This opinion will be unpublished and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

C5-97-2335

In Re the Marriage of:

Catherine A. Lawson, petitioner,

Respondent,

vs.

Douglas L. Lawson,

Appellant.

Filed June 30, 1998

Affirmed

Schumacher, Judge

Scott County District Court

File No. F9615832

Nancy C. Platto, 218 Pine Street, Post Office Box 257, Chaska, MN 55318 (for respondent)

Steven T. Hennek, Lawrence D. Olson & Associates, P.A., 2860 Snelling Avenue North, St. Paul, MN 55113 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Schumacher, Judge.

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

SCHUMACHER, Judge

Appellant Douglas L. Lawson (father) claims the district court erred in awarding sole physical custody of the parties' children to respondent Catherine A. Lawson (mother), in allowing certain testimony at trial, and in its division of the parties' property. We affirm.

FACTS

At the dissolution trial, the district court allowed mother to testify that father sexually abused her. In an amended judgment, the district court awarded mother sole physical and legal custody of the children and divided the property. Father claims the district court improperly (a) rejected the custody evaluator's recommendation; (b) received a biased report from the guardian ad litem; (c) awarded mother sole custody despite contrary recommendations by the custody evaluator and guardian ad litem; and (d) failed to award the parties joint physical custody. Father also claims the district court erred in admitting the testimony of abuse and in dividing property.

D E C I S I O N

1. Custody awards are based on a child's "best interests." Minn. Stat. 518.17, subd. 3(a)(3) (1996). Review of custody awards is limited to "whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law." Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). Findings of fact are not set aside unless clearly erroneous. Minn. R. Civ. P. 52.01.

Despite the fact that the district court addressed all of the best interest factors, father claims the district court's findings are inadequate to support the custody award because they are based on the guardian ad litem's report, which is not as credible as the custody evaluator's report. See Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991) (custody award contrary to report can be affirmed if district court explains why recommendation is rejected or makes detailed findings on best interests factors).

We reject father's argument because (a) it does not appear the custody findings were based solely on evidence from the guardian ad litem; (b) the alleged defects in the reasons for the guardian ad litem's recommendation were brought out at trial; (c) contrary to father's claims, the guardian ad litem testified the bulk of the information used to make her recommendation was not from mother; and (d) to the extent the district court used the evidence from the guardian ad litem, it implicitly found the evidence credible. We defer to that determination. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (appellate courts defer to district court credibility determinations); Alstores Realty, Inc. v. State, 286 Minn. 343, 353, 176 N.W.2d 112, 118 (1970) (weight and credibility of expert testimony is for trier of fact to determine).[1]

Father claims the district court should not have received the guardian ad litem's report because she was only directed to mediate visitation disputes. We disagree. See Minn. Stat. 518.165, subd. 2a(5) (1996) (guardian ad litem "shall" make "written reports" on child's best interests including "recommendations and the facts upon which they are based"); Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990) (whether to receive evidence is discretionary with district court).

Noting the guardian ad litem is not a psychologist, father claims she was unqualified to make a custody report. The only statutory requirement for guardians ad litem is that they be selected "from a panel established by the court." Minn. Stat. 518.165, subd. 1 (1996). Father does not claim the guardian ad litem was not on the list of approved guardians ad litem and the list is not in the file. See Truesdale v. Friedman, 267 Minn. 402, 404, 127 N.W.2d 277, 279 (1964) (party seeking review must ensure appellate court gets record showing errors).

Father claims the district court should have awarded joint physical custody under Veit v. Veit, 413 N.W.2d 601 (Minn. App. 1987) and Berthiaume v. Berthiaume, 368 N.W.2d 328 (Minn. App. 1985). In those cases, this court affirmed awards of joint physical custody. Veit, 413 N.W.2d at 605; Berthiaume, 368 N.W.2d at 332-33. Here, the district court refused to award joint physical custody. Joint physical custody is a disfavored custodial status. See Molto v. Molto, 242 Minn. 112, 115, 64 N.W.2d 154, 157 (1954) ("[d]ivided custody of a child between two different homes and two different home influences should not be encouraged even where both homes are proper"). In addition, these parties cannot communicate with each other. See, e.g., Greenlaw v. Greenlaw, 396 N.W.2d 68, 73-74 (Minn. App. 1986) (reversing award of joint physical custody where parties could not communicate). Further, because the district court found that this case involves domestic abuse, there is a presumption against joint physical custody. Minn. Stat. 518.17, subd. 2(d). The district court did not abuse its discretion by refusing to order joint physical custody.

We reject any argument father makes claiming mother precluded an award of joint physical custody by acting in bad faith and creating visitation disputes. The existence of bad faith is a fact question. Uselman, 464 N.W.2d at 140. Viewed in the light most favorable to the district court's findings, the record does not show the district court's implicit ruling that mother did not act in bad faith is clearly erroneous.

2. Father claims he was entitled to a new trial because mother surprised him with the testimony about non-consensual sex. See Minn. R. Civ. P. 59.01(c) (allowing new trial for surprise). Neither father's new trial motion nor his objection at trial included a claim of surprise. Nor did he seek a continuance. Father waived any claim he may have had. See Poppler v. O'Connor, 306 Minn. 539, 541 n.1, 235 N.W.2d 617, 619 n.1 (1975) (absent proper objection at trial, party may not enlarge objection in new trial motion or on appeal and waives claim of error).

3. Father summarily states that the district court abused its discretion by making an inequitable division of property. See Minn. Stat. 518.58, subd. 1 (1996) (requiring district court to make equitable division of property); Rohling v. Rohling, 379 N.W.2d 519, 522 (Minn. 1986) (district court has broad discretion when dividing property and will be affirmed if division has acceptable basis in fact and principle even if appellate court may have decided differently). We see no obvious error in the property distribution.

Affirmed.

[ ]1 Under a similar analysis, we reject father's claim that mother's testimony about the non-consensual sex was not credible.