This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-96-1460

In Re the Marriage of:

John Joseph Buettner, petitioner,

Appellant,

vs.

Susan Mae Buettner,

Respondent.

Filed December 31, 1996

Affirmed

Amundson, Judge

Stearns County District Court

File No. F7-05-1428

Gregory S. Walz, Walz Law Office, 26 North Seventh Avenue, P.O. Box 1794, St. Cloud, MN 56302 (for Appellant)

Kevin L. Holden, Murphy & Holden, P.A., 30 North Seventh Avenue, P.O. Box 866, St. Cloud, MN 56302-0866 (for Respondent)

Considered and decided by Amundson, Presiding Judge, Schumacher, Judge, and Klaphake, Judge.

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

Amundson, Judge

John Buettner appeals from a judgment granting Susan Buettner sole physical custody of the parties' minor child, Z.B. John Buettner alleges the court erred by failing to appoint a guardian ad litem and deciding that awarding Susan Buettner sole physical custody served Z.B.'s best interests. Susan Buettner, by notice of review, alleges that this court lacks jurisdiction to hear John Buettner's claims and challenges the trial court's decision to vacate her attorney fees award. We affirm.

FACTS

Susan Buettner and John Buettner were married in 1992 and had one child, Z.B. John Buettner filed for divorce and the trial court awarded Susan Buettner temporary physical custody. John Buettner later moved for sole physical custody.

He alleged that: (1) Susan Buettner was a chemical abuser with mental problems; (2) she was living with a man who was an alcoholic and an physical abuser; and (3) she abused Z.B. Later, Susan Buettner dropped Z.B. at daycare with two facial injuries. When asked twice who caused the injuries, two-year-old Z.B. replied "mom." John Buettner reported possible abuse. The police and a court-appointed custody evaluator investigated. They determined that there was no evidence that maltreatment occurred.

The trial court awarded sole physical custody to Susan Buettner and visitation rights to John Buettner. The court also awarded Susan Buettner legal fees. John Buettner moved for a new trial and to vacate the award of attorney fees. The trial court denied the motion for a new trial, but vacated the attorney fees award. John Buettner moved the trial court to reconsider. The trial court denied the motion to reconsider.

D E C I S I O N

I. Guardian Ad Litem

Susan Buettner asserts that this court lacks jurisdiction to review the trial court's guardian ad litem decision as the appeal was untimely. She argues that: (1) John Buettner's motion to reconsider was filed seventeen days after the denial of the motion for a new trial; (2) the appeal was not filed within thirty days after notice of entry of the order denying a new trial; and (3) John Buettner did not file his appeal within ninety days of notice of entry of the original order. We disagree.

Regarding her first contention, a motion to reconsider does not exist according to the Minnesota Rules of Civil Procedure, regardless of when it is filed. See Carter v. Anderson, 554 N.W.2d 110, 115 (Minn. App. 1996). We will not decide an appeal on an issue that was moot when presented to the trial court.

Addressing her second assertion, John Buettner timely appealed the original judgment and presented the guardian ad litem claim in the motion for a new trial. Therefore, he preserved the right to appeal the guardian ad litem claim despite expiration of the thirty days to appeal the order denying a new trial. See Hackett v. State, Dept. of Natural Resources, 502 N.W.2d 425, 427 (Minn. App. 1993).

Finally, the notice of appeal sent to the court was postmarked within the statutory time period. Because the ninetieth day after Susan Buettner received notice of entry was a Sunday and she received the notice of appeal on the following Monday, John Buettner timely served her notice of appeal. See Minn. R. Civ. P. 6.01. We conclude that we have jurisdiction to review the decision not to appoint a guardian ad litem.

In divorce proceedings, including child custody determinations

if the court has reason to believe that the minor child is a victim of domestic child abuse or neglect * * * the court shall appoint a guardian ad litem.

Minn. Stat. § 518.165, subd. 2 (1994). This court reviews custody determinations for abuse of discretion. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).

John Buettner claims that the trial court improperly applied the statute by refusing to appoint a guardian ad litem because, he asserts, the court had reason to believe that Z.B. suffered from domestic child abuse and neglect as defined by Minn. Stat. § 626.556, subd. 2(b) (1994). Although the statute provides for mandatory appointment of a guardian ad litem if the court has reason to believe that a child is the victim of abuse, the court is not required to appoint a guardian ad litem if generalized or unsubstantiated abuse allegations are adequately rebutted. Anderson v. Archer, 510 N.W.2d 1, 5 (Minn. App. 1993). All investigations of John Buettner's abuse allegations determined that no evidence of abuse existed. Further, the trial court took judicial notice of the information regarding Susan Buettner's friend, Kelly Fleming, and was within its discretion to determine that the evidence did not indicate that Z.B. would be in danger residing with his mother. Additionally, there was no evidence in the record to support John Buettner's claim that Susan Buettner's social drinking while on her particular medication would endanger Z.B. Thus, we conclude that the trial court was not required to appoint a guardian ad litem.

II. Custody

Susan Buettner alleges that this court does not have jurisdiction to review the trial court's decision to award Susan Buettner sole physical custody. She claims that because John Buettner failed to ask for a new trial or amended findings regarding the trial court's determination regarding physical custody, he lost the opportunity to appeal. However, a party may appeal without moving for a new trial if it only seeks review of whether the evidence sustains the findings of fact and whether the findings sustain the conclusions of law and the judgment. Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976). Appellate review of custody determinations is always limited to evaluating whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. Pikula, 374 N.W.2d at 710. Therefore, this court may review the custody determination although John Buettner did not move for a new trial on the issue of physical custody.

John Buettner alleges that the trial court misapplied the law by determining caretaker status for the period after the parties separated. Courts may assess who acted as a child's primary caretaker before separation. Id. at 713. The trial court here stated that Z.B.'s "primary care taker during the term of the marriage was [Susan Buettner]." The court did not misapply the law.

John Buettner additionally asserts that the trial court's findings were unsubstantiated regarding the interaction and interrelationship of the parties with Z.B.. The trial court held that John Buettner's attempt to portray Susan Buettner as abusive was destructive of Z.B.'s relationship with her. Because John Buettner was in Z.B.'s presence on more than one occasion when he stated that Susan Buettner had abused Z.B. and these statements may have had a negative effect on Z.B.'s relationship with his mother, there was sufficient evidence in the record to substantiate the district court's finding.

Next, John Buettner argues that the trial court abused its discretion by failing to find that Susan Buettner has physical health problems. He alleges that she has a problem with alcohol abuse and drinks while on medication. However, testimony reveals that Susan Buettner's alcohol abuse is in remission and that the effects of mixing alcohol with her prescribed medication are not known to be harmful.

Finally, John Buettner alleges that the trial court should have declared Susan Buettner unfit, claiming that if "a person residing with a parent exposes the child to bad behavior, the parent may be unfit to have custody." See Sucher v. Sucher, 416 N.W.2d 182 (Minn. App. 1987) (the "less than exemplary behavior" of mother's friends who resided with her supported award of custody to father), review denied (Minn. Mar. 18, 1988). However, there was no evidence that residing with Susan Buettner exposed Z.B. to bad behavior. The trial court did not abuse its discretion.

III. Attorney Fees

This court will not disturb a trial court's denial of an award of attorney fees absent an abuse of discretion, which is rarely found. Burns v. Burns, 466 N.W.2d 421, 424 (Minn. App. 1991), review denied (Minn. Feb. 19, 1986). Susan Buettner alleges that John Buettner acted in bad faith and she should be awarded attorney fees for her expenses from the trial court and on appeal. We conclude that the trial court acted within its discretion and decline to award fees on appeal.

Affirmed.