This opinion will be unpublished and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:

Edward William Kale, petitioner,



Katherine Bess Jacquot, f/k/a Katherine Bess Kale,


Filed August 19, 1997


Schumacher, Judge

St. Louis County District Court

File No. F891600348

Edward W. Kale, 23 East Seventh Street, Duluth, MN 55805 (appellant pro se)

Katherine Bess Jacquot, 713 East Seventh Street, Duluth, MN 55805 (respondent pro se)

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




After an acrimonious proceeding, a stipulated judgment dissolved the marriage of appellant Edward William Kale (father) and respondent Katherine Bess Jacquot, f/k/a Katherine Bess Kale (mother). The judgment awarded mother custody of the parties' children. Later, father sought to modify custody and mother absconded with the children. After five months, mother was located, extradited back to Minnesota, and father was awarded temporary custody. The parties then made a series of custody- and visitation-related motions resulting in a seven-day hearing. On November 21, 1996, the district court granted mother's motion to have the children replaced with her, denied father's motion for custody of the children, and set a visitation schedule. Father appealed. Both parties are pro se on appeal.


1. Father asks that this court strike certain items from the appendix to mother's brief. Because mother's motion asking this court to accept her late brief admits the items in question are not part of the record, we grant father's motion. See Mitterhauser v. Mitterhauser, 399 N.W.2d 664, 667 (Minn. App. 1987) (appellate courts cannot base decisions on information not in record and matters not in record "must be stricken").

Father claims mother's brief raises issues beyond those raised in his brief and asks this court to strike mother's brief because she did not file a notice of review. See Minn. R. Civ. App. P. 106 (respondents raise issues on appeal by filing notice of review). Assuming mother's brief raises issues beyond those in father's brief, striking mother's brief is not necessary or warranted. See City of Ramsey v. Holmberg 548 N.W.2d 302, 305 (Minn. App. 1996) (if party fails to file notice of review regarding a particular issue, "the issue is not preserved for appeal and a reviewing court cannot address it") (citing Potter v. LaSalle Sports & Health Club, 368 N.W.2d 413, 418 (Minn. App. 1985), aff'd, 384 N.W.2d 873 (Minn. 1986) (emphasis added)), review denied (Minn. Aug. 6, 1996), cert. denied, 117 S. Ct. 766 (1997). We address only the issues raised by father.

2. Father challenges almost all the district court's findings of fact. Findings of fact are not altered on appeal unless clearly erroneous. Minn. R. Civ. P. 52.01. A finding is clearly erroneous if it is "manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole." Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975) (citation omitted). In custody disputes, the evidence is viewed in the light most favorable to the district court's findings. Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn. 1993). We note (a) father's challenges to a number of the findings are based on his implicit or explicit assessment of lay and/or expert witness credibility; (b) father has failed to allege any specific prejudice from a number of the allegedly erroneous findings; (c) while, in certain instances, the record could support the finding father claims the district court should have made, the record also supports the findings the district court did make; and (d) the harm father alleges will occur because of the alleged errors in some findings is speculative because that harm has not happened yet and may not happen in the future. Under these circumstances, we will not alter the district court's findings. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (appellate courts defer to district court credibility determinations); Bury v. Bury, 416 N.W.2d 133, 137 (Minn. App. 1987) (where expert testimony conflicts, appellate courts defer to district court's evaluation of expert credibility); Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (successful challenge to finding requires showing the finding is clearly erroneous and that error caused prejudice); Minn. R. Civ. P. 61 (harmless error is ignored); McCabe v. McCabe, 430 N.W.2d 870, 873 (Minn. App. 1988) (where record supports any of several findings, including one made by district court, this court defers to district court's finding), review denied (Minn. Dec. 30, 1988); see generally Wilson v. Moline, 234 Minn. 174, 182, 47 N.W.2d 865, 870 (1951) (function of an appellate court "does not require us to discuss and review in detail the evidence for the purpose of demonstrating that it supports the trial court's findings[; our] duty is performed when we consider all the evidence, as we have done here, and determine that it reasonably supports the findings").

3. The district court "shall not" modify custody unless, among other things, the children's present environment endangers the children. Minn. Stat. § 518.18(d) (1996). On appeal from a motion to modify custody, we review "whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law." In re Welfare of H.M.S., 541 N.W.2d 301, 303 (Minn. 1995).

The bulk of father's claim that the district court should have found endangerment is based on mother's prior conduct in withholding visitation and absconding with the children. Mother, however, has admitted that her prior conduct was improper and stated that she will not pursue such a course of action in the future and will abide by the court's order. The district court found mother's promise to abide by the court's order to be credible. We will not reverse the district court's refusal to conclude that the children were endangered, especially here where much of the basis for the alleged endangerment is prior conduct mother has explicitly renounced. See Sefkow, 427 N.W.2d at 210 (appellate courts defer to district court credibility determinations).

Because we affirm the district court's refusal to conclude endangerment exists, we need not address the other requirements for a custody modification listed in Minn. Stat. § 518.18. See Niemi v. Schachtscheider, 435 N.W.2d 117, 119 (Minn. App. 1989) (lack of endangerment fatal to custody modification); see also Dabill v. Dabill, 514 N.W.2d 590, 595 (Minn. App. 1994) (endangerment described as "threshold" for modifying custody). We note, however, that father's claims that he should get "credit" for providing the children with a stable home while he had temporary custody is inconsistent with statute. See Minn. Stat. § 518.131, subd. 9(a) (1996) (temporary orders shall not prejudice parties' rights in later proceedings).