This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In Re the Marriage of:

Joan L. Kuch, f/k/a Joan L. McDowall, petitioner,



Stuart M. McDowall,


Filed December 17, 1996


Davies, Judge

Sherburne County District Court

File No. F4921645

Thomas W. Lies, Pennington & Lies, P.A., 26 N. Sixth Ave., St. Cloud, MN 56303 (for Respondent)

Michael O. Burns, Mike Burns Law Office, 619 Mall Germain, Suite 215, St. Cloud, MN 56301 (for Appellant)

Considered and decided by Short, Presiding Judge, Davies, Judge, and Foley, Judge.[*]



This is an appeal from a custody modification. We affirm.


On May 19, 1995, the trial court held a preliminary hearing on respondent's motion to modify the custody previously agreed to by the parties and included in the December 1993 dissolution judgment. That judgment provided that appellant, Stuart McDowall, would have sole physical and legal custody of their daughter. The court ruled that respondent, Joan Kuch, was entitled to an evidentiary hearing. The court also ordered a custody study and appointed a guardian ad litem. Both the custody study and the guardian ad litem recommended that custody be changed to respondent.

The parties met at a pretrial conference on October 13, 1995, and agreed to the custody change. The parties executed a stipulation to amend judgment and sent it to the court. The court did not execute the amended judgment, but instead scheduled a hearing to resolve the remaining issues of child support and visitation. In the meantime, appellant filed a motion asking the judge to recuse, which the court denied.

The evidentiary hearing on child support and visitation was held on March 28, 1996. On April 1, 1996, the court executed an amended judgment, which included the stipulated custody change. The court then incorporated its decision on the child support and visitation issues and the stipulated custody change into a second amended judgment, which was filed July 19, 1996.


1. Appellant argues that the court showed actual bias against him and recusal was required. Appellant relies on the following: (1) the judge refused to sign the amended judgment as stipulated by the parties; (2) the judge exhibited an attitude that appellant would not be granted custody; and (3) the judge refused to interview the child to determine the child's custody preference. Appellant also claims that prejudice was shown by the court's decision to appoint a guardian ad litem and order a custody hearing and study.

These acts, along with other decisions necessarily made during the proceedings, do not establish an appearance of impropriety. See Nachtsheim v. Wartnick, 411 N.W.2d 882, 891 (Minn. App. 1987) (encouraging pretrial settlement cannot be basis for bias claim), review denied (Minn. Oct. 28, 1987).

2. On appeal, appellant seeks to challenge the scope of the evidentiary hearing. The court informed the parties that it would not hold a hearing on custody, but would limit the hearing to the unresolved issues of support and visitation (unless the parties could identify an error, in which case an evidentiary hearing on all issues, including custody, would be held).

Appellant admits that he did not object to this procedural decision and, instead, seeks relief directly from this court. Having failed in the district court to object to the limited hearing, appellant waived his right to appeal that issue. Johnson v. Jensen, 446 N.W.2d 664, 665 (Minn. 1989); Speyer v. Savogran Co., 267 Minn. 67, 69, 124 N.W.2d 827, 829 (1963). In any event, appellant waived his right to a hearing on the custody issue by stipulating to the change in custody. Cf. McKinnon v. McKinnon, 352 N.W.2d 530, 531 (Minn. App. 1984) (mother's agreement to submit custody change to court for decision is interpreted as waiver of right to evidentiary hearing).

We reject appellant's contention that the court used the stipulation to avoid making findings on the child's best interest. The court has the right to accept the parties' stipulation if it is fair and reasonable. Karon v. Karon, 435 N.W.2d 501, 503 (Minn. 1989) (superseded in part by statute); cf. Ayers v. Ayers, 508 N.W.2d 515, 520 (Minn. 1993) (where parties agree on custody and court accepts their agreement, parties are bound by it).

3. Appellant claims he agreed to just a six-month change in custody. But appellant's claim is contrary to the plain language of the agreement. The court did exclude language from the stipulation that would have allowed a motion to modify after one year, but this does not amount to error. The court had the right to refuse to accept the parties' one-year modification provision. Karon, 435 N.W.2d at 503 (court has authority to reject part of stipulation). Further, appellant is not prejudiced by the court's exclusion of the one-year provision, for the statute itself allows a change of custody in less than two years if the child is endangered or if the parties agree to the change. Minn. Stat. § 518.18 (1994).

4. Appellant contends that the court is required to determine the child's custody preference. Appellant waived this issue by agreeing to a change of custody without reference to the child's preference.


[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, SS10.