This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-96-1010

In Re the Marriage of:

Todd Michael Ingstad, petitioner,

Respondent,

vs.

Stephanie Sue Ingstad,

Appellant.

Filed October 1, 1996

Affirmed

Harten, Judge

Stearns County District Court

File No. F6-93-4333

Todd A. Kelm, Timothy R. Reuter, Attorneys at Law, 1287 N. 2nd St., P.O. Box 368, Sauk Rapids, MN 56379 (for Respondent)

Kerry L. Scott, Dean S. Grau, Attorneys at Law, 3933 IDS Center, 80 S. Eighth St., Minneapolis, MN 55402 (for Appellant)

Considered and decided by Schumacher, Presiding Judge, Norton, Judge, and Harten, Judge.

U N P U B L I S H E D O P I N I O N

HARTEN, Judge

Mother challenges a district court order denying her motion for a new trial on the issues of child custody and the award of attorney fees to father. We affirm.

FACTS

In a marriage dissolution proceeding, the district court ordered child custody evaluations of both appellant Stephanie Ingstad (mother) and respondent Todd Ingstad (father) to facilitate its custody determination. The custody evaluation of father concluded that he would be a capable sole physical custodian of the couple's child. The evaluation of mother recommended that she be awarded sole physical custody. The parties subsequently stipulated: (1) to submit to a third custody evaluation, and (2) that the district court would make its custody determination based on all three custody evaluations.

Following receipt of the third custody evaluation, mother filed a supplemental affidavit correcting alleged factual inaccuracies in that evaluation. The district court subsequently awarded permanent physical custody to father. Mother now challenges the denial of her post-trial motions and the award of attorney fees to father.

D E C I S I O N

Mother seeks review of the district court's denial of her motion for a new trial and her alternative motions for supplementation of the record with a new custody evaluation or reconsideration of the entire record.

1. Motion for a New Trial

Mother argues that the district court erred in denying her motion for a new trial. Generally, the district court has broad discretion in deciding whether to grant a new trial; denial of a new trial motion will not be reversed absent a clear abuse of discretion. Law v. Essick Mfg. Co., 396 N.W.2d 883, 888 (Minn. App. 1986), review denied (Minn. Jan. 27, 1987). Thus, a determination must stand unless it is manifestly and palpably contrary to the evidence viewed in the light most favorable to it. ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992).

Mother argues that our standard of review is de novo rather than the more stringent abuse of discretion standard. Mother argues that where there is crucial documentary evidence, this court need not defer to the district court's assessment of the weight and credibility of that evidence. She contends that because the evidence is documentary (i.e. the three custody evaluations) this court's review is de novo. To support her contention, mother cites In re Trust Known as Great Northern Iron Ore Properties, 308 Minn. 221, 225-26, 243 N.W.2d 302, 305 (1976), cert. denied 429 U.S. 1001, 97 S. Ct. 530 (1976) and Merriman v. Sandeen, 267 N.W.2d 714, 717 (1978). Mother's argument is misplaced. A 1985 amendment to Minn. R. Civ. P. 52.01,

effectively overruled Great Northern, and the standard of review of the trial court's findings is "clearly erroneous." * * * [Rule 52.01] does not distinguish between oral or documentary evidence. Consequently, the reviewing court should not reverse the trial court's findings unless it is left with the definite and firm conviction the trial court made a mistake.

First Trust Co. v. Union Depot Place Ltd. Partnership, 476 N.W.2d 178, 181-82 (Minn. App. 1991), review denied (Minn. Dec. 13, 1991) (citations omitted). Accordingly, mother proposes an inappropriate standard of review.

Mother moved for a new trial, asserting that the district court's custody determination is manifestly and palpably contrary to the evidence, viewed in its most favorable light. The district court resolved the child custody issue utilizing the reports of three licensed and experienced custody evaluators. Generally, the recommendations of public welfare departments or licensed custody evaluators contained in custody reports are "to be accorded great weight by the district court." See In re Welfare of Larson, 312 Minn. 210, 221, 251 N.W.2d 325, 332 (1977). Here, the custody evaluations contained either specific best interests findings that tracked the statutory factors contained in Minn. Stat. § 518.17, subd. 1(a) (1994), or the information needed to support findings on those factors. Based on the evidence before it, the district court had sufficient information to make its custody determination and that determination was not manifestly contrary to the evidence. Therefore, we conclude that the district court did not abuse its discretion in denying appellant's motion for a new trial.

2. Alternative Motions

Mother alternatively moved to allow supplementation of the record with a fourth custody evaluation performed by an additional expert. The question of whether to admit or exclude evidence rests within the broad discretion of the district court and its ruling will not be disturbed unless it is based on an erroneous view of the law or constitutes an abuse of discretion. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1980); see Schumm v. Schumm, 510 N.W.2d 13, 16 (Minn. App. 1993) (stating decision disallowing additional evidence was within court's discretion in custody dispute). Similarly, the admissibility of an expert's opinion is within the discretion of the district court, and its ruling admitting or excluding the opinion will not be disturbed on appeal unless there is an abuse of discretion resulting in prejudice. Tayam v. Executive Aero, Inc., 283 Minn. 48, 53, 166 N.W.2d 584, 587 (1969). Mother argues that the district court should have ignored the third custody evaluation and allowed her to submit another custody evaluation by an additional expert. Mother asserts that the third custody evaluation is based on factual inaccuracies; she also questions the evaluator's methodology and interpretation of psychological data.

The qualifications, methodology, and credibility of an expert are matters to be weighed by the district court. The custody evaluator who drafted the report is a licensed psychologist qualified to conduct custody evaluations. The report was based on individual diagnostic sessions with both mother and father, personal observations of both interacting with their child, and psychological testing of the parties. Among the tests administered were the Minnesota Multiphasic Personality Inventory-2; family kinetic drawing; thematic apperception; Rorschach inkblot; and the house-tree-person. The report is lengthy and thorough.

In addition, following mother's review of the third custody evaluation, but prior to deciding custody, the district court permitted mother to submit a supplemental affidavit. The affidavit identified alleged factual inaccuracies in the evaluation. The district court forwarded the affidavit to the custody evaluator to enable her to consider the new information and notify the court if it in any way changed her recommendation. The custody evaluator did not change her recommendation. Thus, mother had an opportunity to correct any factual inaccuracies contained in the third evaluation. We conclude that the district court did not abuse its discretion in relying on the report.

Nor did the district court abuse its discretion by denying mother's motion for a fourth custody evaluation by an additional expert. Mother does not explain how an additional custody evaluation would be any different from the existing three, other than speculating that it could yield a more favorable recommendation for her. We conclude that the district court's order denying mother's motion for an additional evaluation was not clearly erroneous.

Mother's final alternative motion is for reconsideration. Mother cites no authority for this motion. The rules of civil procedure do not authorize a motion for "reconsideration," though parties commonly make such motions. Welch v. Commissioner of Pub. Safety, 545 N.W.2d 692, 694 (Minn. App. 1996); Rouland v. Thorson, 542 N.W.2d 681, 684 n. 1 (Minn. App. 1996). The district court's denial of that motion was not an abuse of discretion.

3. Stipulation of Record for Child Custody Determination

Mother contends that the district court erred because it did not meet its overriding duty to be fully informed before making a custody determination. She asserts that the parties' stipulation, limiting the basis for the court's custody decision, is void as against public policy. Finally, mother argues that by signing the stipulation she did not intend to relinquish her ability to provide additional custody evidence.

It is well established that matters of child custody are within the discretion of the district court and will not be reversed on appeal absent a clear abuse of that discretion. Geiger v. Geiger, 470 N.W.2d 704, 706 (Minn. App. 1991) (citing Reck v. Reck, 346 N.W.2d 675, 677 (Minn. App. 1984)). It is equally well established that when determining custody, the courts must act in the best interests of the child. Berndt v. Berndt, 292 N.W.2d 1, 2 (Minn. 1980); see Minn. Stat. § 518.17, subd. 1 (1994). The parties may stipulate regarding the evidence to be considered by the fact-finder and the stipulation is binding on the courts. State v. Litzau, 377 N.W.2d 53, 55 (Minn. App. 1985); Abendroth v. National Farmers Union Property & Casualty Co., 363 N.W.2d 785, 787 (Minn.App. 1985).

Mother is correct in stating that the district court has an obligation to inform itself fully before rendering a custody determination. This duty may be satisfied once the court has sufficient information to make findings applying the statutory factors contained in Minn. Stat. § 518.17, subd. 1. See Nazar v. Nazar, 505 N.W.2d 628, 633 (Minn. App. 1993) review denied (Minn. Oct. 28, 1993) (holding district court has duty to uncover reliable evidence to show best interests of child when evidence on the record has left unanswered questions pertaining to child's best interests). Here, there appear to be no significant unanswered questions as to the child's best interests. The three custody evaluations conducted by qualified specialists made either specific findings as to the statutory factors of Minn. Stat. § 518.17, subd. 1(a), or contained information on which to base such findings. Therefore, it is within the discretion of the district court to base its custody determination on the three extensive and complete custody evaluations.

The district court must exercise independent judgment considering the best interests of the child. Petersen v. Petersen, 296 Minn. 147, 148, 206 N.W.2d 658, 659 (1973). Here, the district court made its own extensive and independent findings. While those findings incorporate information from the custody evaluators' reports, they also reflect the district court's consideration of relevant statutory factors and the court's evaluation of the parties' parenting abilities. In its findings, the district court stated:

This Court has reviewed the entire record including the above three custody studies in detail and is making its order with regard to custody of the parties' minor child based upon said information.

(Emphasis added.) Thus, the district court utilized not only the three custody evaluations, but also the entire record in making its decision. We conclude the district court did not abuse its discretion in accepting the parties' stipulation under these circumstances.

Finally, mother contends that although she signed the stipulation, she did not intend to waive her ability to provide the district court with additional evidence on custody. Mother argues that she did not fully understand the consequences of the stipulation. The stipulation, however, recites that both parties acknowledged that they had received, read, and understood the contents of the agreement after consulting with their respective attorneys. This language suggests that mother did understand the contents and effect of the stipulation.

Moreover, both parties engaged in a lengthy and counseled negotiation process to arrive at the stipulation. By agreeing that the court could base its custody determination on the three custody evaluations, mother did not waive her right to correct any factual inaccuracies contained in the reports. In fact, mother was given the opportunity to provide additional information by affidavit before the case was finally submitted. Therefore, we conclude the district court did not abuse its discretion by accepting the parties' counseled stipulation.

4. Attorney fees

The issue of attorney fees is not properly before this court. An order for the recovery of money, including an order awarding attorney fees, is not itself appealable; the appeal must be from a resulting judgment. Sheeran v. Sheeran, 481 N.W.2d 578, 579 (Minn. App. 1992). By special term order dated July 9, 1996, this court dismissed the part of mother's appeal concerning attorney fees, but noted that dismissal did not preclude appeal once father obtained a judgment for the attorney fees award. No such judgment has been presented.

Affirmed.