This opinion will be unpublished and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:

Vera Elaine Clark, petitioner,



Richard N. Clark, III,


Filed March 18, 1997


Peterson, Judge

Lake County District Court

File No. F495149

Ronald B. Sieloff, Sieloff and Associates, P.A., 938 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for Appellant)

Richard N. Clark, III, Route 1, Box 295A, Two Harbors, MN 55616 (Pro Se Respondent)

Jean E. Johnson, 394 Lake Avenue South, Duluth, MN 55802 (Guardian Ad Litem)

Considered and decided by Willis, Presiding Judge, Parker, Judge, and Peterson, Judge.



This appeal is from a dissolution judgment granting physical custody of the parties' children to respondent and from an order denying appellant's motion for a new trial. We affirm.


The standard of review of a custody determination is "whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law." Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993). A custody determination must be based on a child's best interests, considering each of the statutory factors listed at Minn. Stat. § 518.17, subd. 1(a) (1994). See Schumm v. Schumm, 510 N.W.2d 13, 14 (Minn. App. 1993) (discussing 1992 version of statute).

The trial court found that two statutory factors favored granting custody to respondent:

1. Respondent's interaction and relationship with the children was more likely to advance the children's best interest; and

2. Respondent had the greater capacity to give the children love, affection and guidance.

See Minn. Stat. § 518.17, subd. 1(a) (5) (best interests factors include child's interaction and interrelationship with parents and any other person who may significantly affect child's best interests), (10) (best interests factors include parties' capacities to give child love, affection, and guidance). While the trial court found that appellant was the primary caretaker and that the remaining statutory factors did not favor one party over the other, the court concluded that the two factors that weighed in favor of respondent were determinative.


Appellant argues that the court erred by severing the primary caretaker relationship and awarding custody to respondent. However, appellant's argument ignores the trial court's finding that "[r]espondent's secondary role [as caretaker] was a close second. There was no substantial advantage." The primary caretaker finding is one of several statutory factors that the courts must consider. See Minn. Stat. § 518.17, subd. 1 (a) ("court may not use one factor to the exclusion of all others"). The trial court's statutory findings favor respondent and are supported by the record. Accordingly, its custody determination is not an abuse of discretion. Appellant also challenges the credibility of the evidence that supports the trial court's findings. However, this court defers to the trial court's ability to assess witness credibility. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).


Appellant alleges several procedural errors require reversal. She argues that she did not have an adequate opportunity to challenge the guardian ad litem's report. However, appellant examined the guardian concerning her report after it was submitted. See Scheibe v. Scheibe, 308 Minn. 449, 450, 241 N.W.2d 100, 100 (1976) (party to custody action has right to cross-examine author of custody report). Further, appellant did not object to the admission of the guardian's report or the extent of her opportunity to rebut it at the time of trial. Accordingly, appellant waived her right to raise these issues on appeal. See Johnson v. Southern Minn. Mach. Sales, Inc., 460 N.W.2d 68, 72 (Minn. App. 1990) (failure to object to admission of testimony at trial precludes raising issue for first time on appeal); Estate of Hartz v. Nelson, 437 N.W.2d 749, 752 (Minn. App. 1989) (admissibility of evidence cannot be questioned for the first time on appeal), review denied (Minn. July 12, 1989). Appellant also argues that the guardian was not qualified and gave an erroneous report, in effect challenging the guardian's credibility. Again, this court defers to the trial court's ability to assess credibility. Sefkow, 427 N.W.2d at 210. Finally, appellant argues it was error for the trial court not to grant a new trial in light of newly discovered evidence that respondent was involved with another woman. In considering appellant's motion for new trial, the trial court ruled that even if appellant's new evidence were true, it would not change the court's custody determination. The trial court's denial of appellant's motion for a new trial was not an abuse of discretion. See Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990) (decision to grant new trial lies within sound discretion of trial court and will not be reversed absent clear abuse of discretion).


Respondent seeks review of the trial court's division of the parties' property. However, respondent did not file a notice of review. See Minn. R. Civ. App. P. 106 (respondent may obtain review of a judgment in same action by filing notice of review within 15 days after service of notice of appeal). Accordingly, we will not consider respondent's claim of error. See Kolby v. Northwest Produce Co., 505 N.W.2d 648, 653 (Minn. App. 1993) (appellate court will not consider issues decided adversely to respondent when respondent has not filed notice of review).