14, subd. 1, a court
“shall award attorney fees, costs, and disbursements in an amount necessary to
enable a party to carry on or contest the proceeding” if it finds (a) the fees
are necessary for a good-faith assertion of rights; (b) the payor has the
ability to pay the award; and (c) the recipient does not have the means to pay
his or her own fees. “Conclusory
findings on the statutory factors do not adequately support a fee award.” Geske, 624 N.W.2d. at 817. Here,
appellant argues that the evidence does not show that respondent lacks the
ability to pay her own fees or that appellant has the ability to contribute to
respondent’s fees. Respondent had the
burden of demonstrating that appellant had the ability to pay the need-based
fees. In re Marriage of Sammons, 642 N.W.2d 450, 458 (
IV. Exclusion of Expert Witness
Appellant argues that the district court abused its discretion by excluding the testimony of his expert witness. Appellant contends that his failure to designate Dr. Terhune as an expert on the witness list was inadvertent and that respondent would not have been prejudiced by permitting the expert’s testimony. Appellant notes that he informed respondent’s counsel by letter that he would call Dr. Terhune as an expert witness and that Dr. Terhune would testify that joint custody can be a positive situation for children. At trial respondent’s counsel argued that appellant’s counsel “is still not telling us the specific opinions and facts upon which this expert is going to testify, so that I was given some information ahead of time for proper cross-examination.”
to admit or exclude evidence rests within the district court’s broad
discretion. Uselman v. Uselman, 464 N.W.2d 130, 138 (
Here, after respondent submitted a motion in limine on the issue, the district court excluded appellant’s expert witness, Dr. Terhune, finding that appellant “failed to properly and timely disclose his expert witness.” Appellant’s attorneys did not disclose that Terhune was an “expert” in its witness list of June 13, 2003. In granting respondent’s motion in limine, the following exchange occurred with appellant’s counsel:
THE COURT: I understand your position. I understand too that joint custody can be beneficial and I often do award joint custody. So if it’s a conclusion you are after, that is something the court is aware of. In terms of offering the testimony, the motion in limine is granted. I will not permit him to testify. The fact that he was a Ph.D was not disclosed. The fact he’s was to give an expert opinion was not fully disclosed. The basis on which it is given is not disclosed. And timeliness was after the trial had already started. So for those reasons the court is excluding the testimony of Scott Terhune, Ph.D. and granting respondent’s motion in limine. As I said to my law clerk this morning when this motion came in and I saw it, we don’t do litigation by ambush around here. That is the court’s ruling.
[APPELLANT’S COUNSEL]: I would say there was no intention of ambush.
THE COURT: Intention or not, that is the court’s ruling.
The district court failed to conclude that respondent would be prejudiced by appellant’s late disclosure. Respondent was not harmed by the late disclosure because trial was not to resume until January 22, 2004, which allowed her about 25 days’ notice of Dr. Terhune’s expert testimony. This would have been plenty of time for respondent to depose the expert or to prepare for the expert’s testimony, without resulting in any prejudice to respondent. See Uselman, 464 N.W.2d at 136 (prejudice to opposing party should be considered in determining whether to suppress expert’s testimony on ground of untimely disclosure). We conclude the district court abused its discretion by excluding appellant’s expert.
V. Human Services Evaluation
Appellant argues that the district court “erred by placing any weight in Washington County Human Services’ (Ms. Donna Berner) evaluation on the basis that the facts did not support her findings, and her conclusions were not supported by the record or her own facts.” The district court stated in its order of December 9, 2004, that “[t]he Custody evaluator’s report is a part of the record, but her notes, if any, are not.” But appellant contends that Ms. Berner violated the statutory requirement by not maintaining all of her records, which would include her file notes. Appellant cites Minn. Stat. § 518.167, subd. 3 (2004), which provides:
The investigator shall maintain and, upon request, make available to counsel…the investigator’s file of underlying data and reports, complete texts of diagnostic reports made to the investigator.…The investigator and any person the investigator has consulted is subject to other pretrial discovery in accordance with the requirements of the Minnesota Rules of Civil Procedure.
Appellant argues that the custody evaluator failed to maintain her notes, observing that in her report, Ms. Berner stated: “The reports of collateral as well as my own notes, suggest Mr. Rubey has been more critical and less encouraging of Ms. Vannett.” At another point, appellant’s attorney questioned Ms. Berner on her note-keeping habits:
Q: Do you keep a file with notes?
A: Yes, I keep notes. When I complete an evaluation, then I memorialize the notes into the evaluation, and then destroy the notes and whatever I don’t need.
Q: So would you say this would be a complete record of your evaluation?
Appellant bears the burden of demonstrating that error
is prejudicial. Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (
record, Ms. Berner’s notes would not have contributed anything further to the
discussion and would have constituted cumulative evidence. The admission of evidence that is cumulative
or that is corroborated by other
competent evidence constitutes harmless error and will not warrant a new
trial. Estate of Lea v. Sheehan, 301
VI. Allocation of Minor Medical Insurance Costs
argues that the district court
impermissibly ordered appellant to pay the child’s medical insurance
costs. This court’s review of
that decision is limited to determining whether the district court abused its
discretion by making findings unsupported by the record or by improperly
applying the law. Silbaugh v.
Silbaugh, 543 N.W.2d 639,
Appellant cites Minn. Stat. § 518.171, subd. 1 (d) (2006), which provides:
Unless otherwise agreed by the parties and approved by the court, if the court finds that the obligee is not receiving public assistance for the child and has the financial ability to contribute to the costs of medical and dental expenses for the child, including the costs of insurance, the court shall order the obligee and obligor to each assume a portion of these expenses based upon their proportionate share of their total net income as defined in [Minn. Stat. § 518.551, subd. 5].
Appellant argues that the district court abused its discretion by not requiring both parties to pay for portions of the child’s insurance costs, as required under the statute. The district court reasoned that because of the evidence respondent presented regarding the net cost to appellant (less than $35 per month based on the tax savings he receives; $116 per month before the tax benefit) and because of respondent’s expenses, it ordered appellant to be responsible for the premium costs: “Based upon Respondent’s expenses and the net cost to the [appellant], it is not unfair that appellant be responsible for the premium costs.” In its December 9, 2004 order, the district court denied appellant’s motion to modify, stating: “The record supports the Court’s finding dependent health care costs are minimal to [appellant]. [Appellant] did not object when exhibits were introduced showing his cash flow with and without the dependant health care premiums.”
We conclude the district court erred by improperly
applying the law. “An incorrect
application of the law constitutes an abuse of the district court’s
VII. Minn. Stat. § 518.17 - Constitutional
argues that Minn. Stat. § 518.17 (2004) is unconstitutional, because it
does not include a presumption of joint physical custody. We can only note that case law in
amicus briefs assert that this court should read a presumption of joint physical
custody into the statute. They argue
that this court should read a presumption in favor of joint legal and joint
physical custody into Minn. Stat. § 518.17 (3)(3), which prohibits
preference for either the mother or the father on account of gender, regarding
custody determinations. We have refused
to do so in the past. In re Custody of J.J.S., 707
N.W.2d 706, 711 (
In conclusion, we reverse and remand on issues II, III, IV, and VI. We affirm on issues I, V, and VII.
Affirmed in part, reversed in part, and remanded.