This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).












Filed December 11, 2007


Wright, Judge


Hennepin County District Court

File No. 27-PA-FA-000051034


Douglas F. McGuire, Smith & Fisher, 400 MSB Center, 1401 West 76th Street, Richfield, MN  55423 (for appellant)

Douglas G. Sauter, Careen H. Martin, Barna, Guzy & Steffen, 400 Northtown Financial Plaza, 200 Coon Rapids Boulevard, Minneapolis, MN  55433 (for respondent)



            Considered and decided by Wright, Presiding Judge; Shumaker, Judge; and Stoneburner, Judge. 

U N P U B L I S H E D   O P I N I O N


In this appeal from the district court’s order awarding custody to respondent-father, appellant-mother argues that (1) the district court abused its discretion by denying her motion to reopen the record under Minn. Stat. § 518.145, subd. 2 (2006); (2) the denial of the motion violated the right to procedural due process; and (3) the district court abused its discretion when performing the best-interests analysis.  We affirm.


Appellant-mother gave birth to the parties’ child, B.A.S., on March 14, 2004.  Mother and respondent-father were never married, and mother commenced a paternity action against father in August 2004.  The parties stipulated to joint legal custody, temporary sole physical custody with mother, and temporary child support paid by father.  The district court ordered a custody evaluation, which was conducted by Dr. Michelle Millenacker, and completed on August 31, 2005.  Dr. Millenacker recommended that the parties share joint legal and physical custody of B.A.S.  In her evaluation, Dr. Millenacker expressed concern that, if granted sole physical custody, mother would interfere with father’s contact with B.A.S.

            A trial was held in April 2006 before a family-court referee on the issues of physical custody, parenting time, and child support.  Before trial, father submitted a witness list that included mother’s therapist, Dr. Martha Cohen.  Although father subpoenaed Dr. Cohen, she was unable to appear for trial.  The parties, therefore, stipulated to admit in evidence Dr. Cohen’s records from therapy sessions with mother, along with records from mother’s other psychological treatment.  Consequently, when father called Dr. Millenacker as a witness, she was permitted to review Dr. Cohen’s records as she testified. 

            During Dr. Millenacker’s testimony, father’s counsel asked Dr. Millenacker to review a letter dated May 24, 2005, from mother to Dr. Cohen, which was in Dr. Cohen’s records.  In this letter, written the day after a custody-evaluation meeting with Dr. Millenacker and father, mother alleged that B.A.S. was conceived when father raped her.  Dr. Millenacker testified that, during her meeting with mother, mother did not accuse father of rape.  Dr. Millenacker also testified that this new information from Dr. Cohen’s records increased her concern that mother would interfere with father’s parenting time.  In response to questions posed by mother’s counsel during cross-examination, Dr. Millenacker changed her recommendation from joint physical custody to sole physical custody with father.

            At the close of trial, the district court granted father’s motion to leave the record open to permit father to depose Dr. Cohen.  Shortly thereafter, father decided to forego the deposition, and the district court closed the record.  In response, mother moved to reopen the record based on a claim of surprise, Minn. Stat. § 518.145, subd. 2 (2006), seeking an opportunity to introduce Dr. Cohen’s testimony and the preparation of a new custody evaluation.  The district court denied the motion. 

In its findings of fact, conclusions of law, and order for judgment, the district court awarded father sole physical custody of B.A.S. with parenting time for mother.  Thereafter, mother moved the district court for amended findings or a new trial.  After a hearing on the motion, the district court denied the requested relief.  This appeal followed.



Mother challenges the denial of her motion to reopen the record.  The decision whether to reopen the record based on a claim of surprise rests within the district court’s discretion.  Kornberg v. Kornberg, 542 N.W.2d 379, 386 (Minn. 1996).  As such, we will not disturb the district court’s denial absent an abuse of discretion.  Id.  When there is evidence to support the district court’s decision, an abuse of discretion will not be found.  Prahl v. Prahl, 627 N.W.2d 698, 702 (Minn. App. 2001).

            Relief from “a judgment and decree, order, or proceeding” is permitted on the grounds of “mistake, inadvertence, surprise, or excusable neglect.”[1]  Minn. Stat. § 518.145, subd. 2(1) (2006).  With scant caselaw specifically addressing the ground of surprise under section 518.145, caselaw governing rules 60 and 59 of the Minnesota Rules of Civil Procedure, which permit similar relief to be granted, informs our analysis here.[2]  Using language virtually identical to section 518.145, subdivision 2(1), rule 60 provides relief from a judgment or order by means of a new trial.  Minn. R. Civ. P. 60.02(a).  Similarly, rule 59, which specifically governs motions for a new trial, permits a district court, when acting without a jury, to “open the judgment if one has been entered [and to] take additional testimony” on the grounds of “[a]ccident or surprise which could not have been prevented by ordinary prudence.”  Minn. R. Civ. P. 59.01(c). 

Mother maintains that the custody evaluator’s testimony at trial constituted surprise.  In rejecting this argument, the district court defined the term “surprise” as “without warning and unexpected.”  Although section 518.145, subdivision 2(1), does not define the term, the definition employed by the district court is consistent with the term’s plain and ordinary meaning.  See Minn. Stat. § 645.08(1) (2006) (requiring use of term’s plain meaning when construing statutory language); State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn. 1996) (stating that “plain meaning” of statute is applied when its language is unambiguous).  For example, Black’s Law Dictionary defines “surprise” as “[a]n occurrence for which there is no adequate warning or that affects someone in an unexpected way.”  Black’s Law Dictionary 1457 (7th ed. 1999).  And the Minnesota Supreme Court defined “surprise” warranting a new trial as that which “ordinary prudence could not have guarded against.” Wingen v. May, 92 Minn. 255, 257, 99 N.W. 809, 809 (1904).  Similarly, surprise warranting the exclusion of expert testimony may occur when the nature of the testimony was not disclosed in discovery.  Zorgdrager v. State Wide Sales, Inc., 489 N.W.2d 281, 284-85 (Minn. App. 1992).  Thus, to establish surprise as a basis for relief under section 518.145, subdivision 2(1), a party must demonstrate the absence of warning that the evidence or testimony could be offered.

Mother failed to meet this standard.  Both parties stipulated to the admission of Dr. Cohen’s records, which included mother’s rape claim, into evidence.  Both parties had equal access to the custody evaluator’s report.  And both parties knew that Dr. Millenacker had not reviewed Dr. Cohen’s records before trial.  Consequently, Dr. Millenacker’s change of opinion, while perhaps “unusual and noteworthy,” as the district court characterized it, did not constitute surprise.  Mother’s counsel elicited the testimony on cross-examination when counsel asked, “[H]ave you heard anything new today that would cause you to change your recommendation in this case?”  Indeed, the purpose of cross-examination is to test the basis of an expert’s opinion and to determine whether there are circumstances that might undermine or change that opinion.  Moreover, mother had the opportunity to introduce rebuttal testimony but chose not to do so.

Applying a legally sound definition of “surprise,” the district court concluded that, under the circumstances presented, the custody evaluator’s change in recommendation did not constitute surprise.  Because the district court’s decision is well supported by record evidence, the district court did not abuse its discretion when it denied mother’s motion.

            Moreover, to prevail on a motion to reopen the record, the movant must demonstrate a strong probability that the proffered evidence will render a different result.  Gunderson v. Olson, 399 N.W.2d 166, 168 (Minn. App. 1987), review denied (Minn. Mar. 18, 1987).  Our review of the record indicates that mother failed to meet this burden.

            Dr. Cohen’s testimony would have been cumulative because the proffered affidavit of her testimony addressed the same issues raised in her therapy notes, which, having been admitted in evidence, were relied on by the district court in its detailed findings.  It is well within the district court’s discretion to exclude proffered evidence that is cumulative.  Wingen, 92 Minn. at 257, 99 N.W. at 810.  By its nature, this cumulative evidence did not establish a strong probability that it would render a different result. 

In addition, the district court was free to accept the custody evaluator’s written or oral recommendation.  Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991).  Mother established neither that a new custody evaluation was necessary for the district court’s custody determination nor that the district court’s credibility assessment of the evaluator’s testimony would have been different if another custody evaluation were performed.

Thus, mother failed to demonstrate both surprise and a strong probability that reopening the record to accept additional evidence would render a different result.


            Mother next argues that denial of her motion to reopen the record to permit the testimony of Dr. Cohen and to submit a new custody evaluation violated her right to procedural due process. The United States and Minnesota constitutions proscribe state deprivation “of life, liberty, or property, without due process of law.”  U.S. Const. amend. XIV; Minn. Const. art. I, § 7.  When evaluating a due-process claim, we employ a balancing test that takes into account three factors: (1) the private interest affected; (2) the risk of an erroneous deprivation of that interest and the probable value of additional or substitute procedural safeguards; and (3) the government’s interest.  Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903 (1976).   “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.”  Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600 (1972).

            The private interest affected here is the interest in the parent-child relationship, which has been recognized as a fundamental liberty interest.  See M.L.B. v. S.L.J., 519 U.S. 102, 116-19, 117 S. Ct. 555, 564-65 (1996) (recognizing fundamental liberty interest in care and custody of one’s child).  This substantial private interest weighs heavily against any governmental interest in a procedure that poses a risk of unfair or erroneous deprivation.

But given the procedural safeguards that the district court followed, the risk of an erroneous deprivation of custody is minimal.  Notice and an opportunity to be heard are the hallmarks of due process.  Haefele v. Haefele, 621 N.W.2d 758, 764 (Minn. App. 2001), review denied (Minn. Feb. 21, 2001).  The district court fully afforded both to mother.  Throughout the proceedings, mother was represented by counsel.  Mother received notice of the custody hearing.  She had an opportunity to prepare for the hearing, present witnesses and evidence, and cross-examine witnesses called by father.  The district court prepared detailed findings of fact and conclusions of law, which, as required by Minn. Stat. § 518.17 (2006), protect against arbitrary or summary deprivation of mother’s rights. 

The ability to seek relief under section 518.145 provides additional procedural protection.  When a party is deprived of the ordinary procedural safeguards in a custody hearing because of mistake or surprise, for example, relief under section 518.145 is available.  That mother was unsuccessful in establishing a basis for this relief is not indicative of a due-process violation.  To the contrary, the procedures followed at the custody hearing were more than adequate to protect her rights.  In light of the substantial procedural safeguards in place, the probable value of additional or substitute procedural safeguards is minimal.  Mother, in essence, does not seek additional procedural safeguards.  Rather, she seeks a different ruling as to whether she met the legal standard for relief under the existing process supplied by sections 518.17 and 518.145. 

Finally, the legal standard set forth in section 518.145 satisfies the government’s interest in affording the parties both orderly proceedings and finality.  See Shirk v. Shirk, 561 N.W.2d 519, 522 (Minn. 1997) (observing legislature’s recognition of importance of finality in family-law proceedings by establishing specific circumstances to permit relief from proceedings). 

When applying the Mathews factors to the facts before us, it is abundantly clear that the district court’s denial of mother’s motion to reopen the record did not violate mother’s right to due process of law.


We limit our review of a district court’s custody determination to considering whether the district court abused its discretion by making factual findings that are not supported by the evidence or by erroneously applying the law.  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996).  When determining whether factual findings are clearly erroneous, we view the record in the light most favorable to the findings and decline to disturb the challenged findings absent a firm and definite conviction that a mistake was made.  Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).  Because the district court’s findings of fact are afforded substantial deference, we do not independently weigh the evidence or draw contrary conclusions about witness credibility.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).  Indeed, even when the record also could support a different custody determination, we may not substitute our judgment for that of the district court.  Zander v. Zander, 720 N.W.2d 360, 368 (Minn. App. 2006), review denied (Minn. Nov. 14, 2006). 

Mother argues that the district court erred in its application of the best-interests factors set forth in section 518.17.  Specifically, mother maintains that the finding that addresses her rape accusation against father is clearly erroneous.  And she argues that the district court abused its discretion by considering her previous conduct because it is irrelevant to the best-interests analysis.

The district court found that mother “falsely accused [father] of raping her.”  In support of this finding, the district court explained in detail the rape allegation and its reasons for concluding that the allegation is false.  Mother’s medical records diagnose her “addiction” to being perceived as a victim.  Mother made the rape allegation for the first time when the custody study was being performed.  And mother made inconsistent statements about the consensual nature of her sexual relationship with father to the custody evaluator and to Dr. Cohen during the same time period.  The district court found the rape allegation unsupported by any credible evidence. 

To assure proper consideration of the best interests of the child, the legislature directs that “all relevant factors,” including 13 specific factors, must be considered by the district court when making a custody decision.  Minn. Stat. § 518.17, subd. 1(a).  Although the relevance of the rape-allegation finding is only indirectly contested, we agree with the district court’s determination that the false rape allegation is a relevant consideration in the best-interests analysis.  As the district court found, future false allegations of victimization could pose a risk to B.A.S.’s well-being and hinder father’s parenting time and relationship with B.A.S. 

In light of the deference we afford the district court’s determinations of evidentiary weight and witness credibility, mother has failed to establish that the district court’s finding that she falsely accused father of rape is clearly erroneous or irrelevant to the best-interests determination.

Mother also argues that the district court abused its discretion by considering her previous conduct because it is irrelevant to the best-interests analysis.  But the broad language of the custody statute makes evident that there is no bar to considering a party’s past conduct, provided it is reasonably related to the best interests of the child.  See id., subds. 1, 2 (directing consideration of “all relevant factors”); see also In re Welfare of M.J.L., 582 N.W.2d 585, 589 (Minn. App. 1998) (noting that “the section 518.17 factors are not the exclusive means to determine what is in a child’s best interests”); In re Paternity of B.J.H., 573 N.W.2d 99, 102 (Minn. App. 1998) (distinguishing use of factors in custody settings from their use in paternity setting and concluding that list of factors in section 518.17 is not exhaustive in either setting).  Indeed, we have acknowledged the statutory requirement that the district court conduct a comprehensive analysis of the child’s best interests.  See Schallinger v. Schallinger, 699 N.W.2d 15, 19 (Minn. App. 2005) (requiring balancing of all best-interests factors), review denied (Minn. Sept. 28, 2005); Vangsness, 607 N.W.2d at 477 (noting that “there is no specific, restrictive legal standard for a [district] court to use when placing custody”).

            The findings regarding mother’s past conduct establish a factual foundation that is directly relevant to the best interests of the parties’ child.  The district court applied this factual foundation when it specifically addressed each of the 13 best-interests factors set forth in section 518.17, subdivision 1(a).

In the challenged findings, the district court details mother’s mental-health history and chaotic lifestyle which “will affect her ability to raise the child in the future.”  Contrary to mother’s argument, her mental health is relevant to the best interests of the child.  See Minn. Stat. § 518.17, subd. 1(a)(9) (requiring assessment of “the mental and physical health of all individuals involved”).

The district court also considered documented evidence of mother’s difficulty maintaining healthy relationships, particularly with father, and found that mother had considered moving in order to avoid father’s demands for shared parenting.  These findings comply with the statutory requirement to analyze the capacity and disposition of the parties to give the child love, affection, and guidance, and the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.  Id., subd. 1(a)(10), (13).  Because joint custody was sought, the district court also was required to assess the ability of the parents to cooperate with each other.  Id., subd. 2(a).  The district court’s consideration of mother’s relationship history is directly relevant to this factor.

Finally, the district court considered mother’s employment and housing history, which is relevant to a proposed custodial parent’s demonstrated ability to maintain a stable home for the child.  See id., subd. 1(a)(7) (requiring discussion of “length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity”); Tasker v. Tasker, 395 N.W.2d 100, 104 (Minn. App. 1986) (clarifying that while parent’s employment stability may not properly be considered, district court may evaluate “willingness to seek and retain employment” as demonstrative of fitness and capability). 

Based on mother’s mental health, housing, and employment history, along with her relationship with father, the district court found that father would “be able to guide the child in a vastly superior way when compared to [mother] in interpersonal relationships and on matters pertaining to stability.”  And with regard to the parties’ disposition to encourage contact, the district court expressed “serious doubts that [mother] is inclined to permit or encourage contact by [father] because of her emotional state.”

The district court’s thorough discussion of relevant aspects of mother’s mental health, employment, housing, and relationship history satisfies the statutory requirements for the district court to make detailed findings on each of the best-interests factors and explain its conclusions as to the best interests of the child.  See Minn. Stat. § 518.17, subd. 1(a).  When considered in light of the best-interests analysis, mother’s challenge to the relevance of the findings in question fails. 


[1] Mother maintains that reopening the record was proper under Minn. Stat. § 518.145, subd. 2 (2006).  But section 518.145 typically affords posttrial relief.  Because the parties do not dispute the statute’s applicability, and similar relief was available under Minn. R. Civ. P. 59.01(c), we decline to address the propriety of mother’s reliance on section 518.145.

[2] In Swanson v. Williams, for example, the Minnesota Supreme Court analyzed appellant’s argument under rule 60.02, even though appellant sought relief under rule 59.  303 Minn. 433, 434, 228 N.W.2d 860, 861-62 (1975).  And rule 60.02 and section 518.145 are commonly viewed as analogous provisions.  See, e.g., Peterson v. Eishen, 512 N.W.2d 338, 341 (Minn. 1994) (stating that in context of motion to reopen judgment, “[t]he rule and the statute are identical for purposes of the issue before this court”); Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 493-94 (Minn. App. 1995) (“The statute and the rule are identical for purposes of the issue before this court.”).