may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Yemane Gebrekidan, petitioner,
Selamawit Hlefom Bokru,
Filed December 2, 1997
Nobles County District Court
File No. F796452
William J. Wetering, Hedeen, Hughes, Wetering & Kness, 1206 Oxford Street, Post Office Box 9, Worthington, MN 56187 (for respondent)
Considered and decided by Peterson, Presiding Judge, Klaphake, Judge, and Davies, Judge.
This appeal is from a judgment granting respondent sole physical and legal custody of the parties' daughter. We affirm.
In October of 1995, respondent was convicted of fifth-degree assault following a domestic incident. In December of 1995, the parties separated and appellant was awarded temporary custody of their daughter. A guardian ad litem was appointed to perform a custody investigation.
At the dissolution trial, appellant, her boyfriend, her boyfriend's sister, a neighbor, and a previous daycare provider testified concerning appellant's parenting abilities and accused respondent of domestic abuse. Respondent and his girlfriend testified concerning respondent's parenting abilities and his relationship with the child. The guardian ad litem's opinion was that the best interests of the child would be served by awarding custody to respondent. The trial court awarded respondent sole legal and physical custody of the child.
When determining custody, the trial court must consider the best interests of the child in view of the statutory factors set out in Minn. Stat. § 518.17, subd.1(a). Nazar v. Nazar, 505 N.W.2d 628, 633 (Minn. App. 1993), review denied (Oct. 28, 1993). One of the statutory factors is
(12) the effect on the child of the actions of an abuser, if related to domestic abuse, as defined in section 518B.01, that has occurred between the parents.
Minn. Stat. § 518.17, subd.1(a)(12) (1996).
The trial court found:
The [respondent] was charged and found guilty of fifth degree assault arising from a domestic incident occurring in October of 1995. The [respondent] complied with all the required elements of the sentence relating to this offense. There is no information which shows by a preponderance of the evidence that any domestic abuse occurred before or after the incident in question. There is no information that the incident in question had any significant impact upon the life of the child or that it will continue to affect the life of the child in any manner.
Appellant argues that this finding is contrary to the evidence introduced at trial and that the trial court abused its discretion by not considering the October 1995 criminal assault file and the trial testimony about domestic abuse respondent inflicted on appellant. We disagree.
The finding addresses the effect on the child of domestic abuse that occurred between the parents as required under Minn. Stat. § 518.17, subd. 1(a)(12). Although the testimony of appellant's witnesses may have supported a contrary finding, it is the explicit duty of the trial court to assess the credibility of witnesses, and this court will not second-guess that assessment unless it is clear that it had no reasonable basis. Uhl v. Uhl, 395 N.W.2d 106, 110 (Minn. App. 1986). The trial court heard evidence from both parties regarding the issue of domestic abuse, weighed the conflicting testimony, and made its findings. In its memorandum, the trial court stated:
[T]here was a significant difference in the testimony of the [respondent] and [appellant] relating to various issues. The Court does find the [respondent] to be more credible than the [appellant] on these matters and that observation of the Court, based upon the demeanor of the parties and the nature of their testimony, is incorporated into the Findings.
We cannot conclude that there is no reasonable basis for the trial court's determination that respondent's testimony was more credible than appellant's testimony.
In a civil action in which a person handicapped in communication is a party, the trial court "shall appoint a qualified interpreter to serve throughout the proceedings." Minn. Stat. § 546.43, subd.1 (1996). A person handicapped in communication is one who
because of difficulty in speaking or comprehending the English language, is unable to fully understand the proceedings in which the person is required to participate, or when named as a party to a legal proceeding, is unable by reason of the deficiency to obtain due process of law.
Minn. Stat. § 546.42 (1996).
Appellant, however, did not raise this issue during trial or in a posttrial motion. Therefore, we are precluded from considering the issue on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (appellate court will address only issues presented to and considered by district court in deciding matter); see also Doan v. Medtronic, Inc., 560 N.W.2d 100, 107 (Minn. App. 1997) (appellate court will not review trial court's failure to appoint interpreter sua sponte during trial when complaining party did not raise issue during trial or in posttrial motion), review denied (Minn. May 13, 1997).